Healthy Gulf and Sierra Club v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2024 Decided March 28, 2025
No. 23-1226
HEALTHY GULF AND S IERRA C LUB ,
P ETITIONERS
v.
FEDERAL ENERGY R EGULATORY C OMMISSION,
R ESPONDENT
DRIFTWOOD LNG LLC AND DRIFTWOOD P IPELINE LLC,
INTERVENORS
On Petition for Review of an Order of the
Federal Energy Regulatory Commission
David Bookbinder argued the cause and filed the joint
briefs for petitioner. Eric E. Huber, Nathan Matthews, and
Rebecca McCreary entered appearances.
J. Houston Shaner, 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.

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E. Joshua Rosenkranz argued the cause for intervenors for
respondent. With him on the brief were Robert M. Loeb,
Geoffrey Shaw, and Lisa M. Tonery.
Before: WILKINS and GARCIA, Circuit Judges, and
R ANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARCIA.
GARCIA, Circuit Judge: The Federal Energy Regulatory
Commission authorized Driftwood Pipeline LLC to build two
new natural gas pipelines in southwestern Louisiana.
Environmental groups Healthy Gulf and Sierra Club petition
for review of that decision, arguing that FERC failed to comply
with certain requirements of the National Environmental
Policy Act and the Natural Gas Act. We disagree and deny the
petition for review.
I
A
The Natural Gas Act gives FERC authority to regulate the
transportation of natural gas in interstate commerce. 15 U.S.C.
§ 717(b). To build or operate an interstate natural gas pipeline,
an entity must obtain from FERC a “certificate of public
convenience and necessity” (known as a Section 7 certificate).
Id. § 717f(c). FERC shall issue a Section 7 certificate if it
determines that the project is “required by the present or future
public convenience and necessity.” Id. § 717f(e). When
making that determination, FERC must consider “all factors
bearing on the public interest.” Atl. Refin. Co. v. Pub. Serv.
Comm’n, 360 U.S. 378, 391 (1959).
The certificate process also includes review under the
National Environmental Policy Act. NEPA requires federal
agencies to prepare an environmental impact statement for all

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“major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(2)(C). As part of its
NEPA review, an agency must “look hard at the environmental
effects of its decisions,” Minisink Residents for Env’t Pres. &
Safety v. FERC, 762 F.3d 97, 102 (D.C. Cir. 2014) (cleaned
up), and “inform the public” of its findings, Baltimore Gas &
Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97
(1983). But an agency need not “change the course of action it
proposes” to comply with NEPA. Lemon v. Geren, 514 F.3d
1312, 1315 (D.C. Cir. 2008).
B
In 2021, Driftwood Pipeline LLC sought FERC’s approval
to build and operate two new natural gas pipelines, Lines 200
and 300, in southwestern Louisiana. The pipelines would run
thirty or so miles alongside one another, connecting existing
pipeline systems in the north to the Lake Charles gas market.
Part of the project would run parallel with another planned
Driftwood pipeline, known as the Mainline. Both pipeline
systems would end at the same natural gas terminal, the
Driftwood Terminal, which is owned and operated by a
Driftwood sister company, Driftwood LNG LLC.
In September 2022, FERC published an environmental
impact statement for Lines 200 and 300. It concluded that the
project “would result in some adverse environmental impacts,
but none that are considered significant.” J.A. 452. The
Commission also acknowledged that the project would
increase the concentration of greenhouse gases in the
atmosphere but declined to characterize those effects as
significant or insignificant.
In April 2023, FERC granted Driftwood Pipeline a Section
7 certificate to build and operate Lines 200 and 300. Driftwood
Pipeline LLC, 183 FERC ¶ 61,049 (Apr. 21, 2023) (Certificate
Order). FERC determined that the project would serve a

