Appalachian Voices v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2025 Decided June 6, 2025
No. 24-1094
APPALACHIAN VOICES, ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
MOUNTAIN VALLEY PIPELINE, LLC AND PUBLIC SERVICE
COMPANY OF NORTH CAROLINA, INC., D/B/A DOMINION
ENERGY NORTH CAROLINA,
INTERVENORS
Consolidated with 24-1150
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Benjamin A. Luckett argued the cause for petitioners. With
him on the briefs were Elizabeth F. Benson, Gillian Giannetti,
and Caroline Reiser.

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Jason T. Perkins, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on the
brief were Matthew R. Christiansen, General Counsel, and
Robert H. Solomon, Solicitor.
Jeremy C. Marwell argued the cause for intervenors in
support of respondent. With him on the joint brief were
Charlotte Taylor, James Olson, Misha Tseytlin, James T.
Dawson, Garrett T. Meisman, and William Lavarco.
Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring opinion filed by Circuit Judge HENDERSON.
EDWARDS, Senior Circuit Judge: This case concerns a
decision of the Federal Energy Regulatory Commission
(“FERC” or “Commission”) finding good cause to extend a
construction deadline it had previously set for Mountain Valley
Pipeline, LLC (“MVP”) to complete the MVP Southgate
Project (“Southgate Project” or “Southgate”). The Commission
issued a certificate of public convenience and necessity
authorizing the Southgate Project in June 2020. The
Commission exercised its discretion to set a construction
completion deadline of June 18, 2023. It recognized that
Southgate functioned as an extension of the Mountain Valley
Pipeline Mainline (“Mainline”), so it conditioned authorization
to start Southgate construction on MVP obtaining all required
federal permits and authorizations for the Mainline. However,
permitting issues for the Mainline were not resolved until June
3, 2023, and the Commission did not authorize resumption of
Mainline construction until June 28, 2023. By then,

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Southgate’s initial construction deadline of June 18, 2023, had
already passed.
Shortly before the deadline, MVP requested an extension
of time to complete construction. The Commission granted the
request, finding that MVP had adequately demonstrated good
cause. Specifically, MVP had made a good faith effort to meet
the Southgate construction deadline but encountered
unavoidable circumstances – i.e., Mainline permitting delays –
that prevented it from doing so. The Commission also
explained that its prior analysis of market need and
environmental impacts for the Southgate Project remained
valid and, thus, declined to revisit them.
Petitioners – eight environmental organizations – seek
review of the Commission’s decision. They argue that the
Commission’s finding of good cause to extend the time to
complete construction and its refusal to revisit its prior
assessments of market need and environmental impacts were
arbitrary and capricious.
We deny the petitions for review. First, we hold that the
Commission reasonably found that MVP had satisfied the good
cause standard in seeking an extension. As the Commission
explained, permitting and litigation delays with the Mainline
prevented MVP from proceeding with Southgate construction.
Thus, by focusing their efforts on securing authorization for the
Mainline, which had to come first, MVP made a good faith
effort to meet the original Southgate deadline.
Second, we hold that the Commission’s decision not to
revisit its prior findings on market need and environmental
impacts was adequately explained. The Commission generally
declines to reevaluate issues that were already addressed during
the certification process. The Commission “has leeway,

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however, to revisit prior market-need or environmental
findings when new circumstances render such findings stale or
out of date.” Sierra Club v. FERC, 97 F.4th 16, 26 (D.C. Cir.
2024). On the record before it, the Commission reasonably
concluded that the information presented by petitioners did not
amount to significant changes in circumstances that merited
renewed economic or environmental analysis. It was also
reasonable for the Commission to wait for MVP to file a
certificate amendment application before addressing any
potential changes to Southgate, and to conduct further
economic and environmental analysis, as necessary, when
reviewing that application.
I. BACKGROUND
A. Statutory and Regulatory Background
The Natural Gas Act (“NGA”), 15 U.S.C. § 717 et seq.,
empowers the Commission to regulate the interstate
transportation and sale of natural gas. A company seeking to
construct new natural gas pipeline facilities must receive
authorization from the Commission by applying for a
certificate of “public convenience and necessity.” 15 U.S.C.
§ 717f(c)(1)(A). The Commission will issue a certificate if it
finds that (1) “the applicant is able and willing properly to do
the acts and to perform the service proposed,” in conformance
with the NGA and the Commission’s “requirements, rules, and
regulations”; and (2) the proposed project “is or will be
required by the present or future public convenience and
necessity.” Id. § 717f(e). Prior to issuing a certificate, the
Commission “undertakes an extensive analysis of market need,
the public interest, and any environmental effects of the
proposed project.” Sierra Club, 97 F.4th at 20; see also 15
U.S.C. § 717f(e). The project is also examined under the
National Environmental Policy Act (“NEPA”) through the

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issuance of either an environmental assessment or an
environmental impact statement (“EIS”). See Sierra Club, 97
F.4th at 20; 42 U.S.C. § 4321 et seq.
The NGA does not require the Commission to set
deadlines for the completion of construction projects.
However, the Commission has the authority to “perform any
and all acts” to “prescribe, issue, make, amend, and rescind” a
certificate order, “as [the agency] may find necessary or
appropriate to carry out the [NGA].” 15 U.S.C. § 717o. And
under its own regulation, “[a]ny authorized construction [or]
extension . . . shall be completed and made available for service
. . . within [a] period of time to be specified by the Commission
in each order.” 18 C.F.R. § 157.20(b) (2024) (cleaned up).
The Commission may grant extensions of time for project
completion “for good cause, upon a motion made before” the
operative deadline. Id. § 385.2008(a). “Good cause” is the only
showing that a certificate holder is required to make if the
extension request is filed “within a timeframe during which the
environmental and other public interest findings underlying the
Commission’s authorization [of the project] can be expected to
remain valid.” Algonquin Gas Transmission, LLC, 170 FERC
¶ 61,144, at P 15 (2020). An extension of time is considered an
amendment of the project-completion deadline in the
certificate order and thus pursued as part of the Commission’s
broad authority under § 717o of the NGA. See 15 U.S.C.
§ 717o.
When a certificate holder applies for an extension, the
Commission publishes the application so that parties to the
underlying proceeding can provide comments about whether
the extension should be granted. See Algonquin Gas, 170
FERC ¶ 61,144, at P 39. If the Commission issues an extension
order, opponents can submit a request for rehearing. See 15

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U.S.C. § 717r(a). The Commission can deny rehearing by
operation of law when it declines to act on the rehearing request
within thirty days. Id.; 18 C.F.R. § 385.713(f) (2024). The
Commission can also deny the rehearing request and modify
the discussion in the underlying extension order to address
issues raised on rehearing, while continuing to reach the same
result. See 15 U.S.C. § 717r(a); see also Allegheny Def. Project
v. FERC, 964 F.3d 1, 16-17 (D.C. Cir. 2020) (en banc). After
parties to a proceeding exhaust their arguments before the
Commission by seeking rehearing, they may petition for
review of the Commission’s decision in this court. 15 U.S.C.
§ 717r(b). We have jurisdiction over a timely petition for
review under 15 U.S.C. § 717r(b).
B. Factual and Procedural History
1. The Commission’s Certificate Order
On November 6, 2018, MVP applied to the Commission
for a certificate of public convenience and necessity to build
the Southgate Project. MVP proposed Southgate as an
extension of the Mainline, a 303.5-mile-long pipeline approved
by the Commission in 2017 to carry gas from northern West
Virginia to southern Virginia. Southgate would extend the
pipeline into North Carolina, running approximately 75 miles
from the Mainline’s terminus in Virginia to two delivery points
in North Carolina. Those delivery points are owned by
Dominion Energy North Carolina (“Dominion”), a local
distribution company that executed a binding, long-term
precedent agreement with MVP for 80 percent of Southgate’s
transportation capacity.
On June 18, 2020, the Commission issued a certificate of
public convenience and necessity authorizing the Southgate
Project. Order Issuing Certificate, Mountain Valley Pipeline,

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LLC, 171 FERC ¶ 61,232, at PP 1-2 (2020) (“Certificate
Order”). When assessing for market need, the Commission
accepted the Dominion precedent agreement as a showing of
need for Southgate. Id. at P 51. The Commission noted that
“[p]rojections regarding future demand” on a regional basis
“often change and are influenced by a variety of factors.” Id. at
P 41. Therefore, “[g]iven the uncertainty associated with long-
term demand projections . . . where an applicant has precedent
agreements for long-term firm service, the Commission deems
the precedent agreements to be the better evidence of demand.”
Id. The Commission also observed that the “project shipper is
a local distribution company, which will locally distribute gas
to residential, commercial, and industrial end-use customers.”
Id. at P 43.
As for environmental impacts, several environmental
organizations submitted comments on the draft EIS for
Southgate. Appalachian Voices, among others, explained that
the Commission could not rely on its standard erosion and
sediment control measures to conclude that the impact of
pipeline construction would not be significant. They pointed
out that the Commission had relied on those same measures to
conclude that the Mainline’s impacts would be adequately
minimized, when in fact Mainline construction had resulted in
substantial, widespread erosion and sedimentation control
failures.
In the final EIS, and in an order addressing arguments
raised on rehearing, the Commission explained that MVP was
required to follow the Commission’s Upland Erosion Control,
Revegetation, and Maintenance Plan (“Erosion Plan”) and the
Commission’s Wetland and Waterbody Construction and
Mitigation Procedures (“Mitigation Procedures”) as modified
for Southgate, as well as to employ environmental inspectors
to ensure compliance. See Order Addressing Arguments Raised

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on Rehearing and Stay, Mountain Valley Pipeline, LLC, 172
FERC ¶ 61,261, at PP 27-28 (2020) (“Certificate Rehearing
Order”). The Commission also determined that Southgate
would not experience the same issues because (1) the Mainline
violations were a result of record-breaking precipitation events
in 2018 and (2) Southgate traversed flatter terrain than the
Mainline. The Commission also noted that MVP had agreed to
implement supplemental control measures, such as monitoring
weather conditions during construction and appropriately
adjusting erosion control measures as necessary to minimize
the impacts from heavy precipitation events. In its order
addressing arguments raised on rehearing, the Commission
further explained that instances of non-compliance at other
projects do not support a conclusion that the Erosion Plan,
Mitigation Procedures, and other measures are fatally flawed
or that the construction of Southgate will necessarily face
similar challenges as other pipeline projects. See Certificate
Rehearing Order, 172 FERC ¶ 61,261, at P 28. Rather, the
Commission understood the agreed-upon measures for
Southgate to provide adequate erosion and sediment control.
Id.
Finally, the Commission required MVP to make the
Southgate Project available for service by June 18, 2023.
However, the Commission recognized that Southgate
functioned as an extension of the Mainline and that, at the time,
Mainline’s construction had been suspended due to a stop-work
order issued after various litigation and permitting issues.
Accordingly, the Commission conditioned authorization to
start Southgate construction on (1) MVP obtaining all required
federal permits for the Mainline and (2) construction resuming
under the Mainline’s certification. Certificate Order, 171
FERC ¶ 61,232, at P 9.

