New Jersey Conservation Foundation v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2024 Decided July 30, 2024
No. 23-1064
NEW J ERSEY C ONSERVATION F OUNDATION , ET AL.,
P ETITIONERS
v.
F EDERAL ENERGY R EGULATORY C OMMISSION,
R ESPONDENT
NEW J ERSEY DIVISION OF R ATE C OUNSEL, ET AL.,
INTERVENORS
Consolidated with 23-1074, 23-1077, 23-1129, 23-
1130, 23-1137
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission
Moneen Nasmith argued the cause for petitioners.
With her on the briefs were Megan C. Gibson, Kacy C.
Manahan, Marissa Lieberman-Klein, and Ann Jaworski.
Kathryn M. Schroeder entered an appearance.

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Jeffrey A. Schwarz argued the cause for intervenor in
support of petitioners. With him on the briefs were Scott
H. Strauss and Anree G. Little.
Jennifer Danis and Libby Dimenstein were on the
brief for amicus curiae the Institute for Policy Integrity at
New York University School of Law in support of
petitioners.
Matthew J. Platkin, Attorney General, Office of the
Attorney General for the State of New Jersey, Paul
Youchak, Deputy Attorney General, Robert W. Ferguson,
Attorney General, Office of the Attorney General for the
State of Washington, and Megan Sallomi and Aurora
Janke, Assistant Attorneys General, were on the brief for
amici curiae New Jersey, et al. in support of petitioners.
Lona T. Perry, Deputy Solicitor, Federal Energy
Regulatory Commission, argued the cause for respondent.
With her on the brief were Matthew R. Christiansen,
General Counsel, and Robert H. Solomon, Solicitor. Scott
R. Ediger, Attorney Advisor, entered an appearance.
Elizabeth U. Witmer argued the cause for intervenor
Transcontinental Gas Pipe Line Company, LLC in support
of respondent. With her on the brief was Patrick F.
Nugent.
Michael L. Murray and Matthew J. Agen were on the
brief for amicus curiae American Gas Association in
support of respondent.
Joan Dreskin, Michael Diamond, and Michael R.
Pincus were on the brief for amicus curiae the Interstate

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Natural Gas Association of America and the American
Petroleum Institute in support of respondent.
Before: P ILLARD , C HILDS , and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge C HILDS .
C HILDS , Circuit Judge: The Federal Energy Regulatory
Commission (“FERC” or “the Commission”) issued a
certificate allowing the Transcontinental Gas Pipe Line
Company, LLC, (“Transco”) to construct and operate a
pipeline running through New Jersey, New York, Delaware,
Maryland, and Pennsylvania. The New Jersey Conservation
Foundation, New Jersey League of Conservation Voters,
Aquashicola Pohopoco Watershed Association, Delaware
Riverkeeper Network, Sierra Club, Food & Water Watch,
Catherine Folio, and Maya van Rossum (collectively
“Petitioners”) argue that in approving the pipeline, FERC
arbitrarily overlooked significant environmental consequences.
In addition, Petitioners and Intervenor for Petitioners, New
Jersey Division of Rate Counsel (“Rate Counsel”), contend that
FERC failed to adequately consider evidence suggesting a lack
of market need for the pipeline’s additional capacity and New
Jersey state laws mandating reductions in natural gas
consumption. We agree, so grant the petitions, vacate FERC’s
orders, and remand the case to the Commission for appropriate
action. See Allina Health Servs. v. Sebelius, 746 F.3d 1102,
1110 (D.C. Cir. 2014).

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I. Background
A. Federal Statutory and Regulatory Background
1. The Natural Gas Act
The Natural Gas Act (“NGA”) provides FERC with the
authority “to regulate the transportation and sale of natural gas
in interstate commerce.” City of Oberlin v. FERC, 937 F.3d
599, 602 (D.C. Cir. 2019). The NGA was enacted with the
primary purpose of “encourag[ing] the orderly development of
plentiful supplies of . . . natural gas at reasonable prices,”
NAACP v. Fed. Power Comm’n, 425 U.S. 662, 669–70 (1976),
and “protect[ing] consumers against exploitation at the hands
of natural gas companies.” Fed. Power Comm’n v. Hope Nat.
Gas Co., 320 U.S. 591, 610 (1944). Under Section 7 of the
NGA, an entity seeking to construct or extend an interstate
pipeline must obtain a certificate of public convenience and
necessity (“Certificate”) from FERC. 15 U.S.C. § 717f(c).
FERC lays out the steps for approving applications in its
Certificate Policy Statement. See Certification of New
Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227
(Sept. 15, 1999), clarified, 90 FERC ¶ 61,128 (Feb. 9, 2000),
further clarified, 92 FERC ¶ 61,094 (July 28, 2000). At the
first step, FERC considers “whether the project can proceed
without subsidies from [the applicant’s] existing customers.”
88 FERC ¶ 61,745. “To ensure that a project will not be
subsidized by existing customers, the applicant must show that
there is market need for the project.” Myersville Citizens for a
Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1309 (D.C. Cir.
2015) (emphasis added). Relevant factors for determining
market need may include, but are not limited to, “precedent
agreements, demand projections, potential cost savings to
consumers, or a comparison of projected demand with the

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amount of capacity currently serving the market.” 88 FERC
¶ 61,747.
If FERC finds a market need, it moves on to the second
step, where it must determine whether adverse impacts are
outweighed by public benefits. FERC must “evaluate all
factors bearing on the public interest.” Atl. Refin. Co. v. Pub.
Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959). The adverse
impacts FERC considers include effects on “existing customers
of the pipeline proposing the project, existing pipelines in the
market and their captive customers, or landowners and
communities affected by the route of the new pipeline,” if they
are likely. Env’t Def. Fund v. FERC, 2 F.4th 953, 961 (D.C.
Cir. 2021); see 15 U.S.C. § 717f(e). If adverse impacts are
likely, FERC must determine whether they are outweighed by
public benefits. Env’t Def. Fund, 2 F.4th at 961. Public
benefits of a project can include “meeting unserved demand,
eliminating bottlenecks, access to new supplies, lower costs to
consumers, providing new interconnects that improve the
interstate grid, providing competitive alternatives, increasing
electric reliability, or advancing clean air objectives.” Id. If
the purported public benefits outweigh the proposed project’s
adverse impacts, FERC’s obligations under NEPA are
triggered. 88 FERC ¶ 61,745.
2. The National Environmental Policy Act
The National Environmental Policy Act (“NEPA”) is a
procedural statute requiring all agencies to prepare a detailed
environmental impact statement (“EIS”) on “reasonably
foreseeable environmental effects” of a proposed “major
Federal action[] significantly altering the quality of the human
environment.” 42 U.S.C. § 4332(2)(C); see id. § 4336(b)(1).
An EIS must address, among other things, the adverse effects
of the proposal as well as a reasonable range of feasible