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demonstrated market need and that this benefit outweighed the
project’s potential adverse effects, id. at P 78, including those
identified in the Commission’s environmental impact
statement, see id. at P 54.
Two environmental groups, Healthy Gulf and Sierra Club,
requested rehearing before FERC. FERC did not act on the
rehearing request, so the request was deemed denied.
Driftwood Pipeline LLC, 183 FERC ¶ 62,153 (June 22, 2023);
Driftwood Pipeline LLC, 185 FERC ¶ 62,064 (Nov. 6, 2023);
see 15 U.S.C. § 717r(a).
Healthy Gulf and Sierra Club then jointly petitioned for
review of the certificate order, raising challenges under NEPA
and the Natural Gas Act. Driftwood Pipeline and Driftwood
LNG (collectively, Driftwood) have intervened in support of
FERC. We have jurisdiction under 15 U.S.C. § 717r(b).
II
We begin with petitioners’ challenges to FERC’s NEPA
analysis. They argue that FERC violated NEPA by (1) not
considering the project’s effects on upstream greenhouse gas
emissions, (2) not determining whether the project’s overall
effects on greenhouse gas emissions were significant, and
(3) not considering the project’s environmental effects in
tandem with the Driftwood Terminal’s environmental effects.
We review these challenges under the Administrative
Procedure Act, applying the APA’s arbitrary or capricious
standard. Sierra Club v. FERC, 867 F.3d 1357, 1367 (D.C. Cir.
2017); see 5 U.S.C. § 706(2)(A). “Our role is not to flyspeck
an agency’s environmental analysis” but instead to “ensure that
the agency has adequately considered and disclosed the
environmental impact of its actions.” Birckhead v. FERC, 925
F.3d 510, 515 (D.C. Cir. 2019) (per curiam) (cleaned up).

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Applying that standard, we sustain FERC’s order against
petitioners’ NEPA claims.1
A
Petitioners first argue that the project will indirectly
increase greenhouse gas emissions by spurring new natural gas
drilling and that FERC acted arbitrarily and capriciously by
refusing to consider these effects in its NEPA analysis.
Under NEPA, an agency need consider only those
environmental effects that are “reasonably foreseeable.” 42
U.S.C. § 4332(2)(C)(i); see 40 C.F.R. § 1508.1(g) (2022); 18
1 The parties rely both on the NEPA statute and on the Council
on Environmental Quality’s regulations implementing NEPA. Like
the parties, we refer to the versions that were in effect at the time
FERC issued its certificate order in April 2023. See Healthy Gulf v.
FERC, 107 F.4th 1033, 1039 n.1 (D.C. Cir. 2024).
In a letter submitted after oral argument, Driftwood argued that
the CEQ regulations on which petitioners rely are not judicially
enforceable because CEQ had no authority to promulgate them. See
Driftwood’s Fed. R. App. P. 28(j) Letter at 1–2 (Nov. 14, 2024)
(citing Marin Audubon Soc’y v. FAA, 121 F.4th 902, 908 (D.C. Cir.
2024)). More recently, in January 2025, President Trump revoked
the 1977 executive order instructing CEQ to issue NEPA regulations
and directed CEQ to propose rescinding those regulations. See Exec.
Order No. 14,154 § 5, 90 Fed. Reg. 8353, 8355 (Jan. 20, 2025)
(revoking Executive Order 11,991, 42 Fed. Reg. 26,967 (May 25,
1977)). CEQ has since issued an interim rule, effective April 11,
2025, removing its NEPA regulations from the Code of Federal
Regulations. See Removal of National Environmental Policy Act
Implementing Regulations, 90 Fed. Reg. 10,610 (Feb. 25, 2025).
Because (as we will explain) each of petitioners’ NEPA challenges
fails on its own terms, we need not and do not resolve the impact of
the Marin Audubon decision or these other developments on this
case.

