Food & Water Watch v. FERC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2021 Decided March 11, 2022

No. 20-1132

FOOD & WATER WATCH AND BERKSHIRE ENVIRONMENTAL
ACTION TEAM,
PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT

EVERSOURCE ENERGY SERVICE COMPANY AND TENNESSEE
GAS PIPELINE COMPANY, LLC,
INTERVENORS

On Petition for Review of Orders
of the Federal Energy Regulatory Commission

Adam S. Carlesco argued the cause and filed the briefs for
petitioners. Zachary B. Corrigan and Carolyn Elefant entered
appearances.

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.

Susanna Y. Chu, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
 2
brief were David L. Morenoff, Acting General Counsel, Robert
H. Solomon, Solicitor, and Robert M. Kennedy, Senior
Attorney.

Brian D. O’Neill argued the cause for intervenors. With
him on the brief were Michael R. Pincus and Mary E. Grover.

Michael L. Murray and Matthew J. Agen were on the brief
for amicus curiae American Gas Association in support of
respondent.

Jeremy C. Marwell and Matthew X. Etchemendy were on
the brief for amici curiae Interstate Natural Gas Association of
America and American Fuel & Petrochemical Manufacturers
in support of respondent.

Before: SRINIVASAN, Chief Judge, MILLETT and KATSAS,
Circuit Judges.

Opinion for the Court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: Two environmental groups,
Food & Water Watch and Berkshire Environmental Action
Team, petition for review of the Federal Energy Regulatory
Commission’s decision to authorize a new natural gas pipeline
and compressor station in Agawam, Massachusetts. One of
those petitioners, Berkshire, has failed to establish its standing
to challenge the Commission’s decision. The other petitioner,
Food & Water Watch, raises a variety of challenges related to
the Commission’s compliance with the National
Environmental Policy Act. In the main, we reject Food &
Water Watch’s claims. But we agree with its contention that
the Commission’s environmental assessment failed to account
for the reasonably foreseeable indirect effects of the project—
specifically, the greenhouse-gas emissions attributable to
 3
burning the gas to be carried in the pipeline. We grant Food &
Water Watch’s petition for review on that basis and remand for
preparation of a conforming environmental assessment.

I.

A.

The Natural Gas Act vests the Federal Energy Regulatory
Commission with authority to regulate the interstate
transportation of natural gas. 15 U.S.C. § 717. To construct or
operate an interstate natural gas pipeline, an entity must first
obtain “a certificate of public convenience and necessity,” 15
U.S.C. § 717f(c), known as a Section 7 certificate, from the
Commission.

The Section 7 certificate process incorporates review of
proposed projects under the National Environmental Policy
Act (NEPA), 42 U.S.C. § 4321 et seq. “NEPA establishes an
environmental review process under which federal agencies
identify the reasonable alternatives to a contemplated action
and look hard at the environmental effects of their decisions.”
City of Bos. Delegation v. FERC, 897 F.3d 241, 246 (D.C. Cir.
2018) (alterations and quotation marks omitted).

Under NEPA, agencies must prepare “detailed”
environmental impact statements for all “major Federal actions
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(2)(C). But not all federal actions fall into
that category. An agency may preliminarily prepare an
environmental assessment to determine whether the more
rigorous environmental impact statement is required.
Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d
1301, 1322 (D.C. Cir. 2015) (citing 40 C.F.R. §§ 1501.4,
1508.9). An environmental assessment “[b]riefly provide[s]
 4
sufficient evidence and analysis for determining whether to
prepare an environmental impact statement.” 40 C.F.R.
§ 1508.9(a)(1). That analysis must include a discussion of “the
environmental impacts of the proposed action and
alternatives.” Id. § 1508.9(b). If, based on the environmental
assessment, the agency determines that the proposed action
“will not have a significant effect on the human environment,”
it need not prepare an environmental impact statement. Id.
§ 1508.13. Instead, the agency can issue a formal “finding of
no significant impact.” Id.

B.

Tennessee Gas Pipeline Co. operates an approximately
11,000-mile interstate natural gas pipeline system that traverses
much of the eastern half of the United States. In late 2018,
Tennessee Gas sought the Commission’s approval for a modest
expansion of that system. The expansion, which the parties
refer to as the Upgrade Project, involves the addition of 2.1
miles of pipeline and a new compressor station to Tennessee
Gas’s existing facilities in Agawam, Massachusetts.

