Food & Water Watch v. Fed. Energy Regulatory Comm'n

• Decision Date: 11 March 2022
• Docket Number: No. 20-1132,20-1132
• Parties: FOOD & WATER WATCH and Berkshire Environmental Action Team, Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Eversource Energy Service Company and Tennessee Gas Pipeline Company, LLC, Intervenors
• Court: U.S. Court of Appeals — District of Columbia Circuit

28 F.4th 277

FOOD & WATER WATCH and Berkshire Environmental Action Team, Petitioners

v. FEDERAL ENERGY REGULATORY COMMISSION, RespondentEversource Energy Service Company and Tennessee Gas Pipeline Company, LLC, Intervenors

No. 20-1132

United States Court of Appeals, District of Columbia Circuit.

Argued February 12, 2021

Decided March 11, 2022

Adam S. Carlesco argued the cause and filed the briefs for petitioners. Zachary B. Corrigan and Carolyn Elefant entered appearances.

Richard L. Revesz and Jason A. Schwartz were on the brief for amicus curiae the Institute for Policy Integrity at New York University School of Law in support of petitioners.

Susanna Y. Chu, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were David L. Morenoff, Acting General Counsel, Robert H. Solomon, Solicitor, and Robert M. Kennedy, Senior Attorney.

Brian D. O'Neill argued the cause for intervenors. With him on the brief were Michael R. Pincus and Mary E. Grover.

Michael L. Murray and Matthew J. Agen were on the brief for amicus curiae American Gas Association in support of respondent.

Jeremy C. Marwell and Matthew X. Etchemendy were on the brief for amici curiae Interstate Natural Gas Association of America and American Fuel & Petrochemical Manufacturers in support of respondent.

Before: Srinivasan, Chief Judge, Millett and Katsas, Circuit Judges.

Srinivasan, Chief Judge:

Two environmental groups, Food & Water Watch and Berkshire Environmental Action Team, petition for review of the Federal Energy Regulatory Commission's decision to authorize a new natural gas pipeline and compressor station in Agawam, Massachusetts. One of those petitioners, Berkshire, has failed to establish its standing to challenge the Commission's decision. The other petitioner, Food & Water Watch, raises a variety of challenges related to the Commission's compliance with the National Environmental Policy Act. In the main, we reject Food & Water Watch's claims. But we agree with its contention that the Commission's environmental assessment failed to account for the reasonably foreseeable indirect effects of the project—specifically, the greenhouse-gas emissions attributable to burning the gas to be carried in the pipeline. We grant Food & Water Watch's petition for review on that basis and remand for preparation of a conforming environmental assessment.

I.

A.

The Natural Gas Act vests the Federal Energy Regulatory Commission with authority to regulate the interstate transportation of natural gas. 15 U.S.C. § 717. To construct or operate an interstate natural gas pipeline, an entity must first obtain "a certificate of public convenience and necessity," 15 U.S.C. § 717f(c), known as a Section 7 certificate, from the Commission.

The Section 7 certificate process incorporates review of proposed projects under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. "NEPA establishes an environmental review process under which federal agencies identify the reasonable alternatives to a contemplated action and look hard at the environmental effects of their decisions." City of Bos. Delegation v. FERC , 897 F.3d 241, 246 (D.C. Cir. 2018) (alterations and quotation marks omitted).

Under NEPA, agencies must prepare "detailed" environmental impact statements for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). But not all federal actions fall into that category. An agency may preliminarily prepare an environmental assessment to determine whether the more rigorous environmental impact statement is required. Myersville Citizens for a Rural Cmty., Inc. v. FERC , 783 F.3d 1301, 1322 (D.C. Cir. 2015) (citing 40 C.F.R. §§ 1501.4, 1508.9 ). An environmental assessment "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement." 40 C.F.R. § 1508.9(a)(1). That analysis must include a discussion of "the environmental impacts of the proposed action and alternatives." Id. § 1508.9(b). If, based on the environmental assessment, the agency determines that the proposed action "will not have a significant effect on the human environment," it need not prepare an environmental impact statement. Id. § 1508.13. Instead, the agency can issue a formal "finding of no significant impact." Id.

B.

Tennessee Gas Pipeline Co. operates an approximately 11,000-mile interstate natural gas pipeline system that traverses much of the eastern half of the United States. In late 2018, Tennessee Gas sought the Commission's approval for a modest expansion of that system. The expansion, which the parties refer to as the Upgrade Project, involves the addition of 2.1 miles of pipeline and a new compressor station to Tennessee Gas's existing facilities in Agawam, Massachusetts.