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alternatives that meet the proposal’s purpose and need. Id.
§ 4332(2)(C); Sierra Club v. FERC, 38 F.4th 220, 226 (D.C.
Cir. 2022). NEPA demands that agencies “take a hard look at
the environmental consequences before taking a major action.”
Ctr. for Biological Diversity v. FERC, 67 F.4th 1176, 1181
(D.C. Cir. 2023) (quoting Balt. Gas & Elec. Co. v. Nat. Res.
Def. Council, Inc., 462 U.S. 87, 97 (1983)). An agency has
taken a “hard look” at environmental consequences if the EIS
“contains sufficient discussion of the relevant issues and
opposing viewpoints, and . . . the agency’s decision is fully
informed and well-considered.” Nevada v. Dep’t of Energy,
457 F.3d 78, 93 (D.C. Cir. 2006) (internal quotation marks
omitted).
The objective of an EIS “is to ensure agencies consider the
environmental impacts of their actions in decision making.” 40
C.F.R. § 1502.1 (2020). 1 The EIS must “briefly specify the
underlying purpose and need to which the agency is responding
in proposing the alternatives including the proposed action.”
Id. § 1502.13 (2022). Courts may only set aside an agency’s
1 An “impact[]” is a potential “change[] to the human
environment from the proposed action or alternatives that [is]
reasonably foreseeable.” 40 C.F.R. § 1508.1(g) (2022). It is
“reasonably foreseeable” if the environmental impact is “sufficiently
likely to occur such that a person of ordinary prudence would take it
into account in reaching a decision.” Id. § 1508.1(aa). The Center
for Environmental Quality regulations cited here and elsewhere in
this opinion have since been amended, but those amendments did not
take effect until after the Commission entered the challenged orders.
See National Environmental Policy Act Implementing Regulations
Revisions Phase 2, 89 Fed. Reg. 35,442 (May 1, 2024) (effective July
1, 2024). Thus, we cite and apply the regulations in effect at the time
of the orders. See Ctr. For Biological Diversity, 67 F.4th at 1181
n.2.

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action on NEPA grounds if the EIS does not “contain[]
sufficient discussion of the relevant issues and opposing
viewpoints and the agency’s decision is [not] fully-informed
and well-considered.” Gulf Restoration Network v. Haaland,
47 F.4th 795, 799–800 (D.C. Cir. 2022) (internal quotation
marks omitted).
B. New Jersey’s Regulatory Background
The New Jersey Board of Public Utilities (“the Board”) is
the state entity charged with “general supervision and
regulation of and jurisdiction and control over all public
utilities” and protecting New Jersey utility customers from
“unjust, unreasonable, insufficient or unjustly discriminatory
or preferential” rates. N.J.S.A. §§ 48:2–13(a), 48:2–21(b)(1).
In February 2019, the Board opened an investigation to
determine if the state had sufficient gas capacity to meet future
New Jersey customer needs. In re Exploration of Gas Capacity
and Related Issues, New Jersey Board of Public Utilities
Docket Nos. GO19070846 & GO20010033, 1 (Jun. 29, 2022)
(“Board Order”). As part of this investigation, the Board
commissioned an independent study. The study concluded that
the state has sufficient gas capacity, and that there was no need
for any additional capacity for the state’s gas utilities through
2030. London Econ. Int’l, Final Report: Analysis of Natural
Gas Capacity to Serve New Jersey Firm Customers (Nov. 5,
2021) (“New Jersey Agencies Study”). The Board formally
adopted these findings in its June 2022 final order. The order
also found support “against the need for additional interstate
pipeline capacity,” noting that “under most demand scenarios,
barring a major catastrophic event impacting one or more
primary paths on a major interstate pipeline, New Jersey is well
positioned with available interstate [natural gas] supply beyond
2030.” Board Order at 11.

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C. Procedural Background
In March 2021, while the New Jersey gas capacity
proceedings were pending, Transco applied to FERC for a
Section 7 Certificate to construct and operate the Regional
Energy Access Expansion Project (“the Project”) to expand
delivery of gas by 829,400 dekatherms per day. Order Issuing
Certificate and Approving Abandonment P 1, Transcontinental
Gas Pipe Line Co., 182 FERC ¶ 61,006 (“Certificate Order”).
The Project would consist of building approximately 22.3
miles of 30-inch-diameter lateral gas pipeline and 13.8 miles of
42-inch-diameter loop pipeline in Pennsylvania; one new gas-
fired compressor station in New Jersey; modifications to five
existing compressor stations in Pennsylvania and New Jersey;
and the modification and addition of other ancillary facilities.
Certificate Order P 4. 73.5% of the Project’s gas would be
delivered to locations in New Jersey, with the rest going to New
York, Delaware, Maryland, and Pennsylvania. Id. P 7–8. In
support of its proposal, Transco submitted a market study
(“Transco Study”) seeking to demonstrate market need, and
seven of the Project’s shippers submitted comments in support.
All Petitioners successfully intervened in the proceedings
before FERC. Intervenor Rate Counsel contested the gas
utilities’ assertions, based on the New Jersey Agencies Study,
that the Project was needed to serve New Jersey rate payers.
For their part, Petitioner New Jersey Conservation Foundation
(“the Foundation”) and Rate Counsel submitted evidence to
FERC that the Project would impose unnecessary costs on New
Jersey ratepayers, and that New Jersey’s current gas
infrastructure is more than able to meet current and future
demand.
In March 2022, FERC issued a draft EIS to the parties for
comments. Petitioners and the Environmental Protection