As required by the Natural Gas Act, Tennessee Gas
applied for a Section 7 certificate for the Upgrade Project.
According to the application, the Upgrade Project would serve
three purposes. First, it would increase the system’s
transportation capacity by 72,400 dekatherms per day, helping
Tennessee Gas to meet the demand of downstream local
distributors. At the time of the application, more than half of
the gas the pipeline would carry was already under contract
with Columbia Gas of Massachusetts (40,400 dekatherms per
day) and Holyoke Gas and Electric Department (5,000
dekatherms per day). Second, the Upgrade Project would
improve the reliability of Tennessee Gas’s service. And third,
 5
the new compressor station would enable Tennessee Gas to
retire two older, less-efficient compressor units.

In May 2019, in accordance with NEPA, the Commission
completed its Environmental Assessment of the Upgrade
Project. The Assessment determined that, with appropriate
mitigation measures, the Upgrade Project would not constitute
a major federal action significantly affecting the environment.
In December 2019, the Commission issued a Certificate Order
approving the project. Order Issuing Certificate, Tennessee
Gas Pipeline Co., L.L.C., 169 FERC ¶ 61,230 (Dec. 19, 2019)
(Certificate Order). The Certificate Order adopted the
Environmental Assessment’s conclusion and made a formal
finding that the Upgrade Project would have no significant
environmental impact. Commissioner Glick filed a partial
dissent, taking issue with the Commission’s treatment of the
project’s environmental impacts, particularly its climate-
change implications.

Petitioners Food & Water Watch and Berkshire filed
timely rehearing requests, which the Commission denied in a
February 2020 Rehearing Order. Order Denying Rehearing
and Stay, Tennessee Gas Pipeline Co., L.L.C., 170 FERC
¶ 61,142 (Feb. 21, 2020). The Commission reaffirmed its
approval of the Upgrade Project and defended its assessment
of the environmental impacts. Commissioner Glick reiterated
his partial dissent.

Food & Water Watch and Berkshire then jointly petitioned
our court for review of the Certificate Order and the Rehearing
Order.
 6
II.

We begin by examining our jurisdiction to consider the
claims presented in the joint petition for review. Two
jurisdictional requirements are relevant here: (i) Article III
standing, and (ii) statutory subject-matter jurisdiction under the
Natural Gas Act. As to the first, while Food & Water Watch
has established its standing, Berkshire has not. As to the
second, in view of Berkshire’s lack of standing, we have
jurisdiction to review only those issues that Food & Water
Watch adequately preserved before the Commission.

A.

Although the Commission does not challenge either
petitioner’s standing, “it is well established that the court has
an independent obligation to assure that standing exists.”
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). To
establish standing under Article III of the Constitution, a party
must demonstrate (i) an injury in fact, (ii) that is fairly traceable
to the challenged conduct, and (iii) that is likely to be redressed
by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61 (1992). An association like Food & Water Watch
or Berkshire has standing only if “(1) at least one of its
members would have standing to sue in [its] own right, (2) the
interests the association seeks to protect are germane to its
purpose, and (3) neither the claim asserted nor the relief
requested requires that an individual member of the association
participate in the lawsuit.” Sierra Club v. EPA, 292 F.3d 895,
898 (D.C. Cir. 2002).

Plainly, the claims brought by Food & Water Watch and
Berkshire are germane to both associations’ purposes of
environmental protection. And “the relief sought under the
Administrative Procedure Act does not require the
 7
participation of individual members.” Sierra Club v. FERC,
827 F.3d 36, 43 (D.C. Cir. 2016) [Sierra Club]. The question
of individual-member standing is thus “where the rub is.” Id.
Petitioning associations may seek to make the requisite
showing through affidavits from members, and both have
attempted to do so here. Sierra Club v. FERC, 867 F.3d 1357,
1365 (D.C. Cir. 2017) [Sabal Trail].

Food & Water Watch has met its burden to show that at
least one of its members would have individual standing to sue.
First, its members’ affidavits identify harms to “concrete
aesthetic and recreational interests.” WildEarth Guardians v.
Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013). Linda Grimaldi,
whose property is near the site of the Upgrade Project’s
proposed compressor station, provides the clearest example.
She explains that the proposed construction would increase
noise and pollution at her home, impairing the financial value
of her property and her peaceful enjoyment of it. Those sorts
of harms satisfy Article III’s injury-in-fact requirement. See,
e.g., Sabal Trail, 867 F.3d at 1365–66; Sierra Club, 827 F.3d
at 44.