As required by the Natural Gas Act, Tennessee Gas applied for a Section 7 certificate for the Upgrade Project. According to the application, the Upgrade Project would serve three purposes. First, it would increase the system's transportation capacity by 72,400 dekatherms per day, helping Tennessee Gas to meet the demand of downstream local distributors. At the time of the application, more than half of the gas the pipeline would carry was already under contract with Columbia Gas of Massachusetts (40,400 dekatherms per day) and Holyoke Gas and Electric Department (5,000 dekatherms per day). Second, the Upgrade Project would improve the reliability of Tennessee Gas's service. And third, the new compressor station would enable Tennessee Gas to retire two older, less-efficient compressor units.

In May 2019, in accordance with NEPA, the Commission completed its Environmental Assessment of the Upgrade Project. The Assessment determined that, with appropriate mitigation measures, the Upgrade Project would not constitute a major federal action significantly affecting the environment. In December 2019, the Commission issued a Certificate Order approving the project. Order Issuing Certificate, Tennessee Gas Pipeline Co., L.L.C. , 169 FERC ¶ 61,230 (Dec. 19, 2019) (Certificate Order). The Certificate Order adopted the Environmental Assessment's conclusion and made a formal finding that the Upgrade Project would have no significant environmental impact. Commissioner Glick filed a partial dissent, taking issue with the Commission's treatment of the project's environmental impacts, particularly its climate-change implications.

Petitioners Food & Water Watch and Berkshire filed timely rehearing requests, which the Commission denied in a February 2020 Rehearing Order. Order Denying Rehearing and Stay, Tennessee Gas Pipeline Co., L.L.C. , 170 FERC ¶ 61,142 (Feb. 21, 2020). The Commission reaffirmed its approval of the Upgrade Project and defended its assessment of the environmental impacts. Commissioner Glick reiterated his partial dissent.

Food & Water Watch and Berkshire then jointly petitioned our court for review of the Certificate Order and the Rehearing Order.

II.

We begin by examining our jurisdiction to consider the claims presented in the joint petition for review. Two jurisdictional requirements are relevant here: (i) Article III standing, and (ii) statutory subject-matter jurisdiction under the Natural Gas Act. As to the first, while Food & Water Watch has established its standing, Berkshire has not. As to the second, in view of Berkshire's lack of standing, we have jurisdiction to review only those issues that Food & Water Watch adequately preserved before the Commission.

A.

Although the Commission does not challenge either petitioner's standing, "it is well established that the court has an independent obligation to assure that standing exists." Summers v. Earth Island Inst. , 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). To establish standing under Article III of the Constitution, a party must demonstrate (i) an injury in fact, (ii) that is fairly traceable to the challenged conduct, and (iii) that is likely to be redressed by a favorable decision. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An association like Food & Water Watch or Berkshire has standing only if "(1) at least one of its members would have standing to sue in [its] own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit." Sierra Club v. EPA , 292 F.3d 895, 898 (D.C. Cir. 2002).

Plainly, the claims brought by Food & Water Watch and Berkshire are germane to both associations’ purposes of environmental protection. And "the relief sought under the Administrative Procedure Act does not require the participation of individual members." Sierra Club v. FERC , 827 F.3d 36, 43 (D.C. Cir. 2016) [ Sierra Club ]. The question of individual-member standing is thus "where the rub is." Id. Petitioning associations may seek to make the requisite showing through affidavits from members, and both have attempted to do so here. Sierra Club v. FERC , 867 F.3d 1357, 1365 (D.C. Cir. 2017) [ Sabal Trail ].

Food & Water Watch has met its burden to show that at least one of its members would have individual standing to sue. First, its members’ affidavits identify harms to "concrete aesthetic and recreational interests." WildEarth Guardians v. Jewell , 738 F.3d 298, 305 (D.C. Cir. 2013). Linda Grimaldi, whose property is near the site of the Upgrade Project's proposed compressor station, provides the clearest example. She explains that the proposed construction would increase noise and pollution at her home, impairing the financial value of her property and her peaceful enjoyment of it. Those sorts of harms satisfy Article III's injury-in-fact requirement. See, e.g. , Sabal Trail , 867 F.3d at 1365–66 ; Sierra Club , 827 F.3d at 44.

Grimaldi's affidavit similarly makes the second and third required...