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United States Court of Appeals for the District of Columbia Circuit
February 12, 2021, Argued; March 11, 2022, Decided
Opinion for [*2] the Court filed by Chief Judge SRINIVASAN.
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.
] 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 [*3] 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, 437 U.S. App. D.C. 388 (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, 414 U.S. App. D.C. 438 (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 [*4] 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.
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2022 U.S. App. LEXIS 6299 *; 28 F.4th 277
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
Subsequent History: Request granted, Costs and fees proceeding at Food & Water Watch & Berkshire Env't Action Team v. FERC, 2022 U.S. App. LEXIS 9697 (D.C. Cir., Apr. 11, 2022)
Prior History: [*1] On Petition for Review of Orders of the Federal Energy Regulatory Commission.
downstream, emissions, pipeline, Certificate, effects, reasonably foreseeable, indirect effect, environmental assessment, transportation, natural gas, projects, station, upstream, foreseeability, environmental, environmental impact, consumption, connected, assess, greenhouse-gas, impacts, environmental impact statement, compressor, customers, contends, prepare, per day, forecasting, obligations, dekatherms
Energy & Utilities Law, Regulators, US Federal Energy Regulatory Commission, Authorities & Powers, Natural Gas Industry, Natural Gas Act, Certificates of Need, Pipelines & Transportation, Natural Gas Transportation, Civil Actions, Jurisdiction, Certification & Licenses, Business & Corporate Compliance, Environmental Law, Assessment & Information Access, Environmental Impact Statements, Environmental Law, Audits & Site Assessments, Environmental Assessments, Civil Procedure, Justiciability, Standing, Injury in Fact, Constitutional Law, Case or Controversy, Elements, Third Party Standing, Administrative Law, Judicial Review, Reviewability, Standing, Personal Stake, Hearings & Orders, Judicial Review, Administrative Proceedings, Standards of Review, Standards of Review, Arbitrary & Capricious Standard of Review, Assessment & Information Access, Administrative Proceedings & Litigation, Pipelines, Rates, Electric Power Industry, Federal Power Act, Exhaustion of Remedies, Administrative Remedies, Remand & Remittitur