Grimaldi’s affidavit similarly makes the second and third
required showings to demonstrate her individual standing:
causation and redressability. Her injuries are “linked directly
to the Commission’s authorization[]” of the Upgrade Project,
and a reversal of that authorization would provide her redress.
Sierra Club, 827 F.3d at 44; see also WildEarth Guardians,
738 F.3d at 305–06.

Not so for Berkshire’s lone affidavit, provided by Jane
Winn. Winn, unlike Grimaldi, lives more than 60 miles from
the compressor station. Her asserted injury stems from her
family’s visits to the Six Flags New England amusement park
in Agawam, adjacent to the Upgrade Project. According to
 8
Winn, she appreciates the scenic views from the top of rides at
Six Flags and otherwise enjoys recreating in the area. And
Winn maintains that those interests would be impaired by the
noise and pollution associated with the proposed construction,
as well as the possibility that the pipeline, once operational,
might explode. Be that as it may, to satisfy Article III, an injury
not only must be concrete, but also must be “actual or
imminent.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409
(2013). Winn’s affidavit, though, identifies no specific plans
to visit Six Flags and gives no indication of how often she goes
to the area. The inference we are left to draw is that she will
visit Six Flags at some point in the future. But “[s]uch ‘some
day’ intentions—without any description of concrete plans, or
indeed even any specification of when the some day will be—
do not support a finding of the ‘actual or imminent’ injury that
our cases require.” Lujan, 504 U.S. at 564. As a result, Winn’s
asserted injuries are not sufficiently imminent to demonstrate
her standing. And because her affidavit is the only one
Berkshire submitted, we find that Berkshire fails to establish
its standing.

B.

Berkshire and Food & Water Watch filed a joint petition
for review. “[W]hen multiple petitioners bring claims jointly,
only one petitioner needs standing to raise each claim.” City of
Bos. Delegation, 897 F.3d at 250. While Berkshire’s lack of
standing thus presents no obstacle to our considering
petitioners’ joint claims as a matter of Article III standing, it
poses a different jurisdictional impediment to our considering
some of the claims.

Our jurisdiction is also constrained by the Natural Gas Act.
And for this court to have statutory jurisdiction under that Act
“to consider an issue, the party seeking review must have
 9
presented the same issue to the Commission in an application
for rehearing.” Id. (citing 15 U.S.C. § 717r(b)). “Parties
seeking review of FERC orders must petition for rehearing of
those orders and must themselves raise in that petition all of the
objections urged on appeal.” Platte River Whooping Crane
Critical Habitat Maint. Tr. v. FERC, 876 F.2d 109, 113 (D.C.
Cir. 1989) (citing Federal Power Act’s identical jurisdictional
provision, 16 U.S.C. § 825l(b)). Filing a joint petition for
review does not permit an end-run around the party-specific
nature of the exhaustion requirement. Rather, to determine the
issues that a particular party can properly raise before us, we
must look to that party’s filings before the Commission.

Here, Food & Water Watch and Berkshire filed separate
requests for rehearing before the Commission, and those
requests were not coextensive. Berkshire identified issues that
Food & Water Watch did not, and vice versa. Because
Berkshire lacks standing, we lack jurisdiction over the two
claims now raised in petitioners’ joint brief that Berkshire
alone identified before the Commission: that the Commission
failed to adequately consider public-health consequences of
methane emissions from the Upgrade Project, and that the
Commission failed to address the public safety concerns
stemming from then-recent explosions on Columbia Gas’s
distribution system in Massachusetts. We have jurisdiction to
consider petitioners’ remaining claims.

III.

We review NEPA claims under the Administrative
Procedure Act’s familiar arbitrary-or-capricious standard.
Nevada v. U.S. Dep’t of Energy, 457 F.3d 78, 87 (D.C. Cir.
2006). Our mandate in evaluating NEPA claims “is simply to
ensure that the agency has adequately considered and disclosed
the environmental impact of its actions and that its decision is
 10
not arbitrary or capricious.” Balt. Gas & Elec. Co. v. Nat. Res.
Def. Council, 462 U.S. 87, 97–98 (1983). In fulfilling that
mandate, we “appl[y] a ‘rule of reason,’” and have “refused to
‘flyspeck’ the agency’s findings in search of ‘any deficiency
no matter how minor.’” Myersville, 783 F.3d at 1322–23
(quoting Nevada, 457 F.3d at 93).

Food & Water Watch contends the Commission failed to
comply with NEPA in four ways. We agree with Food & Water
Watch as to one of its arguments but reject the others. And
although we remand to the Commission in light of its failure to
satisfy its NEPA obligations in one respect, we conclude that
vacatur of its order is unwarranted in the circumstances.