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2. This Court’s Southgate Decision Affirming the
Commission’s Certificate Order
After the issuance of the Certificate Order and the
agency’s denial of rehearing for the Southgate certificate, six
environmental groups petitioned for review in this court. Sierra
Club v. FERC (Southgate), 38 F.4th 220, 227-28 (D.C. Cir.
2022). In that appeal, the petitioners did not challenge the
Commission’s finding of market need. Nevertheless, this court
noted that “the long-term agreement shows an actual need for
the Project.” Id. at 230. The petitioners did challenge the
Commission’s EIS as inadequate regarding mitigation
measures related to sedimentation and erosion. Id. at 232. But
this court found “that the Commission discussed potential
mitigation measures for erosion and runoff in detail.” Id.
Although NEPA required consideration of mitigation
measures, “it does not mandate the form or adoption of any
mitigation” activities in particular. Id. (citation omitted).
Accordingly, this court found that the Commission’s
“fulsome” discussion and consideration of mitigation measures
– together with the Commission’s imposition of monitoring,
inspection, and compliance activities – “meets NEPA’s mark.”
Id. at 233.
3. MVP’s Construction Deadline Extension Request
From 2020 to 2023, MVP remained embroiled in various
legal challenges which delayed Mainline construction. See,
e.g., Wild Va. v. U.S. Forest Serv., 24 F.4th 915, 920 (4th Cir.
2022) (vacating Forest Service and Bureau of Land
Management authorizations for the Mainline). MVP did not
receive authorization from the Commission to resume Mainline
construction until June 28, 2023, and, by then, the Southgate

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Project’s original construction deadline of June 18, 2023, had
already passed. See Order Granting Extension of Time
Request, Mountain Valley Pipeline, LLC, 185 FERC ¶ 61,208,
at PP 3-4 (2023) (“Extension Order”).
On June 15, 2023, shortly before the original deadline,
MVP requested a three-year extension of time to complete
Southgate, primarily citing delays in constructing the Mainline.
See id. at PP 1, 3, 5. Good cause existed for an extension, MVP
contended, because of how the Commission had sequenced its
approvals of MVP construction activities. The Commission
had “required construction to resume on the Mainline System
before construction of the Southgate Project could commence,”
yet the Mainline’s federal authorizations had only been ratified
and approved days earlier. See id. at PP 4-5. Having focused
primarily on clearing the way for Mainline completion, MVP
sought to resume Southgate permitting efforts once Mainline
issues had been resolved. See id. at P 5 & n.13 (noting that the
North Carolina Department of Environmental Quality had
denied Southgate’s water quality certification based on “the
status of the Mainline System’s completion”).
The Commission received numerous public comments on
the extension request, including from petitioners. They argued
that MVP’s failure to take reasonable steps to advance the
Southgate Project prohibited a finding of “good cause” for
MVP’s requested extension. They also claimed that the
Certificate Order’s market-need and environmental analyses
were no longer valid given changed circumstances.
4. The Commission’s Extension Order
On December 19, 2023, the Commission granted MVP’s
request and extended Southgate’s certificate for an additional
three years until June 18, 2026. See Extension Order, 185

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FERC ¶ 61,208, at PP 1, 28. It explained that, under
Commission policy, it reviews extension requests “on a case-
by-case basis” and will generally “grant extensions of time
when a project sponsor demonstrates that good faith efforts to
meet a deadline have been thwarted,” including with respect to
permitting issues. Id. at P 14 (cleaned up). MVP met the good
cause standard because the Commission had required Mainline
construction to proceed first, and that effort had encountered
significant delays. See id. at P 15. It was thus “reasonable for
Mountain Valley to . . . expect that it was all but impossible to
meet the Certificate Order’s in-service date” when, only earlier
that month, Mainline construction had been “jumpstarted by
the passage of the Fiscal Responsibility Act of 2023.” Id.; see
also id. at P 4 (noting that the Act, which approved all federal
authorizations for the Mainline, was signed into law on June 3,
2023).
The Commission also found that its market-need and
environmental impact conclusions remained valid. The
Commission determined that “[n]one of the matters raised by
commenters—e.g., the investment decisions of the shipper,
increased regional capacity, state emissions reductions targets,
and the Inflation Reduction Act clean energy incentives—
undermine[d] the Commission’s previous finding that the
project is needed.” Id. at P 17. The Southgate Project remained
supported by a long-term precedent agreement for 80 percent
of Southgate’s certificated capacity and only the timing – and
not the nature – of the Project was before the Commission. Id.
at PP 16, 19.
Regarding commenters’ environmental concerns about the
Mainline’s erosion and sedimentation events, the Commission
disagreed that those concerns amounted to significant pieces of
new information or that those issues would necessarily reoccur
during Southgate construction. Id. at PP 25-26. The

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Commission reviewed the Virginia Department of
Environmental Quality (“VDEQ”) reports cited by
commenters, wherein the Virginia agency states that the
impacts of the incidents during the construction of the Mainline
have not been significant. Id. at P 27 (“VDEQ notes that neither
its inspectors nor the public have reported any evidence of
violations of its water quality standards or of a fish kill during
construction on the mainline.”). The Commission also
responded to comments from Wild Virginia, a non-
governmental environmental organization, regarding pollution
incidents during Mainline construction that had been
documented in Wild Virginia’s various published reports. Id.
at P 24. The agency dismissed this evidence in light of the
VDEQ’s conclusions, based on the daily presence of inspectors
in the field during construction. Id. at PP 25-27.
5. MVP’s Project Update
On December 29, 2023, MVP informed the Commission
that, after further discussion with Southgate’s intended
customers, it had entered into new precedent agreements with
Dominion, as well as another investment grade utility
customer, for nearly double the amount of gas transportation
service than what had previously been agreed to. Letter from
Matthew Eggerding, Deputy Gen. Couns., Mountain Valley
Pipeline, LLC, to Kimberly D. Bose, Sec’y, Fed. Energy Regul.
Comm’n 1-2 (Dec. 29, 2023) [hereinafter MVP Project Update
Letter], Joint Appendix (“J.A.”), 360-61. MVP also described
a change in project design. The original project consisted of
around 31.2 miles of 24-inch-diameter natural gas pipeline
running from Virginia to Rockingham County, North Carolina,
plus another 43.9 miles of smaller pipeline that would continue
to Alamance County, North Carolina. See Certificate Order,
171 FERC ¶ 61,232, at P 11. The redesigned project would
instead consist of approximately 31 miles of larger, 30-inch

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diameter pipes running from Virginia to planned new delivery
points in Rockingham County, North Carolina. See MVP
Project Update Letter at 1, J.A. 360. The Southgate Project
would no longer extend to Alamance County. See id. MVP
clarified in the update that it had not yet “finalize[d] the scope
and timeframe of the redesigned project” and that it would
“provide additional information to the Commission . . . as it
continue[d] with project development.” Id. at 2, J.A. 361.
6. The Commission’s Rehearing Order
On January 18, 2024, the petitioner-organizations
requested a rehearing of the Extension Order, raising many of
the same concerns advanced in prior comments. See
Appalachian Voices et. al, Request for Rehearing and
Abrogation of Order Granting Extension of Time Request (Jan.
18, 2024), J.A. 362-93. They also raised new concerns
regarding MVP’s project update, arguing that MVP had
“expressly abandoned any intention of building the project” the
Commission had certificated. Id. at 12, J.A. 373. In their view,
MVP had “failed to actively pursue” the certificated project
and was working towards a different project instead. Id. at 8,
J.A. 369. As such, the Commission’s finding of good cause was
arbitrary and capricious and, accordingly, the Extension Order
had to be set aside. The organizations acknowledged, however,
that MVP had not yet asked the Commission to amend
Southgate’s certificate. Id. at 11, J.A. 372. They also
acknowledged that plans for the potential redesign of the
project remained too indefinite for the Commission to
undertake a full review of it under NGA or NEPA. Id.
On February 20, 2024, the Commission denied the
rehearing request. Notice of Denial of Rehearing by Operation
of Law and Providing for Further Consideration, Mountain
Valley Pipeline, LLC, 186 FERC ¶ 62,069 (2024). In its order

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addressing issues raised on rehearing, the Commission
sustained its prior findings of market need and environmental
impacts, as well as its finding of good cause. Order Addressing
Issues Raised on Rehearing, Mountain Valley Pipeline, LLC,
187 FERC ¶ 61,039, at P 10 (2024) (“Rehearing Order”). The
Commission also explained that the organizations’ argument
regarding the project update proceeded from a mistaken
premise. That is, they incorrectly asserted that by
contemplating a redesign of the project, Mountain Valley was
abandoning it. See id. at P 13. MVP’s statements were to the
contrary, the Commission explained, and it was not unusual or
incompatible for a project sponsor to contemplate a project
amendment as well as to seek a construction deadline
extension. Id. at PP 13-15.
The Commission further rejected the practical import of
the organizations’ argument, explaining that MVP should not
be required to apply for a new certificate to account for a
potentially redesigned project. Instead, “a certificate
amendment would be the appropriate means to account for any
changes to the project as previously certificated.” Id. at P 10
n.24. It was sufficient, the Commission found, that MVP
continued to have precedent agreements covering “not only the
majority of the capacity of the original certificated project but
also the increased capacity of the revised project.” Id. at P 16.
And the Commission made clear that any certificate
amendment application MVP might submit in the future would
be evaluated under the relevant standards of the NGA and
NEPA. Id.
Appalachian Voices, along with other environmental
organizations, then filed timely petitions for review of the
Commission’s decision orders with this court.

