Union of Concerned Scientists v. DOE

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2021 Decided May 28, 2021
No. 20-1247
UNION OF CONCERNED SCIENTISTS,
PETITIONER
v.
UNITED STATES DEPARTMENT OF ENERGY,
RESPONDENT
On Petition for Review of an Order
of the Department of Energy
David C. Bender argued the cause for petitioner. On the
briefs were Kim Smaczniak and Charles Carter Hall.
Sarah Carroll, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Brian M. Boynton, Acting Assistant Attorney General, and
Michael S. Raab, Attorney.
Delia D. Patterson, John E. McCaffrey, Robert Stroh,
Jonathan D. Schneider, and Nicholas J. Pascale were on the
brief for amici curiae American Public Power Association, et
al. in support of respondent.
Before: ROGERS and KATSAS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
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Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The Union of Concerned
Scientists petitions for review of a Department of Energy rule
concerning the designation of “critical electric infrastructure
information,” 16 U.S.C. § 824o-1(a)(3). The Union contends
that the rule exceeds the Department’s authority under section
215A of the Federal Power Act, is arbitrary and capricious, and
was promulgated in violation of the notice and comment
requirements of the Administrative Procedure Act. Because
the Union has not shown that it has standing under Article III
of the Constitution to bring this facial challenge, the court lacks
jurisdiction and must dismiss the petition.
I.
In 2015, Congress amended the Federal Power Act to add
section 215A, authorizing the Federal Energy Regulatory
Commission (“FERC”) and the Secretary of Energy (“DOE”)
to designate information as critical electric infrastructure
information (“CEII”). See Fixing America’s Surface
Transportation Act (the “FAST Act”), Pub. L. No. 114-94,
§ 61003, 129 Stat. 1312, 1773–79 (2015) (codified at 16 U.S.C.
§ 824o-1). Section 215A defines CEII as “information related
to critical electric infrastructure, or proposed critical electrical
infrastructure, generated by or provided to the [FERC] or other
Federal agency, other than classified national security
information, that is designated as [CEII]” by FERC or DOE.
16 U.S.C. § 824o-1(a)(3). In turn, “critical electric
infrastructure” is defined as “a system or asset of the bulk-
power system, whether physical or virtual, the incapacity or
destruction of which would negatively affect national security,
economic security, public health or safety, or any combination
of such matters.” Id. § 824o-1(a)(2). CEII is exempt from
disclosure under the Freedom of Information Act (“FOIA”) and
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is not to be “made available by any Federal, State, political
subdivision or tribal authority pursuant to any Federal, State,
political subdivision or tribal law requiring public disclosure of
information or records.” Id. § 824o-1(d)(1).
Section 215A directed that FERC, “after consultation
with” the Secretary of Energy, “promulgate such regulations as
necessary to . . . establish criteria and procedures to designate
information as” CEII; prohibit its unauthorized disclosure;
ensure appropriate sanctions are in place for FERC and
Department of Energy (also “DOE”) personnel and agents who
make unauthorized disclosures; and “facilitate voluntary
sharing of [CEII] with, between, and by” several specific
categories of entities, as well as “other entities determined
appropriate by the [FERC].” Id. § 824o-1(d)(2). On December
21, 2016, FERC promulgated the necessary regulations. See
Regulations Implementing FAST Act Section 61003 —
Critical Electric Infrastructure Security & Amending Critical
Energy Infrastructure Information; Availability of Certain
North American Electric Reliability Corporation Databases
(“CEII 2016 Rule”), 157 FERC ¶ 61,123, 81 Fed. Reg. 93,732
(Dec. 21, 2016) (codified as relevant at 18 C.F.R. § 388.113).
Section 215A also authorizes DOE to designate
information as CEII, providing that “[i]nformation may be
designated by the [FERC] or [DOE] as [CEII] pursuant to the
criteria and procedures established by the [FERC.]” 16 U.S.C.
