Amicus Curiae Brief — Seven County Infrastructure Coalition, et al., Petitioners v. Eagle County, Colorado, et al.

Supreme Court briefSep 4, 2024

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No. 23-975

IN THE

Supreme Court of the United States

____________________________________

SEVEN COUNTY INFRASTRUCTURE COALITION and

UINTA BASIN RAILWAY, LLC,

Petitioners,

EAGLE COUNTY, COLORADO, et al.,

Respondents.

____________________________________

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

____________________________________

BRIEF OF THE INTERSTATE NATURAL GAS

ASSOCIATION OF AMERICA, THE ELECTRIC

POWER SUPPLY ASSOCIATION, THE

NATIONAL ASSOCIATION OF REGULATORY

UTILITY COMMISSIONERS, THE

MIDCONTINENT INDEPENDENT SYSTEM

OPERATOR, INC., THE LIQUID ENERGY

PIPELINE ASSOCIATION, ET AL. AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

____________________________________

DONALD P. SALZMAN

Counsel of Record

JAMES P. DANLY

KYRSTIN M. WALLACH

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave., NW

Washington, DC 20005

202-371-7000

donald.salzman@skadden.com

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF THE AMICI ....................................... 2

SUMMARY OF THE ARGUMENT ............................ 5

ARGUMENT................................................................ 7

Expanded NEPA Review Causes Profound

Litigation Risk. ................................................. 7

II.

Permitting Delays Have Impeded Energy

Infrastructure Development. ......................... 11

III.

Sabal Trail has Undermined Public Citizen

and Undermined Agencies’ Organic

Statutes…. ...................................................... 21

NEPA is a Procedural Statute. ............ 21

Sabal Trail has Encouraged the

Unlawful Expansion of Agency

Jurisdiction and Threatens Agencies’

Organic Statutes. ................................. 23

Federal Respondents Argue—

Unconvincingly—for Judicial

Inaction….. ........................................... 26

The Court Should Adopt—and Impose—

the Holding in Sierra Club. ................. 29

CONCLUSION .......................................................... 32

TABLE OF AUTHORITIES

Page(s)

Cases

Aberdeen & Rockfish Railroad Co. v.

S.C.R.A.P.,

422 U.S. 289 (1975)...................................... 22

Alabama Municipal Distributors Group v.

FERC,

100 F.4th 207 (D.C. Cir. 2024) .................... 31

American Gas Ass’n v. FERC,

912 F.2d 1496 (D.C. Cir. 1990).................... 25

Andrus v. Sierra Club,

442 U.S. 347 (1979)...................................... 22

Birckhead v. FERC,

925 F.3d 510 (D.C. Cir. 2019) ........................ 9

Center for Biological Diversity v. FERC,

67 F.4th 1176 (D.C. Cir. 2023) .................... 30

City of Port Isabel v. FERC,

No. 23-1174 et al., 2024 WL 3659344

(D.C. Cir. Aug. 6, 2024) ........................... 9, 10

Department of Transportation v. Public

Citizen,

541 U.S. 752 (2004)................. 4, 6, 21, 22, 23,

.................................. 24, 27, 28, 29, 30, 31, 32

iii

Eagle County, Colorado v. STB (Eagle

County),

82 F.4th 1152 (D.C. Cir. 2023) ........... 5, 6, 17,

.............................................. 21, 25, 26, 29, 32

EarthReports, Inc. v. FERC,

828 F.3d 949 (D.C. Cir. 2016)...................... 30

Food & Water Watch v. FERC (Food & Water

Watch),

28 F.4th 277 (D.C. Cir. 2022) ............ 7, 24, 29

Hughes v. Talen Energy Marketing, LLC,

578 U.S. 150 (2016)...................................... 23

Karst Environmental Education &

Protection, Inc. v. EPA,

475 F.3d 1291 (D.C. Cir. 2007) ...................... 7

Kleppe v. Sierra Club,

427 U.S. 390 (1976)...................................... 22

Metropolitan Edison Co. v. People Against

Nuclear Energy (Metropolitan),

460 U.S. 766 (1983).................... 21, 22, 27, 28

Moskal v. United States,

498 U.S. 103 (1990)...................................... 28

Motor Vehicle Manufacturers Ass’n of the

United States, Inc. v. State Farm

Mutual Automobile Insurance Co.,

463 U.S. 29 (1983) ....................................... 26

NAACP v. Federal Power Commission

(NAACP),

425 U.S. 662 (1976)................................ 25, 26

National Fuel Gas Supply Corp. v. FERC,

909 F.2d 1519 (D.C. Cir. 1990).................... 25

Richmond Power & Light v. FERC,

574 F.2d 610 (D.C. Cir. 1978) ...................... 25

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989)...................................... 21

Sierra Club v. FERC (Sabal Trail),

867 F.3d 1357 (D.C. Cir. 2017) ....... 3, 5, 6, 17,

................................................... 21, 23, 24, 25,

.............................................. 27, 29, 30, 31, 32

Sierra Club v. FERC,

827 F.3d 36 (D.C. Cir. 2016)........................ 30

Sierra Club v. FERC,

827 F.3d 59 (D.C. Cir. 2016)........................ 30

Sierra Club v. U.S. Army Corps of Engineers,

Plaintiffs’ Motion for Summary Judgment and Memorandum in Support,

No. 2:20-cv-00396-LEW (D. Me. Mar.

29, 2024), ECF No. 177 ................................ 16

Sierra Club v. U.S. Army Corps of Engineers,

Federal Defendants’ Motion for Summary Judgment and Response in Opposition to Plaintiffs’ Motion for Summary Judgment, with Incorporated

Memorandum of Law, No. 2:20-cv00396-LEW (D. Me. June 4, 2024),

ECF No. 180 ................................................. 17

Stone v. I.N.S.,

514 U.S. 386 (1995)...................................... 27

Strycker’s Bay Neighborhood Council, Inc. v.

Karlen,

444 U.S. 223 (1980)...................................... 22

Sunray Mid-Continent Oil Co. v. FPC,

364 U.S. 137 (1960)...................................... 25

Vecinos para el Bienestar de la Comunidad

Costera v. FERC,

6 F.4th 1321 (D.C. Cir. 2021) ........................ 9

Statutes

15 U.S.C. § 717(b) ............................................ 13, 24

16 U.S.C. § 824(b)(1) ....................................... 23, 31

42 U.S.C. § 4332 ..................................................... 26

42 U.S.C. § 4332(C) ............................................ 7, 10

42 U.S.C. § 4332(C)(i) ............................................. 27

42 U.S.C. § 4332(C)(i) (1970) ................................. 27

42 U.S.C. § 4332(C)(i) (2023) ................................. 27

42 U.S.C. § 4335 ..................................................... 22

49 U.S.C. § 11101(a) ............................................... 25

Fiscal Responsibility Act of 2023,

Pub. L. No. 118-5, Div. C, Tit. III,

§ 321(a)(3)(B), 137 Stat. 10, 38

(Builder Act)............................................. 7, 27

National Environmental Policy Act,

42 U.S.C. §§ 4321–4347 ................................. 3

Other Authorities

169 Cong. Rec. H2681, H2704

(daily ed. May 31, 2023) .............................. 28

Alyson C. Flournoy et al., Harnessing the

Power of Information to Protect Our

Public Natural Resource Legacy, 86

Tex. L. Rev. 1575 (2008) ................................ 8

Caroline Nakhle, Geopolitical Intelligence

Services AG, Energy Prices and Inflation: Politics Trump the Economics

Dec. 7, 2022), https://www.gisreportsonline.com/r/energy-prices/ ................. 18

vii

CEQ, A Citizen’s Guide to the NEPA (Dec.

