Food & Water Watch v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2023 Decided June 14, 2024
No. 22-1214
F OOD & WATER WATCH,
P ETITIONER
v.
F EDERAL ENERGY R EGULATORY C OMMISSION,
R ESPONDENT
C ONSOLIDATED EDISON C OMPANY OF NEW YORK , INC . AND
TENNESSEE GAS P IPELINE C OMPANY , L.L.C.,
INTERVENORS
Consolidated with 22-1315
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Erin E. Doran argued the cause and filed the briefs for
petitioner. Daniel A. Greenhouse entered an appearance.
Scott Ray Ediger, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on

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the brief were Matthew R. Christiansen, General Counsel, and
Robert H. Solomon, Solicitor.
Brian D. O’Neill argued the cause for respondent-
intervenors Tennessee Gas Pipeline Company, L.L.C. and
Consolidated Edison Company of New York, Inc. With him
on the brief were Michael R. Pincus, Neil H. Butterklee, and
Blake R. Urban Sr. Susan J. LoFrumento entered an
appearance.
Before: WILKINS and KATSAS , Circuit Judges, and
R OGERS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KATSAS .
KATSAS , Circuit Judge: The Federal Energy Regulatory
Commission issued a certificate allowing the Tennessee Gas
Pipeline Company to build facilities to expand service on a
natural-gas pipeline running from western Pennsylvania to the
New York metropolitan area. The additional gas transported
as a result will alleviate shortages in Westchester County, New
York.
Petitioner Food & Water Watch contends that FERC, in
approving the project, arbitrarily overlooked environmental
issues. Food & Water Watch argues that the Commission’s
Environmental Impact Statement impermissibly failed to
quantify greenhouse-gas emissions from upstream drilling for
the extra gas, to quantify ozone emissions from its downstream
burning, and to categorize emissions impacts as either
significant or insignificant. In addition, Food & Water Watch
argues that FERC, in finding a need for the project, did not
adequately consider New York State and New York City laws
mandating reductions in carbon-dioxide emissions. We reject
these contentions and deny the petitions for review.

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I
A
The Natural Gas Act regulates the transportation and sale
of natural gas in interstate commerce. 15 U.S.C. § 717(b).
Section 7 of the Act prohibits companies from transporting or
selling natural gas in interstate commerce, or from constructing
or extending any facilities for doing so, without a “certificate
of public convenience and necessity.” Id. § 717f(c)(1)(A), (e).
In considering whether to issue a certificate, FERC must
examine “all factors bearing on the public interest,” including
environmental ones. Atl. Refin. Co. v. Pub. Serv. Comm’n, 360
U.S. 378, 391 (1959).
The National Environmental Policy Act requires federal
agencies to prepare an Environmental Impact Statement (EIS)
for all “major Federal actions significantly affecting the quality
of the human environment.” 42 U.S.C. § 4332(C) (2018).
Under regulations promulgated by the Council on
Environmental Quality and adopted by FERC, see 18 C.F.R.
§ 380.1 (2019), an EIS must analyze both “direct” and
“indirect” environmental effects of the proposed project, 40
C.F.R. §§ 1502.16(a), (b), 1508.8(a), (b) (2019).1 Indirect
effects are “later in time or farther removed in distance” than
direct effects, “but are still reasonably foreseeable.” Id.
§ 1508.8(b). We have held that such indirect effects can
include GHG emissions from upstream drilling for, or
downstream burning of, the gas transported through a pipeline.
See, e.g., Eagle Cnty. v. Surface Transp. Bd., 82 F.4th 1152,
1177–78 (D.C. Cir. 2023); Sierra Club v. FERC, 867 F.3d
1357, 1371–75 (D.C. Cir. 2017) (Sabal Trail). And when such
1 All citations to the U.S. Code and Code of Federal
Regulations reference the law in effect when FERC commenced
environmental review in 2020. Both were later amended, but no
party contends that the amendments apply here or materially change
the provisions that we discuss.