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C.F.R. § 380.1 (2022). We have “squarely held” that upstream
emissions caused by the drilling of new wells are “reasonably
foreseeable” only if the agency can reasonably predict both the
“number” and the “location” of “any additional wells that
would be drilled as a result of production demand created by
the Project.” Food & Water Watch v. FERC, 104 F.4th 336,
343 (D.C. Cir. 2024) (cleaned up).
Here, FERC adequately explained why it could not
reasonably predict those two factors. As to the number of new
wells, FERC concluded that it did not know “whether
transported gas would come from new or existing production.”
J.A. 612. And as to their location, FERC explained that the
“specific source of natural gas to be transported via the Project
is currently unknown and would likely change throughout the
Project’s operation.” Id. Driftwood Pipeline’s application, for
instance, identified several regions across the country—from
the Rockies to the Gulf Coast to Appalachia—that could supply
gas to the project. We have held that similar facts did not
“trigger a duty to explain under NEPA.” See Food & Water
Watch, 104 F.4th at 343.
Petitioners raise several objections to FERC’s analysis,
none availing.
To start, petitioners claim that they can pinpoint upstream
production to one specific basin: the Haynesville Shale. They
rely on comments from various executives at Driftwood’s
parent company, Tellurian Inc., suggesting that much of the gas
that reaches the Driftwood Terminal will come from
Haynesville wells in northern Louisiana. But most of this
evidence at best suggests that FERC could predict the
“location” of any new wells; it does not suggest that FERC
could predict the “number” of those wells.
Petitioners flag a specific statement from Tellurian
announcing that the company “plans to drill 13 wells” in the

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Haynesville shale “as it looks to build sufficient feed gas
supplies to support the first phase of its proposed Driftwood
LNG export terminal.” J.A. 410. But it is unclear how much
of this new production can be attributed to Lines 200 and 300
as opposed to the Mainline, given that both pipeline systems
are expected to supply the Driftwood Terminal. Driftwood
Pipeline, for instance, denied that the project would induce any
new natural gas production. Petitioners’ argument, moreover,
fails to grapple with FERC’s observation that the source of gas,
and thus the location, may change over the life of the project.
Tellurian could, for example, sell these upstream assets and
pursue alternative supply options from other basins.
Petitioners fault FERC for not asking Driftwood Pipeline
for more information about the number and location of any
additional upstream wells. But FERC did request this sort of
information from Driftwood Pipeline. Driftwood Pipeline, as
mentioned above, responded by denying that the project would
induce any new natural gas production and stating that the
project would simply bring existing gas production to the Lake
Charles area. Petitioners insist that FERC should have
followed up with additional requests for information. But the
“question of how much information to seek from regulated
parties” is a “judgment call[]” that NEPA leaves “primarily to
the agency.” Food & Water Watch, 104 F.4th at 344. We have
no basis to second-guess FERC’s decision here when “no
evidence suggests that a request would have produced useful
information.” See id. Like other pipeline operators, Driftwood
Pipeline “will not drill gas wells for this project or control
where others drill them.” See id. Nor will Driftwood Pipeline
select the source of the gas it transports; that decision would be
made “by the shippers” that contract with Driftwood Pipeline.
J.A. 651. And petitioners offer no reason to think that
Driftwood Pipeline would be able to predict anticipated
changes to the source of gas over time.

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Petitioners also contend that FERC could have used
various modeling tools to overcome any predictive hurdles.
Some of these tools, petitioners argue, allow agencies to predict
how production will change in response to changes in demand.
But petitioners did not mention these sorts of tools in their
rehearing request, so we lack jurisdiction to consider this
specific objection. See 15 U.S.C. § 717r(b). Other tools,
petitioners continue, allow agencies to convert increases in
natural gas production into increases in greenhouse gas
emissions. This objection was properly preserved. But it does
not address FERC’s core point. A tool that can convert
anticipated gas production into an emissions estimate is of little
use if FERC cannot predict the amount of new gas production
in the first place.
B
FERC discussed in some detail the project-related
greenhouse gas emissions it could reasonably predict. To
“contextualize” those emissions, it compared them to the total
greenhouse gas emissions from the United States and to
Louisiana’s emissions-reduction goals. Certificate Order, 183
FERC ¶ 61,049, at PP 58–60. FERC also estimated the dollar-
value impact of those emissions using the “social cost of
carbon,” “a tool that puts a dollar figure on every ton of emitted
greenhouse gases.” Ala. Mun. Distribs. Grp. v. FERC, 100
F.4th 207, 214 (D.C. Cir. 2024); see Certificate Order, 183
FERC ¶ 61,049, at PP 62–63.
Petitioners argue that FERC acted arbitrarily and
capriciously by refusing to go further and characterize the
project’s effects on greenhouse gas emissions as “significant”
or “insignificant.” They claim that FERC could have done so
using the social cost of carbon protocol. But FERC adequately
explained why it did not do so. It determined that “there are no
criteria to identify what monetized values are significant for