2007), https://ceq.doe.gov/docs/get-involved/Citizens_Guide_Dec07.pdf ................. 7

CEQ, Environmental Impact Statement

Timelines (2010–2018) (June 12, 2020) ........ 8

CEQ, Length of Environmental Impact Statements (2013–2018) (June 12, 2020) .............. 8

Daniel A. Dreyfus, NEPA: The Original Intent of the Law, 109 J. Prof. Issues in

Eng’g Educ. & Prac. 249 (1983)..................... 8

Duke Energy, Dominion Energy and Duke

Energy Cancel the Atlantic Coast Pipeline (July 5, 2020), https://news.dukeenergy.com/releases/dominion-energyand-duke-energy-cancel-the-atlanticcoast-pipeline ............................................... 12

Erick Garcia Luna, Fed. Reserve Bank of

Minneapolis, Rising Household Energy

Costs Affect Lower-Income and NonWhite Residents Most (Mar. 1, 2023),

https://www.minneapolisfed.org/article/2023/rising-household-energycosts-affect-lower-income-and-nonwhite-residents-most ................................... 18

FERC, Electric Power Markets (May 16,

2023), https://www.ferc.gov/electricpower-markets ............................................. 18

viii

FERC, Final Environmental Impact Statement – Rio Grande LNG Project and

Rio Bravo Pipeline Project (Apr. 26,

2019) ............................................................. 10

FERC, Final Environmental Impact Statement – Texas LNG Project (Mar. 15,

2019) ............................................................. 10

H.R. Rep. No. 91-765 (1969) (Conf. Rep.) ........ 22, 26

H.R. Rep. No. 118-28, pt. 1 (2023) ......................... 28

Industrial Energy Consumers of America,

Comments for the Record on the “American Energy Expansion: Strengthening

Economic, Environmental, and National Security” Hearing (Jan. 20,

2023), https://www.ieca-us.com/wpcontent/uploads/01.30.23_Commentsfor-the-Record_American-Energy-Expansion-Hearing.pdf .................................... 20

Industrial Energy Consumers of America,

Letter to Governors re: Manufacturing

Companies Face Growing Natural Gas

Scarcity Along the Entire Eastern Seaboard (Dec. 13, 2022),

https://www.ieca-us.com/wp-content/uploads/12.13.22_Transco-Governors-Letter.pdf ............................................. 20

ISO New England Inc., 2022 Annual Markets

Report (June 5, 2023)................................... 19

ISO New England Inc., Draft ISO/EDC/

LDC Problem Statement and Call to

Action on LNG and Energy Adequacy

Federal Energy Regulatory Commission New England Winter Gas-Electric

Forum, Sept. 8, 2022 (Aug. 29, 2022),

https://isonewswire.com/wp-content/uploads/2022/08/DraftFERCTechConferenceEverettandEnergyAdequacyProblemStatement-8.29-final.pdf ............ 19

Joint Comments of Electric Reliability

Council of Texas, Inc.; Midcontinent

Independent System Operator, Inc.;

PJM Interconnection, L.L.C.; and

Southwest Power Pool, Inc., Docket No.

EPA-HQ-OAR-2023-0072 (Dec.

20, 2023) ................................................... 2, 15

Kristen Hite, Cong. Rsch. Serv., IF11932,

National Environmental Policy Act:

Judicial Review and Remedies (Sept.

22, 2021) ..................................................... 5, 7

MISO, MISO Board Approves $9 Billion

Transmission Portfolio (Dec. 8, 2023),

https://www.misoenergy.org/meetmiso/media-center/miso-matters/misoboard-approves-$9-billion-transmission-portfolio/ ............................................... 15

MISO, MISO’s Response to the Reliability Imperative (Feb. 2024),

https://www.misoenergy.org/meetmiso/MISO_Strategy/reliabilityimperative/ ................................................... 15

Mountain Valley Pipeline, LLC,

185 FERC ¶ 61,193 (2023) .......................... 11

National Grid LNG, LLC,

179 FERC ¶ 61,205 (2022) .......................... 12

NERC, 2023 Long-Term Reliability Assessment (Dec. 2023) .................................... 15, 17

NextDecade Corp., Quarterly Report (Form

10-Q) (Aug. 14, 2024) ................................... 11

PJM Interconnection, L.L.C., PJM Capacity

Auction Procures Sufficient Resources

to Meet RTO Reliability Requirement

(July 30, 2024) ....................................... 14, 15

PJM Interconnection, L.L.C., Transmission

Congestion Can Increase Costs (2024),

https://www.pjm.com/-/media/aboutpjm/newsroom/fact-sheets/congestionfact-sheet.ashx ............................................ 16

Roanoke Gas, Comments in Support of Mountain Valley Pipeline Project, FERC

Docket Nos. CP16-10-000, et al.,

(July 8, 2022) ............................................... 13

Transcontinental Gas Pipe Line Co.,

Quarterly Report (Form 10-Q)

(Aug. 5, 2024) ............................................... 13

Trunkline Gas Company, LLC, Costs Comparison Statement re the Pipeline Modifications Project, FERC Docket No.

CP14-119-000 (July 23, 2024) ..................... 11

U.S. Energy Information Administration,

Natural Gas Intrastate Pipeline Capacity Additions Outpaced Interstate

Additions in 2023 (Mar. 20, 2024),

https://www.eia.gov/todayinenergy/detail.php?%20id=61623 ............................. 2, 13

U.S. Energy Information Administration,

New England Utility Closes Import-Dependent Gas-Fired Power Plant, Keeps

LNG Import Option

(June 24, 2024), https://www.eia.gov/to

dayinenergy/detail.php?id=62404 ............... 19

BRIEF OF THE INTERSTATE NATURAL GAS

ASSOCIATION OF AMERICA, THE ELECTRIC

POWER SUPPLY ASSOCIATION, THE

NATIONAL ASSOCIATION OF REGULATORY

UTILITY COMMISSIONERS, THE

MIDCONTINENT INDEPENDENT SYSTEM

OPERATOR, INC., THE LIQUID ENERGY

PIPELINE ASSOCIATION, ET AL.

IN SUPPORT OF PETITIONERS

The Interstate Natural Gas Association of

America (INGAA), the Electric Power Supply Association (EPSA), the National Association of Regulatory

Utility Commissioners (NARUC), the Midcontinent

Independent System Operator, INC. (MISO), the Liquid Energy Pipeline Association (LEPA), the Industrial Energy Consumers of America (IECA), the Natural Gas Supply Association (NGSA), the Center for

LNG (CLNG), the American Public Gas Association

(APGA), and the Consumer Energy Alliance (CEA)

(collectively, “Amici”) respectfully submit this brief as

amici curiae in support of petitioners Seven County

Infrastructure Coalition and Uinta Basin Railway,

LLC.1

1 Pursuant to this Court’s Rule 37.6, counsel for amici curiae

states that no counsel for a party authored this brief in whole or

in part, and no party or counsel for a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person or entity other than amici curiae or its counsel has made a monetary contribution to the preparation or submission of this brief.

INTEREST OF THE AMICI

America’s energy system is in peril. Critical energy infrastructure has become increasingly difficult

to permit, site, and construct. Even as America witnesses unprecedented growth in the demand for energy, desperately-needed energy infrastructure—projects which would have been built as a matter of routine mere decades ago—are now being delayed, abandoned mid-development, or never proposed in the first

place.