A.

If approved, the Upgrade Project would form part of—and
add transportation capacity to—a broader natural gas supply
chain connecting producers to consumers. See Nat’l Fuel Gas
Supply Corp. v. FERC, 468 F.3d 831, 834 (D.C. Cir. 2006).
The natural gas that travels through the Upgrade Project will
have come from a production site for ultimate delivery to
consumers. Food & Water Watch contends that the
Commission violated NEPA by declining to consider the
impact of the Upgrade Project’s added transportation capacity
on upstream production and downstream consumption of
natural gas.

NEPA requires agencies to “consider not only the direct
effects, but also the indirect environmental effects” of
proposed actions. Sabal Trail, 867 F.3d at 1371. Indirect
effects are “caused by the action and are later in time or farther
removed in distance, but are still reasonably foreseeable.” 40
C.F.R. § 1508.8(b). Effects are “reasonably foreseeable” if
they are “sufficiently likely to occur that a person of ordinary
 11
prudence would take [them] into account in reaching a
decision.” EarthReports, Inc. v. FERC, 828 F.3d 949, 955
(D.C. Cir. 2016) (citation omitted).

In requiring evaluation of indirect effects, “the statute does
not demand forecasting that is not meaningfully possible, [but]
an agency must fulfill its duties to the fullest extent possible.”
Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1310 (D.C.
Cir. 2014) (quotation marks omitted). In the pipeline-approval
context, as elsewhere, reasonable forecasting requires
information. But an initial lack of information does not afford
an agency carte blanche to disregard indirect effects. Rather,
we have recently reiterated that, before the Commission may
conclude that forecasting indirect effects is not meaningfully
possible, “NEPA also requires the Commission to at least
attempt to obtain the information necessary to fulfill its
statutory responsibilities.” See Birckhead v. FERC, 925 F.3d
510, 520 (D.C. Cir. 2019) (per curiam).

NEPA, then, imposes two, related obligations on the
Commission in connection with assessing a proposed pipeline
project’s indirect effects. First, the Commission must attempt
to gather the information necessary to assess the project’s
potential indirect effects. Second, on the record before it—as
supplemented by its own efforts to gather information—the
agency must consider the reasonably foreseeable effects of the
proposed project.

1.

“Heeding a famous and sensible instruction”—and, now,
the wisdom of precedent—“we ‘[b]egin at the beginning’ of the
pipeline, with the challenge to the Commission’s failure to
consider the impacts of upstream gas production.” Id. at 517
(quoting Lewis Carroll, Alice’s Adventures in Wonderland 142
 12
(Edmund R. Brown ed., International Pocket Library 1936)
(1865)).

In its Certificate Order, the Commission explained that,
because the “specific source of natural gas to be transported via
the . . . Upgrade Project has not been identified with any
precision and will likely change throughout the project’s
operation,” any environmental effects of upstream natural gas
production were neither “caused by [the] proposed pipeline
project” nor “reasonably foreseeable consequences” of
approval. Certificate Order ¶ 61. The Commission indicated
that finding causation would require “evidence demonstrating
that, absent approval of the project, this gas would not be
brought to market by other means.” Id. ¶ 62. And finding that
effects were reasonably foreseeable would require “evidence in
the record that would help predict the number and location of
any additional wells that would be drilled as a result of any
production demand associated with the project.” Id. The
Commission did not attempt to gather the information that it
characterized as necessary to assess upstream indirect effects.

In its request for rehearing, Food & Water Watch
contested the propriety of the Commission’s conclusion but
failed to identify any particular flaws in the Commission’s
approach to upstream effects. The request for rehearing merely
reiterated the Commission’s NEPA obligation to assess
indirect effects and contended that those effects included
“upstream fossil fuel extraction.” J.A. 463. Before our court,
Food & Water Watch attempts to remedy that deficiency, but
its effort comes too late.

First, Food & Water Watch contends that the Commission
shirked its obligation to gather information necessary to
forecast increases in upstream drilling. But the Commission’s
record-development obligation—like other grounds for
 13
relief—needs to have been invoked before the Commission to
be relied upon in court. Birckhead, 925 F.3d at 520. Although
we, like the Birckhead court, are “troubled” by the
Commission’s failure to seek out relevant information, id. at
519, we, again as in Birckhead, lack jurisdiction to consider the
claim.

