Vecinos para el Bienestar de la Comunidad Costera v. FERC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 23, 2021 Decided August 3, 2021
No. 20-1045
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
On Petition for Review of Orders
of the Federal Energy Regulatory Commission
Nathan Matthews argued the cause for petitioners. With
him on the joint briefs were Erin Gaines, Jennifer Richards
and Gilberto Hinojosa.
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.
Robert M. Kennedy, Senior Attorney, Federal Energy
Regulatory Commission, argued the cause for respondent.
With him on the brief were David L. Morenoff, Acting
General Counsel, and Robert H. Solomon, Solicitor.
John Longstreth argued the cause for intervenors. With
him on the joint brief were David L. Wochner, Jeremy C.
Marwell, Matthew X. Etchemendy, James T. Dawson, James D.
Seegers, and P. Martin Teague. Jennifer R. Rinker entered an
appearance.
Jeffrey R. Holmstead was on the brief for amicus curiae
Interstate Natural Gas Association of America in support of
respondent.
No. 20-1093
VECINOS PARA EL BIENESTAR DE LA COMUNIDAD COSTERA , ET
AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
TEXAS LNG BROWNSVILLE LLC,
INTERVENOR
Consolidated with 20-1094
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission
Nathan Matthews argued the cause for petitioners. With
him on the joint briefs were Jennifer Richards and Gilberto
Hinojosa.
Scott Ray Ediger, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were David L. Morenoff, Acting General Counsel, and
Robert H. Solomon, Solicitor.
Mark R. Haskell, Brett A. Snyder, Barry M. Hartman, and
Sandra E. Safro were on the brief for intervenor Texas LNG
Brownsville LLC in support of respondent.
4
Before: SRINIVASAN , Chief Judge, WILKINS, Circuit
Judge, and GINSBURG , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
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 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 (D.C. Cir. 1999).
5
I.
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 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
(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).
Before authorizing the construction and operation of a
proposed LNG facility or pipeline, the Commission must
conduct an environmental review under NEPA. See 42 U.S.C.
§ 4332(2)(C). Where, as here, the Commission determines that
approval of an LNG facility or pipeline is a “major Federal
action[]” that will “significantly affect[] the quality of the
human environment,” the Commission must prepare a detailed
Environmental Impact Statement (“EIS”) that addresses (i) the
environmental impact of the proposed action; (ii) any “adverse
environmental effects” that “cannot be avoided” if the proposal
is implemented; (iii) available alternatives to the proposed
action; (iv) the “relationship between local short-term uses of
[the] environment and the maintenance and enhancement of
long-term productivity”; and (v) “any irreversible and
irretrievable commitments of resources” that “would be
involved in the proposed action should it be implemented.” Id.6
The purpose of the EIS is to “force[] the agency to take a ‘hard
look’ at the environmental consequences of its actions,
including alternatives to its proposed course,” and to “ensure[]
that these environmental consequences, and the agency’s
consideration of them, are disclosed to the public.” Sierra Club
v. FERC, 867 F.3d 1357, 1367 (D.C. Cir. 2017).
Apart from NEPA, Executive Order 12,898, § 1-101, 59
Fed. Reg. 7,629 (Feb. 11, 1994), requires that, “[t]o the greatest
extent practicable and permitted by law,” federal agencies
“shall make achieving environmental justice part of [their]
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or
environmental effects of [their] programs, policies, and
activities on minority populations and low-income
populations.” Id. To that end, the Order requires federal
agencies to conduct “environmental justice” analyses by
“collect[ing], maintain[ing], and analyz[ing] information on
the race, national origin, income level, and other readily
accessible and appropriate information for areas surrounding
facilities or sites expected to have a substantial environmental,
human health, or economic effect on the surrounding
populations.” Id. § 3-302(b).
Finally, the NGA requires the Commission to determine
whether a proposed project comports with the public interest.
The NGA’s requirements differ depending on whether the
proposed project is an LNG facility or pipeline. The
Commission must authorize the construction and operation of
a proposed LNG facility unless it determines that the facility
“will not be consistent with the public interest.” 15 U.S.C.
§ 717b(a). By contrast, the Commission may not authorize the
construction and operation of a proposed interstate LNG
pipeline unless it determines that the pipeline “is or will be
7
required by the present or future public convenience and
necessity.” Id. § 717f(e).
II.