This infrastructure is critical. It includes the

high voltage transmission lines necessary for electric

reliability, the oil pipelines that supply fuel for transportation, the electric generators that produce power,

the pipelines that supply fuel to electric generators

and fuel and feedstock to the manufacturing industry,

the local gas distribution networks that provide fuel

to heat houses in the winter, the LNG terminals that

provide needed energy to our allies overseas, and the

pipelines that fuel manufacturing, providing millions

of jobs and contributing trillions of dollars to our economy.

More infrastructure is needed or the country

could face energy scarcity, rising prices, and, ultimately, reliability failures. And yet the rate of energy

infrastructure development has been slowing down

precipitously. See U.S. Energy Info. Admin. (EIA),

Natural Gas Intrastate Pipeline Capacity Additions

Outpaced Interstate Additions in 2023 (Mar. 20, 2024)

[hereinafter EIA Report], https://www.eia.gov/todayinenergy/detail.php?%20id=61623. This, at a time

when the electric markets are sounding the alarm

over impending reliability shortfalls. See, e.g., Joint

Comments of Electric Reliability Council of Texas,

Inc.; Midcontinent Independent System Operator, Inc.;

PJM Interconnection, L.L.C.; and Southwest Power

Pool, Inc., Docket No. EPA-HQ-OAR-2023-0072, at 9

(Dec. 20, 2023) [hereinafter Joint Comments],

(“[S]hortfalls in resource adequacy . . . cannot simply

be addressed overnight and would require the development of new resources that can take considerable

time to permit and build.”).

So what has changed? Among the greatest contributors is environmental review. In the past several

years, starting with the U.S. Court of Appeals for the

District of Columbia Circuit’s (D.C. Circuit) issuance

of Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017)

(Sabal Trail), judicial fiat has expanded the scope of

environmental review conducted under the National

Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–

4347. This has caused delays, reduced regulatory certainty, increased costs, and impeded development of

desperately needed infrastructure.

INGAA is a trade association that represents

the majority of interstate natural gas pipeline companies operating in North America; EPSA is a trade association that represents the nation’s competitive

electric power generators; NARUC represents energy

regulators in all 50 States and most US Territories

who oversee industry—some of whom are included in

this brief—to ensure the reliability and affordability

of the utility services that provide the backbone for

their respective state economies; MISO is an independent, non-profit, electric Regional Transmission

Operator, facilitating one of the world’s largest energy

markets and coordinating regional transmission planning across its 15 U.S. states and the Canadian province of Manitoba; LEPA is a trade association that

represents the liquid energy pipeline owners shipping

nearly 97 percent of the crude oil and petroleum products moved by pipeline in the United States; IECA is

an association that represents the interests of a diverse array of industrial energy consumers including

those that produce chemicals, plastics, steel, aluminum, food processing, fertilizer, insulation, glass,

pharmaceuticals, building products, and cement;

NGSA is a trade association that represents integrated and independent energy companies that produce, transport, and market billions of cubic feet of

natural gas per day; CLNG, a committee of NGSA, advocates for the advancement of the use of LNG in the

United States and its international export; APGA represents the nation’s not-for-profit, community-owned

natural gas local distribution systems; and CEA is an

association of energy consumers and producers that

advocates for energy and environmental policies to ensure all Americans benefit from access to affordable,

reliable, and environmentally responsible energy.

Representing diverse components of the energy

supply chains and markets, the Amici are united in

their desire to see clear, rational, predictable environmental reviews under NEPA that support the ongoing

development of reliable, affordable energy systems

throughout the country. To avoid unnecessarily expansive environmental reviews that throw federal infrastructure permits into doubt, they urge the Court

to reverse the D.C. Circuit’s decision and reaffirm the

core holding in Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) (Public Citizen), that

NEPA does not require review of environmental effects for which the agency is not the legally relevant

cause.

SUMMARY OF THE ARGUMENT

NEPA is the most heavily litigated federal environmental statute. Kristen Hite, Cong. Rsch. Serv.,

IF11932, National Environmental Policy Act: Judicial

Review and Remedies 1 (Sept. 22, 2021) (Judicial Review and Remedies). Though wholly procedural and

informational, NEPA provides a liberally-employed

backdoor by which litigants can challenge agencies’

substantive decisions.

Agencies, in an attempt to bulletproof their

NEPA issuances from reversal on appeal, gold-plate

their environmental reviews, producing ever longer

NEPA documents in the course of ever longer environmental reviews. The result is delay.

Because of the regulatory uncertainty caused

by the delays from the threat of litigation and from

the litigation itself, every type of infrastructure vital

to the energy sector (generation, transmission, LNG

terminals, and pipelines) has become more difficult

and more expensive to permit and construct. This infrastructure is critical to the United States. Insufficient infrastructure means rising costs and, in cases

of truly acute scarcity, the possibility of blackouts and

reliability failures.

Eagle County, Colorado v. STB, 82 F.4th 1152

(D.C. Cir. 2023) (Eagle County), represents the culmination of a seven-year long, court-mandated expansion of the scope of NEPA review. This series of cases,

which began with Sabal Trail, has ignored Congressionally-imposed jurisdictional limitations placed on

agencies’ substantive powers by requiring agencies to

consider subjects in their substantive decision making

that are either explicitly exempted in their enabling

statutes or contrary to their statutes’ purpose. Sabal

Trail’s abandonment of the sensible proximate causation requirement established in Public Citizen has resulted in the treatment of agencies as the legally relevant cause of every effect for which their permits are

a but-for cause—even when considering those effects,

undermines the fundamental purpose of the statute

(like requiring discrimination against particular categories of customer on common carrier railways).

The regime established by Sabal Trail is unworkable. Predictability is impossible when the scope

of NEPA review is determined, as the Federal Respondents advocate, on an agency-by-agency, projectby-project basis. In order to restore the regulatory

certainty necessary for investment in the energy infrastructure America desperately needs, the Court

should reject the Federal Respondents’ request for

narrow relief, and instead reverse Eagle County, reaffirm Public Citizen, and instruct the lower courts that

agencies cannot be required to conduct NEPA review

on effects for which they are not the legally relevant

cause.

ARGUMENT

Expanded NEPA Review Causes Profound

Litigation Risk.

NEPA is the most heavily litigated federal environmental statute—the federal courts hear over one

hundred NEPA challenges annually. See Judicial Review and Remedies at 1.

NEPA is everywhere. Every agency contemplating a “major Federal action[] significantly affecting the quality of the human environment” must prepare a “detailed statement” describing the environmental effects of that action. 42 U.S.C. § 4332(C).

Federal agencies publish thousands of environmental

assessments and hundreds of environmental impact

statements each year. See CEQ, A Citizen’s Guide to

the NEPA, at 7 (Dec. 2007).

NEPA itself does not provide a private right of

action,2 but challenges can “be brought under the

APA,” Karst Env’t Educ. & Protection, Inc. v. EPA, 475

F.3d 1291, 1295 (D.C. Cir. 2007), and are reviewed under the arbitrary and capricious standard. See Food

& Water Watch v. FERC, 28 F.4th 277, 285 (D.C. Cir.

2022) (Food & Water Watch). As that standard has

come to be applied in NEPA litigation, any alleged deficiency in reasoning, any perceived oversight, any

claimed failure to provide a sufficiently thorough examination of a potential effect, can serve as the

2 Historically, NEPA provided no cause of action.

As of the passage of the Builder Act, there is now a cause of action to enforce

deadlines against agencies. Fiscal Responsibility Act of 2023,

Pub. L. No. 118-5, Div. C, Tit. III, § 321(a)(3)(B), 137 Stat. 10, 38

(Builder Act). Challenges to the substance of a NEPA document

must still be brought through the Administrative Procedure Act.

predicate for a judicial challenge, no matter how trivial. NEPA challenges have become the means by

which to challenge agencies’ substantive decisions.

