Sierra Club v. United States Department of Energy

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 2024 Decided April 15, 2025
No. 20-1503
SIERRA CLUB ,
PETITIONER
v.
UNITED STATES DEPARTMENT OF ENERGY ,
RESPONDENT
ALASKA GASLINE DEVELOPMENT CORPORATION AND ALASKA
LNG PROJECT LLC,
I NTERVENORS
Consolidated with 23-1214
On Petitions for Review of
Orders of the Department of Energy
Moneen Nasmith argued the cause for petitioner. With her
on the briefs were Erin Colón, Jason C. Rylander, Nathan
Matthews, and Ann Jaworski.
John L. Smeltzer, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Todd Kim, Assistant Attorney General, and Justin D. Heminger,
Attorney.
Howard L. Nelson argued the cause for intervenors. With
him on the joint brief were Jennifer Brough and Kenneth M.
Minesinger.

-- 1 of 12 --

2
Before: WALKER and GARCIA , Circuit Judges, and
RANDOLPH , Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
RANDOLPH .
RANDOLPH , Senior Circuit Judge: No person may build or
operate facilities in the United States for the purpose of
exporting domestic natural gas without the authorization of
FERC – the Federal Energy Regulatory Commission.1 And no
person may export natural gas using those approved facilities
without obtaining the Department of Energy’s authorization.
The statute governing natural gas exports, 15 U.S.C.
§ 717b(a), is derived from the Natural Gas Act of 1938. The
provision reads: “The Commission shall issue such
[authorization] order upon application, unless, after opportunity
for hearing, it finds that the proposed exportation or importation
will not be consistent with the public interest.” 2
1 FERC is an “independent agency” within the Department of Energy.
42 U.S.C. § 717n(b).
2 The word “Commission” may be confusing. When enacted,
“Commission” in section 717b(a) meant the Federal Power
Commission. In 1977, Congress “transferred to” the Department of
Energy and the newly-created FERC, “the function of the Federal
Power Commission,” 42 U.S.C. § 7151(b), thereby abolishing that
agency. FERC assumed the authority to authorize interstate pipelines.
15 U.S.C. § 717f(c). The proposed Project here does not include an
“interstate” pipeline – the pipeline would be entirely within Alaska.
In 2006, the Energy Department delegated to FERC the authority “to
approve or disapprove the construction and operation” of facilities
used to export natural gas. See Sierra Club v. FERC, 827 F.3d 36, 40-
41 (D.C. Cir. 2016). The Department retained for itself the authority
to authorize exports (and imports) of natural gas.

-- 2 of 12 --

3
In 2014, the Alaska LNG3 Project 4 sought the Energy
Department’s authorization to export up to twenty million metric
tons of LNG per annum for thirty years. See 79 Fed. Reg.
55,764 (Sept. 17, 2014). Within a short time, and in compliance
with the Natural Gas Act, the Department authorized the Project
to export LNG to free-trade countries.5 Dep’t of Energy, Order
No. 3554, Dkt. 14-96-LNG (Nov. 21, 2014). That final Order,
issued on November 21, 2014, is not at issue in this case.
A year or so later, the Energy Department authorized the
Project to export Alaskan LNG to countries lacking the requisite
free trade agreement but with which trade is not prohibited.
Dep’t of Energy, Order No. 3643, Dkt. 14-96-LNG (May 28,
2015). The approval of exports to these non-free trade countries
was conditional, subject to the Energy Department’s
consideration of environmental impacts, if any.
Nine years later, in April 2023, the Department issued an
order approving the Project’s export application. The
Department did not find that approving this application would
not be consistent with the public interest, an awkward phrasing
but one in keeping with the language of section 717b(a). Dep’t
3 “LNG” means liquefied natural gas – that is, natural gas refrigerated
and turned into liquid at very low sustained temperatures in order to
reduce its volume and to facilitate its storage and its transportation.
4 The Alaska LNG Project, an intervenor here, is a limited liability
company whose members are ExxonMobil Alaska LNG,
ConocoPhillips Alaska LNG Company, and Hilcorp Alaska LNG.
5 Applications to export natural gas to nations with which the United
States has a “free trade agreement requiring national treatment for
trade in natural gas, shall be deemed to be consistent with the public
interest, and applications for such . . . exportation shall be granted
without modification or delay.” 15 U.S.C. § 717b(c). The free trade
nations were, at the relevant time, Australia, Bahrain, Canada, Chile,
Colombia, Dominican Republic, El Salvador, Guatemala, Jordan,
Mexico, Morocco, Nicaragua, Oman, Panama, Peru, Singapore, and
South Korea.