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Agency (“EPA”) commented that the Commission’s
environmental analysis was not consistent with the Council for
Environmental Quality’s (“CEQ”) regulations interpreting
NEPA. However, FERC released its final EIS four months
later without incorporating Petitioners’ or the EPA’s feedback.
In January 2023, FERC authorized the Project. The Certificate
Order conditioned its approval of the Project on (1) Transco’s
compliance with the various mitigation measures set forth in
the EIS, and (2) Transco’s completion of construction by
January 11, 2026. Certificate Order P 86. The Commission
asserted that the Project satisfied Section 7 of the NGA because
Transco had precedent agreements, which are “long-term
contracts in which gas shippers agree to buy the proposed
pipeline’s transportation services,” Allegheny Def. Project v.
FERC, 964 F.3d 1, 19 (D.C. Cir. 2020), in place with eight
shippers for all of the Project’s capacity. FERC concluded that
the Project’s public benefits outweighed its harm, and in doing
so, incorporated the findings of its Final EIS into the Certificate
Order.
In March 2023, all Petitioners requested rehearing of
FERC’s Certificate Order, and some Petitioners also requested
a stay, arguing that FERC had arbitrarily and capriciously
found a market need for the Project, inappropriately credited
evidence proffered by Transco while ignoring contrary
evidence, relied on a deficient EIS, and performed an
impermissibly skewed balancing of the Project’s benefits and
adverse impacts. Rate Counsel joined in the Foundation’s
Request for Rehearing and Motion for Stay. The Board and
Rate Counsel further filed a Motion for Clarification requesting
that FERC acknowledge and adopt the New Jersey agencies’
findings that existing pipeline capacity is sufficient to meet
natural gas demand in New Jersey, and for FERC to recognize
that prudency determinations are left to state jurisdiction.

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FERC denied the requests for rehearing and memorialized its
reasons in the Rehearing Order.
In the Rehearing Order, FERC confirmed its finding of
market need. At the same time, FERC noted that its findings
do not preclude the New Jersey agencies’ use of their study to
support their own findings in matters related to their
jurisdiction. Rehearing Order (“Reh’g Order”) P 24. FERC
also denied the motions to stay and the pending motion for an
evidentiary hearing. A week later, FERC authorized all
construction activities related to the Project. On April 3, 2023,
a special panel on this Circuit denied the Foundation’s motion
for a stay pending review. Timely petitions for review were
filed on May 12 and May 25, 2023.
II. Jurisdiction
This Court has jurisdiction over the petitions for review
under the NGA, which vests this Court with jurisdiction to
review an objection to FERC’s orders when “such
objection . . . [has] been urged before the Commission in the
application for rehearing.” 15 U.S.C. § 717r(b). Petitioners
present the same arguments on appeal as they set forth in their
rehearing request. See J.A. 623–43; J.A. 704–09; J.A. 678–84;
J.A. 779–80.
We are also assured that Petitioners have met their burden
of establishing Article III standing. To establish organizational
standing to sue on their members’ behalf, Petitioners must
show that “(1) at least one of [their] members would have
standing to sue in his or her own right; (2) the interests [they]
seek[] to protect are germane to the organization’s purpose; and
(3) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Sierra
Club v. FERC, 827 F.3d 59, 65 (D.C. Cir. 2016) (internal

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quotation marks and citations omitted). Here, the record shows
that members of at least one of the organizational Petitioners
live in the affected area, and that their use and enjoyment of
their homes will continue to be harmed by the pipeline. See id.
at 85–89; id. at 102–10.
We turn to the merits with the threshold jurisdictional
questions being settled.
III. Standard of Review
This Court reviews FERC’s NGA decisions and NEPA
analyses under the Administrative Procedure Act (“APA”).
Env’t Def. Fund, 2 F.4th at 967–68. We will uphold FERC’s
decision against an arbitrary and capricious challenge if it was
“reasoned, principled, and based upon the record.” Myersville,
783 F.3d at 1308 (quoting Am. Gas. Ass’n v. FERC, 593 F.3d
14, 19 (D.C. Cir. 2010)). FERC must fully spell out the basis
for its decision. Id. In doing so, it must articulate a rational
connection between its factual findings and its decision. FERC
v. Elec. Power Supply Ass’n, 577 U.S. 260, 292 (2016). We
accept FERC’s factual findings as conclusive if they are
“supported by substantial evidence.” 15 U.S.C. § 717r(b).
Under NEPA, this Court’s role is “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 & Elec. Co. v. NRDC,
462 U.S. 87, 97–98 (1983). We review an EIS’s selection of
alternatives and statement of purpose under the “rule of
reason,” Theodore Roosevelt Conservation P’ship v. Salazar,
661 F.3d 66, 73 (D.C. Cir. 2011), meaning that FERC must
“take a hard look at the environmental consequences before
taking a major action.” Balt. Gas & Elec. Co., 462 U.S. at 97
(internal quotation marks omitted). An agency has taken a

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“hard look” at environmental consequences if the EIS
“contains sufficient discussion of the relevant issues and
opposing viewpoints, and . . . the agency’s decision is fully
informed and well-considered.” Nevada, 457 F.3d at 93 (D.C.
Cir. 2006).
IV. Petitioners’ NEPA Claims
We hold that the Commission failed to adequately explain
its decision to not make a significance determination regarding
greenhouse gas (“GHG”) emissions and failed to discuss
possible mitigation measures. However, we reject Petitioners’
claims that the Commission erred in failing to calculate both
upstream emissions from added gas extraction as well as
downstream emissions stemming from ozone or ozone
precursors, and that the Commission’s definition of the
Project’s purpose and need was flawed.
A. Significance Determinations
The Commission’s decision not to make a case-specific
determination about the significance of the Project’s
anticipated GHG emissions, in light of its own stated precedent
that it can do so, nor to explain why it believed it could not do
so, was arbitrary and capricious.
In Northern Natural Gas Co., the Commission
acknowledged its own earlier position that it had been “unable
to assess the significance of a project’s GHG emissions or those
emissions’ contribution to climate change,” but announced
that, “[u]pon reconsideration, we no longer believe that to be
the case.” N. Nat. Gas Co., 174 FERC ¶ 61,189 P 29 (2021).
On the heels of Northern Natural, the Commission here reverts
without acknowledgement or explanation to its prior stance that
it cannot assess the significance of the Project’s expected GHG