In March 2016, Texas LNG Brownsville LLC (“Texas
LNG, LLC”) applied to the Commission for authorization to
construct and operate an LNG export terminal (the “Texas
terminal”) on a 635-acre site on the northern shore of the
Brownsville Shipping Channel in Cameron Country, Texas. In
May 2016, Rio Grande LNG, LLC (“Rio Grande, LLC”)
applied to the Commission for authorization to construct and
operate an LNG export terminal (the “Rio Grande terminal”)
on a 750-acre site on the same shore. Also in May 2016, Rio
Bravo Pipeline Company (“Rio Bravo Co.”) applied to the
Commission for authorization to construct and operate a new
interstate natural gas pipeline system to supply gas to the Rio
Grande export terminal. (Both Rio Grande, LLC and Rio
Bravo Co. are wholly-owned subsidiaries of NextDecade LNG,
LLC, a U.S. energy project development and management
company.). In July 2016, Annova LNG Common
Infrastructure, LLC (“Annova, LLC”) and three affiliate
entities applied to the Commission for authorization to
construct and operate an LNG export terminal (the “Annova
terminal”) on a 731-acre site on the southern shore of the
Brownsville Shipping Channel. Each company had previously
received authorization from the Department to export LNG.
The Commission completed an EIS for each project in the
spring of 2019 and issued final orders approving the projects
later that year. See Order Granting Authorization Under
Section 3 of the Natural Gas Act, 169 FERC ¶ 61,130 (Nov. 22,
2019) (“Texas Order”); Order Granting Authorizations Under
Sections 3 and 7 of the Natural Gas Act, 169 FERC ¶ 61,131(Nov. 22, 2019) (“Rio Grande and Rio Bravo Order”); Order
8
Granting Authorizations Under Section 3 of the Natural Gas
Act, 169 FERC ¶ 61,132 (Nov. 22, 2019) (“Annova Order”).
Petitioners—residents, environmental groups, and a nearby
city—intervened in the Commission’s proceedings and timely
sought rehearing of the orders. In all of their requests for
rehearing, Petitioners argued that the Commission’s analyses
of the projects’ ozone emissions and 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. In their request for rehearing of
the Commission’s order authorizing the Rio Grande and Rio
Bravo projects, Petitioners also argued that the Commission
violated NEPA by failing to adequately analyze alternative
project designs.
The Commission denied Petitioners’ requests for
rehearing in early 2020. See Order on Rehearing and Stay, 170
FERC ¶ 61,046 (Jan. 23, 2020) (Rio Grande terminal and Rio
Bravo pipeline system); Order on Rehearing and Stay, 170
FERC ¶ 61,139 (Feb. 21, 2020) (Texas terminal); Order on
Rehearing and Stay, 170 FERC ¶ 61,140 (Feb. 21, 2020)
(Annova terminal). Petitioners timely sought review from this
Court, and Texas LNG, LLC, Rio Grande, LLC, Rio Bravo
Co., and Annova, LLC intervened as respondents. Prior to oral
argument, Annova, LLC informed the Commission that it was
abandoning its project, and sought permission from this Court
to withdraw as an intervenor, which we granted. Because the
Annova project will not go forward, we dismiss the petition in
No. 20-1093 as moot. See, e.g., Oregon v. FERC, 636 F.3d
1203, 1206 (9th Cir. 2011). We have jurisdiction over the other
petitions under 15 U.S.C. § 717r(b).
9
III.
In this opinion, we address 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.
A.
We begin with the Commission’s analyses of the projects’
greenhouse gas emissions.
We review an agency’s NEPA analysis under the arbitrary
and capricious standard of the APA. Nevada v. Dep’t of
Energy, 457 F.3d 78, 87 (D.C. Cir. 2006). Our mandate is not
to “‘flyspeck’ an agency’s environmental analysis,” id. at 93,
but “simply to ensure that the agency has adequately
considered and disclosed the environmental impact of its
actions,” WildEarth Guardians v. Jewell, 738 F.3d 298, 308
(D.C. Cir. 2013) (quoting City of Olmsted Falls v. FAA, 292
F.3d 261, 269 (D.C. Cir. 2002)). “Accordingly, we ask
whether the agency examined the relevant data and articulated
a satisfactory explanation for its action, including a rational
connection between the facts found and the choice made.”
Birckhead v. FERC, 925 F.3d 510, 515 (D.C. Cir. 2019) (per
curiam) (internal quotation marks and alterations omitted)
(quoting Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). We also ask whether
the agency addressed “opposing viewpoints.” Nevada, 457
F.3d at 93; cf. 40 C.F.R. § 1502.9(c) (“At appropriate points in
the final statement, the agency shall discuss any responsible
opposing view that was not adequately discussed in the draft
10
statement and shall indicate the agency’s response to the issues
raised.”).
In its EIS for each project, the Commission quantified the
greenhouse gas emissions associated with the construction and
operation of the project, described “existing and potential
cumulative climate change impacts in the Project area,” No.