-- 3 of 12 --

4
of Energy, Order No. 3643-C, Dkt. 14-96-LNG (Apr. 13, 2023).
Petitioners Sierra Club and Center for Biological Diversity,
organizations that intervened at different stages in these agency
proceedings, claim that the Energy Department misconceived
“the public interest” and failed to comply with the National
Environmental Policy Act (NEPA).
I.
To appreciate the arguments on both sides of this protracted
controversy, additional background information is needed.
The natural gas the Project intends to export comes from
the North Slope of Alaska. In cooperation with the State of
Alaska,6 the Project sought FERC’s permission to build a gas
treatment plant on the North Slope, an 800-mile pipeline across
the State ending in the vicinity of Cook Inlet, a liquefaction
plant on the Kenai Peninsula,7 and a terminal for loading the
LNG onto specially-designed, ocean-going tankers destined for
foreign ports where the LNG would be “regassified” and
distributed mainly for electric power generation.8
FERC authorized this immense undertaking after
determining that the Project’s construction and operation would
not be contrary to “the public interest.” 15 U.S.C. § 717b(a).
Before reaching this conclusion and approving the Project’s
application, FERC prepared the customary environmental
impact statement. Our court in Center for Biological Diversity
v. FERC, 67 F.4th 1176 (D.C. Cir. 2023), held that FERC had
complied with NEPA. Id. at 1188.
6 The State of Alaska created a public corporation to work with Alaska
LNG Project. This corporation–Alaska Gasline Development
Corporation–has intervened in this case.
7 For a description of this area, see United States v. Alaska, 422 U.S.
184 (1975).
8 The Kenai Peninsula already has a terminal from which natural gas
has been exported since 1967. Phillips Petrol. Co. and Marathon Oil
Co., 37 FPC ¶ 777 (Apr. 19, 1967).

-- 4 of 12 --

5
FERC’s 1,500-page impact statement9 “analyzed the
Project along a number of dimensions, including the potential
impacts on wetlands, marine mammals, fish, drinking water,
carbon dioxide levels, rivers, soils, permafrost, vegetation, the
aesthetics of Denali National Park, and Alaskan
socioeconomics.” Biological Diversity, 67 F.4th at 1180. The
statement “evaluated alternatives to the Project and analyzed
mitigation measures that could help reduce certain
environmental impacts.” Id. FERC “authorized the Project
subject to 165 environmental conditions” to mitigate the “range
of temporary, long-term, and permanent environmental impacts”
the Project might cause. Id. at 1180-81.
After its 2015 conditional approval of the Project’s export
application, the Energy Department participated in FERC’s
environmental review and adopted the March 2020 final impact
statement. In August 2020 the Energy Department issued a final
order approving the Project’s export application, Dep’t of
Energy, Order No. 3643-A, Dkt. 14-96-LNG (Aug. 20, 2020),
having adopted FERC’s impact statement and “incorporat[ing]
the reasoning contained in” it. Id. at 32; 85 Fed. Reg. 17,328
(Mar. 27, 2020). The Department relied on Sierra Club v.
Department of Energy, 867 F.3d 189, 202-03 (D.C. Cir. 2017),
to reject Sierra Club’s arguments that it could not approve
exporting the LNG without analyzing “the impact of U.S. LNG
on other fuel sources in importing countries.” Order No. 3643-
A at 34. The Department concluded that “such an analysis
would be too speculative to inform the public interest
determination.” Id.
Sierra Club filed a Request for Rehearing in September
9 In 2023, Congress amended NEPA. One of the added provisions, 42
U.S.C. § 4336a(e), set page limits on environmental impact
statements:
(e) Page limits
(1) Environmental impact statements
(A) In general
Except as provided in subparagraph (B), an environmental
impact statement shall not exceed 150 pages, not including
any citations or appendices.
(B) Extraordinary complexity
An environmental impact statement for a proposed agency
action of extraordinary complexity shall not exceed 300
pages, not including any citations or appendices.

