Public Citizen, Inc . v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2023 Decided February 16, 2024
No. 22-1251
P UBLIC C ITIZEN, INC .,
P ETITIONER
v.
FEDERAL ENERGY R EGULATORY C OMMISSION,
R ESPONDENT
NOPETRO LNG, LLC,
INTERVENOR
On Petition for Review of Orders
of the Federal Energy Regulatory Commission
Nandan M. Joshi argued the cause for petitioner. With
him on the briefs was Scott L. Nelson.
Elizabeth F. Benson and Ankit Jain were on the brief for
amici curiae Citizens for Pennsylvania’s Future, et al. in
support of petitioner.
Moneen Nasmith, Elizabeth Livingston de Calderon,
Jordan Luebkemann, and Bradley Marshall were on the brief
for amici curiae North Port St. Joe Project Area Committee,
Inc., et al. in support of petitioner.

-- 1 of 10 --

2
Matthew J. Glover, Senior Attorney, Federal Energy
Regulatory Commission, argued the cause for respondent. On
the brief were Matthew R. Christiansen, General Counsel,
Robert H. Solomon, Solicitor, and Anand Viswanathan,
Attorney. Robert M. Kennedy, Jr. entered an appearance.
Jennifer L. Key argued the cause for intervenor and adopts
the respondent’s brief.
Jeremy C. Marwell and Christopher J. Terhune were on
the brief for amicus curiae New Fortress Energy Inc. in support
of respondent.
Before: KATSAS , P AN , and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARCIA.
GARCIA, Circuit Judge: In 2021, Nopetro LNG, LLC
(“Nopetro”) sought to build a liquefied natural gas (“LNG”)
facility in Port St. Joe, Florida. Nopetro requested a ruling
from the Federal Energy Regulatory Commission that the
planned facility falls outside the Commission’s regulatory
jurisdiction under Section 3 of the Natural Gas Act. The
Commission granted Nopetro’s request and issued a
declaratory order, which it sustained on rehearing. Public
Citizen, a nonprofit consumer-advocacy organization, seeks
review of the Commission’s determination.
Before oral argument, however, the Commission informed
us—and Nopetro confirmed—that Nopetro had abandoned its
plans to build the facility. We therefore dismiss Public
Citizen’s petition for review as moot and vacate the
Commission’s orders.

-- 2 of 10 --

3
I.
Section 3 of the Natural Gas Act governs the import and
export of natural gas, as well as the construction and operation
of certain LNG facilities. See 15 U.S.C. § 717b. Section
3(e)(1) of the Act gives the Commission “exclusive authority
to approve or deny an application for the siting, construction,
expansion, or operation of an LNG terminal.” Id. § 717b(e)(1).
In April 2021, Nopetro filed a petition for a declaratory
order with the Commission. In relevant part, the petition
requested a ruling that the company’s proposed LNG facility in
Port St. Joe falls outside the Commission’s Section 3(e)(1)
jurisdiction because, in Nopetro’s view, the facility does not
meet the statutory definition of an “LNG terminal.” See id.
§ 717a(11). In March 2022, the Commission issued a
declaratory order to that effect. After Public Citizen requested
rehearing, the Commission issued a second order in July 2022
that sustained its initial determination.
Public Citizen filed a petition for review of those orders on
behalf of its members who live and work in the Port St. Joe
community. Those members claim that they would suffer
economic, environmental, and aesthetic injuries if Nopetro
were to build the facility. We granted Nopetro leave to
intervene in the appeal.
On October 2, 2023, after the parties completed briefing,
the Commission informed us that a senior Nopetro official
stated publicly in July 2023 that the company would “no longer
pursue the [Port St. Joe project] due to market conditions.”
Commission Oct. 2, 2023 Letter at 1 (cleaned up). We directed
Nopetro to clarify its plans and to take a position on whether
the case was moot. Nopetro explained that it “currently is not
pursuing the Port St. Joe project and has no current plans to do
so in the future.” Nopetro Oct. 4, 2023 Letter. But Nopetro