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emissions. See Reh’g Order P 104 & n.340 (citing Northern
Natural and noting Petitioners’ call for a significance
determination). The failure to make a significance
determination or even to acknowledge a change in position is
unreasonable. See FCC v. Fox Television Stations, Inc., 556
U.S. 502, 515 (2009) (“An agency may not, for example, depart
from a prior policy sub silentio or simply disregard rules that
are still on the books.”).
Here, the Commission’s own estimates anticipate that the
Project will spur enormous GHG emissions and associated
costs. See EIS at 4-173–4-180. The Commission notes that
“the construction and operation of the Project would increase
the atmospheric concentration of GHGs, in combination with
past, current, and future emissions from all other sources
globally, and would contribute incrementally to future climate
change impacts.” EIS at 4-175. Further, based on the national
levels of CO2 e emissions from 2020, the Commission estimates
that construction and operation could potentially increase
current and future CO2 e emissions. See EIS at 4-176. The EIS
contextualizes these findings on a state level, concluding that
the Project’s construction and operation would increase
downstream emissions in Delaware, Maryland, New Jersey,
New York, and Pennsylvania by varying percentage levels. Id.
Unlike in previous cases, in which the Commission
refused to even calculate the Social Costs of Carbon, see Ctr.
for Biological Diversity, 67 F.4th at 1184, the Commission
made strides to quantify the effects of GHG emissions
stemming from this Project. Using this metric, the
Commission calculated that the Project’s GHG emissions will
impose social costs of $46 billion. EIS at 4-180. The EIS
reports that construction of the Project could produce up to
43,548 metric tons of CO2 e, and its operation up to 562,044
metric tons of CO2 e per year. See id. at 4-175. Downstream

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combustion of the 829,400 Dth/d of gas would result in 16.02
million metric tons of CO2 e per year. Id. The Project’s “upper
bound downstream emissions alone would occupy roughly
39% of the total annual emissions budget across the[] two
states” it is principally designed to serve—New Jersey and
Maryland. J.A. 211 (EPA comment).
Having reported such figures, the Commission asserted
that it had met its NEPA obligations and “appropriately
declined to label the emissions as significant or
insignificant”—in part because it “is actively conducting a
generic proceeding to determine whether and how the
Commission will conduct significance determinations going
forward.” Reh’g Order P 106 & n.345 (citing Consideration of
GHG Emissions in Nat. Gas Infrastructure Project Reviews,
178 FERC ¶ 61,108 (2022), changed to draft status,
Certification of New Interstate Nat. Gas Facilities, 178 FERC
¶ 61,197, at P 2 (2022)); Certificate Order P 73. The
Commission did not explain, however, how the pendency of
that generic proceeding affects its ability in the meantime to
make a case-specific determination here, when it was able to
do so in Northern Natural. The anticipated emissions from this
Project are more than a hundredfold higher than the 100,000
metric tons per year of CO2 e that the Commission’s interim
guidance suggests as a significance threshold. See FERC, Fact
Sheet, Interim GHG (GHG) Emissions Policy Statement
(PL21-3-000) (Feb. 17, 2022). Nor did the Commission
address why it would have been arbitrary to conclude that,
“[h]owever the Commission’s approach to significance
analysis evolves, the reasonably foreseeable GHG emissions
associated with th[e] project” could be categorized as
significant. N. Nat. Gas Co., 174 FERC ¶ 61,189 P 33.
FERC turns to this Court’s recent decision in Food &
Water Watch v. FERC, 104 F.4th 336 (D.C. Cir. 2024), to

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support its arguments on appeal. But that case does not control
the issue raised before us now. The question in that case was
whether NEPA or the applicable CEQ regulation requires
FERC to label GHG emissions as either “significant” or
“insignificant,” and the Court affirmed FERC’s decision to not
label downstream GHG emissions as “significant” or
“insignificant” under NEPA because it disclosed and
contextualized the emissions. Id. at 346. Here, in the orders
under review and in the briefing, FERC has not disputed the
premise that it is generally obligated to make a significance
determination for each category of emissions. Indeed, it is
established that, where “significance” has material effects in a
particular case, most notably as triggering the obligation to
prepare an EIS, it is “essential” under NEPA that FERC make
a significance determination notwithstanding the pendency of
any generic proceeding to set a numeric significance threshold.
See Food & Water Watch, 104 F.4th at 346 (citing 40 C.F.R.
§ 1508.9(a)(1) (2022)); see also Healthy Gulf v. FERC, No. 23-
1069, 2024 WL 3418863 at *3 n.2 (D.C. Cir. July 16, 2024),
(clarifying that Food & Water Watch does not affect a case
where FERC does “not dispute the premise that it must make a
significance determination absent a sufficient explanation for
not doing so in a particular proceeding”).2
Instead, FERC argues that it was unable to do so. See
Reh’g Order PP 104–07. Yet, as explained above, FERC
provides no justification for why it cannot determine
significance here, when it was able to do so in Northern
2 Although we did not reach the issue in Healthy Gulf, we also
noted that Food & Water Watch did not address certain FERC
regulations that Healthy Gulf and others argued independently
required FERC to make a binary significance determination for GHG
emissions. See Healthy Gulf, 2024 WL 3418863, at *3 n.2 (citing 18
C.F.R. §§ 380.7(a),(d)).

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Natural.3 Even if FERC is not required to make a significance
determination, choosing not to do so on the basis of an arbitrary
and capricious explanation is nevertheless a violation of the
APA. Because FERC does not advance the same argument in
this case as it did in Food & Water Watch, we cannot resolve
the issue of significance determinations now before us on the
basis of that case.
For these reasons, the Commission violated NEPA by
failing to assess significance regarding GHG emissions.
B. Mitigation Measures
“Implicit in NEPA’s demand that an agency prepare a
detailed statement on ‘any adverse environmental effects
which cannot be avoided should the proposal be implemented,’
is an understanding that the EIS will discuss the extent to which
adverse effects can be avoided.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 351–52 (1989) (citing 42
U.S.C. § 4332(C)(ii)).
Here, the Commission relies on the fact that “Transco [did]
not indicate[] any mitigation for GHG emissions” to sidestep
its obligation to assess mitigation strategies for the adverse
environmental effects flowing from its approval of the Project.
Certificate Order P 74. This is inconsistent with NEPA’s
regulations, which require an EIS to discuss “[e]nergy
3 In Northern Natural, FERC also confirmed that “[i]n future
proceedings, [it] will continue to consider all appropriate evidence
regarding the significance of a project’s reasonably foreseeable GHG
emissions and those emissions’ contributions to climate change,” and
weigh significant GHG effects “along with many other factors when
determining whether a project is required by the public convenience
and necessity” under the NGA. N. Nat. Gas Co., 174 FERC ¶ 61,189
P 36.