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7. Subsequent Developments
On February 3, 2025, MVP filed an application with the
Commission to amend Southgate’s certificate of public
convenience and necessity. As previously explained, the
proposed project, as amended, will consist of a shorter but
wider pipeline extending from the original receipt points in
Virginia to reach delivery points in North Carolina. The project
will serve the same local shipper, Dominion, as well as one
other shipper. The project is thus supported by two precedent
agreements for long-term firm service. The amendments will
avoid the need for a new compressor station and result in fewer
river crossings. MVP claims that these modifications are a
“reaction to permitting obstacles (including several state permit
denials) combined with increased shipper demand.” Br. of
Respondent-Intervenor 21.
In response to petitioners’ concerns regarding MVP’s
exercise of its eminent domain power under the Southgate
certificate, MVP has emphasized, both in its briefing and at oral
argument, that it “voluntarily dismissed all eminent domain
actions in North Carolina when it became clear that portion of
the route would not proceed.” Id. at 24. MVP has given us no
reason to suspect that it intends to renew such actions for
portions of the route that it no longer intends to pursue, nor
does MVP suggest that it has the power of eminent domain
over portions of the new proposed route that is still currently
pending before the Commission. Moreover, any exercise of
MVP’s eminent domain power will be properly scrutinized in
state condemnation proceedings, where affected parties can
raise and present their concerns.
MVP anticipates, and the Commission has explained, that
the agency will analyze the proposed changes, precedent
agreements, and accompanying environmental and other

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information, and will conduct additional analysis, as
appropriate, under the NGA and NEPA. See id. at 28-29;
Rehearing Order, 187 FERC ¶ 61,039, at P 16. The
Commission will do so as part of the certificate amendment
proceeding, where petitioners can challenge the project as
modified. These proceedings are ongoing, and the agency has
not yet issued a decision as to MVP’s certificate amendment
application.
The Commission’s forthcoming decision regarding the
amendment application is distinct and separate from its prior
decision granting the extension request, which is the sole
agency decision before this court.
II. ANALYSIS
A. Standard of Review
The Commission’s authority to establish and extend
construction deadlines comes from its broad power to “perform
any and all acts” to “prescribe, issue, make, amend, and
rescind” a certificate of public convenience and necessity – a
power that may be exercised whenever the Commission deems
it “necessary or appropriate to carry out the [NGA].” 15 U.S.C.
§ 717o. Stemming from this same authority, the Commission
has substantial discretion to revisit its prior findings of market
need or environmental impacts as “necessary or appropriate.”
Id.; see also Sierra Club, 97 F.4th at 26; Loper Bright Enters.
v. Raimondo, 603 U.S. 369, 392, 394-95 (2024).
The Commission’s assessment of what is necessary or
appropriate – whether in the context of extending deadlines or
revisiting prior findings – is “entitled to substantial deference”
because it involves “a judgment . . . [of] regulatory policy at
the core of FERC’s mission.” Sacramento Mun. Util. Dist. v.

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FERC, 616 F.3d 520, 533 (D.C. Cir. 2010) (citation omitted);
see also Sierra Club, 97 F.4th at 26. Such a decision also
necessarily relies on the Commission’s technical expertise. See
Sacramento Mun. Util. Dist., 616 F.3d at 533 (requiring
deference to “technical inquir[ies] properly confided to
FERC’s judgment”).
Accordingly, our review of the Commission’s action is
“limited.” Tenn. Gas Pipeline Co. v. FERC, 860 F.2d 446, 452
(D.C. Cir. 1988). “The Commission has broad discretion in
exercising its authority under the Natural Gas Act.” Id. The
Commission’s discretion is limited only by the arbitrary and
capricious standard of the Administrative Procedure Act
(“APA”). See 5 U.S.C. § 706(2)(A). Under this standard, the
Commission’s action will be upheld if it is “reasonable and
reasonably explained.” FCC v. Prometheus Radio Project, 592
U.S. 414, 423 (2021). In other words, we must uphold the
decision if the Commission has “examine[d] the relevant
[considerations] and articulate[d] a satisfactory explanation for
its action including a rational connection between the facts
found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(internal quotation marks and citation omitted).
B. The Commission’s Finding of Good Cause to Extend the
Construction Deadline Was Reasonable
The Commission generally grants a timely application for
an extension of a construction deadline if the project sponsor
demonstrates “good cause” for its request. 18 C.F.R.
§ 385.2008(a) (2024). Good cause “can be shown by a project
sponsor demonstrating that it made good faith efforts to meet
its deadline but encountered circumstances beyond its control.”
Nat’l Fuel Extension Order, 179 FERC ¶ 61,226, at P 10
(2022). As this court has noted, the Commission has found that

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sponsors made good faith efforts where they “advanced their
projects by applying for permits, engaging in litigation,
acquiring necessary land rights, or negotiating with state
agencies.” Sierra Club, 97 F.4th at 24. And in examining
reasons for delay, the Commission has found a wide range of
circumstances to support good cause, including legal or
litigation-related barriers. See id. at 24-25 (citing examples).
In this case, the Commission found good cause because
MVP made reasonable efforts to advance its project by
focusing on the most pressing and immediate problem:
resuming Mainline construction. The Commission understood
MVP’s efforts with respect to the Mainline as a good faith
effort to meet the Southgate construction deadline. See id. at 27
(“FERC may decide, in its discretion, that other types of
reasonable efforts, other than ‘active pursuit’ of all permits, are
sufficient.” (internal citation omitted)). As the Commission
explained, since securing authorizations and permits for the
Mainline was a condition precedent to starting construction on
Southgate, it was reasonable for MVP to “prioritize[] its efforts
on the Mainline System over its attempts to resolve permitting
issues for the Southgate Project.” Extension Order, 185 FERC
¶ 61,208, at P 15. Indeed, as a practical matter, since Southgate
is an extension of the Mainline, without the latter, any permits
or land rights secured for the former would be of little to no
use. Ultimately, however, because delays with the Mainline –
which were factors beyond MVP’s control – persisted until
June 2023, it was impossible for MVP to meet the original
deadline for Southgate. In light of these circumstances, the
Commission’s finding of “good cause” was consistent with its
past practice of granting extensions to account for litigation
delays, and it was well “within the bounds of reasoned
decisionmaking.” Balt. Gas & Elec. Co. v. Nat. Res. Def.
Council, 462 U.S. 87, 105 (1983).

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Petitioners argue, however, that MVP abandoned efforts to
secure permits and property rights for the certificated project
and did so for reasons within its control: its decision to pursue
a markedly different project in lieu of the original project. As
explained by the Commission, however, this argument stems
from a mistaken premise. By contemplating a redesign of the
project, MVP was not – and is not – abandoning it. Project
sponsors often propose to amend their certificated projects to
account for changes, and this practice is compatible with
seeking and granting extensions of time. See, e.g., Mountain
Valley Pipeline, LLC, 185 FERC ¶ 61,193, at PP 14-15 (2023)
(order amending cost-based resource rates following two
extensions of time for the initial certification); Mountain Valley
Pipeline, LLC, 179 FERC ¶ 61,013, at PP 1, 5 (2022) (order
amending construction route and methods following grant of
extension of time for certificate); Algonquin Gas Transmission,
LLC, 174 FERC ¶ 62,179, at PP 1-2 (2021) (order
simultaneously granting extension of time and amending
certificate to modify the project facilities). In this case, the
Commission permissibly determined that MVP’s contemplated
amendments – for example, removing the need for a new
compressor station and securing additional agreements for firm
capacity – demonstrate “a good faith effort toward project
completion,” not an intent to abandon the project. Rehearing
Order, 187 FERC ¶ 61,039, at PP 7, 13.
Moreover, at the time of the request for rehearing, the
contemplated redesigns were still only “speculative.” Id. at P
14. MVP had not yet filed an application to amend the
Southgate Project and, indeed, was still in the process of
finalizing the scope of the project. There were no proposed
amendments for the agency to review. And, as the Commission
explained, “the prospect that the project may be amended in the
future does not change the underlying consideration of an
extension of time,” which is based on the “good cause”

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20
standard. Id. at P 15; see also Extension Order, 185 FERC
¶ 61,208, at P 11. Thus, having found “good cause,” the
Commission reasonably decided to grant the extension request
and to wait for any forthcoming amendment application before
assessing any project changes. See Mobil Oil Expl. &
Producing Se. Inc. v. United Distrib. Cos., 498 U.S. 211, 230
(1991) (explaining that the Commission “enjoys broad
discretion in determining how best to handle related, yet
discrete, issues in terms of procedures, . . . and priorities”
(internal citations omitted)); see also PennEast Pipeline Co.,
LLC, 170 FERC ¶ 61,138, at PP 7-8, 16-19 (2020) (granting
extension of time and noting possible forthcoming
amendments).
Certification amendments and extensions of time are
distinct requests governed by distinct standards. That is, while
an extension request is scrutinized for good cause, any
forthcoming amendment will be assessed under NEPA for its
environmental impacts and the NGA to ensure the amendment
is required by public convenience and necessity. See Rehearing
Order, 187 FERC ¶ 61,039, at P 16. This future inquiry, when
it becomes necessary, will ensure that any changes proposed by
MVP are subject to agency review.
C. The Commission Reasonably Declined to Revisit its Prior
Findings on Market Need and Environmental Impacts
“The foregoing framework for determining ‘good cause’
to extend a construction deadline assumes that the facts and
determinations underlying the original certificate approval
have not changed.” Sierra Club, 97 F.4th at 25. Where there
has been no significant change in the relevant circumstances,
the Commission generally declines to reevaluate issues that
already were addressed when the agency first approved the
project. The Commission “has leeway, however, to revisit prior

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21
market-need or environmental findings when new
circumstances render such findings stale or out of date.” Id. at
26.
In this case, we defer to the Commission’s determination
that the relevant circumstances did not change substantially
enough for the agency to revisit its underlying findings. See
Sacramento Mun. Util. Dist., 616 F.3d at 533. Contrary to
petitioners’ contentions, the Commission’s determination was
both supported by the record evidence and reasonable.
First, the “Certificate Order found a market need for the
project based on Mountain Valley’s execution of long-term
precedent agreements for 80% of the project’s capacity.”
Extension Order, 185 FERC ¶ 61,208, at P 17 & n.53 (citing
Certificate Order, 171 FERC ¶ 61,232, at P 29). As the
Commission explained, this finding of market need remains
valid because “Mountain Valley continues to have precedent
agreements in place that meet or exceed those for the
certificated Southgate Project.” Rehearing Order, 187 FERC
¶ 61,039, at P 14. Whether or not MVP has demonstrated
market need for the increased capacity of any revised project is
a separate question not currently before us – the agency will
answer this question in the first instance if required to consider
an MVP amendment application. Further, we are not persuaded
that the other developments cited by petitioners – e.g., high-
level gas usage statistics, state emissions reductions targets,
and the Inflation Reduction Act clean energy incentives –
amount to significantly changed circumstances that render stale
the Commission’s prior analysis, especially under our
deferential standard of review. See Extension Order, 185 FERC
¶ 61,208, at P 17.
Still, petitioners argue that the Commission should have
more closely scrutinized the details of the agreements and

