Center for Biological Diversity and Sierra Club v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2022 Decided May 16, 2023
No. 20-1379
CENTER FOR BIOLOGICAL DIVERSITY AND SIERRA CLUB,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
ALASKA GASLINE DEVELOPMENT CORPORATION,
INTERVENOR
On Petition for Review of Orders
of the Federal Energy Regulatory Commission
Erin Colón argued the cause for petitioners. With her on
the briefs were Jeremy C. Lieb, Kristen Monsell, Nathan
Matthews, Sara Gersen, and Elizabeth Jones.
Matthew J. Glover, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on the
brief were Matthew R. Christiansen, General Counsel, Robert
H. Solomon, Solicitor, and Lona T. Perry, Deputy Solicitor.

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Howard L. Nelson argued the cause for intervenor in
support of respondent. With him on the brief was Kenneth M.
Minesinger.
Before: RAO and WALKER, Circuit Judges, and
RANDOLPH,* Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: The Alaska Gasline Development
Corporation sought authorization to build and operate a system
of natural gas facilities. After the Federal Energy Regulatory
Commission granted that authorization, the Center for
Biological Diversity and the Sierra Club (collectively, “CBD”)
petitioned this court for review. Some of the issues CBD raises
were not exhausted, and we lack jurisdiction to consider them.
We reject CBD’s other arguments on the merits. FERC’s
decision to authorize the Alaska Liquid Natural Gas Project
was lawful and reasonable. We dismiss the petition in part and
deny it in part.
I.
A.
The Corporation seeks to build liquefied natural gas
(“LNG”) facilities in Alaska’s northernmost region, known as
the North Slope. There are many productive natural gas wells
in this region, and they produce more gas than current
infrastructure can liquefy, ship, and bring to market. Due to
these infrastructure limitations, much of the gas coming from
the North Slope is reinjected into the ground to bolster internal
* Senior Circuit Judge Randolph was a member of the panel at the
time the case was argued but did not participate in the opinion.

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pressure and make extraction easier. Reinjection is a relatively
low value use for natural gas.
The proposed Project would employ North Slope natural
gas for more economically beneficial uses by building facilities
to uptake the gas and ready it for pipeline transportation. The
gas would be transported by a 42-inch diameter pipeline over
800 miles in length, bisecting Alaska from north to south. The
pipeline would partially trace the path of an existing crude oil
line. The Project also includes the construction of natural gas
liquefaction facilities in the south of Alaska, near the Cook
Inlet. Liquefaction reduces the volume of the gas and makes it
easier to export by tanker ship. The Corporation has tentative
plans to reroute some of the gas, before liquefaction, for use in
Alaska. Project facilities are anticipated to uptake, transport,
liquefy, and export substantial volumes of natural gas for at
least 30 years.
B.
The Corporation sought FERC approval for its Project.
When considering an application for an LNG facility, FERC
must comply with the National Environmental Policy Act
(“NEPA”), Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified
as amended at 42 U.S.C. § 4321 et seq.). Under NEPA, FERC
was required to prepare an Environmental Impact Statement
(“EIS”) because the Project was a “major Federal action[]
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(2)(C). FERC also must comply with the
Natural Gas Act (“NGA”), Pub. L. No. 75-688, 52 Stat. 821
(1938) (codified as amended at 15 U.S.C. § 717 et seq.). The
Commission must authorize the facility unless doing so would
“not be consistent with the public interest.” 15 U.S.C.
§ 717b(a).