-- 3 of 10 --

4
stated that “its plans could change” and suggested the appeal
was therefore not moot. Id. The Commission’s order, Nopetro
noted, could also “apply with respect to other Nopetro
projects.” Id. In supplemental briefing, Public Citizen
similarly argued that Nopetro’s changed plans do not moot the
appeal. The Commission suggested that we “could” conclude
that the case is moot, but it did not take a firm position on the
issue. Commission Oct. 6, 2023 Letter.
At oral argument, Nopetro confirmed that it stopped
pursuing the project “due to market conditions,” including “the
price of natural gas.” Oral Arg. Tr. 52:15–53:8. The company
then clarified that, even if the price increased, it would still
“need to find the right off-taker” to purchase the LNG before it
considered resurrecting the project. Id. 53:3–54:10. Nopetro
also revealed that it does not own—nor does it have “an option”
in place “to lease”—the land on which the facility would be
built. Id. 54:10–19.
II.
Derived from Article III, the mootness doctrine ensures
that federal courts decide only “actual, ongoing controversies.”
Honig v. Doe, 484 U.S. 305, 317 (1988). Under this doctrine,
“[e]ven where litigation poses a live controversy when filed,”
a federal court must “refrain from deciding [the dispute] if
‘events have so transpired that the decision will neither
presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.’” Clarke v.
United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)
(quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570,
575 (D.C. Cir. 1990)). This rule ensures that federal courts
respect the bounds of their constitutionally assigned role.
Among other salutary purposes, it protects courts from
rendering impermissible advisory opinions. See Nat’l Black

-- 4 of 10 --

5
Police Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C.
Cir. 1997).
Although no party has urged us to do so, we hold that we
lack jurisdiction over this appeal because it is moot. See Noel
Canning v. NLRB, 705 F.3d 490, 496 (D.C. Cir. 2013)
(“[F]ederal courts . . . must assure themselves of jurisdiction
over any controversy they hear, regardless of the parties’
failure to assert any jurisdictional question.”).
A.
We first address the appropriate standard for evaluating
mootness in this case. The ordinary standard is the one
identified above: A case is moot if a “decision will neither
presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.”
Transwestern Pipeline Co., 897 F.2d at 575. One exception to
that rule exists for cases in which a party voluntarily ceases the
challenged activity. When the exception applies, the case
remains live unless it is “absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.”
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167, 190 (2000). Here, given Nopetro’s unilateral
decision to discontinue its plans for the Port St. Joe project,
Public Citizen argues that the more demanding voluntary-
cessation standard governs our analysis.
We disagree. The heightened voluntary-cessation
standard is grounded in concerns that a party may be
manipulating “the judicial process through the false pretense of
singlehandedly ending a dispute.” Guedes v. Bureau of
Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 15
(D.C. Cir. 2019) (per curiam); see Alaska v. U.S. Dep’t of
Agric., 17 F.4th 1224, 1229 (D.C. Cir. 2021) (explaining that
the doctrine exists “to prevent manipulation of the judicial

-- 5 of 10 --

6
process”). After all, when a party decides to cease the
challenged conduct and then argues the case is moot, the party
may be trying to avoid judicial review only to restart that
conduct once the case has been dismissed. See Guedes, 920
F.3d at 15; see also Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013) (“[A] defendant could engage in unlawful conduct, stop
when sued to have the case declared moot, then pick up where
he left off, repeating this cycle until he achieves all his unlawful
ends.”). Thus, we typically apply a more “stringent” test for
mootness in such circumstances, Laidlaw, 528 U.S. at 189,
because the prospect of manipulation gives us reason to doubt
the party’s claims that it will not resume the challenged activity
once the court dismisses the challenge.
The voluntary-cessation doctrine, however, does not apply
automatically whenever the prospect of mootness is raised by
a party’s voluntary conduct. Instead, courts have declined to
apply the doctrine when the facts do not suggest any “arguable
manipulation of our jurisdiction.” City News & Novelty, Inc. v.
City of Waukesha, 531 U.S. 278, 284 (2001). We have, for
example, expressed “serious doubts” that the doctrine should
ever apply when assessing acts of Congress because it would
be “inappropriate for the courts . . . to impute such
manipulative conduct to a coordinate branch of government.”
Clarke, 915 F.2d at 705. And we declined to apply the doctrine
when a federal agency granted a plaintiff an exemption from a
challenged regulation and there was no plausible argument the
agency had done so “to manipulate the judicial process.”
Alaska, 17 F.4th at 1230; see also Monk v. Tran, 843 F. App’x
275, 280 (Fed. Cir. 2021) (same where “[a]ppellants have made
no claim . . . of reasonable fear that the [defendant agency] is
manipulating the system”).
Although concerns over manipulation are heightened
when it is a private party that changes its conduct once