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22
considered additional factors, such as demand projections.
They cite this court’s decision in Environmental Defense Fund
v. FERC, 2 F.4th 953 (D.C. Cir. 2021), which overturned the
Commission’s finding of public convenience and necessity
based on a single precedent agreement with an affiliated
shipper. Petitioners’ argument misses the mark. As the
Commission explained, Environmental Defense Fund v. FERC
concerned the grant of an initial certificate, not an extension of
time for an already issued certificate. See Rehearing Order, 187
FERC ¶ 61,039, at P 10 n.25. At this later stage, the scope of
the agency’s assessment is narrow: The question is not
whether, after an extensive balancing of all public benefits and
adverse effects, there is market need to justify the project.
Rather, the question is whether there has been a significant
change in circumstance that undermines the Commission’s
previous finding that the certificated project is needed. The
petitioners have not demonstrated such a circumstance.
Second, as for environmental impacts, the Commission
already addressed the petitioners’ sedimentation and erosion
concerns for the Southgate Project during the certification
process. As this court explained, “the Commission discussed
potential mitigation measures for erosion and runoff in detail,”
and the Commission adequately “distinguishe[d] these
measures from those that failed for Mountain Valley in the
past.” Southgate, 38 F.4th at 232-33. Petitioners have not
presented new and substantial evidence suggesting that the
different and additional mitigation measures proposed for
Southgate are nevertheless insufficient with respect to the
protection of either soil or aquatic resources. As for the
evidence the petitioners have presented, the agency adequately
addressed them and explained why the proffered evidence did
not justify a renewed environmental analysis. See, e.g.,
Extension Order, 185 FERC ¶ 61,208, at P 27 (explaining that
the erosion and sedimentation control failures cited by

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23
petitioners were found by VDEQ to not have had a significant
impact on water quality or fish life).
Lastly, the Commission’s decision not to conduct a
supplemental NEPA analysis before granting the request for an
extension was also reasonable. As the Commission explained,
as of the time of the Rehearing Order, MVP had not “made
significant or substantial changes to the Southgate Project that
would trigger a supplemental NEPA analysis, and Appalachian
Voices ha[d] not presented evidence to dispute this finding.”
Rehearing Order, 187 FERC ¶ 61,039, at P 19; see also Sierra
Club, 97 F.4th at 26 (“[D]eference also is due to a FERC
determination about whether a supplemental environmental
analysis is necessary under NEPA.”). Any future proposals to
amend the project, including MVP’s pending amendment
application, will be studied separately under NEPA. An
extension request, however, is not an opportunity for opponents
to relitigate their concerns with the certificate order, nor an
opportunity to preemptively challenge potential project
changes that have not yet been made.
III. CONCLUSION
The Commission enjoys broad discretion in determining
whether a project sponsor has demonstrated “good cause” for
an extension and whether circumstances have changed enough
to warrant revisiting the agency’s findings justifying approval
of the project. Because the Commission acted well within its
discretion in both instances, we deny the petitions for review.
So ordered.

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KAREN LE C RAFT HENDERSON , Circuit Judge, concurring:
America was once a nation that built. In just over a year, we
erected the world’s tallest building: the Empire State Building.
Between 1915 and 1925, we doubled the percentage of U.S.
homes with electrical service, from 20 to 40 per cent. By 1940,
we doubled those figures again. But that progress has
subsequently ground to a halt. Since 1970, productivity growth
in the construction industry has been on an unyielding decline.
Our power grid has become bottlenecked. We have more
pipelines in service today that were built pre-1970 than in the
fifty-five years since. The sources of our slowdown are
myriad. But one driving factor of our national sclerosis has
been lawsuits such as this one.
Petitioners—a collection of environmental groups—have
developed a cottage industry that uses the nation’s
environmental laws to retard new development. Petitioners
deluge permitting agencies with dubious claims. The agencies
spend years writing thousands of pages of environmental
review in an attempt to stave off litigation. Often, however, no
sooner do agencies approve new development than they find
themselves under a tidal wave of litigation from environmental
groups. These groups do not need to win their lawsuits.
Indeed, they rarely do. Yet they emerge victorious because
delay is the coin of the realm. Developers—overwhelmed by
the torrent of challenges—often abandon their projects rather
than weather the storm. Many more are cowed from even
entering the market.
Today’s case is typical. Petitioners waged an unrelenting
campaign to drive Intervenor Mountain Valley from the natural
gas market. For years, they launched challenge after challenge
to every state and federal permit necessary to the construction
of Mountain Valley’s flagship project, Mainline. That
campaign was only ended when the Congress approved all of
Mountain Valley’s permits and stripped the federal courts of
jurisdiction to entertain further suits. With Mainline now out

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2
of reach, Petitioners have turned to its spin-off project,
Southgate. Both FERC and this Court upheld Southgate’s
environmental review and market analyses. But because
Petitioners caused so many years of delay, Mountain Valley
was forced to seek an extension of its deadline. That extension
request has become a beachhead for a fresh assault.
Petitioners argue that their past efforts have so delayed
Southgate that FERC’s analyses are now stale. They ask us to
send the agency back to the drawing board to assess conditions
from scratch. As today’s majority correctly holds, their claims
are without merit. FERC properly found that its market and
environmental analyses remain valid and that good cause exists
to grant Mountain Valley an extension. And, as is so often the
case, Petitioners’ remaining objections may be resurrected in
future Commission proceedings, where they will receive yet
another bite at the apple.
In sanctioning this system, I believe courts—ours in
particular—have misinterpreted and misapplied the
environmental laws. In the process, we have enabled interest
groups to transform the bench into a tool to stymie any new
development. It is long past time to correct our mistake.
I. BACKGROUND
A. Statutory Background
In the early twentieth century, “development began in
earnest on the country’s [natural gas] pipeline infrastructure.”
PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 489
(2021). At first, states were the primary movers in regulating
the industry. But their efforts were quelled by the Supreme
Court, which held that the Constitution’s Dormant Commerce
Clause prohibits states from regulating the interstate
transportation and sale of electricity and fuel. See Missouri ex

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3
rel. Barrett v. Kansas Nat. Gas Co., 265 U.S. 298, 307–308
(1924); Public Util. Comm’n of R.I. v. Attleboro Steam & Elec.
Co., 273 U.S. 83, 89–90 (1927). The Congress responded with
a pair of landmark statutes.
In 1935, it amended the Federal Power Act (FPA), which
created the Federal Power Commission (FPC)—the forebearer
of today’s Federal Energy Regulatory Commission (FERC or
the Commission)—and empowered it to regulate the
transmission and sale of electricity in interstate commerce. Ch.
687, § 201, 49 Stat. 847, 847–48 (codified as amended at 16
U.S.C. § 824(a)–(b)). In 1938, the Congress enacted the
Natural Gas Act (NGA), which gave the newly-minted FPC
exclusive authority to regulate the transportation and sale of
natural gas in interstate commerce. Pub. L. No. 75-688, ch.
556, 52 Stat. 821. Under section 7 of the NGA, no company
may construct or extend a natural gas facility across state lines
without a certificate of “public convenience and necessity
issued by the Commission.” 15 U.S.C. § 717f(c)(1)(A).
The NGA is not the only barrier to entry into the natural-
gas market. Before obtaining a certificate of public
convenience and necessity, natural-gas companies must
comply with the National Environmental Policy Act (NEPA).
Pub. L. No. 91-190, 83 Stat. 852 (1970). NEPA requires
federal agencies to prepare “a detailed statement” regarding the
environmental impacts of any “major Federal action[]
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(C). “Action” includes “not only when an
agency proposes to build a facility itself, but also whenever an
agency makes a decision which permits action by other parties
which will affect the quality of the environment.” Scientists’
Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d
1079, 1088 (D.C. Cir. 1973). Because “[p]ractically every
major construction project authorized by [an agency] affects

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4
the environment to some degree,” any attempt to build across
state lines entails NEPA review. Nat’l Audubon Soc’y v. Watt,
678 F.2d 299, 314 (D.C. Cir. 1982) (MacKinnon, J.,
concurring).
Once triggered, NEPA requires agencies to “take a ‘hard
look’ at the environmental consequences” of their proposed
action. Baltimore Gas & Elec. Co., Inc. v. Nat. Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983). This includes assessing
“the environmental impact of the proposed action, any
unavoidable adverse environmental effects of the action, and
potential alternatives to the action.” Marin Audubon Soc’y v.
FAA, 121 F.4th 902, 906 (D.C. Cir. 2024) (internal quotations
omitted). It also requires “inform[ing] the public of the
environmental concerns that were considered in the agency’s
decisionmaking.” Citizens Against Rails-to-Trails v. Surface
Transp. Bd., 267 F.3d 1144, 1150 (D.C. Cir. 2001). Unless the
Commission can determine that a “proposed project would
have no significant environmental impact,” it must “prepare a
full-blown environmental impact statement [EIS].”
Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 270 (D.C. Cir.
2015). And to make a no-significant-impact determination,
FERC must prepare an almost equally burdensome
Environmental Assessment (EA) that sifts through similar
factors. See Grand Canyon Tr. v. FAA, 290 F.3d 339, 340
(D.C. Cir. 2002), as amended (Aug. 27, 2002).
NEPA review “involves an almost endless series of
judgment calls,” Coal. on Sensible Transp., Inc. v. Dole, 826
F.2d 60, 66 (D.C. Cir. 1987), costing developers considerable
“time and [] money” and tying up projects in red tape. Citizens
Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir.
1991). 1 These costs and delays are only the first barrier to
1 See, e.g., Sierra Club v. Dep’t of Energy, 134 F.4th 568, 570–
72 (D.C. Cir. 2025) (over a decade of review and litigation and the

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5
industry. As we recently stated, “[a]s night follows day, an
environmental challenge follows [an agency’s] approval of a
natural gas pipeline,” leading to still more time and expense
while a challenge makes its way through the courts to review
the vast compendium that is the Environmental Impact
Statement. Citizens Action Coal. of Indiana, Inc. v. FERC, 125
F.4th 229, 235 (D.C. Cir. 2025); see, e.g., Eagle Cnty. v.
Surface Transp. Bd., 82 F.4th 1152, 1180 (D.C. Cir. 2023)
(rejecting a 3,600-page EIS prepared over more than two years
because the agency did not assess environmental impacts “that
it lack[ed] authority to prevent, control, or mitigate”), rev’d and
remanded sub nom. Seven Cnty. Infrastructure Coal. v. Eagle
Cnty., No. 23-975, 2025 WL 1520964 (May 29, 2025) (adding
three years’ delay atop the agency’s two-year approval
process). Today’s case is a testament to environmental review
run amok.
B. Factual Background
In October 2017, FERC approved Mountain Valley’s
Mainline Project, a plan to build roughly 300 miles of natural-
gas pipeline stretching from West Virginia to Virginia. Order
Issuing Certificates and Granting Abandonment Authority,
Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043 (Oct. 13,
compilation of a 1,500-page EIS); Indian River Cnty. v. Dep’t of
Transp., 945 F.3d 515, 524 (D.C. Cir. 2019) (NEPA review over two
years included more than 15,400 written comments and an EIS over
600 pages in length); Village of Barrington. v. Surface Transp. Bd.,
636 F.3d 650, 653 (D.C. Cir. 2011) (re-routing freight trains
triggered a 3,500-page draft EIS that received nearly 13,500
comments and resulted in approximately 400 days of pre-litigation
delay); TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433
F.3d 852, 862 (D.C. Cir. 2006) (preparation of EA took over four
years and generated almost 900 pages of data and analysis examining
potential environmental impacts).