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emissions are reasonably foreseeable, FERC must either give a
“quantitative estimate” of the emissions or else explain why it
cannot. See Sabal Trail, 867 F.3d at 1374.
The NEPA regulations address how agencies should
decide whether to prepare an EIS. Agencies may exclude from
NEPA review categories of actions that normally have no
“significant effect” on the environment. 40 C.F.R. § 1508.4.
They may prepare an Environmental Assessment to decide
whether a proposed action will have significant environmental
effects and thus require an EIS. Id. § 1501.4(c). Or they may
simply prepare an EIS. Id. § 1501.3(a). An EIS is a “detailed
written statement” addressing significant environmental
effects, id. § 1508.11; see 42 U.S.C. § 4332(C), whereas an
Environmental Assessment is a “concise” document
addressing only the threshold question whether there are such
effects, 40 C.F.R. § 1508.9(a); see also id. § 1508.9(a)(1).
NEPA “does not mandate particular results.” DOT v. Pub.
Citizen, 541 U.S. 752, 756 (2004) (cleaned up). It imposes
“only procedural requirements,” id. at 756–57, which ensure
that agencies consider “significant” environmental impacts and
that the public is also aware of them, Balt. Gas & Elec. Co. v.
NRDC, 462 U.S. 87, 97 (1983) (cleaned up). NEPA sometimes
requires agencies to engage in “reasonable forecasting” based
on “some educated assumptions.” Sabal Trail, 867 F.3d at
1374 (cleaned up). But it does not require “forecasting that is
not meaningfully possible.” Food & Water Watch v. FERC,
28 F.4th 277, 285 (D.C. Cir. 2022) (cleaned up).
B
Tennessee Gas owns connected natural-gas pipelines
running from Texas to New England. This case involves its
Line 300, which runs from western Pennsylvania through New
Jersey and into New York. In the project at issue, dubbed the
East 300 Upgrade Project, Tennessee Gas sought to build or

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expand three compressor stations in Pennsylvania and New
Jersey. These upgrades will enable the company to push an
additional 115,000 dekatherms of natural gas per day through
the pipeline and into Westchester County, New York.
Consolidated Edison Company of New York (ConEd), a
utility operating in New York City and Westchester County,
has entered into a 20-year agreement to buy firm transportation
service for all this additional gas. ConEd plans to use the gas
to alleviate shortages in Westchester County, where the
demand for natural gas has increased substantially over the last
decade. As a result of the increased demand, ConEd has been
unable to offer gas service to new customers, despite a state-
law obligation to provide reliable service to all who seek it. It
has also been forced to truck compressed natural gas into the
county to meet peak winter demand. ConEd anticipates that
the gas supplied by the project will solve these problems.
Tennessee Gas applied to FERC for a certificate of public
convenience and necessity for the East 300 Upgrade Project.
Initially, the Commission published an Environmental
Assessment. But after receiving comments, it decided to
prepare a full EIS, which devotes some 16 pages to addressing
GHG emissions. J.A. 244–59. The EIS estimated the
downstream carbon-dioxide emissions that would occur when
ConEd customers burn the gas in Westchester County.
However, FERC concluded that the sources of this gas were
unknown, so the EIS declined to address upstream
environmental effects—including GHG emissions—from
drilling for the gas.
FERC then issued a certificate of public convenience and
necessity, which incorporated and elaborated on the EIS. Tenn.
Gas Pipeline Co., 179 FERC ¶ 61,041, P 35 (Apr. 21, 2022)
(Certificate Order). The Commission declined to characterize
downstream emissions “as significant or insignificant.” Id. P