Agencies have responded to this litigation risk

by expanding the scope of their environmental reviews in an effort to bullet-proof their issuances on appeal. See Alyson C. Flournoy, et al., Harnessing the

Power of Information to Protect Our Public Natural

Resource Legacy, 86 Tex. L. Rev. 1575, 1582–83 (2008)

(noting that critics of NEPA procedure state that concerns over omissions “encourage agencies to gold-plate

their [environmental impact statements (EIS)] by including every conceivably relevant piece of information to avoid reversal”) (citation omitted).

As a result, NEPA documents have ballooned

into encyclopedic reviews covering every imaginable

potentially relevant subject. When NEPA was first

enacted, EISs were short and concise. See Daniel A.

Dreyfus, NEPA: The Original Intent of the Law, 109

J. Prof. Issues in Eng’g Educ. & Prac. 249, 253 (1983).

Now, the average length of an EIS has swelled to 661

pages, with an average of over 1,000 pages of appendices. See CEQ, Length of Environmental Impact

Statements (2013–2018), at 1, 3 (June 12, 2020).

Longer documents take longer to prepare. As

of 2018, it took agencies an average of four and a half

years of fact finding, analysis, drafting, and review to

publish an EIS. CEQ, Environmental Impact Statement Timelines (2010-2018), 1 (June 12, 2020). Some

take far longer.

Even relatively routine permit applications,

like, for example, an application to build an 88-mile

rail line in rural Utah, are subject to protracted and

exhaustive NEPA reviews. The permit at issue in this

case was accompanied by an exhaustive 3,600-page

EIS. Yet the fate of this rail line now hangs in the

balance due to a challenge based, in part, upon the alleged insufficiency of the agency’s examination of unpredictable and incalculable effects hundreds of miles

away from the actual rail line.

The courts describe their role in reviewing

NEPA as “not to ‘flyspeck’ an agency’s environmental

analysis, looking for any deficiency no matter how minor.” Birckhead v. FERC, 925 F.3d 510, 515 (D.C. Cir.

2019) (citation omitted). Instead, the courts’ role is

purported to be limited to ensuring “that the agency

has adequately considered and disclosed the environmental impact of its actions.” Id. (citation omitted).

Experience with NEPA litigation has instructed the Amici otherwise. By way of recent example, a NEPA challenge was brought against Federal

Energy Regulatory Commission (FERC) authorizations for two LNG export terminals and an associated

natural gas pipeline. See City of Port Isabel v. FERC,

No. 23-1174, et al., 2024 WL 3659344 (D.C. Cir. Aug.

6, 2024). Together, these projects represent billions of

dollars of geo-strategically critical infrastructure.

LNG terminals provide allies with desperately needed

natural gas at a time of growing demand, scarce supply, rising costs, and energy insecurity. Having identified deficiencies in the initial authorization order,

the D.C. Circuit remanded to FERC. See Vecinos para

el Bienestar de la Comunidad Costera v. FERC, 6

F.4th 1321, 1325 (D.C. Cir. 2021).

On a second appeal, the D.C. Circuit again remanded, this time with vacatur, despite acknowledging that FERC’s subsequent order on remand

incorporated “significantly expanded” analysis for

each project and that the analysis was based, in part,

on “several information requests to the developers,”

and that FERC “solicit[ed] public comment as to some

of the data underlying” its new analysis. City of Port

Isabel, 2024 WL 3659344, at *4, *7. The reason for

remand? In part because, despite the remedied analysis, FERC failed to issue a supplemental EIS,

thereby reopening the process for further comment.

See id. at *8.

This, after FERC’s initial EISs (including attachments) for the projects, which were prepared over

the course of several years, together spanned over

3,000 pages, canvassing every conceivable topic including geological conditions, effects on soil, water,

wetlands, vegetation, wildlife, endangered species,

recreation, cultural resources, air quality, noise pollution, and safety. See FERC, Final Environmental Impact Statement – Rio Grande LNG Project and Rio

Bravo Pipeline Project (Apr. 26, 2019); FERC, Final

Environmental Impact Statement – Texas LNG Project

(Mar. 15, 2019). FERC consulted and worked alongside numerous other federal agencies, took and responded to public comments on its draft documents,

conducted scoping and public outreach, and reviewed

the EIS before publication.

By anyone’s estimation, this effort exceeds

NEPA’s modest requirement that agencies produce a

“detailed statement” on a proposed action’s environmental effects. 42 U.S.C. § 4332(C).

The lesson learned: almost no quantity of review is enough.

The court’s remand and vacatur of these facilities’ permits imperils the viability of all future projects. Regulatory uncertainty causes costs to rise, including the cost of capital, and sows doubt in the

minds of potential investors. See NextDecade Corp.,

Quarterly Report (Form 10-Q), at 26 (Aug. 14, 2024)

(explaining that “the D.C. Circuit[’s] . . . [vacatur decision] could impact Rio Grande’s ability to complete

Phase 1 on the expected time frame or at all”).

Boundless NEPA review has created grave legal vulnerabilities and it has directly harmed energy

infrastructure development in the United States.

II.

Permitting Delays Have Impeded Energy

Infrastructure Development.

Energy infrastructure is capital intensive and

permitting delays (and litigation risk) undermine the

certainty necessary for private investment.

Time is money. The delays caused by regulatory review and litigation can drastically alter the assumptions upon which a project’s finances were based.

While agencies conduct years-long NEPA reviews in

an effort to survive appeal, costs such as labor, construction materials, and commodity prices will

change. See, e.g., Trunkline Gas Co., LLC, Costs Comparison Statement re the Pipeline Modifications Project, FERC Docket No. CP14-119-000, at 1, Attach.

(July 23, 2024) (explaining that with “the passage of

time between the original estimates in 2015 and the

actual dates of construction [of pipeline modifications], costs have risen substantially,” with the original estimate of $53,956,745 increasing $107,155,160);

Mountain Valley Pipeline, LLC, 185 FERC ¶ 61,193,

at PP 5–6 (2023) (estimating a cost increase from

$3,707,568,813 to $6,648,000,000 due to “permitting

delays caused by ongoing legal challenges to the project”); Nat’l Grid LNG, LLC, 179 FERC ¶ 61,205, at

PP 5–7 (2022) (explaining that, due to the delay in obtaining a permit, costs increased from $180,256,679 to

$390,829,000).

Delay kills projects. In some cases, the costs

caused by permitting and litigation delay prove insurmountable. Needed, otherwise viable infrastructure

projects are not infrequently withdrawn as a result of

delay. The Atlantic Coast Pipeline, which had already

received its FERC permit, was withdrawn due to “ongoing delays and increasing cost uncertainty which

threaten[ed] the economic viability of the project.” See

Duke Energy, Dominion Energy and Duke Energy

Cancel the Atlantic Coast Pipeline (July 5, 2020),

https://news.duke-energy.com/releases/dominion-energy-and-duke-energy-cancel-the-atlantic-coast-pipeline. The project sponsors specifically cited the threeand-a-half-year delay caused by “legal challenges to

the project’s federal and state permits” which caused

the costs of the project to almost double from about

$4.5 billion to $8 billion. Id.

