## Facts

- Tennessee Gas Pipeline Co. sought a certificate of public convenience and necessity under § 7 of the Natural Gas Act to construct a natural gas pipeline and compressor station in Agawam, Massachusetts.
- The Federal Energy Regulatory Commission (FERC) authorized the project after preparing an environmental assessment (EA) and issuing a finding of no significant impact, rather than preparing an environmental impact statement.
- In its EA, FERC discussed greenhouse-gas (GHG) emissions from construction and operation but declined to analyze GHG emissions from downstream combustion of the transported gas, reasoning that downstream use information was too generalized and the emissions were not reasonably foreseeable.
- Food & Water Watch (FWW) and Berkshire Environmental Action Team sought rehearing before FERC; FERC denied rehearing, making the certificate orders final.
- FWW and Berkshire petitioned for judicial review, arguing chiefly that NEPA required analysis of indirect downstream combustion emissions.

## Issues

1. Whether Berkshire Environmental Action Team established Article III standing to challenge FERC’s certificate orders.
2. Whether NEPA required FERC to assess reasonably foreseeable indirect effects from the project, including downstream GHG emissions from combustion of the transported gas.
3. Whether FERC’s EA was otherwise deficient under NEPA on petitioners’ additional challenges.

## Decision

- Berkshire’s petition was dismissed for lack of standing.
- FWW’s petition was granted in part: the court held FERC’s EA unlawfully failed to consider reasonably foreseeable indirect effects—GHG emissions from downstream combustion of the gas the project would transport.
- FWW’s petition was denied in part: the court rejected FWW’s remaining NEPA challenges to the EA.
- The case was remanded to FERC for preparation of a revised, NEPA-compliant environmental assessment addressing downstream combustion emissions.

## Legal Principles

- Article III standing requires a petitioner to show injury in fact, traceability, and redressability; failure to substantiate these elements requires dismissal.
- NEPA requires an agency to take a “hard look” at environmental consequences, including reasonably foreseeable indirect effects caused by the agency action.
- In authorizing natural-gas transportation infrastructure, downstream combustion emissions can be a reasonably foreseeable indirect effect when the record indicates the destination and expected use of the gas.
- If downstream combustion emissions are reasonably foreseeable, the agency must either quantify them using record-supported assumptions or provide a reasoned, non-arbitrary explanation for why it cannot.
- NEPA is procedural; the remedy for inadequate analysis is to require a compliant environmental review, not to mandate a particular substantive outcome on project approval.

## Conclusion

The D.C. Circuit dismissed one petitioner for lack of standing and held that FERC’s NEPA review was inadequate because it failed to evaluate reasonably foreseeable downstream combustion GHG emissions; the court remanded for a revised environmental assessment while otherwise upholding FERC’s analysis.


Food & Water Watch v. FERC, 28 F.4th 277 (D.C. Cir. 2022)