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To comply with NEPA’s procedural requirements, the
Commission prepared a roughly 1,500 page EIS, which
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. The Commission evaluated alternatives to the
Project and analyzed mitigation measures that could help
reduce certain environmental impacts. The Commission
concluded the Project would cause a range of temporary, long-
term, and permanent environmental impacts.
The Commission authorized the Project subject to 165
environmental conditions. Order Granting Authorization
Under Section 3 of the Natural Gas Act (“Authorization
Order”), 171 FERC ¶ 61,134 (May 21, 2020). The Commission
found that the conditions would adequately mitigate the
environmental impacts and that, as modified, the Project would
be consistent with the public interest. CBD petitioned for
rehearing, arguing that the EIS was deficient in various ways
and that FERC had not adequately determined the Project was
within the public interest. FERC denied rehearing. Order
Addressing Arguments Raised on Rehearing (“Rehearing
Order”), 172 FERC ¶ 61,214 (Sept. 11, 2020).
CBD timely petitioned for review of the Authorization and
Rehearing Orders, and we granted the Corporation’s motion to
intervene on behalf of FERC. We have jurisdiction to review
the petition under the NGA. See 15 U.S.C. § 717r(b).
II.
CBD challenges the Authorization and Rehearing Orders
for failure to comply with NEPA and its implementing
regulations. We review NEPA challenges under the familiar
standards of the Administrative Procedure Act (“APA”) to

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determine whether the agency action was arbitrary and
capricious or contrary to law. City of Oberlin v. FERC, 39 F.4th
719, 725 (D.C. Cir. 2022); 5 U.S.C. § 706(2)(A). NEPA
requires agencies to “take a hard look at the environmental
consequences before taking a major action.” Balt. Gas & Elec.
Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)
(cleaned up). Agencies evaluate these consequences in an EIS,
which must consider:
(i) the environmental impact of the proposed
action, (ii) any adverse environmental effects
which cannot be avoided should the proposal be
implemented, (iii) alternatives to the proposed
action, (iv) the relationship between local short-
term uses of man’s environment and the
maintenance and enhancement of long-term
productivity, and (v) any irreversible and
irretrievable commitments of resources which
would be involved in the proposed action
should it be implemented.
42 U.S.C. § 4332(2)(C).
NEPA is a purely procedural statute, and an agency
therefore enjoys latitude when preparing an EIS. We will not
set aside an agency action on NEPA grounds if the EIS
“contains sufficient discussion of the relevant issues and
opposing viewpoints and the agency’s decision is fully-
informed and well-considered.” Gulf Restoration Network v.
Haaland, 47 F.4th 795, 799–800 (D.C. Cir. 2022) (cleaned up).
NEPA requires agencies to evaluate the environmental effects
of their actions, but the “[p]reparation of an environmental
impact statement will never force an agency to change the
course of action it proposes.” Lemon v. Geren, 514 F.3d 1312,
1315 (D.C. Cir. 2008) (cleaned up).

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CBD maintains the Commission failed to comply with
NEPA and its implementing regulations in five ways. We
conclude that CBD’s arguments are either not exhausted or fail
on the merits.
A.
CBD first argues the Commission inadequately considered
alternatives to the Project in contravention of NEPA’s
implementing regulations.1 An agency must both evaluate a
“no action” alternative to the proposed agency action and must
“[r]igorously explore and objectively evaluate all reasonable
alternatives” to the action.2 40 C.F.R. § 1502.14(a)–(d) (2020);
Gulf Restoration Network, 47 F.4th at 800. An alternative is
reasonable if it is “technically and economically practical or
feasible and meet[s] the purpose and need of the proposed
action.” 43 C.F.R. § 46.420(b) (2019). As we have recognized,
“NEPA’s injunction that agencies consider the environmental
impacts of ‘all reasonable alternatives’ does not substantively
constrain an agency’s choice of objectives.” City of Alexandria
v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999). Because some
alternatives will be impractical or fail to further the proposed
1 FERC does not contest that NEPA implementing regulations, which
are promulgated by the Council on Environmental Quality, bind it.
Cf. Nevada v. Dep’t of Energy, 457 F.3d 78, 87 n.5 (D.C. Cir. 2006)
(“Because the [Council] has no express regulatory authority under
NEPA—it was empowered to issue regulations only by executive
order—the binding effect of [Council] regulations is far from clear.”)
(cleaned up).
2 40 C.F.R. § 1502 and 40 C.F.R. § 1508 have since been amended,
but the amendment did not take effect until after FERC had entered
the Orders. See Update to the Regulations Implementing the
Procedural Provisions of the National Environmental Policy Act, 85
Fed. Reg. 43,304, 43,365, 43,374 (July 16, 2020) (effective Sept. 14,
2020). We cite the regulations in effect at the time of the Orders.