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requirements and conservation potential of various alternatives
and mitigation measures,” “[n]atural or depletable resource
requirements and conservation potential of various alternatives
and mitigation measures,” and “[m]eans to mitigate adverse
environmental impacts.” See 40 C.F.R. § 1502.16(a)(6), (7),
(9) (2020); see also Sierra Club v. FERC, 867 F.3d 1357, 1374
(D.C. Cir. 2017) (“As we have noted, [GHG] emissions are an
indirect effect of authorizing [a] project, which FERC could
reasonably foresee, and which the agency has legal authority to
mitigate.” (citing 15 U.S.C. § 717f(e)).
C. Upstream and Downstream Emissions
The Commission contends both that the Project is unlikely
to spur additional gas production because it is only an
incremental change to an existing interstate pipeline and,
alternatively, even if it could spur production, that the
Commission does not have sufficient information to determine
the origin of transported gas to make an estimate of upstream
emissions. See Reh’g Order P 97; id. P 100; id. P 94 & n.298.
While the Commission’s argument that the new pipeline will
not spur additional production is questionable, our skepticism
is not enough for Petitioners to prevail on this claim. Here, as
in Birckhead v. FERC, 925 F.3d 510, 517 (D.C. Cir. 2019),
Petitioners have not identified any record evidence that would
help the Commission tie any new production of gas to demand
created by this Project. Nor do they claim that “the
Commission’s failure to seek out additional information
constitutes a violation of its obligations under NEPA.” Id. at
518.
Petitioners also do not prevail on their challenge to the
Commission’s failure to calculate downstream emission levels
of ozone or ozone precursors stemming from the Project. The
Commission contends that it lacks the necessary information

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about end uses to estimate either the production of ozone
precursors, or the complex estimation of how those precursors
would react in the atmosphere to generate ozone. Reh’g Order
at P 119. Here, too, Petitioners “make[] no claim that the
Commission should have further developed the record” with
respect to ozone or its precursors. Food & Water Watch v.
FERC, 28 F.4th 277, 288 (D.C. Cir. 2022). “The question
before us is thus whether, given the information available to it,
the Commission reasonably declined to assess downstream
consumption effects.” Id. Because foreseeability of
downstream emissions depends in part on information about
the “destination and end use of the gas in question,” id.
(quoting Birckhead, 925 F.3d at 519), and because the
Commission concludes (and Petitioners do not dispute) that
there is no record evidence about these uses, see Reh’g Order
P 118; Pet. Reply Br. 46–48 (challenging only the
Commission’s view on the reliability of predictive models for
ozone), the Commission did not act arbitrarily in refusing to
make a finding on this point.
D. Definition of Project Purpose and Need
In fulfilling its NEPA obligations, an agency may not
“define the objectives of its action in terms so unreasonably
narrow that only one alternative from among the
environmentally benign ones in the agency’s power would
accomplish the goals of the agency’s action.” Citizens Against
Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir.
1991). Such a narrow purpose would turn the EIS into a
“foreordained formality.” Id. Conversely, the agency may not
“frame its goals in terms so unreasonably broad that an infinite
number of alternatives would accomplish those
goals.” Id. The relevant question before us is whether the
Commission’s purpose statement is so narrowly defined as to

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foreclose an alternative that Petitioners would prefer or that the
Commission should reasonably have considered.
We conclude that FERC’s definition of the Project did not
foreclose consideration of the sole alternative Petitioners urge
here: denial of the Certificate. The EIS describes the Project’s
purpose of delivering “an incremental 829,400 dekatherms per
day (Dth/d) of year-round firm transportation capacity from the
Marcellus Shale production area in northeastern Pennsylvania
to delivery points in Pennsylvania, New Jersey, and
Maryland.” EIS at 1-2.
To be sure, the Project’s purpose could hardly have been
more narrowly described. The Commission specified the
proposed gas pipeline’s capacity down to the dekatherm. But
Petitioners do not argue that the Project’s narrow definition
foreclosed FERC’s consideration of the no-action alternative;
their objection, rather, is that FERC acted arbitrarily and
contrary to law by failing to embrace that alternative. Where,
as here, the way a gas pipeline project is defined neither affects
Petitioners’ opposition to it nor bears on their support for the
no-action alternative, that narrow definition is not a material
flaw.
Petitioners now argue that FERC should have considered
non-gas alternatives. See Pet. Br. 71–72; Rate Counsel Br. 30–
31. They assert the Commission’s purpose should have been
“[e]nsur[ing] reliable energy provision to this particular part of
the country.” See Oral Arg. Tr. 86:10–13. However,
Petitioners failed to specify to the Commission any non-gas
alternative it should have considered, apart from denial of the
certificate. See Reh’g Order PP 82, 85; Oral Arg. Tr. 87:23–
88:14 (failing to identify non-gas alternatives or modifications
to the Project). See also Vt. Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 551 (1978) (An agency need not consider

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“every alternative device and thought conceivable by the mind
of man”). As Petitioners have not suggested any non-gas
alternatives (other than no-action), we express no view on the
scope of FERC’s authority or obligation to consider them. See
generally City of Alexandria v. Slater, 198 F.3d 862 (D.C. Cir.
1999); Nat. Res. Def. Council v. Morton, 458 F.2d 827 (D.C.
Cir. 1972), see also NEPA Implementing Regulations, 87 Fed.
Reg. 23,453, 23,459 (April 20, 2022).
Inasmuch as Petitioners dispute the underlying need for
the Project, their challenge to the Commission’s determination
of market need is addressed under the NGA. Acknowledging
comments “questioning the need for gas in the delivery area
and that other proposed projects might be capable of delivering
gas to the same general area,” the EIS explained that whether
the Project is needed “will be assessed by the Commission in
its Orders” rather than in the NEPA analysis. See section V.A
infra; see also EIS at 1–2.
V. Petitioners’ Natural Gas Act Claims
Pursuant to Section 7 of the NGA, Transco needed to
obtain a Certificate from FERC to move forward with the
Project. To issue a Certificate, FERC must first “ensure that a
project will not be subsidized by existing customers” by
finding a “market need for the project.” Myersville, 783 F.3d
at 1309. If FERC finds a market need, it must then balance any
potential adverse impacts of the project against its purported
public benefits. Env’t Def. Fund, 2 F.4th at 961. See generally
section I.A.1 supra; 92 FERC ¶ 61,094 (2000).
A. Market Need
We hold that FERC acted arbitrarily in granting the
Certificate Order because it did not respond to some of the

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material challenges to its finding of market need for the Project.
FERC failed to (1) explain why it entirely discredited the
findings of two market studies showing that current capacity is
sufficient to meet the New Jersey ratepayers’ natural gas
demands beyond 2030; (2) explain how precedent agreements
with local gas distribution companies (“LDCs”) provide
assurance of market need if those same companies can pass on
fixed pipeline construction costs to existing captive ratepayers
while profitably selling any excess capacity to others, perhaps
even at below-market prices; and (3) give weight to New Jersey
state-law requirements of sizeable and continuous reductions
to natural gas usage by public utilities, and instead described
those requirements as unenforceable.
1. Market Studies
The Commission arbitrarily discredited the New Jersey
Agencies Study on the critical issue of whether ratepayers’ gas
demand can be met with existing gas supply over the coming
years, as it has been for decades, by contracts for off-system
peaking resources.4 While we generally afford great deference
to Commission determinations about the market it regulates
based on its technical expertise and experience, Minisink, 762
F.3d at 111, in the orders under review, FERC stopped short of
making or supporting any prediction that off-peaking supplies
are in fact likely to become scarcer in the future or suffer new
uncertainty or increased variability. It gestured at “the
potential for extreme weather events” as jeopardizing New
Jersey LDCs’ access to off-system supply sources, Reh’g
Order P 65, but provided no source for its climatological
4 Off-system peaking resources are third party supplies of
natural gas purchased under short-term contracts and used by LDCs
to supplement their own storage and pipeline transportation
entitlements. See Certificate Order P 29.