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6
2017). In November 2018, Mountain Valley applied for a § 7
certificate to build the Southgate Project, an extension of
Mainline that would connect the Virginia terminus to two
North Carolina counties. After a year and a half, FERC
approved Southgate’s certificate of public convenience and
necessity. Order Issuing Certificate, Mountain Valley Pipeline,
LLC, 171 FERC ¶ 61,232 (June 18, 2020), order on reh’g, 172
FERC ¶ 61,261 (Sept. 17, 2020). Because of Southgate’s
interconnectivity with Mainline, FERC required Mountain
Valley to obtain other federal permits for Mainline before it
could commence construction on Southgate. The Commission
also conditioned its approval on Mountain Valley’s completion
of Southgate within three years.
Unfortunately for Southgate, Mainline remained mired in
delay. Environmental groups—comprised primarily of
Petitioners—began their battle to stop Mainline. In July 2018,
the groups convinced the Fourth Circuit to vacate rights of way
granted by the Bureau of Land Management (BLM) and United
States Forest Service (USFS) based on violations of NEPA and
of the National Forest Management Act. See Sierra Club, Inc.
v. Forest Serv., 897 F.3d 582, 587 (4th Cir. 2018). In response,
FERC ordered Mountain Valley to temporarily suspend
activity on Mainline before reauthorizing partial construction
in August. No sooner did Mountain Valley resume building
Mainline than a new environmental challenge halted it. In
October, the Fourth Circuit vacated an Army Corps of
Engineers Clean Water Act permit. See Sierra Club v. Army
Corps of Eng’rs, 905 F.3d 285 (4th Cir. 2018) (vacating order),
as amended 909 F.3d 635 (Nov. 27, 2018) (opinion explaining
order). A few months later, we found a separate challenge to
Mainline less than meritorious and, in an unpublished
judgment, dismissed the petitions. See Appalachian Voices v.
FERC, No. 17-1271, 2019 WL 847199, at *3 (D.C. Cir. Feb.
19, 2019). But then the Fourth Circuit again froze Mainline,

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7
this time vacating a Fish and Wildlife Services (FWS) decision
under the Endangered Species Act. See Order Granting Stay,
Wild Va. v. Dep’t of the Interior, No. 19-1866 (4th Cir. Oct. 11,
2019).
Due to this multicircuit litigation, FERC ordered Mountain
Valley to suspend all construction on Mainline in October
2019. In late 2020, the Commission extended Mountain
Valley’s deadline to complete Mainline and the FWS and
Army Corps issued new authorizations, but the Fourth Circuit
once again stayed the authorizations pending appeal. Sierra
Club v. Army Corps of Eng’rs, 981 F.3d 251, 265 (4th Cir.
2020). We rejected a request to enter a stay pending appeal of
FERC’s Mainline extension order, see Sierra Club v. FERC,
No. 20-1512, 2021 WL 1044965, (D.C. Cir. Feb. 19, 2021), but
the Fourth Circuit again held up essential agency approvals—
this time from the USFS and the BLM—for further
environmental consideration. See Wild Va. v. USFS, 24 F.4th
915, 932 (4th Cir. 2022). This Court later dismissed all but one
challenge to Mainline’s deadline extension, finding that FERC
failed to explain adequately its reason for dismissing certain
concerns about soil erosion. See Sierra Club v. FERC, 68 F.4th
630, 650–51 (D.C. Cir. 2023), opinion vacated and superseded,
No. 20-1512, 2023 WL 5537562 (D.C. Cir. Aug. 25, 2023)
(dismissing appeal as moot). But unlike the Fourth Circuit, this
Court remanded without vacatur to allow prompt “resum[ption
of] construction.” Id. at 652.
Meanwhile, a new round of litigation commenced once
FERC approved the Southgate pipeline construction. But
Petitioners found a less receptive audience on this side of the
Potomac. This Court unanimously affirmed FERC’s Southgate
approval and held that its “fulsome” EIS “meets NEPA’s
mark.” Sierra Club v. FERC (Southgate I), 38 F.4th 220, 233
(D.C. Cir. 2022). But because FERC’s stop-work order

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8
remained in place as to Mainline, Southgate could not proceed.
State permitting delays further slowed Southgate. See, e.g.,
Mountain Valley Pipeline, LLC v. N.C. Dep’t of Env’t Quality,
990 F.3d 818, 821 (4th Cir. 2021).
With Mountain Valley facing death by a thousand cuts, the
Congress eventually stepped in. On June 3, 2023, the Fiscal
Responsibility Act of 2023 became law, § 324 of which
“ratifie[d] and approve[d] all” federal permits necessary for
construction of Mainline and directed the relevant federal
agencies to “maintain . . . [their] approvals.” Pub. L. No. 118-
5, § 342(c), 137 Stat. 10, 47 (2023). To prevent future litigants
from scuttling the project, the Congress stripped the federal
courts of jurisdiction to hear additional challenges to
Mainline’s permit approvals and vested this Court with
exclusive jurisdiction to decide only a constitutional challenge,
if any, to the law. Id. § 342(e)(1)–(2). The Fourth Circuit had
other plans. Notwithstanding the jurisdiction-stripping
provision, it entered two stays of agency approvals of Mountain
Valley’s permits. See Wilderness Soc’y v. USFS, No. 23-1592,
2023 WL 4784199, at *1 (4th Cir. July 10, 2023); Appalachian
Voices v. Dep’t of the Interior, No. 23-1384, 2023 WL
4784194, at *1 (4th Cir. July 11, 2023). Mountain Valley,
supported by the Solicitor General, filed an emergency stay
application to the Supreme Court, which granted the
application and vacated the stays. See Mountain Valley
Pipeline, LLC v. Wilderness Soc’y, 144 S. Ct. 42 (2023).
Only after intervention by both the Congress and the
Supreme Court did the Fourth Circuit give up the ghost and
dismiss the appeals for want of jurisdiction, with two judges
writing separately to warn that their inability to flyspeck
FERC’s environmental processes “threatens to disturb the
balance of power between co-equal branches of government.”
Appalachian Voices v. Dep’t of the Interior, 78 F.4th 71, 84

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9
(4th Cir. 2023) (Thacker, J., concurring); see also id. at 82
(Gregory, J., concurring) (“I agree with Judge Thacker[] . . .
that ‘Congress has tipped the balance of power in its favor
given that this provision requires us to allow another co-equal
court [the D.C. Circuit] to answer questions. . . .’”). But see
Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) (“Congress
may withhold from any court of its creation jurisdiction of any
of the enumerated controversies . . . . No one of them can assert
a just claim to jurisdiction exclusively conferred on another, or
withheld from all.”).
FERC lifted its stay of Mainline’s development on June
28, 2023 and construction immediately resumed, with the
project entering service in June 2024—nearly seven years after
Mountain Valley first sought federal approval to lay its pipes.
But this protracted saga was still not over. Mountain Valley’s
deadline to complete Southgate—which was conditioned on
Mainline’s permit approvals—was June 18, 2023. By that date,
Mountain Valley had not even begun construction of Southgate
due to the years-long construction delays imposed on Mainline.
Accordingly, on June 15 Mountain Valley asked FERC for a
three-year extension of its deadline. That extension gave
Petitioners yet another opportunity to mire Mountain Valley in
the bog of environmental review, producing the instant case.
As these facts should make plain, something went
seriously awry in our environmental review. For five years, the
Fourth Circuit handed down edict after edict halting Mainline’s
progress, ended only by the Congress’s intervention. Most
developers are not so fortunate. Construction of our nation’s
vital infrastructure must now navigate endless veto-gates in
order to proceed, leading many projects to fail. As explained
below, I believe the judiciary bears much of the blame.