§ 824o-1(d)(3). On October 29, 2018, DOE published a notice
of proposed rulemaking on new CEII administrative
procedures. See 83 Fed. Reg. 54,268 (proposed Oct. 29, 2018).
Interpreting the CEII 2016 Rule’s designation procedures as
applicable only to FERC, DOE proposed its own designation
procedures, id. at 54,269, as well as procedures for non-federal
entities to request access to CEII held by DOE, id. at 54,270–
71. On March 16, 2020, DOE issued the Critical Electric
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Infrastructure Information; New Administrative Procedures
(“CEII 2020 Rule”), 85 Fed. Reg. 14,756 (Mar. 16, 2020)
(codified at 10 C.F.R. § 1004.13). Repeating that it “follows
the designation criteria FERC has already formulated, but
establishes its own procedures for such designation,” DOE
described any differences in procedures as largely
inconsequential and “consistent with FERC’s rule to the
maximum extent possible[.]” Id. at 14,757.
II.
The Union is a national nonprofit organization consisting
of scientists, engineers, analysts, and policy and
communication experts who conduct “independent analyses”
that the Union uses “to develop and test proposed policies, to
educate the public and decision-makers, and to advocate for
evidence-based solutions.” Pet’r’s Br. 31. Together with
Public Citizen, the Union unsuccessfully petitioned DOE for
rehearing of the CEII 2020 Rule, and it now petitions for
judicial review. The Union contends that DOE exceeded its
authority under section 215A by promulgating different criteria
and procedures for CEII designation than those in the CEII
2016 Rule. It also contends that DOE’s rule is arbitrary and
capricious because it (1) conflicts with DOE’s obligations
under FOIA and the Federal Records Act; (2) risks violation of
the due process rights of parties in proceedings before DOE;
and (3) contains overly broad CEII designation criteria and
excessively restrictive limits on access to CEII by non-federal
entities. Further, the Union contends that DOE violated the
notice and comment requirements of the Administrative
Procedure Act. DOE responds that the Union lacks standing to
bring this challenge because there is no indication that DOE’s
rule would deprive the Union or its members of information
they would receive if DOE were to apply the CEII 2016 Rule
promulgated by FERC.
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As a threshold matter, the court must determine whether it
has jurisdiction to consider this facial challenge to the CEII
2020 Rule. The Union maintains that it has Article III standing
because it will be denied access to information under DOE’s
rule that it could obtain under FERC’s rule, namely both
information designated as CEII by DOE and non-CEII that the
Union would seek from DOE under FOIA. In its reply brief,
the Union also claims for the first time a future drain on its
resources because it “will have to spend additional person-
hours to meet the demands of [DOE]’s more burdensome
procedures[.]” Reply Br. 10. For the following reasons, we
hold that the Union’s first asserted injury, which is an
informational injury, is speculative and that its second asserted
injury is forfeited.
“To establish Article III standing, a petitioner must
demonstrate it has suffered a concrete and particularized injury
that is imminent and not conjectural, that was caused by the
challenged action, and that is likely to be redressed by a
favorable judicial decision.” Texas v. EPA, 726 F.3d 180, 198
(D.C. Cir. 2013) (citing Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61 (1992)). The Union’s informational injury is a
possible future injury and therefore implicates the imminence
requirement. Cf. Arpaio v. Obama, 797 F.3d 11, 21 (D.C. Cir.
2015). Although it is “a somewhat elastic concept,”
imminence “cannot be stretched beyond its purpose, which is
to ensure that the alleged injury is not too speculative for
Article III purposes[.]” Clapper v. Amnesty Int’l USA, 568
U.S. 398, 409 (2013) (internal quotation marks omitted).