Every project delayed, every project subject to

cost overruns, every project cancelled, increases the

cost of financing for other projects. As the evidence of

regulatory uncertainty accumulates, the risk premium added to any infrastructure project grows as the

capital markets price delay and regulatory failure into

their risk models. This makes financing over the life

of the project more expensive, the investment less attractive, and the pool of available capital smaller—

and at higher rates. This results in fewer projects developed. In the past five years, from 2017 to 2023, the

additional interstate natural gas pipeline capacity

added annually has dropped from approximately 11

Bcf per day to under 0.9—a startling reduction. See

EIA Report.

So great is the burden posed by NEPA review,

its delays and attendant litigation risk, that pipeline

investment has fled interstate pipelines and sought

safe harbor with intrastate pipelines because federal

jurisdiction only extends to transportation in interstate commerce, so intrastate pipelines are not subject

to NEPA. See 15 U.S.C. § 717(b). The last five years

have shown a marked increase in the proportion of intrastate pipelines as a share of added capacity, reaching 86 percent in 2023. See EIA Report. Though the

NGA was passed to encourage development of interstate pipelines, the regulatory burden of NEPA has

driven capital to state-jurisdictional investments.

In addition to increasing project costs and sending risk signals to the broader market, delays caused

by unnecessary process and litigation deprive the consumer and ratepayer of the energy services they need.

If a project cannot enter into service, ratepayers will

not get the benefit of diversified sources of supply

(needed now, more than ever, given growing demand)

and the lower associated costs. See, e.g., Roanoke Gas,

Comments in Support of Mountain Valley Pipeline

Project, FERC Docket Nos. CP16-10-000, et al., at 3

(July 8, 2022) (explaining “that access to the Appalachian Basin via Mountain Valley Pipeline would lower

the average Roanoke Gas customer’s gas cost by at

least 20%”). Cf. Transcontinental Gas Pipe Line Co.,

Quarterly Report (Form 10-Q), at 16 (Aug. 5, 2024)

(explaining that the D.C. Circuit recently vacated the

FERC authorization for a project where “half of the

project [was placed] into service in the fourth quarter

of 2023” and stating that it “will take the necessary

legal and regulatory actions to ensure that the project

capacity continues to be available to serve the needs

of [its] customers without interruption”).

Permitting Delays also threaten electric reliability and drive up electricity ratepayers’ costs. Electric utilities depend upon energy infrastructure to

maintain system reliability and to ensure diversity of

supply. Without natural gas and oil pipelines to provide fuel, and without transmission to move power,

utilities cannot ensure that they will have adequate

supplies of electric power when they need it and will

be unable to keep prices low by dispatching the lowest

cost power from among the generators across a large

footprint. Failure to build needed energy infrastructure results in scarcity—and that, at a minimum,

means higher prices. Cf. PJM Interconnection L.L.C.

(PJM), PJM Capacity Auction Procures Sufficient Resources to Meet RTO Reliability Requirement, at 1

(July 30, 2024) [hereinafter PJM Auction Results] (explaining that for the 2025/2026 delivery year in PJM,

“[a]uction prices were significantly higher across the

RTO due to decreased electricity supply caused primarily by a large number of generator retirements,

combined with increased electricity demand and implementation of FERC-approved market reforms”).

Should the scarcity be acute, it could mean reliability

failures.

Both generation and transmission are desperately needed. The demand for electricity in many regions is growing more quickly than at any time in the

past decade due to economic growth, rise in manufacturing, the deployment of data centers, and the

retirement of large quantities of dispatchable generation. See NERC, 2023 Long-Term Reliability Assessment, at 10 (Dec. 2023); MISO, MISO’s Response to the

Reliability Imperative, at 9 (Feb. 2024) [hereinafter

MISO’s Response], https://www.misoenergy.org/meetmiso/MISO_Strategy/reliability-imperative/.

Even in the face of rapid load growth, it is extremely difficult to build sufficient generation to meet

demand. As a group of electric market operators explained in a recent Environmental Protection Agency

proceeding, “shortfalls in resource adequacy as a result of retirements cannot simply be addressed overnight and would require the development of new resources that can take considerable time to permit and

build.” Joint Comments at 9; cf. MISO’s Response at

10 (“As of late 2023, about 25 GW . . . had missed their

in-service deadlines by an average of 650 days, with

developers citing supply chain and permitting issues

as the two biggest reasons for the delays.”); PJM Auction Results at 2 (“PJM remains concerned with the

slow pace of new generation construction. Approximately 38,000 MW of resources . . . have not been built

due to external challenges, including financing, supply chain and siting/permitting issues.”).

It is similarly difficult to build transmission.

MISO warned that “the real risk is in a scenario where

we have underbuilt the [transmission] system.”

MISO’s Response at 18. A sobering comment in light

of MISO’s recent approval of 700 miles of transmission

development at a cost $9 billion to “address[] aging infrastructure, new load and added generation due to

retiring traditional resources.” MISO, MISO Board

Approves $9 Billion Transmission Portfolio (Dec. 8,

2023), https://www.misoenergy.org/meet-miso/media-

center/miso-matters/miso-board-approves-$9-billiontransmission-portfolio/.

Delays are costly. In the face of delayed infrastructure development, prices rise and reliability is

threatened. If generation development is delayed,

prices rise due to scarcity; if transmission development is delayed, prices rise because of congestion. See

PJM, Transmission Congestion Can Increase Costs, at

1 (Jan. 3, 2024), https://www.pjm.com/-/media/aboutpjm/newsroom/fact-sheets/congestion-fact-sheet.ashx

(“Heavy use of the electricity grid can result in congestion—a condition where the lowest-priced electricity

can’t flow freely to a specific area—and higher-priced

power is needed to keep the lights on”).

This threat to transmission development is not

speculative. The Clean Energy Connect project, designed to bring 1.2 GW of hydroelectric power from

Quebec to New England, a region that is suffering debilitating fuel scarcity, is currently being challenged

under NEPA, in part, on a procedural argument that

the authorizing agencies improperly segmented their

environmental reviews and a challenge to the treatment of upstream combustion emissions based on the

plaintiff’s concern that backup fossil fuel generation

might be required in the event of a shortfall of hydroelectric power. See Plaintiffs’ Motion for Summary

Judgment and Memorandum in Support at 15–17, 2125, Sierra Club v. U.S. Army Corps of Engineers, No.

2:20-cv-00396-LEW (D. Me. Mar. 29, 2024), ECF No.

177.

There can be absolutely no doubt that this project is needed. “[A] persistent concern [in New England] is whether there will be sufficient fuel available

to satisfy electrical energy and operating reserve

demands during an extended cold spell.” NERC, 2023

Long-Term Reliability Assessment, supra, at 8. Blackouts in New England in the winter threaten not just

high electric costs due to scarcity, but the lives of New

Englanders. Needed though it is, this project hangs

in the balance based upon alleged deficiencies in the

NEPA review of, at most, a minimal portion of the entire project. The Federal Defendants in that case

stated that “[o]nly 1.9% of the 8,600 acres of total land

associated with the Project would impact federally

regulated wetlands”; the remaining 98 percent of the

project’s land would not be subject to the Corps’ jurisdiction. See Federal Defendants’ Motion for Summary

Judgment and Response in Opposition to Plaintiffs’

Motion for Summary Judgment, with Incorporated

Memorandum of Law at 12, Sierra Club v. U.S. Army

Corps of Engineers, No. 2:20-cv-00396-LEW (D. Me.

June 4, 2024), ECF No. 180.