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10
II. ANALYSIS
In 1969, the Congress enacted NEPA “to create and
maintain conditions under which man and nature can exist in
productive harmony” while “fulfill[ing] the social, economic,
and other requirements of present and future generations of
Americans.” 42 U.S.C. § 4331(a). In other words, the
Congress sought to “balance” the desire for robust economic
growth with a need to limit the environmental degradation that
can sometimes accompany development. Id. § 4331(b)(5). I
believe the judiciary may have lost sight of that balance.
A. NEPA Over Time
As originally enacted, NEPA’s domain was quite limited.
As a purely “‘procedural’ statute intended to ensure ‘fully
informed and well-considered’ decisionmaking,” NEPA
instructed agencies to simply consider the environmental
impacts of their activity. New York v. Nuclear Regul. Comm’n,
681 F.3d 471, 476 (D.C. Cir. 2012) (quoting Vt. Yankee
Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519, 558 (1978)). It did not detail what form the
consideration must take nor did it mandate substantive
outcomes. Instead, the Congress imposed a modest look-
before-you-leap requirement on agencies. So long as the
agency considered “the adverse environmental effects of the
proposed action,” it remained free to “decid[e] that other values
outweigh the environmental costs.” Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350 (1989). Yet over
time, NEPA has morphed into one of the most exacting burdens
on the federal government.
First, within a year of NEPA’s enactment and despite no
provision authorizing a private right of action, this Court held
that NEPA’s processes are to be enforced “to the fullest extent
possible”—regardless of “administrative difficulty, delay or

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11
economic cost.” Calvert Cliffs’ Coordinating Comm., Inc. v.
Atomic Energy Comm’n, 449 F.2d 1109, 1115 (D.C. Cir. 1971).
The opening vignette of our decision “promise[d] . . . a flood
of new litigation” allowing the judicial branch to “assist[] in
protecting our natural environment” against what it viewed as
“the destructive engine of material ‘progress.’” Id. at 1111.
This was the start of an epoch that was heralded as “a new era
in the history of . . . administrative agencies and reviewing
courts,” one in which courts would “insist on strict judicial
scrutiny of administrative action.” Env’t. Def. Fund, Inc. v.
Ruckelshaus, 439 F.2d 584, 597–98 (D.C. Cir. 1971). By 1972,
the Justice Department warned that NEPA “suits to enjoin
governmental actions . . . increasingly dominated the kinds of
litigation handled by the General Litigation Section.” 1972
Att’y Gen. Ann. Rep. 111, https://perma.cc/7WES-GZHZ.
Today, NEPA remains “the most frequently litigated federal
environmental statute.” Congressional Research Service,
National Environmental Policy Act: Judicial Review and
Remedies 1 (Sept. 22, 2021).
Second, the federal courts dramatically expanded NEPA’s
compliance burden. NEPA is a mere five pages in length, two
of which are dedicated to the separate issue of establishing the
Council on Environmental Quality (CEQ). Indeed, the
operative language of the statute comprises a single, albeit run-
on, sentence:
The Congress authorizes and directs that, to the
fullest extent possible . . . all agencies of the
Federal Government shall—(C) include in
every . . . major Federal action significantly
affecting the quality of the human environment
a detailed statement by the responsible official
on—(i) the environmental impact of the
proposed action, (ii) any adverse environmental

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12
effects which cannot be avoided should the
proposal be implemented, (iii) alternatives to
the proposed action . . . .
Pub. L. No. 91-190 § 102(C), 83 Stat. 852, 853 (1970). The
statute does not specify how major the action, significant the
effect or detailed the statement must be. Yet from “this vaguely
worded statute,” lower courts divined an entire “‘common law’
of NEPA.” Kleppe v. Sierra Club, 427 U.S. 390, 421 (1976)
(Marshall, J., concurring in part and dissenting in part). Under
what would eventually be termed “hard look” review, courts
took it upon themselves to decide whether the agency’s
detailed statement on environmental impact was sufficiently
integrated into its decision making. It did not matter if the
judge could find no fault in an agency’s bottom-line decision;
if it failed to consider some environmental issue to the degree
the court deemed satisfactory, the agency (and, by extension,
the developer) faced an injunction that could shut it down for
years or even permanently.
What courts considered necessary to comply with NEPA
continued to grow, as did the scope of agency action that
triggered NEPA review. See, e.g., Nat. Res. Def. Council, Inc.
v. Morton, 458 F.2d 827, 834–85 (D.C. Cir. 1972) (holding that
an agency’s consideration of reasonable alternatives must
consider alternatives that the agency lacks authority to adopt,
including an inquiry into hypothetical legislation the Congress
could one day adopt); Minnesota Pub. Int. Rsch. Grp. v. Butz,
498 F.2d 1314, 1321–22 (8th Cir. 1974) (en banc) (all but
writing out the term “major” from “major federal action”
because it “does little to foster the purposes of the Act” and
reading NEPA to cover “indirect effects as well as direct
effects” with no textual basis).

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Interest groups quickly learned they had a powerful new
tool to strike down any development they opposed. In
response, agencies began to take longer with their reviews,
issuing ever more detailed assessments in an attempt to stave
off litigious opponents and skeptical judges. In 1981, the CEQ
concluded that “even large complex energy projects” could
complete an EIS within one year. CEQ, Memorandum to
Agencies, 46 Fed. Reg. 18,026, 18,037 (Mar. 23, 1981). And
it advised agencies that EISs should ordinarily be “less than
150 pages,” “kept concise” and “no longer than absolutely
necessary.” 43 Fed. Reg. 55,978, 55,994–95 (Nov. 29, 1978).
By 2018, average EIS preparation had ballooned to four and
one-half years. See CEQ, Environmental Impact Statement
Timelines (2010-2018) at 1 (June 12, 2020), https://perma.cc/
D9WW-D4XA. The average EIS length is now over 660
pages, atop an additional one thousand pages of appendices.
See CEQ, Length of Environmental Impact Statements (2013-
2018) at 1, 3 (June 12, 2020), https://perma.cc/9UWN-MPF7.
“Of the 136 EISs finalized in 2020, the mean preparation time
was 1,763 days, over 4.8 years. For EISs finalized between
2013 and 2017, page count averaged 586 pages, and
appendices for final EISs averaged 1,037 pages.” Eli Dourado,
Much More Than You Ever Wanted to Know About NEPA,
Utah State Univ. (Oct. 20, 2022), https://perma.cc/5QCS-
FB3C.
And all of this paperwork takes place before the inevitable
litigation that follows. That litigation adds an average of 4.2
more years of delay. See Nikki Chiappa et al., Understanding
NEPA Litigation: A Systematic Review of Recent NEPA-
Related Appellate Court Cases 5–6, Breakthrough Inst. (2024),
https://perma.cc/V7UD-YYPB. Although the Supreme Court
has ruled for the government in every NEPA challenge to come
before the Court, it has heard only eighteen merits cases over
the lifespan of the Act, leaving hundreds of lower court cases a

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year that continue to push the boundaries of the law.2
Moreover, most circuits developed and refined their NEPA
precedents during the 1970s and 80s, the heyday of a
2 The Supreme Court has repeatedly admonished the lower
courts—ours in particular—to temper their broad read of NEPA.
See, e.g., Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976) (warning
against “assertion[s] of judicial authority” untethered from “the
statutory language” and “invit[ing] judicial involvement in the day-
to-day decisionmaking process of the agencies”); Vt. Yankee, 435
U.S. at 557–58 (cautioning that NEPA does not allow courts to set
aside decisions “simply because the court is unhappy with the result
reached” and that policy considerations “are not subject to
reexamination in the federal courts under the guise of judicial review
of agency action”); Strycker’s Bay Neighborhood Council, Inc. v.
Karlen, 444 U.S. 223, 227–28 (1980) (admonishing lower courts that
“once an agency has made a decision subject to NEPA’s procedural
requirements,” the court is not free to “interject itself within the area
of discretion of the executive as to the choice of the action to be
taken”) (quotations omitted); Metro. Edison Co. v. People Against
Nuclear Energy, 460 U.S. 766, 776 (1983) (“Congress [did not] . . .
extend NEPA as far as the Court of Appeals has taken it”); Baltimore
Gas & Elec. Co., 462 U.S. at 97 (“Congress has assigned the courts
only the limited . . . task of reviewing agency action,” with policy
questions committed to “Congress and the agencies to which
Congress has delegated authority”); Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 886–89 (1990) (rejecting the claim that enjoying
public land “in the vicinity” of a project area conferred standing to
challenge the agency’s NEPA compliance); Seven Cnty.
Infrastructure Coal., 605 U.S. __ (2025), Slip Op. at 8 (“Over time,
some courts have assumed an aggressive role in policing agency
compliance with NEPA . . . . [but] the central principle of judicial
review in NEPA cases is deference”). Of these seven decisions, all
involved the reversal the lower court—and in all but one instance,
the reversal of our Circuit.

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freewheeling approach to statutory interpretation that
emphasized legislative purpose over legislative text.
Third, the courts significantly liberalized standing
requirements. In 1970, the Supreme Court began to allow
challenges to agency action by any litigant who could show an
injury in fact that was “arguably within the zone of interests”
protected by the statute. Ass’n of Data Processing Serv. Org.
v. Camp, 397 U.S. 150, 153 (1970); accord United States v.
Students Challenging Regul. Agency Procs. (SCRAP I), 412
U.S. 669, 686–87 (1973) (applying and expanding Data
Processing for NEPA challengers); see also Lujan, 497 U.S. at
889 (acknowledging that SCRAP embraced an “expansive”
approach to standing that “has never since been emulated by
th[e] Court”).
Around the same time, the Supreme Court blessed
associational standing with little explanation. See Indus.
Energy Consumers of Am. v. FERC, 125 F.4th 1156, 1168
(D.C. Cir. 2025) (Henderson, J., concurring). That one-two
punch flooded the courts with suits from organizations opposed
to new development. See Chiappa et al., supra at 7
(documenting that roughly three-fourths of NEPA cases are
brought by interest groups). As a result, environmental groups
have been able to bring endless challenges to development, at
times succeeding outright but more often by dint of delay.
Fourth, the courts have treated nonbinding guidance as a
judicially enforceable mandate. Title II of NEPA created the
Council on Environmental Quality within the Executive Office
of the President to assist with NEPA’s implementation. In
1977 President Carter issued Executive Order 11,991, 42 Fed.
Reg. 26,967 (May 24, 1977), to empower CEQ to issue
regulations guiding the federal bureaucracy’s “implementation
of the procedural provisions of [NEPA].” Id. These

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regulations were issued through notice and comment and
published in the Federal Register, giving them the façade of
binding regulations. Although the Congress never granted
CEQ rulemaking authority, courts began to treat these rules as
judicially enforceable. The CEQ regulations added yet another
layer of burden to NEPA compliance. For example, CEQ
required that an EIS include a “cumulative impact” analysis
addressing “the incremental impact of the action when added
to other past, present, and reasonably foreseeable future
actions” of any agency or individual. 40 C.F.R. § 1508.7
(repealed 2025); see also id. § 1508.25 (repealed 2025). This
requirement appears nowhere in NEPA itself, yet courts have
treated it as a binding mandate subject to judicial enforcement.
See, e.g., TOMAC, Taxpayers of Mich. Against Casinos v.
Norton, 433 F.3d 852, 864 (D.C. Cir. 2006).
Under NEPA, agencies can conclude that their proposed
action has no significant environmental effect—a conclusion
known as a Finding of No Significant Impact (FONSI).
President Carter’s CEQ required agencies to prepare EAs
before issuing a FONSI. An EA was intended to be a “concise
public document . . . that is used to support an agency’s
determination of whether to prepare an environmental-impact
statement or a finding of no significant impact.” 40 C.F.R.
§ 1508.1(j) (repealed 2025). These EAs were required to
support a FONSI with evidence and examine alternatives
and—because CEQ regulations were treated as law—became
subject to judicial review.
The result produced, in effect, the full-blown EIS if the
agency chose the EA route. EAs “ballooned in size from about
ten pages in 1978 to an average of 500 pages in 2020, with
some even reaching 4,007 pages.” Aidan Mackenzie,
Environmental Assessment Reform, Inst. for Progress (May 9,
2023), https://perma.cc/G9BA-BS4T. Agencies prepared