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action’s purpose, agencies may reject unreasonable alternatives
after only brief discussion.
1.
CBD faults FERC for discussing in tandem the true no-
action alternative (where nothing like the Project is ever built)
and the likely no-action alternative (where something like the
Project is built). CBD maintains this way of analyzing the no-
action alternative was unreasonable and so confusing that it
“misled the public and disguised the proposal’s true
significance.”
The Commission reasonably analyzed the relevant no-
action alternatives. First, the Commission considered an
alternative in which, after FERC denied approval, nothing like
the Project would be built. FERC rejected this true no-action
alternative because it would not fulfill the Project’s purpose,
which is to commercialize natural gas from Alaska’s North
Slope. CBD does not contest that FERC accurately
characterized the Project’s purpose. FERC’s concise rejection
of this alternative was reasonable because the Project’s purpose
was commercialization of North Slope gas. 40 C.F.R.
§ 1502.14(a).
Second, the Commission analyzed the likely no-action
alternative. If this Project were not approved, FERC recognized
that substantial incentives would remain to commercialize the
North Slope’s plentiful gas by building something like the
Project. FERC reasonably rejected the likely no-action
alternative because any proposal for North Slope gas
development would have similar environmental impacts to
those of the Project. It was reasonable for the Commission to
consider the reality of economic and development
opportunities and reject an alternative that would not

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appreciably reduce environmental impacts. See Gulf
Restoration Network, 47 F.4th at 800.
Nor was the Commission’s analysis confusing. When
“reviewing an agency’s compliance with NEPA, the rule of
reason applies, and we consistently decline to flyspeck an
agency’s environmental analysis.” Minisink Residents for
Env’t Preservation & Safety v. FERC, 762 F.3d 97, 112 (D.C.
Cir. 2014) (cleaned up). In the EIS, Authorization Order, and
Rehearing Order, FERC considered and reasonably rejected the
no-action alternatives consistent with NEPA and the APA.
2.
CBD also argues the Commission’s consideration of
alternatives falls short because FERC had to evaluate each
alternative along every dimension of environmental impact
used to analyze the Project. According to CBD, this parallel
evaluation is required because FERC must “present the
environmental impacts of the proposal and the alternatives in
comparative form, thus sharply defining the issues and
providing a clear basis for choice among options by the
decisionmaker and the public.” 40 C.F.R. § 1502.14; see also
id. § 1502.14(a) (requiring the agency to “[r]igorously explore
and objectively evaluate all reasonable alternatives”).
Rigorously evaluating alternatives means that agencies
must assess and compare the environmental impacts of
reasonable alternatives. But it does not require assessing each
alternative under identical criteria. Some alternatives will be
more reasonable than others based on their economic and
technological feasibility and how well they serve the purposes
of the proposed action. The agency need not provide the same
level of detailed analysis for each alternative that it provides
for the action under review.

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The Commission considered reasonable alternatives and
rejected them because they would not reduce environmental
impacts.3 FERC considered the Project’s impacts along 23
dimensions. FERC then assessed each alternative under some
of these 23 dimensions and concluded that no alternative
offered a significant environmental advantage over the Project,
and in fact some alternatives would impose substantially more
environmental harm. For example, FERC rejected a proposed
alternative because it would have disturbed more than 6,000
additional acres of land while achieving essentially the same
end results as the Project.
FERC’s analysis comported with the law. When an
alternative has greater projected environmental impacts than
the action under review, no statute or regulation prevents the
Commission from rejecting the alternative on that ground. It
would hardly further NEPA’s mandate for informed
decisionmaking to require the Commission to analyze
obviously inferior alternatives along additional dimensions of
environmental impact.
CBD also contends FERC should have more thoroughly
considered an alternative pipeline route that would have
avoided a state game refuge. Because CBD failed to exhaust
this issue in its application for rehearing, and because it
provides no reasonable ground for this failure, we lack
jurisdiction to consider it. See 15 U.S.C. § 717r(a); id.
§ 717r(b) (“No objection to the order of the Commission shall
be considered by the court unless such objection shall have
been urged before the Commission in the application for
3 FERC deemed some alternatives unreasonable, see 43 C.F.R.
§ 46.420(b), and rejected those with only brief explanation, see 40
C.F.R. § 1502.14(a). CBD does not challenge those parts of FERC’s
analysis.