Second, Food & Water Watch appears to take issue with
evidence the Commission identified as necessary for
substantiating foreseeable consequences. In particular, Food &
Water Watch contends that the Commission’s focus on the
location and number of wellheads resulting from the project
was too demanding, so as to sidestep the Commission’s NEPA
obligation to engage in “reasonable forecasting.” See Del.
Riverkeeper, 753 F.3d at 1310 (alteration omitted). On
rehearing before the Commission, however, Food & Water
Watch failed to argue that the Commission’s focus on
additional wellheads was misplaced. Such an argument, at
best, could be seen to fall implicitly within Food & Water
Watch’s broader request for the Commission to consider
upstream effects. But under the statute’s exhaustion
requirement, 15 U.S.C. § 717r(b), “[p]etitioners must raise
each argument with specificity; objections may not be
preserved either indirectly or implicitly.” Ameren Servs. Co. v.
FERC, 893 F.3d 786, 793 (D.C. Cir. 2018) (referring to the
Federal Power Act’s identical provision) (citations and
quotation marks omitted). We thus have no occasion to
determine whether the Commission’s approach was
inconsistent with its NEPA obligations.

Having found Food & Water Watch’s upstream-effects
arguments jurisdictionally barred, we are left with no basis for
concluding that the Commission acted arbitrarily or
capriciously, or otherwise violated NEPA, by declining to
assess the upstream consequences of the Upgrade Project.
 14

2.

Food & Water Watch’s second indirect-effects argument
relates to the pipeline’s other terminus—the end user. As in
the upstream-production context, the Commission determined
that the relevant effects—here, downstream gas consumption
and the resulting greenhouse-gas emissions—were not
reasonably foreseeable. Unlike in the upstream-production
context, however, the Commission “attempt[ed] to obtain the
information necessary to” determine the scope of its NEPA
obligations. Birckhead, 925 F.3d at 520 (emphasis removed).
Specifically, the Commission issued two data requests to
Tennessee Gas to determine the intended downstream use of
the transported gas. In response, Tennessee Gas indicated that
most of the project’s additional capacity would be used to
provide service to support Columbia Gas’s existing residential
and commercial connections in the Greater Springfield service
territory. See Certificate Order at ¶ 64; see also Rehearing
Order ¶ 20. After receiving Tennessee Gas’s responses, the
Commission deemed the information too “generalized” to
“render the emissions associated with any consumption of the
gas to be transported a reasonably foreseeable indirect effect of
the project.” Rehearing Order ¶ 20. We conclude that the
Commission’s explanation was unreasonable.

Before explaining that conclusion, we first address the
Commission’s view that we lack jurisdiction to reach it. The
Commission maintains that Food & Water Watch failed to
argue on rehearing before the agency that the record contained
sufficient information to estimate downstream impacts. We
disagree. In its rehearing request, Food & Water Watch
contended that, under our court’s precedents, NEPA required
the Commission to consider the effects of downstream
consumption. Unlike its inadequately preserved argument as
 15
to the estimation of upstream effects, Food & Water Watch’s
treatment of downstream effects went beyond mere conclusory
assertions.

The request’s background section summarized the
information that Food & Water Watch now argues was
sufficient to render downstream combustion foreseeable. The
request then cited our precedents, including Sabal Trail,
requiring the Commission to consider whether a pipeline
project will result in reasonably foreseeable downstream
greenhouse gas emissions. And the request specifically relied
on the dissenting opinion of Commissioner Glick, who made
the same argument about the foreseeability of downstream
effects. Food & Water Watch concluded the relevant
discussion by arguing that the Commission’s “overly narrow”
assessment of indirect effects disregarded the pipeline’s
purpose of facilitating natural gas consumption. J.A. 468.
Putting all of that together, we conclude that Food & Water
Watch raised the issue and “alerted the Commission to the legal
argument[]” it now makes before us. Save Our Sebasticook v.
FERC, 431 F.3d 379, 381 (D.C. Cir. 2005).

On the merits, Food & Water Watch makes no claim that
the Commission should have further developed the record. The
question before us is thus whether, given the information
available to it, the Commission reasonably declined to assess
downstream consumption effects. Our precedents establish
that downstream emissions are not, “as a categorical matter,
always a reasonably foreseeable indirect effect of a pipeline
project.” Birckhead, 925 F.3d at 519. Rather, foreseeability
depends on information about the “destination and end use of
the gas in question.” Id.