20-1045 J.A. 663 (Rio Grande terminal and Rio Bravo pipeline
system); No. 20-1094 J.A. 1035 (Texas terminal), and
explained that “[c]onstruction and operation of the Project
would increase the atmospheric concentration of [greenhouse
gases] in combination with past, current, and future emissions
from all other sources globally and contribute incrementally to
future climate change impacts,” No. 20-1045 J.A. 664; No. 20-
1094 J.A. 1036.
In each EIS, however, the Commission concluded that it
was “unable to determine the significance of the Project’s
contribution to climate change.” No. 20-1045 J.A. 665; No.
20-1094 J.A. 1036. The Commission explained that “there is
no universally accepted methodology to attribute discrete,
quantifiable, physical effects on the environment to [the]
Project’s incremental contribution to [greenhouse gas
emissions],” and that therefore “it is not currently possible to
determine localized or regional impacts from [greenhouse gas]
emissions from the Project.” No. 20-1045 J.A. 664–65; No.
20-1094 J.A. 1036.
Petitioners contend that the Commission was required to
do more. Specifically, Petitioners argue that 40 C.F.R.
§ 1502.21(c) (codified at the time the Commission completed
its EIS’s at 40 C.F.R. § 1502.22(b)), required the Commission
to use the “social cost of carbon” protocol or some other
generally accepted methodology to evaluate the impact of each
project’s contribution to climate change. That regulation
11
provides that “[i]f . . . information relevant to reasonably
foreseeable significant adverse impacts cannot be obtained . . .
because the means to obtain it are not known, the agency shall
include within the environmental impact statement . . . [t]he
agency’s evaluation of such impacts based upon theoretical
approaches or research methods generally accepted in the
scientific community.” 40 C.F.R. § 1502.21(c). The “social
cost of carbon” protocol, which Petitioners suggest as one
generally accepted method for evaluating the significance of
the projects’ contributions to climate change, is a tool for
estimating the cost of climate change caused by greenhouse gas
emissions, developed by a federal interagency working group
in 2010, and “withdrawn as no longer representative of
governmental policy” by executive order in 2017. See
Executive Order 13,783, 82 Fed. Reg. 16,093 (Mar. 28, 2017).
Petitioners raised their argument concerning 40 C.F.R.
§ 1502.21(c) in comments responding to the Commission’s
draft EIS’s and in their rehearing requests, but the Commission
at no point addressed the significance of that regulation. The
Commission did, however, explain that it would not use the
social cost of carbon protocol for three reasons: (1) no
consensus exists as to the appropriate discount rate to use for
analyses spanning multiple generations; (2) the tool does not
measure the actual incremental impacts of a project on the
environment; and (3) there are no established criteria
identifying the monetized values that are to be considered
“significant” for the purpose of a NEPA analysis. No. 20-1045
J.A. 158; No. 20-1094 J.A. 710.
To the extent that the Commission failed to respond to
Petitioners’ argument that 40 C.F.R. § 1502.21(c) required it to
use the social cost of carbon protocol or some other generally
accepted methodology to assess of the impact of the projects’
greenhouse gas emissions, we agree with Petitioners that the
12
Commission failed to adequately analyze the impact of the
projects’ greenhouse gas emissions. The regulation appears
applicable on its face; the Commission determined that the
projects would “contribute incrementally to future climate
change impacts,” No. 20-1045 J.A. 664–65; No. 20-1094 J.A.
1036, but it could not obtain “information relevant to [those]
impacts . . . because the means to obtain it [were] not known,”
40 C.F.R. § 1502.21(c). Therefore, 40 C.F.R. § 1502.21(c)
would seem to have required the Commission to “evaluat[e]
. . . such impacts based upon theoretical approaches or research
methods generally accepted in the scientific community.” Id.§ 1502.21(c)(4). Yet the Commission did not discuss, or even
cite, 40 C.F.R. § 1502.21(c) in its rehearing order. Nor did it
do so in its briefing in this case. Nor did it cite any previous
decision by this Court or the Commission addressing the
significance of the regulation in any detail. Because the
Commission failed to respond to significant opposing
viewpoints concerning the adequacy of its analyses of the
projects’ greenhouse gas emissions, we find its analyses
deficient under NEPA and the APA. See, e.g., TransCanada
Power Mktg. Ltd. v. FERC, 811 F.3d 1, 12–13 (D.C. Cir. 2015).