Eagle County is particularly threatening to

transmission development. The D.C. Circuit, quoting

Sabal Trail, held that the STB must “either quantify

and consider the project’s upstream impacts or explain in more detail why it cannot do so.” Eagle

County, 82 F.4th at 1179 (cleaned up) (citation omitted). This holding expands the scope of NEPA review

to potentially encompass every conceivable activity induced by a federal action. Read for all it is worth, the

NEPA analysis for a proposed transmission line would

have to account, one way or another, for all of the development and economic activity caused by the lower

electric rates and higher reliability afforded by the

project as well as the effects of the new generation

that will be able to connect to the transmission system

due to lower congestion. Such effects are simply impossible to predict—let alone quantify. Such analysis

would impute to the transmission project the negative

environmental consequences of everything from new

industry being developed to increased population as a

result of general economic prosperity caused by the

transmission line. NEPA reviews under this holding

will create profound risk to the projects.

Rising prices hurt ratepayers because demand

for domestic fuel and electricity use are relatively inelastic. People will heat their houses in the winter

and will use lights at night. When energy prices rise,

ratepayers feel the impact directly. See Erick Garcia

Luna, Fed. Reserve Bank of Minneapolis, Rising

Household Energy Costs Affect Lower-Income and

Non-White Residents Most (Mar. 1, 2023),

https://www.minneapolisfed.org/article/2023/risinghousehold-energy-costs-affect-lower-income-and-nonwhite-residents-most; FERC, Energy Markets Primer,

at 5 (Dec. 2023) (“In the short term, residential and

commercial natural gas use tends to be inelastic—consumers use what they need, regardless of the price.”).

Rising energy costs due to infrastructure delays

also harm the economy more broadly because energy,

both fuel and electricity, are primary inputs to all

manner of industry and commerce. The economic

harm comes in two waves. First, people are required

to spend a larger proportion of their income on higher

energy costs, consequently reducing their spending on

other goods and services. Second, as higher energy

prices are absorbed by manufacturing and industry,

those costs are passed through to consumers, and the

price of goods and services rise. See Caroline Nakhle,

Geopolitical Intelligence Services AG, Energy Prices

and Inflation: Politics Trump the Economics (Dec. 7,

2022), https://www.gisreportsonline.com/r/energy-

prices/. The result is a dampened economy, lower employment, and economic distress.

New England is a case study in infrastructure

scarcity’s effects on the price of energy and its consequences for the economy. New England routinely suffers idiosyncratically high fuel and electricity prices

because of insufficient infrastructure. See EIA, New

England Utility Closes Import-Dependent Gas-Fired

Power Plant, Keeps LNG Import Option (June 24,

2024), https://www.eia.gov/todayinenergy/detail.php?

id=62404. This phenomenon is well known and

widely recognized. ISO New England, Inc., the region’s wholesale electric market operator, cites infrastructure constraints as the primary driver of both

higher fuel and electricity costs: in 2022, “periods of

sustained cold weather led to increased demand on a

constrained pipeline system . . . result[ing] in very

high gas and electricity prices.” ISO New England

Inc., 2022 Annual Markets Report, at 6 (June 5, 2023).

In 2022, day-ahead electricity prices were “$86 per

MWh . . . almost 90% higher than [the previous] year.”

Id. Unless more transmission and pipeline capacity is

built, high prices will continue in New England. See ISO New England Inc., Draft ISO/EDC/

LDC Problem Statement and Call to Action on LNG

and Energy Adequacy Federal Energy Regulatory

Commission New England Winter Gas-Electric Forum, Sept. 8, 2022, at 1 (Aug. 29, 2022), https://isone

wswire.com/wp-content/uploads/2022/08/DraftFERCTechConferenceEverettandEnergyAdequacyProblemStatement-8.29-final.pdf (“The natural gas

pipelines that serve New England operate at maximum capacity during the winter.”).

Industry and manufacturing are directly exposed to higher prices and insufficient supply which

forces industry to reduce production or shut down operations at great cost. On the East Coast, the winter

can see fuel prices that are up to 500 percent higher

than in unconstrained areas. See Indus. Energy Consumers of Am. (IECA), Letter to Governors re: Manufacturing Companies Face Growing Natural Gas Scarcity Along the Entire Eastern Seaboard, at 2 (Dec. 13,

2022), https://www.ieca-us.com/wp-content/uploads/

12.13.22_Transco-Governors-Letter.pdf (stating that

in 2021 “manufacturers paid over $20 per MMBtu” for

natural gas compared to “$3.84 per MMBtu” at Henry

Hub). It is difficult for a business to remain competitive when its primary input’s costs are five times those

of its competitors.

Industry is a critical component of the economy.

On the Eastern seaboard, it accounted for almost

three and a half million jobs and $638 billion in GDP.

See IECA, Comments for the Record on the “American

Energy Expansion: Strengthening Economic, Environmental, and National Security” Hearing, at 1–2 (Jan.

30, 2023), https://www.ieca-us.com/wp-content/uploads/01.30.23_Comments-for-the-Record_AmericanEnergy-Expansion-Hearing.pdf. High energy prices

and curtailments due to insufficient infrastructure

threaten the long-term viability of manufacturing

throughout infrastructure-constrained regions.

Ordinarily, the cure for high prices is high

prices. In a permitting regime that was not beset by

delay and legal risk, the profit motive of infrastructure developers would induce them to develop the

transmission and pipeline projects that could satisfy

the urgent demand for electricity and fuel. But

confronted with an obstructive permitting regime,

driven in large measure by the delay and litigation

caused by NEPA, uncertainty will continue to drive up

risk premiums, increase the cost of capital, and impede infrastructure development.

III.

Sabal Trail has Undermined Public Citizen and Undermined Agencies’ Organic

Statutes.

Although the instant case arose from an order

of the STB, the following discussion concentrates on

the cases upon which Eagle County was based, a series of appeals arising from FERC orders. Beginning

with Sabal Trail, the court issued a number of opinions which expanded the scope of NEPA review, undermined agencies’ enabling statutes and impeded the

development of energy infrastructure.

A. NEPA is a Procedural Statute.

NEPA “imposes only procedural requirements

. . . requiring agencies to undertake analyses of the

environmental impact of their proposals and actions.”

Public Citizen, 541 U.S. at 756–57. Accordingly,

“NEPA itself does not mandate particular results, but

simply prescribes the necessary process.” Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 350

(1989) (citations omitted). “NEPA was designed” to

create processes that would “alert[] governmental actors to the effect of their proposed actions on the physical environment.” Metropolitan Edison Co. v. People

Against Nuclear Energy, 460 U.S. 766, 772 (1983)

(Metropolitan). Because its purpose is to inform decision makers, NEPA’s “rule of reason” allows agencies

to determine “whether and to what extent to prepare

an EIS based on the usefulness of any new potential

information on the decisionmaking process.” Public

Citizen, 541 U.S. at 754.

As a procedural statute, NEPA cannot add to

an agency’s jurisdiction beyond that conferred by Congress in its organic statute, nor does NEPA “repeal by

implication any other statute.” Aberdeen & Rockfish

R.R. Co. v. S.C.R.A.P., 422 U.S. 289, 319 (1975); see

also 42 U.S.C. § 4335 (“The policies and goals set forth

in this chapter are supplementary to those set forth in

existing authorizations of Federal agencies”); H.R.

Rep. No. 91-765, at 10 (1969) (Conf. Rep.) (explaining

that NEPA “does not repeal existing law,” but instead

requires compliance “unless to do so would clearly violate their existing statutory authorizations”).

Agencies are still bound by their statutes and

are not required to “elevate environmental concerns

over other appropriate considerations,” Strycker’s Bay

Neighborhood Council, Inc. v. Karlen, 444 U.S. 223,

227 (1980), and when courts sit in review of an

agency’s NEPA analysis, their only role “is to insure

that the agency has [considered the] environmental

consequences; [a reviewing court] cannot ‘interject itself within the area of discretion . . . as to the choice of

the action to be taken.’” Kleppe v. Sierra Club, 427

U.S. 390, 410 n.21 (1976) (citation omitted).