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NEPA purposes” and that it was “currently unable to identify
any such appropriate criteria.” Certificate Order, 183 FERC
¶ 61,049, at P 61. The protocol, in other words, simply
monetizes the costs of greenhouse gas emissions; it does not
also translate that dollar figure into a significance
determination. “[W]e have previously found this rationale
sufficient to survive APA review, and we see no basis to
deviate now.” Healthy Gulf v. FERC, 107 F.4th 1033, 1041–
42 (D.C. Cir. 2024) (citing Ctr. for Biological Diversity v.
FERC, 67 F.4th 1176, 1183–84 (D.C. Cir. 2023);
EarthReports, Inc. v. FERC, 828 F.3d 949, 956 (D.C. Cir.
2016)).
Petitioners argue that a NEPA regulation promulgated by
the Council on Environmental Quality nevertheless compels
FERC to apply the “social cost of carbon” protocol to gauge
significance. See 40 C.F.R. § 1502.21(c) (2022). Petitioners
are incorrect. That CEQ regulation says that agencies shall
apply “theoretical approaches or research methods generally
accepted in the scientific community” to evaluate “reasonably
foreseeable significant adverse impacts” when the relevant
information “cannot be obtained because . . . the means to
obtain it are not known.” Id. Again, however, FERC explained
that “there are no criteria to identify what monetized values are
significant for NEPA purposes.” Certificate Order, 183 FERC
¶ 61,049, at P 61. And petitioners have not shown that the
social cost of carbon is “generally accepted” for the purpose of
making such significance determinations. FERC also
explained—and petitioners do not contest—that it was unaware
of “any other currently scientifically accepted method that
would enable the Commission to determine the significance of
reasonably foreseeable GHG emissions.” Id. That explanation
addresses any Section 1502.21(c) problem.
Petitioners also argue that FERC regularly makes
significance determinations in other contexts without applying

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objective, bright-line criteria. But petitioners do not dispute
FERC’s premise that it has yet to find a way to “non-arbitrarily
determine when identified social costs become significant
under NEPA.” See Healthy Gulf, 107 F.4th at 1042. Nor have
petitioners provided any criteria of their own that FERC could
have used. That leaves us with petitioners’ “bare assertion that
the Commission should have further assessed the significance
of climate impacts. But that assertion, unsupported by a validly
raised criticism of the Commission’s reasoning or any
workable alternative method, affords no basis to overturn the
Commission’s finding.” Food & Water Watch v. FERC, 28
F.4th 277, 290 (D.C. Cir. 2022); see also Healthy Gulf, 107
F.4th at 1042.2
C
For their final NEPA challenge, petitioners argue that
FERC should have considered the environmental effects of
Lines 200 and 300 together with the environmental effects of
the Driftwood Terminal. The projects are “connected” actions,
petitioners claim, because Lines 200 and 300 are expected to
come online before the Mainline and so will supply all the
terminal’s initial gas needs. Petitioners’ Brief 26 (citing 40
C.F.R. § 1501.9(e)(1) (2022)).
Petitioners forfeited this challenge by failing to raise it in
their comments on FERC’s draft environmental impact
statement. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,
764 (2004). Petitioners acknowledge that they did not
2 This court also recently held that neither NEPA nor FERC’s
regulations require FERC to label greenhouse gas emissions
significant or not. See Citizens Action Coal. of Ind., Inc. v. FERC,
125 F.4th 229, 241–42 (D.C. Cir. 2025). We need not reach that
alternative ground for denying the petition here because FERC’s
order withstands review on the grounds given above, which FERC
clearly articulated in its order and its briefing to this court.