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rehearing unless there is reasonable ground for failure so to
do.”); Food & Water Watch v. FERC, 28 F.4th 277, 284 (D.C.
Cir. 2022) (holding the NGA’s issue exhaustion requirement is
jurisdictional).
B.
CBD next argues the Commission acted arbitrarily and
contrary to law by refusing to employ the “social cost of
carbon” metric to estimate the significance of the Project’s
direct emissions of greenhouse gases.
FERC estimated the Project’s annual volume of direct
emissions and compared these projections with existing
Alaskan and nationwide emissions. The Commission
concluded the Project’s direct emissions would cause a “30–47
percent increase in the annual fossil-fuel combustion inventory
in Alaska” and a “0.17–0.28 percent increase in national”
emissions. It surveyed several methods for estimating the
Project’s effects on global climate change, but it concluded
these methods were either too broad in “scale and
overwhelming [in] complexity” or simply unreliable. The
absence of an adequate methodology, combined with a lack of
either state or federal emissions benchmarks, left FERC unable
to assess the Project’s causal effect (if any) on global climate
change.
Rather than use the social cost of carbon, the Commission
compared the Project’s direct emissions with existing Alaskan
and nationwide emissions. It declined to apply the social cost
of carbon for the same reasons it had given in a previous order.
Authorization Order, 171 FERC ¶ 61,134 at PP 42–43 (citing
Order Issuing Certificates and Granting Abandonment
Authority, 161 FERC ¶ 61,043 at P 296 (Oct. 13, 2017)). First,
the Commission recognized the lack of consensus about how
to apply the social cost of carbon on a long time horizon.

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Second, it noted the social cost of carbon places a dollar value
on carbon emissions but does not measure environmental
impacts as such. Third, FERC has no established criteria for
translating these dollar values into an assessment of
environmental impacts.
FERC’s approach was reasonable and mirrors analysis we
have previously upheld. In EarthReports, Inc. v. FERC, the
Commission rejected the social cost of carbon for the same
three reasons it offered in this case. 828 F.3d 949 (D.C. Cir.
2016). We held FERC had not “acted unreasonably in finding
the [social cost of carbon] tool inadequately accurate to warrant
inclusion under NEPA” analysis.4 Id. at 956. As in
EarthReports, FERC had no obligation in this case to consider
the social cost of carbon.
CBD also contends the Commission acted contrary to law
because NEPA regulations require agencies to consider
“theoretical approaches or research methods generally
accepted in the scientific community.” 40 C.F.R.
§ 1502.22(b)(4). In support of its view that the social cost of
carbon is such a method, CBD invokes Vecinos para el
Bienestar de la Comunidad Costera v. FERC, which remanded
a FERC order for (inter alia) failure to consider whether 40
C.F.R. § 1502.22 mandates a social cost of carbon analysis.5 6
4 We have since reached the same conclusion in two unpublished
opinions. Sierra Club v. FERC, 672 F. App’x 38, 39 (D.C. Cir. 2016)
(per curiam) (“This Court has already considered and rejected
identical arguments relating to the social cost of carbon.”);
Appalachian Voices v. FERC, 2019 WL 847199, at *2 (D.C. Cir.
Feb. 19, 2019) (per curiam).
5 What was 40 C.F.R. § 1502.22 when FERC did its analysis in 2020
has since been relocated to 40 C.F.R. § 1502.21. See Vecinos, 6 F.4th
at 1328 (using the provision’s new location).