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hypothesis. FERC failed to clarify why the current supply of
off-system peaking sources is insufficient to meet the potential
demand created by extreme weather events and to provide a
basis for its claim that the potential for extreme weather creates
uncertainty in the availability of these resources to New Jersey
LDCs.
In evaluating the competing market studies before it, the
Commission faulted the New Jersey Agencies Study in part for
relying on the continuing availability of 619 MDth/d of off-
system delivered gas peaking resources. See Reh’g Order P 38.
In the Commission’s view, the continued availability of those
resources “is uncertain because it is not contracted for on a
long-term firm basis”5 but under “relatively short-term
[contracts] . . . dependent on pipeline capacity being available
year-to-year.” Id. The Commission did not, however, identify
any past event in which such resources—despite being subject
to short-term contracts—were unavailable when needed. In
fact, the Commission recognized that “downstream capacity
has been available to New Jersey shippers in the past through
short-term peaking contracts and may be available in the future
on the same short-term basis.” Id. P 40. The Commission
concluded that the Transco Study is more consistent with LDC
supply planning practices, even though it conceded that the
Study is limited in that it discounts current short-term
contracts’ ability to meet downstream capacity. See id. P 41.
Notwithstanding that acknowledgement, FERC still concluded
that the continued availability of off-system supply resources
was uncertain. Even as the Commission admitted that the
Transco Study might, in contrast, be overly conservative in its
5 Under a firm service contract, service is expected without
interruption under almost all operating conditions. Firm customers
pay a monthly reservation charge regardless of whether they use their
capacity.

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off-system peaking projections, id. P 40, it treated the latter
study as more authoritative, id. P 41. To support its conclusion,
FERC pointed to one New Jersey gas utility’s unsubstantiated
suggestion that its contracts for off-system peaking resources
would decline from 230.7 MDth/d in 2020 and 2021 to zero
from 2022 forward—figures FERC treated as an indicator that
those resources would somehow suddenly become unavailable,
id. PP 64–65. FERC did not acknowledge the New Jersey
Study’s explanation that the utility’s reported “decline” reflects
the reality “of the short-term nature of the contracts, which
need to be renewed or replaced annually,” so may count as zero
only until they are renewed or replaced, nor did the
Commission account for the Study’s contrastingly steady
projected reliance on off-system peaking resources. See New
Jersey Agencies Study at 98–99.
Similarly, the Commission discounted the Skipping Stone
Study because the study assumed that firm capacity held by
downstream customers would nevertheless be available to New
Jersey LDCs. Reh’g Order P 45. The Commission found that
“this assumption ignores the fact that if the downstream firm
capacity customers exercise their rights to the capacity during
a time of high demand in New Jersey, the capacity will not be
available for use by the New Jersey LDCs.” Id. While under
some circumstances this might be a legitimate concern, the
record is devoid of evidence of any shortages for this reason in
the decades that New Jersey LDCs have relied on such
capacity, and the Commission provided no practical
explanation for why it believed the unprecedented scenario it
described appropriately guided its discretion.
Petitioners also contend that FERC’s stated concerns about
potential interruptible demand from gas-fired electricity
generators were not a material basis for its finding of market
need. FERC explained in its Rehearing Order that the

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pipeline’s ability to help meet interruptible demand6 from
sources like gas-fired electricity generators is an added benefit
of the Project, but that the Commission did not rely on it as
evidence of market need. See Reh’g Order P 63
(acknowledging that design day7 planning appropriately
focuses on firm demand, but that the Commission may consider
service to interruptible loads in assessing a project’s benefits);
see also Oral Arg. Tr. 38:20–39:8 (counsel for FERC clarifying
that the Rehearing Order treated interruptible demand as a
separate benefit of the Project rather than evidence of market
need).
2. Precedent Agreements
Precedent agreements are “always . . . important evidence
of demand for a project.” See Minisink, 762 F.3d at 111 n.10
(internal citations omitted). However, the mere existence of
precedent agreements does not allow FERC to disregard
contradictory evidence showing a lack of market need for a
project. FERC must consider such contradictory evidence.
Env’t Def. Fund, 2 F.4th at 972. Here, because the Commission
6 Interruptible or non-firm customers pay lower rates, receive
gas only if transportation capacity is available, and are subject to
curtailment or interruption if the capacity is needed to serve firm
customers. While the gas system is designed to meet peak firm
demand, interruptible customers help to balance supply and demand
during peak times.
7 “Design day” “reflects the highest gas demand a [gas utility]
expects to be obligated to serve on an extremely cold winter day.”
Certificate Order P 21 n.41. The method of calculating design day
is at the discretion of each gas utility, but generally each utility uses
data from historical “peak” demand days during a given winter
season and adjusts those values in various ways to estimate projected
future demand growth. Id.

