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United States Court of Appeals for the District of Columbia Circuit
March 23, 2021, Argued; August 3, 2021, Decided
No. 20-1045, No. 20-1093 Consolidated with 20-1094
[*1325] Wilkins, Circuit Judge: Petitioners seek review of the decision by the Federal Energy Regulatory Commission ("the Commission") to authorize the construction and operation of three liquified natural gas ("LNG") export terminals on the shores of the Brownsville Shipping Channel in Cameron County, Texas, and the construction and operation of two 135-mile pipelines that will carry LNG to one of those terminals. The petition in No. 20-1045 concerns the Commission's approval of one of the terminals (the "Rio Grande terminal") and the pipelines. The petitions in Nos. 20-1093 and 20-1094 concern the Commission's approval of the other two terminals (the "Annova terminal" and "Texas terminal," respectively).
Petitioners raise [**3] several claims under the National Environmental Policy Act ("NEPA"), the Administrative Procedure Act ("APA"), and the Natural Gas Act ("NGA"). In this opinion, we dismiss the petition in No. 20-1093 as moot, and grant the other petitions for review with respect to Petitioners' claims that the Commission's analyses of the projects' impacts on climate change and environmental justice communities were deficient under NEPA and the APA, and that the Commission failed to justify its determinations of public interest and convenience under Sections 3 and 7 of the NGA. We remand without vacatur for the Commission to remedy those failures. In an accompanying judgment, we deny the petitions for review with respect to Petitioners' remaining claims, which we find to be without sufficient merit to warrant explication in a published opinion, see, e.g., Greene v. Dalton, 164 F.3d 671, 676, 334 U.S. App. D.C. 92 (D.C. Cir. 1999).
] The Commission and the Department of Energy ("the Department") share responsibility for regulating the domestic transport and export of LNG. The Department maintains exclusive authority over the export of LNG as a commodity. 42 U.S.C. § 7151(b). The Department has delegated to the Commission the [**4] authority to approve or disapprove the siting, construction, expansion, or operation of an LNG terminal for exporting LNG. U.S. Department of Energy, Delegation Order No. 00-004.00A, § 1.21.A (May 16, 2006); cf. 15 U.S.C. § 717b(e)(1). Thus, a would-be exporter of LNG must obtain authorization from the Department to export LNG and authorization from the Commission to construct and operate the necessary facilities. Sierra Club v. FERC, 827 F.3d 36, 41, 423 U.S. App. D.C. 394 (D.C. Cir. 2016). In addition, the NGA requires the Commission's approval for the construction and operation of interstate LNG pipelines. 15 U.S.C. § 717f(c)(1)(A).
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6 F.4th 1321 *; 2021 U.S. App. LEXIS 22881 **; __ Fed. Appx. __; 2021 WL 3716769
VECINOS PARA EL BIENESTAR DE LA COMUNIDAD COSTERA, ET AL., PETITIONERS v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT, RIO GRANDE LNG, LLC AND RIO BRAVO PIPELINE COMPANY, LLC, INTERVENORS;VECINOS PARA EL BIENESTAR DE LA COMUNIDAD COSTERA, ET AL., PETITIONERS v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT, TEXAS LNG BROWNSVILLE LLC, INTERVENO
Notice: THIS OPINION IS SUBJECT TO FORMAL REVISION BEFORE PUBLICATION IN THE FEDERAL REPORTER OR U.S. APP. D.C. REPORTS. USERS ARE REQUESTED TO NOTIFY THE CLERK OF ANY FORMAL ERRORS IN ORDER THAT CORRECTIONS MAY BE MADE BEFORE THE BOUND VOLUMES GO TO PRESS.
Subsequent History: Rehearing denied by Vecinos para el Bienestar de la Comunidad Costera v. FERC, 2021 U.S. App. LEXIS 31156 (D.C. Cir., Oct. 15, 2021)
Prior History: [**1] On Petition for Review of Orders of the Federal Energy Regulatory Commission.
On Petition for Review of Orders of the Federal Energy Regulatory Commission.
Tex. LNG Brownsville LLC, 170 F.E.R.C. P61139, 2020 FERC LEXIS 254 (F.E.R.C., Feb. 21, 2020)Annova LNG Common Infrastructure, LLC, 175 F.E.R.C. P61030, 2021 FERC LEXIS 515 (F.E.R.C., Apr. 15, 2021)Rio Grande LNG, LLC, 174 F.E.R.C. P61048, 2021 FERC LEXIS 83 (F.E.R.C., Jan. 19, 2021)
environmental, impacts, terminal, analyses, pipeline, climate, emissions, greenhouse, public interest, projects, protocol, export, determinations, authorization, convenience, orders, social cost, carbon, project site, construction and operation, regulation, blocks, census, populations, environmental effect, disproportionately, incremental, low-income, approving, construct
Energy & Utilities Law, Regulators, US Federal Energy Regulatory Commission, Authorities & Powers, Natural Gas Industry, Liquefied Natural Gas, Pipelines & Transportation, Natural Gas Transportation, Civil Actions, Jurisdiction, Natural Gas Act, Certificates of Need, Business & Corporate Compliance, Environmental Law, Assessment & Information Access, Environmental Impact Statements, Pipelines, Rates, Governments, Federal Government, Executive Offices, Administrative Law, Judicial Review, Standards of Review, Arbitrary & Capricious Standard of Review, Environmental Law, Administrative Proceedings & Litigation, Judicial Review, Administrative Proceedings, Standards of Review, Hearings & Orders, Remand & Remittitur, Civil Procedure, Judgments, Relief From Judgments, Vacation of Judgments