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comment on this issue below. Reply Brief 12; Tr. of Oral Arg.
11. And they do not dispute that forfeiture is the ordinary
consequence of that failure. Petitioners argue only that it was
“impossible” for them to raise the segmentation argument in
their comments because neither Driftwood nor FERC had at the
time disclosed that Lines 200 and 300 would launch before the
Mainline. Reply Brief 13. Even assuming such an
“impossibility” exception to the forfeiture rule exists, it would
not apply here. Driftwood clearly disclosed that it would not
start construction on the Mainline until it completed
construction on Lines 200 and 300. See Response to
Environmental Information Request Issued January 13, 2022,
at 4, FERC Docket Nos. CP21-465-000, CP21-465-001, CP21-
465-002 (Feb. 11, 2022), Accession No. 20220211-5221. And
Driftwood submitted this filing on the underlying docket well
before petitioners submitted their comments on FERC’s draft
environmental impact statement. See J.A. 361 (July 5, 2022).
So it was not “impossible” for petitioners to raise this specific
argument below.
At oral argument, counsel for petitioners invoked a
different exception to the forfeiture rule, arguing that the
segmentation problem was “so obvious[]” that there was no
need for a commentor to flag it specifically at the
administrative level. Tr. of Oral Arg. 11–12; see Pub. Citizen,
541 U.S. at 765. This argument is itself forfeited because
petitioners did not raise it in their briefs. See Ark Las Vegas
Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003).
III
Petitioners also claim that FERC violated the Natural Gas
Act. In approving Driftwood’s application, FERC determined
that (1) the project would serve a market need and (2) the
project’s public benefits would outweigh its adverse effects.

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Certificate Order, 183 FERC ¶ 61,049, at PP 23–32, 78.
Petitioners contest both conclusions.
We again review FERC’s order for arbitrariness, see B&J
Oil & Gas v. FERC, 353 F.3d 71, 75 (D.C. Cir. 2004), and treat
the Commission’s factual findings as “conclusive” if
“supported by substantial evidence,” 15 U.S.C. § 717r(b).
Through it all, “we remain mindful that the grant or denial of a
certificate of public convenience and necessity is a matter
peculiarly within the discretion of the Commission.” Minisink,
762 F.3d at 106 (cleaned up). Applying this standard, we see
no basis to set aside FERC’s certification decision.
A
Petitioners first dispute FERC’s determination that the
project will serve a market need. But substantial evidence
supports the Commission’s finding. See Certificate Order, 183
FERC ¶ 61,049, at PP 23–27. Three shippers have already
subscribed to 96% of the project’s transportation capacity.
These arrangements (also known as precedent agreements) are
“important, and sometimes sufficient, evidence of market need
for a pipeline project.” Del. Riverkeeper Network v. FERC, 45
F.4th 104, 114 (D.C. Cir. 2022). One shipper (Driftwood
LNG) has subscribed to most of this capacity and will use the
project to diversify and strengthen the Driftwood Terminal’s
access to natural gas. And when the project is not being used
to supply the terminal, it will help meet the growing demand
for gas in the Lake Charles region, according to projections set
forth in an independent market study. All of this supports
FERC’s conclusion that the project serves a market need.
Petitioners resist this conclusion in several ways, but none
of their challenges persuades.
Petitioners argue that this case resembles Environmental
Defense Fund v. FERC, 2 F.4th 953 (D.C. Cir. 2021). There,

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we held that it was arbitrary and capricious for FERC to rely
“solely on a precedent agreement to establish market need”
when “there was a single precedent agreement for the
pipeline,” the “precedent agreement was with an affiliated
shipper,” the Commission failed to engage with “plausible
evidence of self-dealing,” and “all parties agreed that projected
demand for natural gas in the area to be served by the new
pipeline was flat for the foreseeable future.” Id. at 975–76.
That decision is distinguishable in every way that matters.
Here, FERC relied on three precedent agreements, not just one.
And although the main precedent agreement is between
affiliates, FERC reasonably explained why it credited this
agreement. See City of Oberlin v. FERC, 937 F.3d 599, 605
(D.C. Cir. 2019). In particular, FERC determined that the
agreement reflected genuine market need because neither
affiliate could pass on costs to existing captive customers.
Certificate Order, 183 FERC ¶ 61,049, at PP 21–22, 24.
Petitioners do not dispute this finding. Nor have they pointed
to any other evidence of potential self-dealing. FERC,
moreover, did not rely only on the precedent agreements to
establish market need. It looked also to an independent market
study anticipating a surge in gas demand in the Lake Charles
area. Certificate Order, 183 FERC ¶ 61,049, at PP 25–27; cf.
Env’t Def. Fund, 2 F.4th at 975 (noting that the applicant never
“submitted a market study to the Commission to show the need
for, and benefits of, the proposed project”).
Petitioners argue that the project will not benefit the
Driftwood Terminal because it is redundant with the Mainline
system. But FERC reasonably explained why the two projects
are complementary, not redundant: Lines 200 and 300
interconnect with several pipeline networks that do not
interconnect at all with the Mainline system. And the two
pipeline systems have different origin points and access
different pools of gas. These features, FERC explained, will