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49. And it again declined to address upstream emissions from
drilling for the gas. Id. P 57.
FERC then denied rehearing. Tenn. Gas Pipeline Co., 181
FERC ¶ 61,051 (Oct. 24, 2022) (Rehearing Order). For a third
time, it declined to address upstream environmental effects. Id.
P 27. Addressing downstream ozone, the Commission
estimated the volume of ozone precursor chemicals caused by
burning the gas from the project. Id. P 30 n. 85. However, it
declined to estimate how much additional ozone their emission
would ultimately cause. Id. PP 30–32.
Food & Water Watch petitioned for review of the
certificate and rehearing orders, and we consolidated the
petitions. We have jurisdiction under 15 U.S.C. § 717r(b).
II
Food & Water Watch raises three NEPA challenges to the
Commission’s analysis of environmental effects. We review
NEPA claims through the Administrative Procedure Act. Gulf
Restoration Network v. Haaland, 47 F.4th 795, 799 (D.C. Cir.
2022). Under the APA, we consider whether agency action is
arbitrary or capricious, 5 U.S.C. § 706(2)(A), a standard of
review “highly deferential to the agency,” Gulf Restoration
Network, 47 F.4th at 799 (cleaned up). In particular, we “give
deference to agency judgments as to how best to prepare an
EIS.” Id. (cleaned up). And because NEPA is a “purely
procedural statute,” we cannot force the agency to “change the
course of action it proposes.” Ctr. for Bio. Div. v. FERC, 67
F.4th 1176, 1181 (D.C. Cir. 2023) (cleaned up). Our job is to
ensure that FERC’s decision was “fully informed and well-
considered,” Nevada v. DOE, 457 F.3d 78, 93 (D.C. Cir. 2006)
(cleaned up), not to override its judgment about whether the
project is in the public interest, see Balt. Gas, 462 U.S. at 97–
98; Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983).

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A
Food & Water Watch first asserts that FERC erred by
refusing to assess upstream environmental effects caused by
extracting natural gas from the ground. Drilling new wells can
cause such effects, ranging from increased traffic to GHG
emissions. See Eagle Cnty., 82 F.4th at 1176–77. But an EIS
need not discuss such effects unless their nature and extent are
“reasonably foreseeable.” 40 C.F.R. § 1508.8(b). And we
have squarely held that upstream consequences from the
drilling of new wells are not “reasonably foreseeable” if FERC
does not know “the number and location of any additional
wells that would be drilled as a result of production demand
created by the Project.” Del. Riverkeeper Network v. FERC,
45 F.4th 104, 109 (D.C. Cir. 2022) (quoting Birckhead v.
FERC, 925 F.3d 510, 517 (D.C. Cir. 2019) (per curiam)).
Here, FERC reasonably concluded that there was too
much uncertainty regarding the number and location of
additional upstream wells. As it explained, Line 300 receives
natural gas from other pipelines across the country, stretching
from the Rockies to the Gulf Coast to Appalachia. Rehearing
Order, 181 FERC ¶ 61,051, P 27 & n.74. In the context of
downstream emissions, we have held that pinpointing
emissions to “somewhere in the Southeast” is not enough to
trigger a duty to explain under NEPA. See Birckhead, 925 F.3d
at 518, 520–21. Nor is pinpointing upstream emissions to
somewhere along Tennessee Gas’s pipeline network.
Food & Water Watch objects that the gas is unlikely to
come from remote locations in the South or Midwest. It
highlights evidence that Line 300 takes natural gas primarily
from the Marcellus and Utica Shales. But that assertion, even
if true, does not move the needle. The Marcellus and Utica
deposits reach at least across West Virginia and Pennsylvania
and into parts of Ohio and New York. See United States
Energy Information Administration, Utica Shale Play Geology