Consequently, a threatened injury must be “certainly
impending” or there has to be a “substantial risk that the harm
will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158 (2014) (internal quotation marks omitted) (citing Clapper,
568 U.S. at 414 n.5).
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Here, the Union is concerned about future access to two
kinds of information: CEII held by DOE and information that
DOE will decide should not be designated as CEII and that
would therefore be subject to FOIA. Declarations in the
addendum to its opening brief reflect that the Union regularly
seeks and relies on the availability of both kinds of information
from DOE. See, e.g., Decl. of Steve Clemmer, Director of
Energy Research and Analysis, Climate and Energy Program
¶¶ 7–8, 10–11, 13–14; Decl. of Sam Gomberg, Senior Analyst,
Climate and Energy Program ¶¶ 7–8. And the Union intends
to continue seeking these kinds of information from DOE in
the future. See, e.g., Clemmer Decl. ¶¶ 11, 13–14; Decl. of
Michael Jacobs, Senior Energy Analyst, Climate and Energy
Program ¶¶ 8–9.
As to CEII held by DOE, the Union contends its access
will be impaired because, compared to FERC’s rule, DOE’s
rule contains broader criteria for CEII designation and more
restrictions on CEII access. In terms of designation criteria, the
Union points out that even though DOE changed course
between its proposed and final rules on the “pre-designation”
of certain categories of information as CEII, the preamble to
DOE’s rule provides that in determining whether information
qualifies as CEII, DOE still plans to consider whether the
information falls into one or more of those categories, namely:
“[1] Defense Critical Electric Infrastructure; [2] information on
electric incidents and emergencies reported to DOE through the
Electric Emergency Incident and Disturbance Report (Form
OE-417); and/or [3] Federal spectrum information managed by
the National Telecommunications and Information
Administration (NTIA).” CEII 2020 Rule, 85 Fed. Reg. at
14,762. And the preamble, the Union explains, serves as
“evidence of [DOE’s] contemporaneous understanding of its”
rule, Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d
43, 53 (D.C. Cir. 1999), and “is informative with respect to how
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[DOE] intended to determine” whether information should be
designated as CEII, Howmet Corp. v. EPA, 614 F.3d 544, 550–
51 (D.C. Cir. 2010).
Turning to access restrictions, the Union highlights two
aspects of DOE’s rule that it has concluded will result in
reduced access to CEII. First, unlike FERC’s rule, DOE’s rule
does not include designated procedures for access to CEII by
participants in proceedings before DOE. Second, DOE’s rule
requires that CEII-requesting non-federal entities
“demonstrate[] that the release of [CEII] is in the national
security interest,” or their requests “shall not be entertained.”
10 C.F.R. § 1004.13(j)(2). FERC’s rule does not similarly
burden requesters. Once a requester demonstrates a legitimate
need for the CEII, FERC is to balance the need for the
information against its “sensitivity,” without requiring the
requester to demonstrate that releasing the information would
serve some sort of interest. See 18 C.F.R. § 388.113(g)(5)(iii).
DOE responds that it adopted the same CEII designation
criteria as FERC and sufficiently similar access procedures and
therefore “there is no indication that the rule will cause [DOE]
to withhold information” that the Union would receive if DOE
were instead to apply FERC’s regulations. Resp’t’s Br. 21. At
this stage, the court must assume the validity of the Union’s
interpretation of DOE’s rule. See Del. Dep’t of Nat. Res. &
Env’t Control v. EPA, 785 F.3d 1, 7 (D.C. Cir. 2015). That
means the court may not now “pronounce upon the meaning”
of DOE’s rule, Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 101–02 (1998), which, in essence, is what DOE invites.
But DOE also maintains, appropriately at this stage, that the
Union’s first claimed injury is too speculative for Article III
purposes, “describing harms [the Union] might suffer if [DOE]
someday denied access to information.” Resp’t’s Br. 24.
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Assuming that DOE’s rule is more restrictive than FERC’s
in the ways the Union describes, the Union is less likely to be
granted access to DOE CEII in the future. Take, for instance,
a request for Form OE-417 data, on which the Union relies for
its research and analysis. See, e.g., Clemmer Decl. ¶¶ 11, 13–
14; Jacobs Decl. ¶ 9. Setting two identical requests for Form
OE-417 data against one another — one pre-DOE rule and one
post — a request under DOE’s rule is more likely to be denied.