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failed to respond to Petitioners’ challenges to its reliance on
precedent agreements with LDCs who subscribed to a majority
of the pipeline’s capacity, we hold that it acted arbitrarily.
In approving pipeline construction, the Commission must
find that the proposed new pipeline “is or will be required by
the present or future public convenience and necessity.” 15
U.S.C. § 717(e). The Commission found market need for the
Project based largely on precedent agreements with LDCs in
New Jersey. Reh’g Order PP 33–34. Petitioners contend that
New Jersey LDCs’ contracts for the pipeline capacity fail to
assure that the Project will not contravene FERC’s policy
against “subsidization from its existing customers” for the
benefit of the utilities’ own shareholders. 88 FERC ¶ 61,746.
See Pet. Br. 63–67; Rate Counsel Br. 27–29. As Rate Counsel
explains, LDCs’ ability to pass on pipeline firm transportation
charges to their customers can create perverse incentives, and
therefore their precedent agreements may not reflect genuine
market need.8
The Commission fails to provide a non-arbitrary response,
asserting only that if “there is ample supply of transportation
capacity in New Jersey making the [pipeline] project
redundant, then there would be no market for [an LDC] to
‘offload’ its capacity to, let alone above market prices.” Reh’g
Order P 65. That logic ignores the concern that an LDC’s
captive ratepayers might pay for added pipeline capacity the
LDC does not use to serve those customers. If ratepayers
8 Rate Counsel Reply Br. 18 (“[Local gas distribution
companies] might buy unneeded capacity either to resell it for a
profit or to hold as extra reliability insurance . . . If the [local gas
distribution companies] expected to be able to pass through the costs,
deeming the disallowance risk to be low, they would have had little
incentive” to scrutinize their actual capacity needs.).

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26
assume the cost even when they do not need the capacity, LDCs
can afford to contract for additional unneeded capacity, which
they can then resell at a profit, even in a soft capacity market.
Because the Commission failed to respond to that challenge to
its reliance on precedent agreements with LDCs who
subscribed to a majority of the pipeline’s capacity, the
Commission acted arbitrarily. 9
3. New Jersey Law
The Commission, on rehearing, acknowledged New
Jersey’s statutory requirements for annual reductions in natural
gas use but failed to substantiate its claim that “there are as yet
no mandated mechanisms to implement these goals.” See
Reh’g Order P 26. FERC also arbitrarily misconstrued New
Jersey’s energy efficiency laws—which mandate sizeable and
continuous reductions to natural gas usage by public utilities—
as unenforceable. To the contrary, New Jersey law is
mandatory and includes mechanisms for its enforcement.10
9 This Circuit has accepted FERC’s reliance on precedent
agreements with LDCs to demonstrate market need for new pipelines
where appropriate. See, e.g., City of Oberlin, 937 F.3d at 605–06;
Myersville, 783 F.3d at 1311. But the challenge raised here was not
made in those cases. Here, Petitioners and Rate Counsel question
whether precedent agreements with LDCs serving captive ratepayers
are probative of market need for new capacity, and the Commission
fails to adequately dispel that concern.
10 FERC also analogizes New Jersey law to the New York
statute in Food & Water Watch, which set GHG emission-reduction
goals without specifying how to meet them or necessarily mandating
reductions in natural gas use, see 104 F.4th at 347–48. But New
Jersey law requires specific annual natural gas-use reductions.
N.J.S.A. § 48:3–87.9(A). In the context of evaluating market need
for greater natural gas capacity, FERC needed to properly consider
the effects of the New Jersey statute.

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The state statutes and the Board Order implementing them
both use mandatory language. See New Jersey Board of Public
Utilities, Order Directing the Utilities to Establish Energy
Efficiency and Peak Demand Reduction Programs at 2 (June
10, 2020) (noting that the Board is directed to require 0.75%
reductions). The New Jersey Clean Energy Act of 2018
provides that, “[e]ach natural gas public utility shall be required
to achieve annual reductions in the use of natural gas of 0.75
percent of the average annual usage in the prior three years
within five years of implementation of its gas energy efficiency
program.” N.J.S.A. § 48:3–87.9(a). As to the state’s energy
efficiency program, the statute provides: “[e]ach electric public
utility and gas public utility shall establish energy efficiency
programs and peak demand reduction programs to be approved
by the [B]oard no later than 30 days prior to the start of the
energy year in order to comply with the requirements of this
section.” Id. § 48:3–87.9(d)(1).
FERC acknowledges that it neither had the authority nor
the intention to “constrain the state’s review of the prudency of
purchases by New Jersey LDCs.” Reh’g Order P 28.
However, FERC’s treatment of New Jersey law as merely
suggestive was erroneous, and that mistake led it to arbitrarily
discount the effect of the state’s energy laws in assessing
market demand for the Project. Reh’g Order P 70; see also id.
PP 40–41 (noting that the Transco Study fails to consider the
impact of New Jersey’s energy efficiency laws on demand
forecasts but nevertheless concluding that it more reliably
reflects future demand).
B. Balancing of Public Benefits and Adverse Impacts
Under Section 7, the Commission may “issue a certificate
of public convenience and necessity only if a project’s public

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benefits (such as meeting unserved market demand) outweigh
its adverse effects (such as deleterious environmental impact
on the surrounding community).” City of Oberlin, 937 F.3d at
602. Here, because the Commission’s public interest
determination relied in part on a deficient market-need
assessment, the determination itself is necessarily arbitrary and
capricious. See Vecinos para el Bienestar de la Comunidad
Costerea v. FERC, 6 F.4th 1321, 1331 (D.C. Cir. 2021)
(“Where the Commission rests a decision, at least in part, on an
infirm ground, we will find that decision arbitrary and
capricious.”).
Moreover, Petitioners argue that “the Project’s climate
impacts render [FERC’s] conclusion in the Certificate Order
that the Project is ‘environmentally acceptable’ arbitrary,
capricious, and contrary to the [NGA],” Pet. Br. 97, and Rate
Counsel contends that, even if there were a clear market need
for the Project, the Order is arbitrary and capricious because it
overlooked important harms in its balancing—most
prominently the harms from increased GHG emissions.
Meanwhile, FERC and Transco insist that GHGs and climate
impacts were included in the balancing. FERC asserts that it
adequately weighed the potential environmental harms of the
Project just by disclosing the Project’s reasonably foreseeable
GHG emissions. See Reh’g Order P 106. It calculated
anticipated GHG emissions, listed harms expected due to
climate change generally, and identified climate policy goals at
international, national, and state levels—then seemingly swept
the issue under the rug in its balancing, stopping short of
explaining how anticipated GHG emissions factored in
weighing the potential adverse impact against the potential
benefit of the Project.
FERC’s failure to conduct any meaningful balancing falls
short of what is required by the NGA and this Court’s