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F.4th 1321, 1328–30 (D.C. Cir. 2021). CBD’s argument is in
tension with EarthReports and subsequent cases in which we
found it permissible not to apply the social cost of carbon
methodology because of the lack of scientific consensus. 828
F.3d at 956.
In any event, we lack jurisdiction to consider this issue
because CBD’s rehearing petition did not raise it. See 15 U.S.C.
§ 717r(a), (b); Food & Water Watch, 28 F.4th at 284. CBD
discussed the social cost of carbon in its petition but did not
root its argument in 40 C.F.R. § 1502.22. CBD cited the
regulation one time, in a “see, e.g.,” citation. That was not
sufficient to put FERC on notice, and it certainly does not
amount to “set[ting] forth [the argument] specifically.” 15
U.S.C. § 717r(a); see also Ameren Servs. Co. v. FERC, 893
F.3d 786, 793 (D.C. Cir. 2018) (explaining “objections may not
be preserved either indirectly or implicitly”) (cleaned up). This
case is therefore unlike Vecinos, where we noted the petitioner
specifically raised the applicability of 40 C.F.R. § 1502.22 in
its comments before the Commission and in its rehearing
petition. 6 F.4th at 1328.
C.
CBD next argues the Commission violated NEPA and its
implementing regulations by refusing to consider the Project’s
indirect greenhouse gas emissions. A liquid natural gas project
can cause two kinds of indirect emissions. Upstream emissions
result from the process of extracting natural gas. Downstream
emissions are released when end users burn natural gas. See
EarthReports, 828 F.3d at 955–56 (discussing both kinds of
emissions).
At the outset of the EIS, FERC explained the Project’s
natural gas would either be exported to foreign buyers or sold
to domestic users in Alaska. With respect to export-bound gas,

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the Department of Energy has exclusive jurisdiction over
whether to approve natural gas exports, and therefore the
Commission “does not have authority over, and need not
address the effects of, the anticipated export of the gas.”
Authorization Order, 171 FERC ¶ 61,134 at P 41. In fact,
FERC is “forbidden to rely on the effects of gas exports as a
justification for denying” permission to an LNG project. Sierra
Club v. FERC, 867 F.3d 1357, 1372–73 (D.C. Cir. 2017)
(emphasis omitted). FERC’s lack of jurisdiction over export
approvals also means it has “no NEPA obligation stemming
from th[e] effects” of export-bound gas. Id. at 1372 (citing
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004)). FERC
properly recognized the limits of its delegated statutory
authority and cabined its NEPA analysis accordingly.
Attempting to avoid these clear jurisdictional lines, CBD
maintains FERC’s decision whether to approve the Project and
Energy’s decision whether to approve exports are “connected
actions” that cannot be segmented in the NEPA analysis. See
40 C.F.R. § 1508.25(a)(1) (2020) (providing an agency must
consider “[c]onnected actions, which means [actions that] are
closely related” to the action the agency is contemplating); Del.
Riverkeeper Network v. FERC (“Delaware Riverkeeper I”),
753 F.3d 1304, 1313–19 (D.C. Cir. 2014). These regulations
ensure that agencies consider the environmental impacts of
closely related actions; however, they do not, and cannot,
expand FERC’s jurisdiction. We decline to adopt CBD’s
aggressive reading of 40 C.F.R. § 1508.25, which conflicts
with our precedent and would require the Commission to
consider the indirect effects of actions beyond its delegated
authority.
The Commission’s discussion of Alaska-bound gas also
comported with regulatory requirements. An agency must
consider only a project’s “reasonably foreseeable” effects, id.

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§ 1508.8(b), and indirect emissions are not reasonably
foreseeable if the Commission cannot identify the end users of
the gas, Del. Riverkeeper Network v. FERC (“Delaware
Riverkeeper II”), 45 F.4th 104, 110 (D.C. Cir. 2022). FERC
acknowledged the Corporation’s plans to install at least three
taps along the Project’s pipeline and to divert some natural gas
for sale and use in Alaska. But before these plans could come
to fruition, the Corporation would have to contract with
prospective customers and secure regulatory approval from
Alaska, and various subsidiary pipelines (none of which had
been proposed) would have to be built. Given these
uncertainties, the Commission explained that the extent, scope,
and location of any future interconnections were unknown.
Because FERC could not reasonably identify the end users of
the gas, its decision not to consider the indirect effects of
Alaska-bound gas was lawful. See 40 C.F.R. § 1508.8(b);
Delaware Riverkeeper II, 45 F.4th at 110 (approving FERC’s
decision not “to estimate emissions associated
with … volumes of gas” bound for “an unknown destination
and for an unknown end use”).
D.
CBD next argues the Commission did not adequately
consider the impact of the Project on the endangered Cook Inlet
beluga whales.6 It maintains FERC’s analysis was so cursory
as to be arbitrary and capricious, and that FERC failed to
consider “cumulative impacts.”
First, CBD maintains the Commission did not take a hard
look at the impacts of vessel noise on the belugas. We
6 Cook Inlet belugas are one segment of the global beluga whale
population. We use the term “belugas” here to refer specifically to
Cook Inlet belugas.