In Sabal Trail, for example, we held that downstream
greenhouse-gas emissions were a reasonably foreseeable
 16
indirect effect of a pipeline project designed to transport gas to
certain Florida power plants. 867 F.3d at 1374. At the time of
approval, two Florida utilities had “already committed to
buying nearly all the gas the project will be able to transport”
and planned to send that gas to previously identified plants. Id.
at 1364, 1371. In Birckhead, by contrast, we rejected a similar
indirect-effects claim when the Commission could establish
only that “the gas [was] headed somewhere in the Southeast.”
925 F.3d at 518. Taking the record as it stood, we explained
that we had “no basis for concluding that the Commission acted
unreasonably in declining to evaluate downstream combustion
impacts.” Id. at 520–21.

The record in this case much more closely resembles the
information available in Sabal Trail than in Birckhead. The
Commission had evidence that the Upgrade Project would add
incremental capacity of 72,400 dekatherms per day to
Tennessee Gas’s system, 40,400 dekatherms per day of which
was under contract with Columbia Gas. And, for that portion
of the capacity under contract, the Commission knew, with a
good deal of specificity, where the gas in question would be
going (to Columbia Gas’s existing customers in the Greater
Springfield area) and how it would be used (to fuel residential
and commercial gas connections). Commissioner Glick
articulated precisely that view in his dissenting opinion,
arguing that the record made “this a relatively easy case.”
Rehearing Order ¶ 8 (Glick, Comm’r, dissenting). The
Commission stated that the information was too “generalized”
but failed to explain that conclusion. Rehearing Order ¶ 20. In
the absence of any such explanation, our decision in Sabal
Trail points the way to concluding that the available
information was sufficiently specific to render downstream
emissions reasonably foreseeable.
 17
Before our court, the Commission offers two new reasons
to doubt the foreseeability of downstream emissions. For its
part, Food & Water Watch does not claim that those rationales
are unavailable to the Commission. Assuming without
deciding that we can consider the newly proffered arguments,
we find them unpersuasive.

First, the Commission attempts to distinguish Sabal Trail
based on the gas’s intended end use. According to the
Commission, the gas-fired power plants at issue in Sabal Trail
“have relatively fixed, foreseeable fuel needs,” whereas in this
case, “local distribution companies, such as Columbia Gas,”
face “‘extremely variable retail demand.’” Govt. Br. 30–31
(quoting FERC, Energy Primer: A Handbook of Energy
Market Basics 122 (2020)). But the source cited by the
Commission for that position—the Commission’s Energy
Primer—provides, at best, equivocal support for it. Elsewhere,
the same source contrasts the variability of demand between
end uses quite differently: “residential and commercial natural
gas use tends to be inelastic—consumers use what they need
regardless of the price. Power plant demand, on the other hand,
is more price-responsive as natural gas competes with other
fuels, especially coal.” Energy Primer at 6. Given that the
Commission provides no other evidence for its position, it has
not done enough to show that a difference in foreseeability
follows from the distinction between end uses. On remand, the
Commission remains free to consider whether there is a
reasonable end-use distinction based on additional evidence,
but it has not carried its burden before us at this stage.

Second, the Commission contends that, in the local
distribution context, it is difficult to assess whether increased
capacity will result in increased end-use consumption. But
when it comes to foreseeability, the net-effect of a project on
consumption is a “total non-sequitur.” Birckhead, 925 F.3d at
 18
518. In Birckhead, we found that “the Commission is wrong
to suggest that downstream emissions are not reasonably
foreseeable simply because the gas transported by the Project
may displace existing natural gas supplies or higher-emitting
fuels.” Id. at 518. Rather, “if downstream greenhouse-gas
emissions otherwise qualify as an indirect effect, the mere
possibility that a project’s overall emissions calculation will be
favorable because of an ‘offset . . . elsewhere’ does not
‘excuse[]’ the Commission ‘from making emissions estimates’
in the first place.” Id. at 518–19 (quoting Sabal Trail, 867 F.3d
at 1374–75). The same logic squarely applies here as well. We
have concluded that the end use of the transported gas is
reasonably foreseeable, and the Commission, in response,
invokes nothing more than a mere possibility of offsetting
reductions.

For those reasons, we remand to the agency to perform a
supplemental environmental assessment in which it must either
quantify and consider the project’s downstream carbon
emissions or explain in more detail why it cannot do so.

B.