The Commission’s discussion of the social cost of carbon
protocol does not excuse its failure to address the significance
of 40 C.F.R. § 1502.21(c). Although we have previously held
that the Commission was not required to use the social cost of
carbon protocol where the Commission gave the same three
reasons for not using the protocol that it gave in its orders
denying Petitioners’ rehearing requests, see EarthReports, Inc.
v. FERC, 828 F.3d 949, 956 (D.C. Cir. 2016), the petitioners in
that case presented no argument concerning 40 C.F.R.
§ 1502.21(c), and so our decision did not address the
significance of that regulation to the Commission’s refusal to
use the social cost of carbon protocol. Moreover, if the
protocol is a generally accepted method for estimating the
13
impact of greenhouse gas emissions—as the Commission has
previously declined to dispute, see Order Denying Rehearing,
164 FERC ¶ 61,099, at *10 (Aug. 10, 2018)—and if
Petitioners’ reading of 40 C.F.R. § 1502.21(c) is correct, then
the Commission may have been obligated to use the social cost
of carbon protocol in its EIS, notwithstanding its concerns that
no consensus exists as to an appropriate discount rate, that the
tool provides a dollar estimate but does not measure the actual
incremental impacts of a project on the environment, and that
there are no established criteria for evaluating whether a given
monetary cost is “significant.” For instance, as Petitioners
suggest, the Commission might have chosen a discount rate
according to recommendations by the Office of Management
and Budget in 2013, see Office of Mgmt. & Budget, Office of
the President, OMB Circular A–4, at 30–35, or else used a
range of rates, and articulated its own criteria for assessing the
significance of the projected costs of the projects’ greenhouse
gas emissions. Of course, we do not hold that the Commission
was indeed required to do any of that. But we do hold that the
Commission was required to address Petitioners’ argument
concerning the significance of 40 C.F.R. § 1502.21(c), and that
its failure to do so rendered its analyses of the projects’
greenhouse gas emissions deficient. On remand, the
Commission must explain whether 40 C.F.R. § 1502.21(c) calls
for it to apply the social cost of carbon protocol or some other
analytical framework, as “generally accepted in the scientific
community” within the meaning of the regulation, and if not,
why not.
B.
We now turn to the Commission’s environmental justice
analyses.
14
Although the executive order requiring agencies to assess
the environmental effects of their actions on environmental
justice communities expressly states that it does not create a
private right to judicial review, Executive Order 12,898, § 6-
609, 59 Fed. Reg. at 7,632–33, a petitioner may challenge an
agency’s environmental justice analysis as arbitrary and
capricious under NEPA and the APA. See Cmtys Against
Runway Expansion, Inc. v. FAA, 355 F.3d 678, 689 (D.C. Cir.
2004).
To assess the environmental justice impacts of each
project, the Commission examined the project’s impacts on
communities in census block groups within a two-mile radius
of the project site, but not on communities farther afield. The
Commission found that all communities within those census
blocks were minority or low-income. No. 20-1045 J.A. 564
(Rio Grande terminal and Rio Bravo pipeline system); No. 20-
1094 J.A. 691–92 (Texas terminal). The Commission
proceeded to examine “whether any of the Project impacts
would disproportionately affect those communities due to
factors unique to those populations like inter-related
ecological, aesthetic, historical, cultural, economic, social, or
health factors.” No. 20-1045 Resp’t’s Br. at 53 (internal
quotation marks and alterations omitted) (quoting No. 20-1045
J.A. 140–42); see also No. 20-1094 Resp’t’s Br. at 44–45.
Finding the answer to be no, the Commission concluded that
the Rio Grande terminal and Rio Bravo pipeline system “would
not have disproportionate adverse effects on minority and low-
income residents in the area,” No. 20-1045 J.A. 566, and that
the Texas terminal would have “negligible impacts on
environmental justice communities,” No. 20-1094 J.A. 968.
Petitioners argue that the Commission’s decision to
analyze the projects’ impacts on environmental justice
communities only in census blocks within two miles of the
15
project sites was arbitrary, given its determination that
environmental effects from the projects would extend well
beyond two miles from the project sites.
We agree. When conducting an environmental justice
analysis, an agency’s delineation of the area potentially
affected by the project must be “reasonable and adequately
explained,” Cmtys Against Runway Expansion, 355 F.3d at
689, and include “a rational connection between the facts found
and the decision made,” id. at 685 (quoting State Farm, 463
U.S. at 43). Elsewhere in its EIS for each project, the
Commission determined that the environmental effects of the
project would extend beyond the census blocks located within
a two-mile radius of the project site. For instance, the
Commission determined that impacts on air quality from each
project could occur within 31 miles. No. 20-1045 J.A. 610; No.