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Review 13 (2017); see also Del. Riverkeeper Network v. FERC,
753 F.3d 1304, 1307 (D.C. Cir. 2014). And if “somewhere in
the Southeast” is not good enough, neither is “somewhere in
the Northeast.”
Our decision in Eagle County is not to the contrary. There,
we required the Surface Transportation Board to consider the
upstream environmental effects from a rail line proposed to
facilitate oil drilling in the Uinta Basin in northeastern Utah
and northwestern Colorado. 82 F.4th at 1165, 1180. That area
is a remote, 12,000-square-mile basin “bounded by high
mountains or plateaus,” with only small roads leading in or out.
Id. at 1165–66 (cleaned up). The purpose of the project was to
“connect the Uinta Basin to the national rail network” to
facilitate the “transport of waxy crude oil produced in the Uinta
Basin.” Id. at 1166 (cleaned up). There was relatively little oil
production in the basin, making it certain that the rail line
would stimulate many new wells. See id. And the agency was
able to “estimate[] the number of oil wells that would need to
be constructed and operated in the Basin to satisfy the expected
increased oil production volume.” Id. at 1178 (cleaned up).
We held that, with these estimates in hand, the agency had to
either take the next step to “quantify the environmental impacts
of the wells it reasonably expects in this already identified
region” or else explain why it could not do so. See id. at 1179.
Here, in contrast, any prediction about the location and
number of wells would be much less precise. For one thing,
the point of this project is to bring fuel to a specific downstream
area experiencing shortages, not to bring fuel from a specific
upstream area with rich, underutilized deposits. So it is hardly
surprising that upstream effects were more estimable in Eagle
County than they are here. Moreover, the upstream formations
here, stretching at least from southwestern West Virginia into
central New York, are much larger, less remote, and more
geographically diverse than the Uinta Basin. The thousands of
existing wells make uncertain the number of new wells

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necessary to bring the additional gas to Westchester County.
And the geographic diversity of these shales makes uncertain
the nature and extent of operations—and emissions—
necessary to drill new wells. Food & Water Watch points to
the number of existing wells in Pennsylvania and a graph
showing that their production will diminish over time. But that
tells us little if anything about the number and location of new
wells that the project may stimulate.
Food & Water Watch notes that the Environmental
Protection Agency, in comments to FERC, suggested
quantifying upstream emissions, which it said would be
reasonably foreseeable. EPA did not suggest, however, that
the number or location of additional wells was known to any
reasonable degree of precision. Instead, citing assertions in the
draft about downstream emissions, it stated more generally that
“GHG impacts do not depend on where they occur.” J.A. 196.
But as for upstream emissions, we have held that quantification
is unnecessary where the “number and location of any
additional wells” is unknown. Del. Riverkeeper Network, 45
F.4th at 109 (quoting Birckhead, 925 F.3d at 517). EPA thus
urged FERC to do more than our precedents require, and FERC
permissibly declined.
As a fallback, Food & Water Watch contends that FERC
arbitrarily failed to ask Tennessee Gas for more information
about the number and location of any additional wells. But
NEPA “involves an almost endless series of judgment calls”
left primarily to the agency, Duncan’s Point Lot Owners Ass’n
v. FERC, 522 F.3d 371, 376 (D.C. Cir. 2008) (cleaned up)—
including the question of how much information to seek from
regulated parties. Although we have criticized FERC for
failing to demand more information about other pipeline
projects, see Birckhead, 925 F.3d at 518, we have never set
aside a certificate on that basis. Moreover, FERC here
reasonably declined to seek more information from Tennessee
Gas because no evidence suggests that a request would have

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produced useful information. Tennessee Gas operates a
pipeline; it will not drill gas wells for this project or control
where others drill them. Additionally, when FERC granted the
certificate, Tennessee Gas had a contract in place with the sole
shipper of the gas in question—and no contracts in place with
possible producers of the gas. See Certificate Order, 179 FERC
¶ 61,041, P 57; see also Rehearing Order, 181 FERC ¶ 61,051,
P 27. Furthermore, FERC referenced a map of the pipeline at
issue, which shows dozens of possible entry points for the gas
just in one zone of the pipeline, to say nothing of other zones
or other connected pipelines. Rehearing Order, 181 FERC
¶ 61,051, P 27 n.74. Finally, FERC explained that the source
of the gas may change over the life of the project, id. P 27, and
Food & Water Watch gives us no reason to think Tennessee
Gas can predict these changes.
B
Food & Water Watch next objects to FERC’s discussion
of ozone pollution that might be caused by downstream
burning of the gas in Westchester County.
In its Rehearing Order, FERC addressed ozone concerns
at length. It explained that burning natural gas emits ozone
precursor chemicals such as nitrogen oxides and volatile
organic compounds, which then react with sunlight to form
ozone. 181 FERC ¶ 61,051, P 29. It flagged in qualitative
terms that “an increase in natural gas combustion in the region
will likely lead to some increase in ozone pollution.” Id. And
it estimated the volume of nitrogen oxides and volatile organic
compounds that could be released if the pipeline operated as
Food & Water Watch claimed. Id. P 30 n.85. But FERC did
not give a quantitative estimate of how much ozone would be
produced as a result.
Food & Water Watch contends that FERC’s failure to take
that final step was arbitrary. We disagree. For one thing,