-- 5 of 12 --

6
2020. The Energy Department withheld acting on the rehearing
request until after the Presidential election and Inauguration
Day, January 20, 2021. On that day, newly-elected President
Biden issued Executive Order 13990 directing agencies to
“immediately review” any of the previous administration’s
regulations, orders and other actions that might affect the
environment. 86 Fed. Reg. 7037 (Jan. 25, 2021). 10
“To comply” with this Executive Order 13990 and another
January 2021 Executive Order, the Energy Department granted
partial rehearing.11 Dep’t of Energy Order No. 3643-B, Dkt. 14-
96-LNG, at 13 (Apr. 12, 2021); see also Dep’t of Energy,
Alaska LNG Project, Final Supplemental Environmental Impact
Statement, vol. 1, at 1.2.1 (Jan. 2023) (“Final SEIS”). Some two
years later, the Department reported the results of its rehearing
in a 275-page supplemental environmental impact statement,
including appendices, issued after notice and comment. See 88
Fed. Reg. 1571 (Jan. 13, 2023). The Department reaffirmed its
August 20, 2020 Order approving the Project’s export
application with one minor modification dealing with reporting.
Dep’t of Energy, Order No. 3643-C, Dkt. 14-96-LNG, at 27
(Apr. 13, 2023). 12
10 On Inauguration Day, January 20, 2025, President Trump revoked
President Biden’s Executive Order 13990. See Executive Order
14154, § 4(a)(i), 90 Fed. Reg. 8353 (Jan. 29, 2025).
11 The Department did not act within thirty days of Sierra Club’s
filing, so, pursuant to 15 U.S.C. § 717r(a), the rehearing request was
“deemed to have been denied.” The Department issued a notice
acknowledging its statutory denial. Dep’t of Energy, Notice Providing
Further Consideration of Req. for Reh’g, Dkt. 14-96-LNG (Oct. 20,
2020). The notice cited section 717r(a), which provides that “the
Commission may . . . deem proper, modify or set aside” any such
“finding or order” before the “record in a proceeding shall have been
filed in a court of appeals.” Id. When the Department later granted
rehearing it relied on that part of section 717r(a). Dep’t of Energy
Order No. 3643-B, Dkt. 14-96-LNG, at 11-12 (Apr. 12, 2021). Sierra
Club filed its petition for review with this court on December 16,
2020, months before the Department granted partial rehearing. But
because it did not file the administrative record, the Department
retained its authority to act on the rehearing application. Allegheny
Def. Project v. FERC, 964 F.3d 1, 17 (D.C. Cir. 2020).
12 Sierra Club, now joined by the Center for Biological Diversity,
again sought rehearing of this rehearing order. The Department
denied their motion. Dep’t of Energy, Order No. 3643-D, Dkt. 14-96-

-- 6 of 12 --

7
II.
A.
We begin our discussion of the merits with several factors
that have an important bearing on our judgment.
The first is that, with respect to exporting natural gas, the
Natural Gas Act is not neutral. Congress expressed a preference
for permitting exports, so long as our nation has an abundance
of this natural resource, as it does.13 Congress did so by framing
the “public interest” standard in section 717b(a) in terms of a
presumption favoring export applications. See Biological
Diversity, 67 F.4th at 1188; see also W. Va. Pub. Servs. Comm’n
v. Dep’t of Energy, 681 F.2d 847, 858-59 (D.C. Cir. 1982).
Another consideration is that petitioners’ arguments, if
accepted, would give rise to regulatory dissonance. Our court
has already determined that one agency in the Energy
Department–FERC14 –properly found that it was not inconsistent
with “the public interest” to build and operate an 800-mile-long
pipeline and associated facilities for the purpose of transporting
and liquefying Alaskan natural gas and shipping it overseas.
Yet petitioners say that it would be inconsistent with “the public
interest” to do exactly what our court has already sanctioned.
It is also significant that the Energy Department, in
granting rehearing in 2020 of its approval order, did not say it
was doing so because of any defect in its “public interest”
LNG (June 14, 2023).
13 There is no shortage of Alaskan natural gas. See U.S. Energy Info.
Admin., [https://www.eia.gov/energyexplained/natural-gas/how-
much-gas-is-left.php]. The Alaska Natural Gas Transportation Act of
1976 requires that “before any Alaska natural gas in excess of 1,000
Mcf per day may be exported to any nation other than Canada or
Mexico, the President must make and publish an express finding the
such exports will not diminish the total quantity or quality nor increase
the total price of energy available to the United States.” 15 U.S.C.
§ 719j. President Reagan made and published such a finding on
January 12, 1988. 53 Fed. Reg. 999 (Jan. 15, 1988). That finding
remains in effect. See Dep’t of Energy, Order No. 3643-A, Dkt. 14-
96-LNG, at 35 (Aug. 20, 2020).
14 See supra note 1.