20-1094 J.A. 1008. The Commission has offered no
explanation as to why, in light of that finding, it chose to
delineate the area potentially affected by the projects to include
only those census blocks within two miles of the project sites
for the purposes of its environmental justice analyses. Because
the Commission has offered no “rational connection between
the facts found and the decision made,” State Farm, 463 U.S.
at 43, we find its decision to analyze the projects’ impacts only
on communities in census blocks within two miles of the
project sites to be arbitrary. On remand, the Commission must
explain why it chose to analyze the projects’ impacts only on
communities in census blocks within two miles of the project
sites, or else analyze the projects’ impacts on communities
within a different radius of each project site. Additionally, it
must explain whether its finding that “all project-affiliated
populations are minority or low-income populations,” No. 20-
1045 J.A. 142; No. 20-1094 J.A. 691–92, is still justified, and,
if so, whether its conclusion that the projects “would not have
disproportionate adverse effects on minority and low-income
16
residents in the area,” No. 20-1045 J.A. 566; see also No. 20-
1094 J.A. 968, still holds.
C.
Because the Commission’s analyses of the projects’
impacts on climate change and environmental justice
communities were deficient, the Commission must also revisit
its determinations of public interest and convenience under
Sections 3 and 7 of the NGA.
We review the Commission’s orders approving LNG
facilities and pipelines, like its NEPA analyses, under the
arbitrary and capricious standard of the APA. Minisink
Residents for Envt’l Pres. & Safety v. FERC, 762 F.3d 97, 105–
106 (D.C. Cir. 2014); Midcoast Interstate Transmission, Inc. v.
FERC, 198 F.3d 960, 967 (D.C. Cir. 2000). Where the
Commission rests a decision, at least in part, on an infirm
ground, we will find the decision arbitrary and capricious.
Williams Gas Processing-Gulf Coast Co. v. FERC, 475 F.3d
319, 330 (D.C. Cir. 2006).
In its orders approving the projects, the Commission
explained its finding that the pipeline project was “required by
the present or future public convenience and necessity,” 15
U.S.C. § 717f(e), and its refusal to find that the LNG facilities
were “not . . . consistent with the public interest,” Id. § 717b(a),
by relying on its NEPA analyses of the projects’ impacts on
climate change and environmental justice communities. In
each order, the Commission explained that it concluded in its
EIS that it “could not determine whether a project’s
contribution to climate change would be significant,” Texas
Order at 61,857; Rio Grande and Rio Bravo Order at 61,899,
and that the projects would not disproportionately affect
environmental justice communities, Texas Order at 61,855;
17
Rio Grande and Rio Bravo Order at 61,896–97. In light of “the
conclusions presented in [each] EIS,” the Commission further
concluded that the LNG terminals were “not inconsistent with
the public interest,” and that the pipeline project was “in the
public convenience and necessity.” Texas Order at 61,860; Rio
Grande and Rio Bravo Order at 61,903. As explained above,
the Commission’s NEPA analyses of the projects’ impacts on
climate change and environmental justice communities were
deficient under the APA. The Commission’s determinations of
public interest and convenience under the NGA were therefore
deficient to the extent that they relied on its NEPA analyses of
the projects’ impacts on climate change and environmental
justice communities. See Williams Gas, 475 F.3d at 330. On
remand, the Commission must reconsider its determinations of
public interest and convenience under Sections 3 and 7 of the
NGA, along with its NEPA analyses of the projects’ impacts
on climate change and environmental justice communities.
IV.
Intervenors argue that the appropriate remedy for any
agency error in this case is to remand the Commission’s orders
approving the projects without vacating the orders, because the
Commission is likely to remedy any deficiencies in its orders
on remand, and because vacating the orders would imperil
Intervenors’ ability to obtain funding necessary to complete the
projects in a timely fashion.
We agree. “The decision to vacate depends on two factors:
the likelihood that ‘deficiencies’ in an order can be redressed
on remand, even if the agency reaches the same result, and the
‘disruptive consequences’ of vacatur.” Black Oak Energy, LLC
v. FERC, 725 F.3d 230, 244 (D.C. Cir. 2013) (quoting Allied-
Signal v. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C.
Cir. 1993)). Here both factors weigh against vacatur. We find
18
it reasonably likely that on remand the Commission can redress
its failure of explanation with regard to its analyses of the
projects’ impacts on climate change and environmental justice
communities, and its determinations of public interest and
convenience under Sections 3 and 7 of the NGA, while
reaching the same result. See id. And we credit Intervenors’
assertion that vacating the orders would needlessly disrupt
completion of the projects. We therefore remand to the
Commission without vacatur for further proceedings
consistent with this opinion.
So ordered.