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FERC reasonably explained its decision. It stated that “the
quantity of ozone precursors can vary significantly based on
the conditions under which the natural gas is combusted.”
Rehearing Order, 181 FERC ¶ 61,051, P 30. “Commercial,
industrial, and residential uses” may emit significantly
different amounts of the precursor chemicals. Id. So may
commercial uses depending on the type of boilers that are used.
Id. So may residential uses depending on whether the gas is
combusted for home heating, water heating, or cooking. Id.
For these reasons, estimating even the emission of precursor
chemicals is challenging. See id. On top of that, conversion of
the precursors into ozone depends on many further variables
such as the “season, atmospheric conditions, and existing
emissions in the region.” Id. P 31. And attempting to quantify
the conversion would require “complex regional
photochemical modeling,” id., producing a “degree of
uncertainty” that would deprive the ultimate ozone estimate “of
utility for decisionmakers or stakeholders,” id. P 32.
Our precedent supports FERC on this point. In WildEarth
Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013), we upheld
an agency decision to estimate ozone precursors as a
reasonable proxy for ozone. WildEarth involved downstream
emissions created by a mining project. See id. at 304. The
permitting agency explained its decision to estimate only
precursor chemicals in terms nearly identical to FERC’s
explanation here. See id. at 311–12. In upholding that
decision, we stressed that “the line-drawing decisions
necessitated by the NEPA process” are “almost endless,” and
we concluded that the agency’s approach was reasonable even
if it were “possible or even prudent” for the agency to hazard a
guess at the volume of ozone. Id. at 312 (cleaned up).
Food & Water Watch seeks to distinguish WildEarth on
the ground that Westchester County is not in compliance with
ozone air-quality standards established under the Clean Air
Act. But FERC acknowledged that point in discussing

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downstream ozone pollution. See Rehearing Order, 181 FERC
¶ 61,051, P 29. And in any event, the scope of its NEPA
obligation to explain environmental impacts turns on whether
the proposed forecasting is sufficiently “reasonable” and
whether the necessary assumptions are sufficiently “educated.”
Sabal Trail, 867 F.3d at 1374 (cleaned up); see also Food &
Water Watch, 28 F.4th at 285. Here, Food & Water Watch
does not suggest that the current level of ozone in Westchester
County would simplify any attempt to estimate increased
ozone levels. So, WildEarth remains controlling.
C
Finally, Food & Water Watch objects to FERC’s
discussion of downstream GHG emissions. We have held that
such emissions may be reasonably foreseeable if FERC can
“reasonably identify the end users of the gas.” See Ctr. for Bio.
Div., 67 F.4th at 1185–86. In that instance, FERC must either
give a “quantitative estimate of the downstream greenhouse
emissions” or explain why it cannot. Sabal Trail, 867 F.3d at
1374. But FERC need not attempt to monetize those emissions
through a Social Cost of Carbon model, which FERC views as
unreliable for analyzing individual projects. See Ala. Mun.
Distribs. Grp. v. FERC, 100 F.4th 207, 214 (D.C. Cir. 2024);
Ctr. for Bio. Div., 67 F.4th at 1183–84.
FERC here went well beyond these requirements. Most
importantly, the Commission did quantify downstream GHG
emissions, and it compared those emissions to national and
state totals. Specifically, it estimated that the upgrade project
could contribute up to 2.22 million metric tons of carbon to the
atmosphere each year, which could increase national carbon
emissions by .041 percent and New York emissions by 1.3
percent. J.A. 247–50 (EIS); see also Certificate Order, 179
FERC ¶ 61,041, PP 50–54. FERC also explained how
increased GHG emissions contribute to climate changes such
as higher temperatures, rising sea levels, and increased