-- 7 of 12 --

8
analysis. Nor did the Department suggest that FERC’s impact
statement, which it had adopted, failed to comply with NEPA.
Instead, the Department granted rehearing and issued a
supplemental impact statement in order to comply with
President Biden’s Executive Order 13990. See supra note 11.
But “an executive order is not ‘law’ within the meaning of the
Constitution.” California v. EPA, 72 F.4th 308, 318 (D.C. Cir.
2023). And Executive Orders are not judicially enforceable.
See, e.g., Marin Aududon Soc’y v. FAA, 121 F.4th 902, 913
(D.C. Cir. 2024); California v. EPA, 72 F.4th at 318. Section
8(c) of President Biden’s Executive Order 13990 makes this as
clear as can be: “This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United
States, its departments, agencies, or entities, its officers,
employees, or agents, or any other person.” 86 Fed. Reg. at
7042.
In addition, it is important to stress a particular
consequence of our opinion in Biological Diversity. We held
that FERC’s impact statement–which the Energy Department
properly adopted15–complied with NEPA. Biological Diversity,
67 F.4th at 1188. As intervenors point out, “principles of
finality and issue preclusion” therefore leave the two
petitioners–both of which were the petitioners in Biological
Diversity–with little left to challenge in this case. Intervenors’
Br. 5-6, ECF No. 2054127. In FERC’s massive environmental
impact statement, the only environmental impact it did not
evaluate was the effect of “downstream emissions . . . when end
users burn natural gas.” Biological Diversity, 67 F.4th at 1185.
Our court held that because FERC had no jurisdiction over
export approvals, it had no obligation under NEPA to evaluate
those downstream effects. Id.16
15 The Natural Gas Act designates FERC as the “the lead agency for
the purposes of coordinating all applicable Federal authorizations and
for the purposes of complying with the National Environmental Policy
Act.” 15 U.S.C. § 717n(b)(1).
16 By a parity of reasoning, one might conclude that the Department
had no NEPA obligation to analyze the Project’s upstream impacts.
That is because it had no authority to approve or disapprove the
construction and operation of the export terminal on the Kenai
Peninsula, and the 800-mile pipeline from Cook Inlet to the North
Slope. See supra note 2.

-- 8 of 12 --

9
B.
As to those downstream impacts, the Energy Department,
complying with President Biden’s Executive Orders, conducted
an additional environmental study. The supplemental impact
statement considered greenhouse gas17 emissions from exported
LNG and determined that “there is inherent uncertainty
regarding the particular present or future supply and demand
responses that would lead to net changes in production and
consumption, and associated emissions, of LNG and oil that
would be produced on the North Slope in association with the
Project.” 18 In its final Order, the Department found that “there
is substantial uncertainty regarding the magnitude of those
environmental impacts, particularly [greenhouse gas] emissions
and climate impacts. Because of the uncertainties in the global
energy markets and the extent to which the Project may
substitute for other emitting power generation, DOE has
determined that it cannot draw a definitive conclusion about the
magnitude of climate impacts associated with Alaska LNG’s
exports.” Dep’t of Energy, Order No. 3643-C, Dkt. 14-96-LNG,
at 22 (Apr. 13, 2023).
Throughout their brief petitioners repeat, in one form or
another, their objection to the Department’s finding. They say
that “the Department inflated the uncertainty regarding the
Project’s contribution to climate-changing [greenhouse gases]
and claimed that uncertainty prevented it from drawing
conclusions about the Project’s harms.” Pet’rs’ Br. 13.
Petitioners’ objection is not well-founded.
The Energy Department confronted a classic instance of
“Knightian uncertainty.” 19 In simplified terms, “Knightian
uncertainty” recognizes the impossibility of assigning
17 Carbon dioxide is the most notorious greenhouse gas but water
vapor is the most important, accounting “for more than 90 percent of
the atmosphere’s ability to intercept heat.” Dr. Steven E. Koonin,
UNSETTLED: W HAT CLIMATE S CIENCE T ELLS US, W HAT I T DOESN’ T
AND W HY I T M ATTERS 50-51 (2021). Other greenhouse gases include
methane, nitrous oxide, ozone, and chlorofluorocarbons. Final SEIS
at S.3.19.2.
18 Final SEIS at S.2.2.
19 See Frank H. Knight, R ISK , UNCERTAINTY, AND P ROFIT 20–21
(1921).