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17
slightly over 700 EISs between 2012 and 2015 but they issued
over 40,000 EAs during that same time. See CEQ, The Fourth
Report on Cooperating Agencies in Implementing the
Procedural Requirements of the National Environmental
Policy Act (NEPA) 3-4 (Oct. 2016), https://perma.cc/7KGP-
HM7P.
Because of judicial tinkering with NEPA’s original design,
litigation became a fixed feature of agencies’—and
developers’—efforts to undertake any new action: building
housing, power plants, ports, telecommunications and other
critical infrastructure suddenly became enmeshed in years of
paperwork delay and lawsuits.
A proposal to raise an existing bridge 64 feet generated
thousands of pages of environmental review, millions of
dollars in expense and years of work by nineteen separate
agencies—and that was on a fast-track review. Sam Roberts,
High Above the Water, but Awash in Red Tape, N.Y. Times
(Jan. 2, 2014). This was all before the inevitable litigation that
followed. See Coal. for Healthy Ports v. U.S. Coast Guard,
No. 13-cv-5347, 2015 WL 7460018 (S.D.N.Y. Nov. 24, 2015).
As wildfires engulf California, the Forest Service cannot
conduct controlled burns without first conducting years of
NEPA analysis. See Sierra Club v. Bosworth, 510 F.3d 1016,
1026, 1033 (9th Cir. 2007) (enjoining three proposed burn
projects and concluding that NEPA violations are inherently
“irreparable” and “usually favor the issuance of an
injunction”).3
3 Indeed, the Forest Service has for decades warned that it
cannot fulfill its mission because it “is so busy meeting procedural
requirements, such as preparing voluminous plans, studies, and
associated documentation,” resulting in “paralysis” and

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Although infrastructure development is NEPA’s
archetypal target, NEPA’s blast radius is boundless. Consider
just a few examples. After District of Columbia v. Heller, 554
U.S. 570 (2008), the National Park Service and Fish and
Wildlife Services revised their rules to allow concealed carry
in national parks consistent with state and local law. Gun-
control activists successfully convinced a court to enjoin the
rule because the agencies did not conduct a NEPA review of
the rule’s environmental impact. See Brady Campaign to
Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 6–8
(D.D.C. 2009), case dismissed, No. 09-5093, 2009 WL
2915013 (D.C. Cir. Sept. 8, 2009). Anti-immigration groups
sued to enjoin DHS’s deportation and visa policies on the
theory that any increase to the U.S. population causes
environmental harm requiring NEPA review. See Whitewater
Draw Nat. Res. Conservation Dist. v. Mayorkas, 5 F.4th 997,
1004 (9th Cir. 2021). Not even the national defense has been
spared. The U.S. Navy spent years subject to NEPA review in
order to construct training fields for carrier aircraft. See Nat’l
Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 180–81 (4th
Cir. 2005). The U.S. Army was prohibited from increasing the
use of its training site to accommodate a growing troop
population based on an inadequate EIS. See Not 1 More Acre!
v. Dep’t of Army, No. 08-cv-828, 2009 WL 2913218, at *1, 9–
10 (D. Colo. Sept. 8, 2009).
In 1995, a storm toppled trees across nearly 35,000 acres
of the Six Rivers National Forest in California. Fuel loads—a
measure of the amount of combustible material in an area—
increased tenfold. See USFS, The Process Predicament supra
at 7. For the next three years, the Forest Service treated only
1,600 acres while wading “through analytical and procedural
“catastrophe.” U.S. Forest Service, The Process Predicament 7
(June 2002), https://perma.cc/G3HT-HEEK.

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19
requirements.” Id. In September 1999, the Megram and Fawn
Fires torched the entire area—plus an additional 90,000 acres
covering national forests, private property and an Indian
reservation. Id.; see also Sierra Club v. Bosworth, 199 F. Supp.
2d 971, 977 (N.D. Cal. 2002). The fires created still more dead
and dying timber that could fuel future fires. More than seven
years after the storm, USFS’s recovery efforts were challenged
under NEPA, enjoined and the entire effort was left “in limbo.”
USFS, The Process Predicament supra at 7; Bosworth, 199 F.
Supp. at 992–93.
Although industry has borne the brunt of NEPA, it is all
Americans who face what President Reagan called the
“hidden” tax. Ronald Reagan, Address to the Nation on the
Economy (Feb. 1981). Government costs more and delivers
less. Fear of legal risk permeates every facet of agency
decision making. The bureaucracy produces reams of
paperwork that is read by and helps no one. And yet still we
face what was warned of a century past: a “government by
injunction.”4
B. NEPA Going Forward
If this were truly what the Congress required, so be it.
Sometimes legislatures enact “illogical” or “unscientific”
statutes, Metropolis Theater Co v. City of Chicago, 228 U.S.
61, 69–70 (1913). We do not “sit as a superlegislature to judge
4 Charles N. Gregory, Government by Injunction, 11 Harv. L.
Rev. 487 (1898); see also 1896 Democratic Party Platform, Am.
Presidency Project, https://perma.cc/TE6P-SZHV (warning of
“government by injunction . . . a new and highly dangerous form of
oppression by which Federal judges . . . become at once legislators,
judges and executioners”); William Howard Taft, First Annual
Message (Dec. 7, 1909) (using the State of the Union to call on the
Congress to limit the federal injunctive power).

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20
the wisdom or desirability of legislative policy
determinations.” City of New Orleans v. Dukes, 427 U.S. 297,
303 (1976). But NEPA’s minefield is a quintessentially
judicial construction. The courts assumed the role of NEPA-
police, radically expanded the compliance burden and threw
open the standing floodgates to all manner of interest groups.
“A course correction of sorts is appropriate to bring judicial
review under NEPA back in line with the statutory text and
common sense.” Seven Cnty. Infrastructure Coal., 605 U.S. at
__, Slip Op. at 13. As then-Judge Thomas colorfully put it,
“just as NEPA is not a green Magna Carta, federal judges are
not the barons at Runnymede.” Citizens Against Burlington,
938 F.2d at 194.
Recently, we took one small step toward curing NEPA’s
metastasis. See Marin Audubon Soc’y, 121 F.4th at 912–15
(D.C. Cir. 2024) (holding that CEQ’s rules are not judicially
enforceable); see also Iowa v. Council on Env’t. Quality, 765
F. Supp. 3d 859 (D.N.D. 2025) (adopting our reasoning). I
think more remains to be done. The Congress and the
Executive have also both taken steps recently to rein in NEPA.
See BUILDER Act, Pub. L. No. 118-5, div. C, tit. III, § 321,
137 Stat. 11, 38–46 (2023); Removal of National
Environmental Policy Act Implementing Regulations, 90 Fed.
Reg. 10,610 (Feb. 25, 2025). I believe there are also steps the
courts can, and should, take.
First, and foremost, cabining “hard look” review. As
explained, NEPA now involves hundreds or thousands of pages
of environmental review. And what requires agencies to toil
away? The answer lies not in NEPA’s sparse language but in
the judiciary’s gloss on the text. The courts have imposed
procedural hurdles found nowhere in statute. Too often, our
approach amounts to precisely the sort of “flyspeck[ing]” that
arbitrary and capricious review is meant to avoid. Sierra Club

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21
v. Dep’t of Energy, 867 F.3d 189, 196 (D.C. Cir. 2017)
(quotations omitted). Because NEPA is entirely “procedural”
and does not “dictate particular decisional outcomes,” id. at
196, litigants have concentrated on dissecting the minutiae of
agencies’ deliberative processes. As the Supreme Court has
been at pains to emphasize, an agency’s NEPA analysis
“cannot be found wanting simply because the agency failed to
include every alternative device and thought conceivable by the
mind of man.” Vermont Yankee, 435 U.S. at 551.
An agency’s judgment that some matter is not germane to
the action under review—perhaps as much as its substantive
outcome—is a byproduct of its technical expertise and thus
entitled to judicial deference. See City of Waukesha v. EPA,
320 F.3d 228, 247 (D.C. Cir. 2003) (emphasizing the “extreme
degree of deference” we accord agency decisionmaking within
its technical expertise); Marsh v. Oregon Nat. Res. Council,
490 U.S. 360, 377 (1989) (same); cf. Citizens Against
Burlington, 938 F.2d at 195 (explaining that “an agency bears
the responsibility for deciding which alternatives to consider in
an [EIS]” and that the rule of reason “governs both which
alternatives the agency must discuss, and the extent to which it
must discuss them”) (internal quotations omitted). Indeed, as
the Supreme Court has recently pressed, “the central principle
of judicial review in NEPA cases is deference” and that
deference is “substantial.” Seven Cnty. Infrastructure Coal.,
605 U.S. at __, Slip Op. at 8 (emphasis added).
Challengers, meanwhile, have a tough row to hoe. To
prevail, they must show that the agency’s environmental
review “is not a product of reasoned decisionmaking,” which
“is ‘a heavy burden,’ since [arbitrary and capricious review]
entails a ‘very deferential scope of review’ that forbids a court
from ‘substituting its judgment for that of the agency.’” Van
Hollen, Jr. v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016) (citation

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modified). It should be the rare case that fails this deferential
standard. And if the Congress’s recent efforts to crimp the
extent and duration of NEPA review is to have any teeth, see
42 U.S.C. § 4336a(e), (g) (limiting an EIS to 150 pages and two
years for completion and an EA to 75 pages and one year),
courts cannot demand that agencies run down every rabbit hole.
Second, a lot of our atextual NEPA precedent is no longer
good law. Without undertaking a comprehensive evaluation, I
make the following observations. As originally enacted, NEPA
applied only to “major Federal action[s] significantly affecting
the quality of the human environment.” Pub. L. No. 91-190
§ 102(C), 83 Stat. 852, 853 (1970). Following the Congress’s
2023 NEPA amendments, Minnesota Public Interest Research
Group—the landmark decision interpreting “major federal
action” to, in effect, cover any federal action—is no longer
good law. 498 F.2d at 1321–22; see 42 U.S.C. § 4336e(10)
(defining major action to require “substantial [f]ederal control
and responsibility”). Likewise, the original Act included no
definition of “significantly affecting.” Until recently, CEQ—
whose regulations we erroneously treated as binding, see
Marin Audubon Soc’y, 121 F.4th at 912–15—construed the
term to require a look at “context” and at ten separate
“intensity” factors. 40 C.F.R. § 1508.27 (1979). That
convoluted multifactor test was supplanted by the 2023
amendments that use “reasonable foreseeability” as the
threshold for an EIS. See 42 U.S.C. § 4336(b)(1).
In a similar vein, the CEQ had allowed categorical NEPA
exclusions but only for actions that “do not individually or
cumulatively have a significant effect on the human
environment.” 40 C.F.R. §§ 1501.4, 1508.4 (2020). The
Congress’s NEPA amendments reject the “cumulative” fillip,
instead directing agencies to identify classes of actions that