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rainfalls. J.A. 244–46 (EIS). And while reiterating its view
that the Social Cost of Carbon is not reliable for assessing
individual projects, it applied the model—for those who think
it useful—to derive monetary estimates of climate-related
costs. Making its best guess as to these costs, it calculated
present values of $505 million, $1.9 billion, and $2.9 billion
over the life of the project, using discount rates of 5%, 3%, and
2.5% respectively. Certificate Order, 179 FERC ¶ 61,041,
P 61. And making a worst-case estimate of costs, it calculated
a present value of $5.8 billion over the life of the project. Id.
Food & Water Watch still thinks FERC did not say
enough. It contends that the Commission needed to label the
increased emissions and ensuing costs as either significant or
insignificant. But NEPA contains no such mandate. It merely
requires an EIS if a “major” federal action “significantly”
affects the environment. 42 U.S.C. § 4332(C). A finding of
no significant impact is thus essential if an agency chooses not
to prepare an EIS, see 40 C.F.R. § 1508.9(a)(1), but is
immaterial where the agency simply prepares the EIS. Nor do
NEPA regulations require an agency to classify every
environmental impact as significant or insignificant. They
require only a “discussion[]” of the “significance” of
environmental impacts. Id. § 1502.16(a), (b). And our
precedent simply restates that requirement. See Sabal Trail,
867 F.3d at 1374. A “discussion” is a “consideration of a
question in open” form. Discussion, Webster’s Third New
International Dictionary: Unabridged 648 (1993). Here,
FERC amply discussed the “significance” of GHG
emissions—by estimating the amount of increased emissions,
comparing them to national and statewide totals, setting forth
downstream harms in qualitative terms, and even giving
monetary, present-value estimates of the harms. Food & Water
Watch cites no legal consequence that would follow from
attaching a label of “significant” or “insignificant” to these
various emissions and costs. And neither policymakers nor
citizens, after perusing FERC’s qualitative and quantitative

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discussion of the various emissions and costs, would have
learned much more had FERC attached either label.
We recognize that, in the recent past, FERC had chosen to
label a project’s carbon emissions as either “significant” or
“insignificant” based on a threshold of 100,000 metric tons of
greenhouse gases per year. See Consideration of Greenhouse
Gas Emissions in Natural Gas Infrastructure Project Reviews,
178 FERC ¶ 61,108, PP 79–81 (Feb. 18, 2022); N. Nat. Gas
Co., 174 FERC ¶ 61,189, PP 29 – 36 (Mar. 22, 2021). But FERC
never asserted that it was legally compelled to attach the label.
To the contrary, the Commission later withdrew the policy
statement pending further study about what level or kind of
threshold might warrant such a classification. Order on Draft
Policy Statements, 178 FERC ¶ 61,197, P 2 (Mar. 24, 2022).
Food & Water Watch hints that the withdrawal was arbitrary.
But the withdrawal showed FERC’s awareness that it was
pulling back, and a desire for further study is a reasonable basis
for doing so. FERC’s change in course was therefore not
arbitrary. See FCC v. Fox TV Stations, Inc., 556 U.S. 502, 515
(2009). We recently confirmed as much in Alabama Municipal
Distributors Group. There, we held that FERC’s withdrawal
of its Greenhouse Gas Emissions policy statement cast no
doubt on its failure to attach a “significant” or “insignificant”
label to the GHG emissions addressed in the EIS at issue. See
100 F.4th at 215. So too here.
III
In addition to challenging FERC’s discussion of
environmental impacts under NEPA, Food & Water Watch
also challenges the certificate of public convenience and
necessity. This claim too is subject to deferential review for