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conclude, however, that FERC’s EIS—along with the
Biological Assessment of the National Marine Fisheries
Service (“NMFS”)—was adequately reasoned. The
Commission discussed underwater sources of noise (e.g., pile
driving, excavation, and dredging), and included a section
dedicated to vessel noise. The Commission also acknowledged
that the Project would cause an increase in Cook Inlet vessel
traffic and that the resulting increases in noise “could
disrupt … [the] dive behavior, movements, and vocal activity
of whales.” To protect belugas and other marine mammals
from Project noise, FERC imposed a series of mitigation
measures that went beyond those measures proposed by the
Corporation. The Commission found these measures brought
the Project within the public interest.
CBD proposes alternative ways to analyze the Project’s
impact on belugas, but it fails to demonstrate the Commission’s
analysis was unreasonable. To the extent CBD suggests FERC
had to address belugas in a separate section of the EIS, we
“decline to flyspeck an agency’s environmental analysis” by
imposing formatting requirements. Minisink, 762 F.3d at 112
(cleaned up). To the extent CBD simply disagrees with FERC’s
decision to approve the Project despite its potential impacts on
belugas, NEPA does not compel any particular policy decision
by the agency. Rather, NEPA ensures only that an agency has
assessed the environmental impacts of proposed actions before
authorization. Lemon, 514 F.3d at 1315. The Commission
carefully identified potential threats to belugas, analyzed their
magnitude, and imposed targeted mitigation measures. This
approach was entirely reasonable.
Second, CBD argues the Commission did not adequately
consider the Project’s “cumulative impacts” on beluga whales.
Cumulative impacts are “the impact[s] on the environment
which result[] from the incremental impact of the [proposed

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agency] action when added to other past, present, and
reasonably foreseeable future actions regardless of what
agency … or person undertakes such other actions.”7 40 C.F.R.
§ 1508.7 (2020). As we have explained:
[A] meaningful cumulative impact analysis
must identify (1) the area in which the effects of
the proposed project will be felt; (2) the impacts
that are expected in that area from the proposed
project; (3) other actions—past, present, and
proposed, and reasonably foreseeable—that
have had or are expected to have impacts in the
same area; (4) the impacts or expected impacts
from these other actions; and (5) the overall
impact that can be expected if the individual
impacts are allowed to accumulate.
Delaware Riverkeeper I, 753 F.3d at 1319 (cleaned up).
FERC’s analysis of cumulative impacts on belugas
complied with regulatory standards. FERC examined a wide
variety of ongoing and planned projects that would combine
with the Project to impact marine mammals, including belugas.
For instance, increased ship traffic could cause more mammals
to be hit by vessels, increased construction activity could cause
more noise pollution, and increased air traffic could disturb
cetaceans in particular. Nonetheless, the Commission
concluded these cumulative effects would be minor. Moreover,
NMFS regulates certain activities affecting marine mammals,
7 This provision was repealed after the agency actions at issue here.
See Update, 85 Fed. Reg. at 43,375 (effective Sept. 14, 2020)
(directing agencies to consider direct and indirect effects and stating,
“[c]umulative impact, defined in 40 C.F.R. 1508.7 … is repealed”).