Food & Water Watch’s next challenge concerns the
Commission’s finding, in its Environmental Assessment, that
it could not determine the “significance” of the emissions
directly connected to the project. Although Food & Water
Watch raised a general objection to the Commission’s
conclusion on rehearing, it failed to raise the arguments it now
puts forward with sufficient specificity. Because its current
objections are unavailable to it, we find that Food & Water
Watch has provided no reason to doubt the reasonableness of
the Commission’s approach.
 19
As explained, one primary function of an environmental
assessment is to “provide sufficient evidence and analysis for
determining whether to prepare an environmental impact
statement or a finding of no significant impact.” 40 C.F.R.
§ 1508.9(a)(1). It follows, then, that determining the
“significance” of expected environmental impacts of an action
is an integral part of an environmental assessment.

But here, in the Environmental Assessment’s cumulative
impacts section, the Commission concluded that it was “unable
to determine the significance of the Project’s contribution to
climate change.” J.A. 254. The problem is not, as in the
indirect-effects context, that the Commission declined to
quantify emissions: the Commission quantified the
greenhouse-gas emissions stemming from the construction and
operation of the Upgrade Project. The difficulty instead arose
at the next step: attributing impacts to that quantity of
emissions. The Commission observed that “there is no
universally accepted methodology to attribute discrete,
quantifiable, physical effects on the environment” to the
Upgrade Project’s emissions. J.A. 253. In reaching that
conclusion, the Commission reviewed various models, none of
which met its requirements. “Absent such a method,” the
Commission reasoned, no assessment of significance was
possible. J.A. 254.

In its brief, Food & Water Watch levies multiple criticisms
of the Commission’s approach. To start, Food & Water Watch
targets the Commission’s selection criteria, arguing that
universal acceptance is an unreasonably exacting standard.
Once again, however, Food & Water Watch’s argument runs
afoul of the Natural Gas Act’s exhaustion requirement. Before
the Commission, Food & Water Watch did not make that
argument. The extent of its objection on rehearing was to the
effect that NEPA requires the Commission to consider “the
 20
significance of the harm from a pipeline’s contribution to
climate change by evaluating the actual magnitude of the
pipeline’s environmental impact.” J.A. 464. But simply
reiterating the Commission’s NEPA obligations did not “alert[]
the Commission” to the specific argument that Food & Water
Watch now makes. Save Our Sebasticook, 431 F.3d at 381.
We thus lack jurisdiction to consider that argument.

Next, in its reply brief, Food & Water Watch joins amicus
Institute for Policy Integrity in pointing to the Social Cost of
Carbon as a potential tool for attributing impacts to quantities
of greenhouse-gas emissions. The Commission did not
explicitly consider using the Social Cost of Carbon, but that
was for good reason: Food & Water Watch failed to identify
that method on rehearing before the agency. Food & Water
Watch thus again runs afoul of the Natural Gas Act’s
exhaustion requirement. And amici are powerless to revive an
argument the parties failed to preserve. See Eldred v. Reno,
239 F.3d 372, 378 (D.C. Cir. 2001).

We are then left with Food & Water Watch’s bare assertion
that the Commission should have further assessed the
significance of climate impacts. But that assertion,
unsupported by a validly raised criticism of the Commission’s
reasoning or any workable alternative method, affords no basis
to overturn the Commission’s finding. Although Food &
Water Watch “take[s] a different position” than the
Commission, it has “identif[ied] no method” that “the
Commission could have used.” EarthReports, 828 F.3d at 956.
“Hence, petitioner[] provide[s] no reason to doubt the
reasonableness of the Commission’s conclusion.” Id.
 21
C.

Food & Water Watch last contends that the Commission
improperly segmented its NEPA analysis of the Upgrade
Project from its analysis of a nearby project, the Longmeadow
Meter Station (Longmeadow Project). Because Food & Water
Watch made that argument before the Commission, we have
jurisdiction to consider it. On the merits, though, we find that
the Commission acted reasonably in conducting a separate
analysis for the Upgrade Project.

The Longmeadow Project involves construction of a
natural gas meter station on Tennessee Gas’s interstate pipeline
system in Longmeadow, Massachusetts, a town on the opposite
side of the Connecticut River from the Upgrade Project. In
addition to the new metering station, the Longmeadow Project
includes a new pipeline connecting Tennessee Gas’s interstate
transmission system to Columbia Gas’s local distribution
system. At one point, the Upgrade Project and Longmeadow
Project, along with various other projects, were part of an
application for a much larger regional project—the Northeast
Energy Direct Project. After that certificate was withdrawn,
Tennessee Gas went forward with the Longmeadow Project,
ultimately constructing it under a separate “blanket certificate”
authority. Certificate Order ¶ 7 n.7. At various stages of the
approval process for the Upgrade Project, Food & Water Watch
(and other participants) expressed the view that the Upgrade
Project and the Longmeadow Project should be considered
together.