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arbitrariness. See, e.g., Minisink Residents for Env’t Pres. &
Safety v. FERC, 762 F.3d 97, 105–06 (D.C. Cir. 2014).
Food & Water Watch argues that FERC placed too much
weight on the contract between Tennessee Gas and ConEd as
evidence of market demand. But we repeatedly have held that
such contracts—especially between unaffiliated entities—are
“good evidence” of such demand. Del. Riverkeeper Network,
45 F.4th at 114; see Myersville Citizens for a Rural Cmty., Inc.
v. FERC, 783 F.3d 1301, 1311 (D.C. Cir. 2015) (precedent
agreement showing full subscription was “adequate to support
a finding of market need” (cleaned up)); Minisink, 762 F.3d at
111 n.10 (precedent agreements “always will be important
evidence of demand for a project” (cleaned up)). Food &
Water Watch counters with one decision stating that precedent
agreements are not “always sufficient” to show need, but that
case involved an agreement between corporate affiliates. See
Env’t Def. Fund v. FERC, 2 F.4th 953, 972–73 (D.C. Cir.
2021). In any event, FERC here relied on much more than just
the contract. As it explained, there was a natural-gas shortage
in Westchester County, which was forcing ConEd to refuse
service to certain new customers and to bring in compressed
gas by truck during peak winter demand. Certificate Order,
179 FERC ¶ 61,041, P 49. That evidence was more than
enough to support a finding of need.
Food & Water Watch objects that a recently enacted New
York statute cuts against the finding of need. The New York
State Climate Leadership and Community Protection Act
requires carbon emissions from the state to be reduced to 60
percent of 1990 levels by 2030 and to 15 percent of 1990 levels
by 2050. N.Y. Env’t Conserv. Law § 75-0107(1)(a), (b). And
it creates a council to plan how the state will achieve those
reductions. Id. § 75-0103.
FERC reasonably explained why the statute did not
undercut its finding of need. To begin with, the statute does

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not prescribe any particular way of achieving the required
reductions. See N.Y. Env’t Conserv. Law §§ 75-0101 to 75-
0119. Nor does it “ban ConEd from providing natural gas to
meet end-use demand.” Certificate Order, 179 FERC ¶ 61,041,
P 17. To the contrary New York State law still requires ConEd
to provide natural-gas service to all who seek it. J.A. 50; see
N.Y. Pub. Serv. Law. § 31. And the project remains “fully
subscribed,” Rehearing Order, 181 FERC ¶ 61,051, P 17,
meaning that ConEd has agreed to buy all the gas that the
project will make available, Sierra Club v. FERC, 97 F.4th 16,
28 (D.C. Cir. 2024). Given all of this, FERC reasonably
declined to reject the upgrade project based on the Climate
Leadership Act.
Food & Water Watch raises a similar argument based on a
recent New York City ordinance that it characterizes as
prohibiting nearly all use of natural gas in newly constructed
or renovated buildings. See N.Y.C. Admin. Code § 24-177.1.
We may not consider this argument, which was not properly
preserved before FERC. The Natural Gas Act prohibits us
from considering any “objection” that was not “urged before”
FERC in a petition for rehearing. 15 U.S.C. § 717r(b). And
FERC regulations require parties seeking rehearing to “include
a separate section entitled ‘Statement of Issues,’ listing each
issue in a separately enumerated paragraph.” 18 C.F.R.
§ 385.713(c)(2). Moreover, they provide that failure to do so
means that the issue “will be deemed waived.” Id. In its
petition for rehearing, Food & Water Watch briefly mentioned
the New York City ordinance, but it did not separately identify
the ordinance in its Statement of Issues. And where statutes
bar us from addressing issues not raised before an agency, a
party must do so consistent with valid agency rules. See, e.g.,
Fleming v. USDA, 987 F.3d 1093, 1098–1101 (D.C. Cir. 2021);
Spectrum Health—Kent Cmty. Campus v. NLRB, 647 F.3d 341,
349 (D.C. Cir. 2011). Food & Water Watch does not challenge

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the validity of FERC’s preservation rule, so its failure to
comply with it bars our review here.
IV
For these reasons, we deny the petitions for review.
So ordered.

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