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“normally do not significantly affect . . . the human
environment.” 42 U.S.C. § 4336e(1).
Third, even if an agency errs in its NEPA analysis, courts
should not lose sight of the APA’s command that we take “due
account . . . of the rule of prejudicial error.” 5 U.S.C. § 706;
see Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 659 (2007) (“In administrative law, as in federal civil and
criminal litigation, there is a harmless error rule”) (quoting
PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)).
This is so even if there are “serious arguments that the [agency]
erred” in its decision. Prohibition Juice Co. v. FDA, 45 F.4th
8, 25 (D.C. Cir. 2022). A remand under those circumstances
“would be an idle and useless formality” that “convert[s]
judicial review of agency action into a ping-pong game.”
Morgan Stanley Capital Grp. Inc. v. Pub. Util Dist. No. 1, 554
U.S. 524, 544–45 (2008) (citation modified).5 And not every
error in an EIS requires “a court to vacate the agency’s ultimate
approval of a project.” Seven Cnty. Infrastructure Coal., 605
U.S. at __, Slip Op. at 14.
Fourth, I believe courts should take a “hard look” at the
standing doctrine. NEPA challenges are mounted
overwhelmingly by interest groups with little to no tie to the
challenged project. Rather than assert their own injuries, these
groups rely on associational standing to assert the rights of
5 The Supreme Court has recently noted “tension” between its
holding in SEC v. Chenery Corp., 318 U.S. 80 (1943), and the APA’s
harmless error standard, without resolving the conflict. FDA v.
Wages & White Lion Invs., L.L.C., 145 S. Ct. 898, 929–31 (2025).
But this Court—like every circuit—has adopted “a practice of
upholding unsound agency decisions when they are confident that
the agency would reach the same decision on remand.” Nicholas
Bagley, Remedial Restraint in Administrative Law, 117 Colum. L.
Rev. 253, 302 n.328 (2017).

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others. As I have urged elsewhere, associational standing is
discordant with the basic precepts of Article III—namely, that
a party “must assert his own legal rights” and “cannot rest his
claim to relief on the legal rights of third parties.” Sessions v.
Morales-Santana, 582 U.S. 47, 57 (2017) (citation modified);
see Indus. Energy Consumers of Am., 125 F.4th at 1167–70
(D.C. Cir. 2025) (Henderson, J., concurring).6
For similar reasons, it is hard to fathom how these interest
groups are proper parties under the APA. They cannot sensibly
be said to be “suffering legal wrong” or to be “adversely
affected or aggrieved by agency action within the meaning of
a relevant statute.” 5 U.S.C. § 702. NEPA, after all, includes
no private right of action and, insofar as it is actionable under
the APA, an uninjured organization—as opposed to its
membership—has suffered no harm. Cf. Kan. City Power &
Light Co. v. McKay, 225 F.2d 924, 932 (D.C. Cir. 1955)
(emphasizing the limits of § 702 as understood at the time of
enactment).
Even under the strained constitutional and statutory
interpretation necessary to allow uninjured organizations to
raise NEPA claims, courts must still assure themselves of
standing. Take this case. Here, Petitioners sought to prove
standing through affidavits from members who live or recreate
in areas that will purportedly be affected by Southgate.
However, none of the affiants here alleges membership in
Petitioners Center for Biological Diversity, Chesapeake
6 Others have similarly recognized the mismatch between
associational claims and Article III. See FDA v. All. for Hippocratic
Med., 602 U.S. 367, 399 (2024) (Thomas, J., concurring); Mi Familia
Vota v. Fontes, 129 F.4th 691, 764 (9th Cir. 2025) (Bumatay, J.,
dissenting); Ass’n of Am. Physicians & Surgeons v. FDA, 13 F.4th
531, 540 (6th Cir. 2021).

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Climate Action Network or Haw River Assembly. One
individual alleges that she has “worked closely with . . .
Chesapeake Climate Action Network” but she goes on to
acknowledge that she is “not currently a member.” Add. 34
¶ 5. She also alleges that she “joined a paddling trip on the
Haw River organized by Haw River Assembly,” yet does not
allege that she ever joined the Assembly. Add. 40 ¶ 17. And
no affiant alleges any relationship to the Center for Biological
Diversity. It is Petitioners’ burden to “make specific
allegations establishing that at least one identified member had
suffered or would suffer harm.” Summers v. Earth Island Inst.,
555 U.S. 488, 498 (2009).
Even if the remaining Petitioner organizations have
alleged sufficient facts to establish our jurisdiction under
current doctrine, the Center for Biological Diversity,
Chesapeake Climate Action Network and Haw River
Assembly have no claim to the remedial power of this Court.
Granted, as long as one plaintiff seeking the same relief has
standing, the Court need not inquire whether others also do.
Food & Water Watch v. FERC, 28 F.4th 277, 284 (D.C. Cir.
2021). And so long as courts continue to impose universal
remedies under the APA, the inclusion of other parties may
prove to be a distinction without a difference, although serious
questions have been raised about whether the APA authorizes
such broad-based relief. 7 At a minimum, however, closer
7 See, e.g., Aditya Bamzai, The Path of Administrative Law
Remedies, 98 Notre Dame L. Rev. 2037, 2040–42 (2023); William
Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv.
L. Rev. 153, 169–70 (2023); John Harrison, Vacatur of Rules Under
the Administrative Procedure Act, 40 Yale J. On Regul. Bull. 119,
119–21 (2023); United States v. Texas, 599 U.S. 670, 695–700
(2023) (Gorsuch, J., with Thomas and Barrett, JJ., concurring in the
judgment); Memorandum from the Att’y Gen. to the Heads of Civil
Litigating Components & U.S. Att’ys, Litigation Guidelines for

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scrutiny of an organization’s standing may help to dispose of
some of the claims in future litigation. See, e.g., Food & Water
Watch, 28 F.4th at 284–285.
Fifth, and finally, I believe courts should temper their
grants of preliminary injunctive relief in NEPA disputes. The
lodestar for interim relief is preserving the status quo—not
previewing the merits. See Dist. 50, United Mine Workers of
Am. v. Int’l Union, United Mine Workers of Am., 412 F.2d 165,
168 (D.C. Cir. 1969). As the Supreme Court has emphasized,
“[t]he purpose of [] interim equitable relief is not to
conclusively determine the rights of the parties, but to balance
the equities as the litigation moves forward.” Trump v. Int’l
Refugee Assistance Project, 582 U.S. 571, 579–80 (2017)
(citation omitted). In other words, a “preliminary injunction is
not a shortcut to the merits,” Del. State Sportsmen’s Ass’n v.
Del. Dep’t of Safety & Homeland Sec., 108 F.4th 194, 197 (3d
Cir. 2024), but a means to shield the plaintiff “from irreparable
injury” and to “preserve[] the trial court’s power to adjudicate
the underlying dispute.” Select Milk Prods., Inc. v. Johanns,
400 F.3d 939, 954 (D.C. Cir. 2005) (Henderson, J., dissenting);
see also Samuel L. Bray, The Purpose of the Preliminary
Injunction, 78 Vand. L. Rev. __ (forthcoming 2025).
From the Founding, equitable relief was intended to be
available only “in extraordinary cases, which are exceptions to
general rules.” The Federalist No. 83 (A. Hamilton) (Rossitier
ed., 1961). As with all exercises of the injunctive power, “[a]
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008). It can be months or often years before
an enjoined development that is ultimately found to be lawful
Cases Presenting the Possibility of Nationwide Injunctions 7–8
(Sept. 13, 2018), https://perma.cc/A6CM-5FU4.

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is able to move forward. Before a plaintiff can obtain a
preliminary injunction, he must make a strong showing:
(1) “that he is likely to succeed on the merits,” (2) “that he is
likely to suffer irreparable harm in the absence of preliminary
relief,” (3) “that the balance of equities tips in his favor” and
(4) “that an injunction is in the public interest.” Id. at 20.
Despite the four-factor test, some courts have trended
towards rolling each independent inquiry into a blanket
“likelihood of success on the merits” test. See, e.g., Baird v.
Bonta, 81 F.4th 1036, 1042 (9th Cir. 2023). But preliminary
injunctive relief “does not follow from success on the merits as
a matter of course.” Winter, 555 U.S. at 32. The driving factor
is and ought to be irreparable harm. See Sampson v. Murray,
415 U.S. 61, 88 (1974) (“[T]he basis of injunctive relief in the
federal courts has always been irreparable harm”); Chaplaincy
of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.
Cir. 2006) (explaining that failure to show irreparable harm
suffices to deny a preliminary injunction even if the other three
factors weigh in favor of issuance (citation omitted)).
Today’s case demonstrates the problems of judicial over-
reach. Mountain Valley first proposed its Southgate pipeline
in 2018. In 2025, we are still debating whether the agency
sufficiently studied the merits of the project. Its Mainline
project was subject to rule-by-injunction imposed as the result
of a ceaseless crusade by interest groups, one of whose
founders’ goals include “inflict[ing] severe economic pain”
and “bring[ing] industrial civilization to its knees.” Nicholas
Lemann, No People Allowed, The New Yorker (Nov. 14, 1999)
(quoting the cofounders of Petitioner Center for Biological
Diversity). But for the direct intervention of the Congress,
Mountain Valley may never have been released from judicial
micromanagement.

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* * *
“The true test of a good government,” Alexander Hamilton
explained, “is its aptitude and tendency to produce a good
administration.” Federalist No. 68 (Rossiter ed., 1961). NEPA
was a modest statute meant to inform an agency during its
decision-making process. Our deference to the agency should
therefore be two-fold: deferential because we are exercising
limited “arbitrary and capricious” review of agency action, and
deferential because the underlying statute is purely procedural.

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