In light of NEPA’s role as an “action-forcing”

statute, Andrus v. Sierra Club, 442 U.S. 347, 350

(1979), this court held in Metropolitan and again in

Public Citizen, that agencies are not responsible for

effects based on strict “‘but for’ causation” especially

“when the agency has no authority to prevent the effect.” Public Citizen, 541 U.S. at 754 (citing Metropolitan, 460 U.S. at 774). Instead, there must be a “reasonably close causal relationship” between the

agency’s action and the effect, “akin to proximate

cause in tort law,” in order to find an agency to be the

legally relevant cause of an effect. Id.

B. Sabal Trail has Encouraged the Unlawful Expansion of Agency Jurisdiction and Threatens Agencies’ Organic Statutes.

Public Citizen was the prevailing framework

for determining whether an agency was the legally

relevant cause of an environmental effect until Sabal

Trail.3 In Sabal Trail, the court found FERC the “legally relevant cause” of the effects of natural gas combustion from power plants “[b]ecause FERC could

deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment.” Sabal

Trail, 867 F.3d at 1373 (citation omitted).

The court’s assignment of responsibility to

FERC for the emissions of electric generators rests

upon a false predicate. FERC has no jurisdiction over

electric generators. The Federal Power Act (FPA) explicitly reserves that authority to the states alone. See

16 U.S.C. § 824(b)(1) (“The Commission . . . shall not

have jurisdiction . . . over facilities used for the generation of electric energy . . . .”); Hughes v. Talen Energy

Mktg., LLC, 578 U.S. 150, 154 (2016) (“The States’ reserved authority includes control over in-state ‘facilities used for the generation of electric energy.’” (quoting 16 U.S.C. § 824(b)(1)). In a word, FERC does not

3 Although Sabal Trail was decided in the D.C. Circuit and

does not apply in every circuit, because so many agencies’ enabling statutes provide venue in the D.C. Circuit, agencies frequently conduct their NEPA review in anticipation of a challenge

there, thus Sabal Trail’s broad influence.

have the power to stop power plant emissions. Even

were it to deny an application for a pipeline intended

to deliver natural gas to an electric generator, the generator can still operate with fuel obtained elsewhere,

for example, from non-FERC jurisdictional intrastate

pipelines. Whether it operates is a decision left entirely to the states.

The court repeated its error in Food and Water

Watch when it required FERC to review the environmental effects caused by local distribution companies

that supply commercial and residential customers because they were to receive their natural gas from the

FERC-jurisdictional pipeline under review. See Food

& Water Watch, 28 F.4th at 288. But FERC cannot be

the legally relevant cause of those effects under Public

Citizen because, like generators under the FPA, the

NGA specifically exempts local distribution from

FERC’s jurisdiction. See 15 U.S.C. § 717(b) (stating

that the NGA “shall not apply to . . . the local distribution of natural gas”).

The instant case is the culmination of the case

law that began with Sabal Trail and, given its holding, it was perhaps inevitable that the STB’s decision

to forego review of upstream and downstream effects

would have resulted in the reversal of its order. As

long as an agency has the ability to deny a permit, so

the logic of Sabal Trail goes, it is the legally relevant

cause of the permitted activities’ effects. This, of

course, amounts to the very but-for causation that was

specifically eschewed in Metropolitan and Public Citizen.

Worse than flouting Supreme Court precedent,

the holding in Sabal Trail all but requires agencies to

violate their own statutes. Railroads, as common

carriers, must provide “service on reasonable request”

and cannot refuse service merely because they dislike

the effects of the commodity being transported. 49

U.S.C. § 11101(a). Congress has commanded the STB

to indifference as to the cargo shipped on the rail lines

it authorizes, yet Eagle County, by declaring the STB

the legally relevant cause of downstream emissions,

encourages the STB to violate its statute in favor of

discrimination.

This was the original sin of Sabal Trail. Declaring FERC the legally relevant cause of the effects

of generator combustion encouraged FERC to violate

its statute by considering matters that its enabling

statute explicitly placed outside its jurisdiction.

FERC is prohibited from regulating indirectly what it

cannot regulate directly. See, e.g., Nat’l Fuel Gas Supply Corp. v. FERC, 909 F.2d 1519, 1522 (D.C. Cir.

1990) (citing Sunray Mid-Continent Oil Co. v. FPC,

364 U.S. 137, 152 (1960); Richmond Power & Light v.

FERC, 574 F.2d 610, 620 (D.C. Cir. 1978)); see also

Am. Gas Ass’n v. FERC, 912 F.2d 1496, 1510 (D.C.

Cir. 1990) (“[T]he Commission may not use its § 7 conditioning power to do indirectly . . . things that it cannot do at all.”).

Having placed these subjects outside FERC’s

jurisdiction, FERC should not include them in its substantive considerations under its authorizing statute.

These limits on agency power are necessary.

“[T]he . . . words ‘public interest’ in a regulatory statute is not a broad license to promote the general public

welfare.” NAACP v. Fed. Power Comm’n, 425 U.S.

662, 669 (1976) (NAACP). Instead, the inquiry must

be conducted in accordance with the “purposes of the

regulatory legislation.” Id. The purpose of the NGA,

for example, is to “encourage the orderly development

of plentiful supplies of . . . natural gas at reasonable

prices.” Id. at 669-70. When Congress exempts a subject from FERC’s jurisdiction, that subject is no longer

a legitimate consideration in FERC’s deliberations.

See Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State

Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(“[A]n agency rule would be arbitrary and capricious

if the agency has relied on factors which Congress has

not intended it to consider . . . .”).

The Federal Respondents’ brief argues for a

broad reading of NEPA’s requirement that “all agencies of the Federal Government” comply to “the fullest

extent possible,” 42 U.S.C. § 4332, hinting in the direction of the “broad license to promote the general

public welfare” rejected in NAACP. 425 U.S. at 669.

The most cursory inspection of the legislative history

demonstrates that, far from expanding agencies’ jurisdiction, that language was include in clear-eyed recognition that agencies will have limits imposed by their

enabling statutes, and that those limits were to be observed. See H.R. Rep. No. 91-765, at 9 (stating that

compliance is required unless “existing law . . . expressly prohibits or makes full compliance . . . impossible”).

C. Federal Respondents Argue—Unconvincingly—for Judicial Inaction.

Federal Respondents argue demurely for judicial restraint. It is the place of Congress, not the

courts, they argue, to make policy decisions. This

Court, they say, cannot “impose new limits on NEPA’s

established framework.” Fed. Resp’ts Br. 38. But Sabal Trail and its successor cases, culminating with

Eagle County, abandoned the framework that this

Court established in Metropolitan and subsequently

reaffirmed in Public Citizen. The Federal Respondents’ clever entreaty to judicial circumspection

amounts to an invitation to forbear disturbing the

lower court’s obstruction of long-standing precedent.

They ask this Court to leave in place Sabal Trail’s new

regime imposing an expansive, unpredictable, and atextual implementation of NEPA. Fed. Resp’ts Br. 29.

This Court should decline the Federal Respondents’

invitation to inaction.

As to the Federal Respondents’ statement that

Congress is the institution that should rearrange

NEPA, the Amici could not agree more. And Congress

has done just that.

The Federal Respondents, in arguing that Congress is perfectly capable of amending NEPA when

and should it choose to, offer a list of various new provisions passed as part of the Builder Act. See Fed.

