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Birckhead v. Federal Energy Regulatory Commission

United States Court of Appeals, District of Columbia Circuit

June 4, 2019

Lori Birckhead, et al., Petitioners
v.
Federal Energy Regulatory Commission, Respondent Tennessee Gas Pipeline Company, LLC, Intervenor

          Argued April 11, 2019

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

          Carolyn Elefant argued the cause and filed the briefs for petitioners.

          Robert H. Solomon, Solicitor, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the brief were James P. Danly, General Counsel, and Scott Ray Ediger, Attorney. Elizabeth E. Rylander, Attorney, entered an appearance.

          Brian D. O'Neill argued the cause for intervenor. With him on the brief were Michael R. Pincus and Frances Bishop Morris.

          Before: Garland, Chief Judge, and Tatel and Wilkins, Circuit Judges.

          OPINION

          PER CURIAM

         Residents and business owners have petitioned for review of the Federal Energy Regulatory Commission's decision to authorize the construction and operation of a new natural gas compression facility in Davidson County, Tennessee. They argue that the Commission violated the National Environmental Policy Act (NEPA) by failing to adequately assess alternatives and by failing to consider the environmental effects of increased gas production and consumption related to the project. For the reasons set forth below, we deny the petition.

         I.

         In early 2015, Tennessee Gas Pipeline Co. applied for a certificate of public convenience and necessity for the Broad Run Expansion Project. Designed to enhance the company's capacity to transport pressurized natural gas through the interstate pipeline network to markets in the southeastern United States, the Project called for construction of several gas compression facilities in Kentucky, Tennessee, and West Virginia. The most controversial of these facilities-at least as far as petitioners are concerned-was Compressor Station 563, which Tennessee Gas proposed to build near petitioners' Nashville homes and businesses.

         The Commission completed an Environmental Assessment of the Project in March 2016 and issued a certificate order later that year. Shortly thereafter, petitioners- collectively referred to here as "Concerned Citizens" because of their affiliation with local advocacy group Concerned Citizens for a Safe Environment-sought rehearing, arguing that the Commission violated NEPA in two ways: by inadequately evaluating alternatives to the Project and by failing to address reasonably foreseeable indirect environmental effects resulting from increased gas production "upstream" from the compressor station and increased gas combustion "downstream" from the facility.

         The Commission denied the request for rehearing in June 2018, see Tennessee Gas Pipeline Co., 163 FERC ¶ 61, 190 (2018) ("Rehearing Order"), and Concerned Citizens timely petitioned for review, raising the same two challenges.

         II.

         "[W]e apply [an] arbitrary and capricious standard [of review] to a NEPA challenge." Nevada v. Department of Energy, 457 F.3d 78, 87 (D.C. Cir. 2006). Our role is not to "'flyspeck' an agency's environmental analysis, looking for any deficiency no matter how minor," id. at 93, but instead "simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious," Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98 (1983). Accordingly, we ask whether the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action[, ] including a rational connection between the facts found and the ...


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