The regulations implementing NEPA require agencies to
consider “connected actions,” “cumulative actions,” and
“similar actions” in a single environmental assessment. 40
C.F.R. § 1508.25(a). “An agency impermissibly ‘segments’
NEPA review when it divides connected, cumulative, or
 22
similar federal actions into separate projects and thereby fails
to address the true scope and impact of the activities that should
be under consideration.” Del. Riverkeeper Network, 753 F.3d
at 1313. “The rule ensures that an agency considers the full
environmental impact of ‘connected, cumulative, or similar’
actions before they are undertaken, so that it can assess the true
costs of an integrated project when it is best situated to evaluate
‘different courses of action’ and mitigate anticipated effects.”
City of Bos. Delegation, 897 F.3d at 251–52 (quoting Del.
Riverkeeper Network, 753 F.3d at 1313–14).

We have developed “a set of factors that help clarify”
when natural gas infrastructure projects—which frequently
involve some degree of interconnection with other projects in
the area—may be considered separately under NEPA. Id. at
252. In particular, we have focused on the projects’ degree of
physical and functional interdependence, Del. Riverkeeper.
753 F.3d at 1316, and their temporal overlap, id. at 1318.
Applying those criteria in Delaware Riverkeeper, for example,
we granted a petition for review in light of a “clear physical,
functional, and temporal nexus between [] projects” that the
Commission had considered separately. Id. at 1308.

Applying the same two criteria here, we reach the opposite
conclusion. The Commission reasonably determined that the
Upgrade Project and the Longmeadow Project were amenable
to separate NEPA analyses.

First, the Commission reasonably determined that the
projects have independent utility—i.e., that “one project will
serve a significant purpose even if a second related project is
not built.” Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d
60, 69 (D.C. Cir. 1987). The Commission found that each
project would have gone forward absent the other. Certificate
Order ¶ 82. The projects’ benefits were entirely different from
 23
each other: “The primary utility of the Longmeadow Meter
Station is to enhance reliability and redundancy for
[Columbia’s] customers, whereas a primary purpose of the []
Upgrade Project is to provide additional transportation service
to the project’s shippers.” Id. And the Commission relatedly
found that the projects would benefit different sets of
customers: the Longmeadow Station aims to benefit customers
east of the Connecticut River and the Upgrade Project aims to
provide capacity to customers to the west. In Delaware
Riverkeeper, by contrast, we concluded that there were “no
‘Northeast Project customers’ as such,” because the pipelines
were “inextricably intertwined” with the other, related projects.
753 F.3d at 1317.

The second factor—temporal nexus—may be more
equivocal if considered in isolation, but it does not undermine
the functional independence of the projects. Columbia Gas
requested that the Longmeadow meter station be operational by
November 2019, whereas the Upgrade Project was anticipated
to be placed in service in November 2020. The projects thus
proceeded near in time to one another, but ultimately on
“separate timeline[s].” Certificate Order ¶ 81. And the
separateness of the timelines corresponds with the functional
separateness of the projects. In the circumstances, the
Commission could reasonably decide to conduct separate
NEPA analyses.

D.

Because the Commission inadequately examined
downstream effects, we must remand the matter to the agency.
We do so, however, without vacating the Commission’s
Certificate Order and Rehearing Order.
 24
“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)). Regarding the first factor, “[w]hen an agency
bypasses a fundamental procedural step, the vacatur inquiry
asks not whether the ultimate action could be justified, but
whether the agency could, with further explanation, justify its
decision to skip that procedural step.” Standing Rock Sioux
Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1052 (D.C.
Cir. 2021). Here, the Commission’s environmental assessment
produced a finding that the Upgrade Project would have no
significant effect on the environment, and on that basis, the
Commission bypassed NEPA’s requirement to perform a more
rigorous environmental impact statement. But after adequately
accounting for foreseeable downstream greenhouse-gas
emissions, the Commission could arrive at the same finding of
no significant impact. And as for the second factor, the
Upgrade Project is now either mid-construction or operational.
In either case, vacating the Commission’s orders would be
“quite disruptive.” City of Oberlin, Ohio v. FERC, 937 F.3d
599, 611 (D.C. Cir. 2019). As a result, we exercise our
discretion to remand without vacatur.

* * * * *

For the foregoing reasons, we grant Food & Water
Watch’s petition for review in part. The orders under review
are remanded to the Commission for further proceedings
consistent with this opinion.

So ordered.