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precedent. “[A] passing reference to relevant factors . . . is not
sufficient to satisfy the Commission’s obligation to carry out
‘reasoned’ and ‘principled’ decisionmaking.” Am. Gas. Ass’n,
593 F.3d at 19; see also TransCanada Power Mktg. Ltd. v.
FERC, 811 F.3d 1, 12 (D.C. Cir. 2015) (“It is well established
that the Commission must respond meaningfully to the
arguments raised before it.” (internal quotation marks
omitted)). In Environmental Defense Fund, we held that
simply pointing to evidence in the record was insufficient
balancing, but rather that FERC must show its reasoning such
that we can conclude that they have sufficiently evaluated the
record evidence. 2 F.4th at 966, 975. Here, as in
Environmental Defense Fund, FERC made a conclusory
decision that the benefits will outweigh potential adverse
impacts without conducting the needed analysis.
The Project is a substantial gas pipeline expected to
transport large quantities of natural gas from points of
extraction to points of use for decades to come. See EIS at 4–
1. The record estimates enormous GHG emissions from the
Project for the next half century. FERC disclosed the estimated
emissions and its Social Cost of Carbon analysis.11 But it then
walked away from the relevant issues with a fatalistic shrug,
asserting that “it is unable to determine how individual projects
will affect international, national, or statewide GHG emissions
reduction targets or whether a project’s GHG emissions
comply with those goals.” Id. at 4–178.
Simply put, in its Certificate Order, the Commission
discusses climate change and GHG emissions, including its
11 We examine FERC’s acknowledgment of the Project’s GHG
emissions and its Social Cost of Carbon analysis in our discussion
regarding the failure to make significance determinations, see section
IV.A supra.

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projections for those emissions. See Certificate Order PP 67–
74. But the Certificate Order nowhere explains whether and
how the Commission considered those emissions among the
adverse effects it balanced and found to be outweighed by the
pipeline’s expected benefits. Instead, the Order’s conclusions
merely refer back to its equivocal EIS, stating that it agrees
with the “conclusions presented in the final EIS and find that
the project, if implemented as described in the final EIS, is an
environmentally acceptable action.” Id. P 81. On rehearing,
FERC “simply asserted that ‘the Commission balanced the
concerns of all interested parties,’” Rate Counsel Br. 34,
followed by a summary of various land impacts and mitigation
measures other than those stemming from GHG emissions and
climate change. These broad-brush statements do not provide
assurance that the Commission balanced the climate-related
emissions to which the Commission refused to assign a
significance label.
VI. Remedy
FERC and Transco ask that the petitions for review be
denied and that the challenged FERC orders be affirmed. But
in the event that we determine that Petitioners’ claims have
merit, Transco asks us to remand to FERC without vacatur. For
reasons explained below, we hold that vacatur is appropriate
here.
“Vacatur ‘is the normal remedy’ when we are faced with
unsustainable agency action.” Bhd. of Locomotive Eng’rs &
Trainmen v. Fed. R.R. Admin., 972 F.3d 83, 117 (D.C. Cir.
2020) (quoting Allina Health Servs., 746 F.3d at 1110). We
employ a two-factor test to determine if the challenged agency
action is unsustainable. Xo Energy Ma v. FERC, 77 F.4th 710,
719 (D.C. Cir. 2023). We must evaluate (1) “the likelihood
that ‘deficiencies’ in an order can be redressed on remand” and

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(2) “the ‘disruptive consequences’ of vacatur.” Black Oak
Energy v. FERC, 725 F.3d 230, 244 (D.C. Cir. 2013) (quoting
Allied-Signal, Inc. v. Nuclear Regul. Comm’n, 988 F.2d 146,
150 (D.C. Cir. 1993)).
It is far from clear that FERC’s failure here is only one of
explanation. Petitioners have identified potentially
consequential deficiencies in the Certificate Order’s requisite
considerations of market need and balance of public benefits
and harms. See Allied-Signal, 988 F.2d at 150. Therefore, at
this stage we cannot say it is sufficiently likely that FERC “will
be able to substantiate its decision on remand.” Id. at 151. The
Certificate Order’s deficiencies go to the core of FERC’s
finding that the Project complies with Section 7 of the NGA.
On remand, FERC will have to revisit its underlying market
need finding to properly consider the New Jersey Agencies
Study and New Jersey state-law requirements of sizeable and
continuous reductions to natural gas usage, which may require
it to assess its ultimate Section 7 balancing. What is more, as
discussed above, see section IV supra, FERC failed to meet
certain obligations under NEPA. See Oglala Sioux Tribe v.
Nuclear Regul. Comm’n, 896 F.3d 520, 536 (D.C. Cir. 2018).
We next evaluate whether vacatur will result in “disruptive
consequences.” Allied-Signal, 988 F.2d at 150. Transco
argues that vacatur here would present:
severe and disruptive consequences because Transco has
received authorization from FERC to place certain Project
facilities in service and to provide firm transportation
service for roughly 54% of the Project’s capacity on an
interim basis, and since the interim service is fully
subscribed, customers are counting on [the Project] for the
2023/2024 heating season.

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Transco Br. 30. While these consequences certainly warrant
our consideration, they are not dispositive.
Where a pervasively deficient agency action is remanded,
only in rare instances do the disruptive consequences alone
determine whether the order is vacated. See North Carolina v.
EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). We have
previously vacated the Commission’s decision to issue a
certificate of public convenience and necessity even when the
pipeline was already partially operational. See Env’t Def.
Fund, 2 F.4th at 976. In fact, this Court’s review of Certificate
Orders for pipeline projects often occurs at least one year after
the pipeline’s construction has begun. See, e.g., id. (Certificate
Order issued August 2019, opinion issued June 2021); Vecinos
Para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th
1321, 1326–27 (D.C. Cir. 2021) (Certificate Orders issued
November 2019, opinion issued August 2021); Food & Water
Watch, 28 F.4th at 282–83 (Certificate Order issued December
2019, opinion issued March 2022). Petitioners correctly point
out that “it is hard to imagine a scenario in which a gas
company has not engaged in constructive activity or begun
service by the time a reviewing court concludes that the
approval was in error.” Pet. Reply Br. 51 (emphasis in the
original).
We have previously recognized that while “there may be
some disruption as a result of the . . . de-issuance of the
Certificate, caused by vacatur,” Env’t Def. Fund, 2 F.4th at 976,
serious deficiencies in the Certificate Order and Rehearing
Order nevertheless merit vacatur because “‘the second Allied-
Signal factor is weighty only insofar as the agency may be able
to rehabilitate its rationale.’” Id. (quoting Comcast Corp. v.
FCC, 579 F.3d 1, 9 (D.C. Cir. 2009)). Similarly, here, the
disruption vacatur would cause to the pipeline’s operations is
significantly outweighed by the core deficiencies in FERC’s

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orders. Accordingly, we vacate and remand FERC’s orders
granting a certificate of public convenience and necessity for
the Project.
*****
For the foregoing reasons, we grant the petitions for
review, vacate FERC’s orders, and remand to the Commission
for appropriate action.
So ordered.

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