-- 9 of 12 --

10
probabilities to possible outcomes, as compared to risk
assessment in which “it is possible to identify outcome[s] and
assign probabilities to them.” 20 It is thus understandable why
petitioners do not quantify–indeed cannot quantify–the degree
of uncertainty they would deem acceptable.
In addition to Knightian uncertainty, the law of this circuit
and principles of judicial review foreclose petitioners’ objection.
Sierra Club v. Department of Energy was a case very much like
this one, not just in name, but in its factual setting and in the
parties’ arguments. 867 F.3d 189 (D.C. Cir. 2017). As here,
FERC had authorized the construction and operation of LNG
facilities,21 which was followed by the Energy Department’s
development of an environmental impact statement and grant of
an export license. Id. at 192. As here, when the Department
authorized the export of LNG it declined to offer projections
based on the sort of modeling petitioners are advocating in this
case. Id. at 202. The Department explained that the “many
uncertainties in modeling . . . market dynamics” for LNG would
render any analysis “too speculative to inform the public interest
determination” under section 717b(a). Id. at 199; see also 42
U.S.C. § 4332(C)(i) (requiring the preparation of “a detailed
statement” on the “reasonably foreseeable environmental
effects” of all “major Federal actions significantly affecting the
quality of the human environment”). As stated above, see supra
page 5, the Department in this case relied on our 2017 Sierra
Club opinion.
Judicial review here is pursuant to 15 U.S.C. § 717r(b).
That provision states: “The finding of the Commission as to the
facts, if supported by substantial evidence, shall be
20 Cass R. Sunstein, Knightian Uncertainty in the Regulatory Context,
Behav. Pub. Pol’y 1, 2 (2024); see Maine Lobstermen’s Ass’n v. Nat’l
Marine Fisheries Serv., 70 F.4th 582, 599-600 (D.C. Cir. 2023).
21 Sierra Club (Freeport) v. FERC, 827 F.3d 36 (D.C. Cir. 2016),
upheld FERC’s approval of the construction and operation of the LNG
export facilities.

-- 10 of 12 --

11
conclusive.” 22 The Department’s finding of uncertainty is a
finding of fact, not a legal determination. See, e.g., Ass’n of
Data Processing Serv. Orgs., Inc. v. Board of Governors of the
Fed. Rsrv. Sys., 745 F.2d 677, 690 (D.C. Cir. 1984) (Scalia, J.).
And there is substantial evidence, indeed there is overwhelming
evidence, supporting that finding in the hundreds of pages in the
Department’s and FERC’s Orders and environmental impact
statements.23
In short, the impacts of downstream emissions in foreign
countries are not reasonably foreseeable and so any alleged
failure to quantify those impacts does not amount to a violation
of NEPA. Nor does the alleged failure to weigh those impacts
overcome the presumption in section 717b(a) in favor of
granting export authorization.24
22 In this case, “Commission” in section 717r(b) means the Energy
Department. See supra note 2.
23 In 2020, the Department updated its NEPA implementing
procedures relating to Natural Gas Act authorizations. 85 Fed. Reg.
78,197 (Dec. 4, 2020). During the rulemaking process, it determined
that “downstream emissions at the point of consumption are too
attenuated to be reasonably foreseeable and do not have a reasonably
close causal relationship to the granting of an export authorization.”
Id. at 78,200. This led the Department to revise one of its categorical
exclusions, B5.7, to exempt from environmental review all effects of
natural gas export, except those relating to marine transport. 10 C.F.R.
pt. 1021, subpt. D, app. B, B5.7; see also Louisiana v. Biden, No.
2:24-CV-00406, 2024 WL 3253103, at *3 (W.D. La. July 1, 2024).
This rule was in effect when the Department granted rehearing but it
was not applied.
24 Petitioners complain that the Department overstated the possible
benefits from the Project. They contend that if the Project is not built
there will be no benefits. Petitioner Reply Br. 17. That is true but
irrelevant. If no Alaska LNG is exported, there will be neither harms
nor benefits. Furthermore, the Department found that Sierra Club did
not challenge the assessment of benefits from the project in its initial
rehearing request. For that reason, the Department did “not address
many of Intervenors’ arguments that belatedly take issue with the
economic and other public benefits associated with Alaska LNG’s

-- 11 of 12 --

12
C.
As to upstream effects of the Project, petitioners contend
that the Department dismissed impacts that would occur only if
the Department authorized the Project. Pet’rs’ Br. 36-38. But
FERC did consider that prospect in its environmental impact
statement, which the Energy Department adopted as its own.
The Department’s supplemental impact statement did not alter
FERC’s analyses. And our court in Biological Diversity ruled
that FERC had complied with NEPA. 67 F.4th at 1185-86.
Sierra Club and Biological Diversity were petitioners in that
case and are therefore precluded from raising the arguments that
they made or could have made in that case. See Mexichem Fluor,
Inc. v. EPA, 760 F. App’x 6, 8 (D.C. Cir. 2019) (citing Faucett
Assocs., Inc. v. AT&T, 744 F.2d 118, 125 (D.C. Cir. 1984)).
* * *
We have considered and rejected petitioners’ other
arguments and see no need for further discussion.
The petitions for review are denied.
exports . . ..” Dep’t of Energy, Order No. 3643-D, Dkt. 14-96-LNG,
at 56 & n.290 (June 14, 2023).

-- 12 of 12 --