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improve reliability and diversify the Driftwood Terminal’s
access to gas supply. Certificate Order, 183 FERC ¶ 61,049, at
P 27. Gas traveling through Lines 200 and 300, moreover, can
move in either direction, which will further facilitate the flow
of gas throughout the Lake Charles region. Id.; see also J.A.
147–48. The Mainline system, on the other hand, does not
offer such “bi-directional flow capabilities.” Certificate Order,
183 FERC ¶ 61,049, at P 27.
Petitioners also emphasize that the project will serve as the
Driftwood Terminal’s only supply pipeline for the first few
years of the terminal’s operation, because Lines 200 and 300
will launch before the Mainline. But that fact only further
undermines petitioners’ argument. That the project may
initially serve as the terminal’s exclusive pipeline option (and
not just as a complement or backup) reinforces FERC’s
market-need finding.
Finally, petitioners raise two challenges to FERC’s
reliance on the independent market study showing anticipated
growth in demand in the Lake Charles region. First, they assert
that the project cannot alleviate broader supply problems in the
region because one shipper (Driftwood LNG) has contracted
for almost all (92%) of the project’s transportation capacity.
But, as FERC explained, any capacity that the terminal does
not use could be used to redirect gas to other end users in the
region. Id. at P 23. Second, petitioners argue that the market
study is flawed because it does not adequately cite its
underlying data. This argument is forfeited twice over because
petitioners did not raise it in their rehearing request to FERC or
in their opening brief to this court. See 15 U.S.C. § 717r(b);
Cruz v. Am. Airlines, Inc., 356 F.3d 320, 333 (D.C. Cir. 2004).
B
Petitioners argue that FERC failed to consider the project’s
effects on greenhouse gas emissions when balancing the

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project’s benefits against its costs. But FERC did consider
these effects in its balancing analysis. It discussed the project’s
contributions to greenhouse gas emissions in its environmental
impact statement, concluded that the project was
“environmentally acceptable,” and referenced that
determination in its balancing. Certificate Order, 183 FERC
¶ 61,049, at P 78.
New Jersey Conservation Foundation v. FERC, 111 F.4th
42 (D.C. Cir. 2024), on which petitioners rely, does not alter
our analysis. There, the challengers argued in their rehearing
request that FERC had failed to account for the project’s
adverse effects on land use and its effects on greenhouse gas
emissions. See id. at 63. FERC specifically acknowledged this
objection but responded by offering only a “summary of
various land impacts and mitigation measures other than those
stemming from GHG emissions and climate change.” Id. On
that distinctive record, the fact that FERC addressed only the
land-use concerns, we held, supported the challengers’ theory
that the Commission failed to account for any emissions in its
balancing. See id. Nothing in the record supports drawing a
similar inference here.
Petitioners also argue that FERC failed to account for the
project’s effects on greenhouse gas emissions by refusing to
assess the significance of these effects. But the conclusion
does not follow from the premise: Just because FERC refused
to resolve the significance of the emissions does not mean that
FERC refused to consider the emissions at all. And in
responding to petitioners’ NEPA challenges, we have already
explained why the Commission’s decision not to make a
significance determination was valid. The argument “fare[s]
no better” when framed as a challenge under the Natural Gas
Act. Ctr. for Biological Diversity, 67 F.4th at 1188.

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IV
We deny the petition for review.
So ordered.

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