Concluding as much does not require the court to rely on a
“speculative chain of possibilities” that would defeat standing.
See Clapper, 568 U.S. at 414. And, contrary to DOE’s
assertions, absolute certainty is not required; it is enough that
the increased risk of harm is substantial. See id. at 414 n.5;
Susan B. Anthony, 573 U.S. at 158; N.Y. Republican State
Comm. v. SEC, 927 F.3d 499, 504–05 (D.C. Cir. 2019). DOE’s
attempt to evoke conjecture by challenging the Union’s reading
of the rule and then citing conditional statements from the
Union’s supporting declarations, see Resp’t’s Br. 24 & n.5, is
therefore unpersuasive.
Yet, in making designation and access decisions, DOE
exercises discretion. See, e.g., 10 C.F.R. §§ 1004.13(g)(5)(i),
(g)(6)(i), (j)(2), (k)(4). And this court has been reluctant to find
standing based on predictions of how agencies will exercise
discretion in future proceedings, stating, for instance, that “[i]t
is premature for a court to consider the legality of how the
Government might wield the orderly liquidation authority in
a potential future proceeding,” State Nat’l Bank of Big Spring
v. Lew, 795 F.3d 48, 56 (D.C. Cir. 2015). Here the discretion
DOE has in making designation and access decisions takes the
denial of access to CEII from the decidedly likely to the
speculative.
The Union’s non-CEII theory fares no better. The Union
contends that DOE would indirectly withhold public
9
information from it as a result of DOE’s “commitment to return
and destroy information not designated as [CEII] rather than
produce that information in response to a FOIA request.”
Pet’r’s Br. 33 (emphasis removed). DOE questions the logic
of the Union’s argument, explaining that DOE must “return or
destroy non-CEII consistent with the Federal Records Act, and
DOE handling of agency records in accordance with DOE
Order O.243.1A, Records Management Program, and related
requirements and responsibilities . . . in accordance with law
and regulatory requirements,” 10 C.F.R. § 1004.13(g)(6)(iii)
(emphasis added). In DOE’s view, therefore, the Union’s non-
CEII injury theory also rests on speculation.
To be denied access to non-CEII under this theory, (1) the
Union would need to submit a FOIA request (2) that happens
to concern information DOE will have already determined was
non-CEII and (3) does not fall under a FOIA exemption, and
(4) DOE would need to have determined that returning or
destroying that information comports with its various record-
keeping policies and requirements. Cf. Clapper, 568 U.S. at
410. What is more, to produce the injurious scenario of which
the Union warns, these moving pieces would have to come
together at the same time. That is indeed a hypothetical chain
of events on which standing cannot rest. New York Reg’l
Interconnect, Inc. v. FERC, 634 F.3d 581, 587 (D.C. Cir.
2011).
As for the Union’s asserted injury resulting from a future
resource drain, it is forfeited because the Union raised it for the
first time in its reply brief. See Twin Rivers Paper Co. v. SEC,
934 F.3d 607, 615 (D.C. Cir. 2019); Manitoba v. Bernhardt,
923 F.3d 173, 179 (D.C. Cir. 2019). The Union suggests that
this theory is a mere corollary of its position that DOE’s rule
imposes more restrictive procedures on requesters than
FERC’s rule. See Oral Arg. Recording at 40:18–41:15. Yet
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any drain on the Union’s resources resulting from some aspect
of DOE’s rule is not obvious, much less the specific drain that
the Union identifies on reply. At best, the Union was “‘obscure
on the issue in [its] opening brief and only warmed to the issue
in [its] reply brief.’” Twin Rivers, 934 F.3d at 615 (quoting
Novak v. Cap. Mgmt. & Dev. Corp., 570 F.3d 305, 316 n.5
(D.C. Cir. 2009)). That still results in forfeiture. Id.Accordingly, because the Union has not satisfied the injury
requirement of Article III standing, the petition is dismissed for
lack of jurisdiction.