Resp’ts Br. 38. The Federal Respondents should have

dwelt more upon the most important amendment to

the sole operative provision in the statute, section 102.

42 U.S.C. § 4332(C)(i). There, Congress took pains not

just to codify reasonable foreseeability into the scope

of NEPA analysis, but also to surgically amend the

cause of the effects that were to be considered, changing the requirement from reviewing the “environmental impact of the proposed action,” id. § 4332(C)(i)

(1970), to the “reasonably foreseeable environmental

effects of the proposed agency action.” Id. § 4332(C)(i)

(2023) (emphasis added); Builder Act § 321(a)(3)(B)

(emphasis added).

As this court has said, “[w]hen Congress acts to

amend a statute, we presume it intends its amendment to have real and substantial effect.” Stone v.

INS, 514 U.S. 386, 397 (1995) (citations omitted).

When interpreting that language, “a court should give

effect, if possible, to every clause or word of a statute.”

Moskal v. United States, 498 U.S. 103, 104 (1990).

This language of these amendments is best read as a

limitation. Agencies are not to review all of the environmental impacts, just the reasonably foreseeable

ones. They are not to consider all of the consequences

of the proposed action, just those caused by the action

of the agency. Agencies are not required to review effects that are so speculative as to be unforeseeable,

nor must they review effects for which they are not

properly considered the legally relevant cause. In

other words, the amendments codified the very limitations articulated in Metropolitan and Public Citizen.

The legislative history, if needed given the obvious intent, supports no other conclusion. A House

Report accompanying an earlier version of what became this provision of the Builder Act stated that its

purpose was to “clarify[] the scope of [NEPA] reviews.”

H.R. Rep. No. 118-28, pt 1, at 33 (2023). A proponent

of the bill that was later to become the Builder Act,

Congressman Westerman, stated that the “intent” of

this section was “to narrow the scope” “from ‘any environmental impact’ . . . to only those ‘environmental

effects’ that would be a ‘reasonably foreseeable’ result

of ‘the proposed agency action.” 169 Cong. Rec.

H2681, H2704 (daily ed. May 31, 2023).

Federal Respondents assertion that “Congress

did not choose to make any changes that would dramatically limit NEPA’s reach,” Fed. Resp’ts Br. 38,

flies in the face of these narrow and purposeful

amendments plainly intended to circumscribe NEPA

review.

The Federal Respondents are arguing that the

scheme established by the D.C. Circuit under Sabal

Trail, which gave rise to the absurd result in this case

should remain in place. There is no problem with the

Sabal Trail regime, they effectively argue, there is

merely a problem with the application of that regime

in this particular instance.

The Federal Respondents advocate for the narrowest possible relief—maintain the status quo, just

reverse this one case. What they argue for is unworkable. Federal Respondents rest their faith in the prerogative of agencies to draw reasonable, “context-specific” lines to bound their NEPA inquiries that depend

upon “the nature of the decision before the agency and

its assessment of the facts on the ground. Fed. Resp’ts

Br. 29. In other words, as much discretion to the

agency as possible.

This is an invitation to chaos.

Worse, under the Federal Respondents’ regime

that provides no “bright-line limits,” Fed. Resp’ts Br.

18, the scope of NEPA review would vary among agencies and even among projects reviewed under the

same statute, as agencies labor to establish some principled limits to their obligations based on “the nature

of the decision” they are called to make and their “assessment of the facts on the ground.” Id. at 29.

D. The Court Should Adopt—and Impose—the Holding in Sierra Club.

In order to limit the damage caused by Sabal

Trail, Food & Water Watch, and Eagle County, the

Court should, at a minimum, reaffirm Public Citizen.

The D.C. Circuit has repeatedly, and correctly,

held that because FERC does not have jurisdiction

over the export of natural gas, it could not be the legally relevant cause of the effects caused by export

and therefore it need not consider those effects because it has no statutory authority to prohibit them.

See Sierra Club v. FERC, 827 F.3d 36, 47 (D.C. Cir.

2016); see also Ctr. for Biological Diversity v. FERC,

67 F.4th 1176, 1185 (D.C. Cir. 2023) (explaining that

“FERC is forbidden to rely on the effects of gas exports

as a justification for denying” a permit and that

“FERC’s lack of jurisdiction over export approvals also

means it has no NEPA obligation stemming from the

effects of export-bound gas”) (cleaned up) (citations

omitted); Sierra Club v. FERC, 827 F.3d 59, 68 (D.C.

Cir. 2016); EarthReports, Inc. v. FERC, 828 F.3d 949,

951–52 (D.C. Cir. 2016).

Sabal Trail itself, however, sets forth a confused justification for FERC’s designation as the legally relevant cause for the generators’ effects, citing

Public Citizen as it did so. The court reasoned that,

because FERC reviews LNG terminal applications

pursuant to a narrow delegation of authority from the

Department of Energy (DOE), it was not authorized

by the DOE to consider the effects of exports, the approval of which was a power the DOE reserved to itself. See Sabal Trail, 867 F.3d at 1373. The court

found that, in contrast, FERC reviews pipeline applications under section 7 of the NGA which requires

FERC to make a broader inquiry—whether the project is in “the public convenience and necessity.” Id.

Accordingly, the court went on, FERC can deny an application for environmental reasons and is therefore

the legally relevant cause of the effects. See id.

This reasoning must be in error. If a narrow

delegation from the DOE that excludes export

licensing authority is a sufficient basis to prohibit

FERC from considering export effects, then the complete exemption of electric generation from FERC’s jurisdiction in the plain text of its organic statute must

present an even greater obstacle. See 16 U.S.C. §

824(b)(1). If the argument is that DOE exclusively

regulates exports and so FERC cannot consider those

effects, then it logically follows that, since States exclusively regulate generation, FERC cannot consider

the effects attributable to the generators.

The court’s distinction in Sabal Trail between

the review under delegated authority and the broader

considerations under the public convenience and necessity inquiry cannot overcome these jurisdictional

limitations. See Sabal Trail, 867 F.3d at 1373. In reviewing a FERC order that found a natural gas pipeline project serving an LNG export facility to be in the

public convenience and necessity, the D.C. Circuit itself recently said (notwithstanding the broader public

convenience and necessity inquiry under NGA section

7) that because “Congress gave export authorization

to the [DOE]—not FERC,” “FERC did not err when it

declined to consider the environmental effects of exported gas.” Ala. Mun. Distribs. Grp. v. FERC, 100

F.4th 207, 214 (D.C. Cir. 2024).

When an agency cannot deny a permit based

upon an effect because the agency’s enabling statute

exempts the source of that effect from the agency’s jurisdiction, then the agency cannot be the legally relevant cause of that effect. The Court should clarify the

scope of Public Citizen’s limitation on agencies’ obligation to examine effects statutorily exempted from the

agency’s jurisdiction, and thereby obviate Sabal Trail.

CONCLUSION

For the reasons stated above, the Amici respectfully request that the Court vacate the D.C. Circuit’s decision in Eagle County, reaffirm its precedent

in Public Citizen, and hold that when an agency’s enabling statute places the cause of an effect outside the

agency’s jurisdiction, the agency’s action cannot be the

legally relevant cause of that effect and further, that

only when an agency’s action is the legally relevant

cause of an effect does the agency have an obligation

to review that effect under NEPA.

September 4, 2024

Respectfully submitted,

DONALD P. SALZMAN

Counsel of Record

JAMES P. DANLY

KYRSTIN M. WALLACH

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave., NW

Washington, DC 20005

202-371-7000

donald.salzman@skadden.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.