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and this additional layer of regulation would address some of
the Project’s impacts on belugas.
CBD’s objections fail to demonstrate that FERC’s
consideration was inadequate. CBD maintains FERC ignored
or failed to understand the differences between belugas and
other marine mammals. But the EIS repeatedly acknowledged
and discussed these differences. CBD also suggests FERC’s
analysis is inconsistent because it acknowledges that impacts
on belugas could be “significant” in some circumstances and
then concludes that cumulative impacts would be minor. The
alleged contradiction is illusory, however, because FERC
imposed mitigation measures to minimize the impacts it
identified. Finally, CBD argues FERC unreasonably relied on
NMFS regulation, even though NMFS is powerless over many
of the environmental stressors that affect belugas. But FERC
discussed NMFS only at the end of its detailed analysis, and it
recognized the limited nature of NMFS’s power.
In sum, the Commission properly assessed the cumulative
impacts on beluga whales. CBD may disagree with the
Commission’s policy choice to approve the Project, but the
Commission comported with its regulatory obligations.
E.
CBD next argues that FERC’s evaluation of the Project’s
impacts on wetlands was arbitrary and capricious. CBD relies
on a difference between FERC’s estimate of the number of
affected wetlands acres and the estimate the Corporation gave
to the Army Corps of Engineers in a parallel permit application.
We find that FERC reasonably acknowledged and
addressed the difference in affected wetlands calculations.
FERC estimated the Project would permanently affect 8,225
acres of wetlands even after mitigation efforts. While approval

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of the Project was pending before FERC, the Corporation
applied to the Army Corps for a Clean Water Act permit to
discharge materials into the navigable waters of the United
States. 33 U.S.C. § 1344(a). In its permit application, the
Corporation estimated the Project would impact 10,324 acres
of wetlands.
The Commission provided two explanations for the
apparent discrepancy. First, the estimates were measuring
different things. FERC’s calculation considered only wetlands
proper, whereas the Corporation’s estimate included rivers,
lakes, and bodies of saltwater. Second, FERC explained the
estimates were based on different methods. FERC also
consulted with the Army Corps and confirmed that over 99%
of the gap in acreage calculation could be explained by the
differences in scope and methodology. The Commission
rationally accounted for the different acreage estimates, and
CBD raises no other objection to the wetlands analysis. See
Gulf Restoration Network, 47 F.4th at 799–800. We decline to
second guess the Commission’s reasoned judgment in
evaluating the impact on wetlands.
III.
Finally, CBD suggests the Commission’s substantive
decision to authorize the Project was arbitrary and failed to
satisfy the NGA. Under its delegated authority, FERC “shall
issue” authorization for LNG facilities “unless” it determines
doing so “will not be consistent with the public interest.”8 15
U.S.C. § 717b(a); see also Vecinos, 6 F.4th at 1326. The NGA
8 The Department of Energy has delegated to FERC authority over
the approval of LNG facilities. Department of Energy Delegation
Order No. S1-DEL-FERC-2006, § 1.21(A) (May 16, 2006); see also
Sierra Club v. FERC, 827 F.3d 59, 63 (D.C. Cir. 2016).

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“sets out a general presumption favoring … authorization.” W.
Va. Pub. Servs. Comm’n v. Dep’t of Energy, 681 F.2d 847, 856
(D.C. Cir. 1982). FERC’s approval of the Project easily
comports with the NGA. The Commission expressly concluded
the Project was in the public interest because it would have
substantial economic and commercial benefits, and these
benefits were not outweighed by the projected environmental
impacts.
CBD asks us to set aside the Commission’s public interest
determination on various grounds, including that the
Commission failed to take a hard look at environmental harms;
ignored impacts on belugas; failed to analyze the social cost of
carbon; and did not adequately consider alternatives. In
responding to CBD’s NEPA challenges, we have already
explained why these arguments either fail or are not exhausted,
and they fare no better when framed as NGA challenges.
FERC’s public interest determination was reasonable and
lawful.
* * *
In approving the Alaska Liquid Natural Gas Project, the
Commission complied with the NGA, NEPA, and the APA.
CBD fails to provide any reason for this court to disturb the
Commission’s reasonable determinations. To the extent the
issues raised in the petition for review were not exhausted, we
dismiss the petition for lack of jurisdiction. We otherwise deny
the petition on the merits.
So ordered.

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