-- 6 of 10 --

7
litigation commences, courts have declined to apply the
doctrine in that context too. In City News, a business
challenged state court decisions upholding the City of
Waukesha’s denial of a license. 531 U.S. at 282. After the
Supreme Court granted review, the business informed the City
that it would no longer pursue the license. Id. at 282–83. When
the City notified the Court, the business nonetheless urged that
the demanding voluntary-cessation standard applied and the
case was not moot because it could change its mind and decide
to apply for a license in the future. Id. at 283.
The Supreme Court declined to apply the heightened
standard because the facts did not suggest the business was
engaged in any “arguable manipulation of [the Court’s]
jurisdiction.” Id. at 284. The Court highlighted two facts to
support that conclusion. First, unlike in the typical voluntary-
cessation scenario, the business “oppose[d] a declaration of
mootness.” Id. Second, the Court noted that because the
business had lost in state court, it “c[ould] gain nothing from
our dismissal.” Id. at 284 n.1. Thus, in the unusual case where
a private party’s voluntary conduct “saps the controversy of
vitality,” id., but the concerns underlying the voluntary-
cessation doctrine are nevertheless not implicated, courts may
decline to apply it. See also E.I. Dupont De Nemours v. Invista
B.V., 473 F.3d 44, 47 (2d Cir. 2006) (declining to apply the
doctrine where “the cessation by the alleged wrongdoer was
not a unilateral action taken for the deliberate purpose of
evading a possible adverse decision by this court” (quotation
marks and citation omitted)).
This is such a case. Like the business in City News,
Nopetro is not arguing that its abandonment of the Port St. Joe
project moots the appeal. To the contrary, the company
opposes mootness. Nopetro Oct. 4, 2023 Letter. That the
Commission—not Nopetro—brought Nopetro’s change of

-- 7 of 10 --

8
plans to the court’s attention further mitigates any possibility
that Nopetro is attempting to manipulate our jurisdiction. If
Nopetro had wanted to moot the case, it would not have ceased
plans to build the facility and then kept quiet, hoping that a
different party would bring the changed circumstances to our
attention, as the Commission did months later. Nor would it
have then risked an adverse outcome by arguing that the case
remained live. Finally, Nopetro, like the business in City News,
has little to gain from our dismissal. It is no secret that our
practice is to vacate administrative orders we lack the
jurisdiction to review. See, e.g., Sec’y of Lab., Mine Safety &
Health Admin. v. M-Class Mining, LLC, 1 F.4th 16, 25 (D.C.
Cir. 2021) (explaining that this is “the appropriate disposition
of moot administrative orders” (quoting Tennessee Gas
Pipeline Co. v. Fed. Power Comm’n, 606 F.2d 1373, 1382
(D.C. Cir. 1979))). As a sophisticated party, Nopetro surely
appreciates that vacatur of the Commission’s favorable orders
would return the company to the same position it was in before
it initiated these proceedings several years ago.
Given those undisputed, objective facts, there is no
plausible argument that Nopetro is attempting to manipulate us
into dismissing this case. Because we have no reason to view
skeptically Nopetro’s statements about the many impediments
to resuming its voluntarily abandoned project, we apply the
ordinary mootness test rather than the voluntary-cessation
exception.
B.
Under the ordinary test, this case is moot. In its October 4
letter to the court, Nopetro stated that it “currently is not
pursuing the Port St. Joe project and has no current plans to do
so in the future.” Nopetro Oct. 4, 2023 Letter. At oral
argument, the company confirmed that its decision was “due to

-- 8 of 10 --

9
market conditions,” including “the price of natural gas.” Oral
Arg. Tr. 52:15–53:8. Nopetro then clarified that, even if that
price increased, it would still “need to find the right off-taker”
before it considered resurrecting the project. Id. 53:3–54:10.
Moreover, the company does not own—nor does it have “an
option” in place “to lease”—the land on which the facility
would be built. Id. 54:10–19. In short, Nopetro explained that
it might reconsider its decision only if (1) the price of natural
gas increases; (2) it can identify customers in one of its target
export countries; and (3) it can acquire the requisite land rights.
Given the substantial uncertainty surrounding each of those
requirements, there is no reason to believe Nopetro will build
the Port St. Joe facility in the foreseeable future. Thus, a
judgment on appeal vacating the Commission’s orders on the
merits would not “presently affect” the rights of Public
Citizen’s members who live in the vicinity of the now-
abandoned project, nor would it “have a more-than-speculative
chance of affecting them in the future.” Transwestern Pipeline
Co., 897 F.2d at 575.
Public Citizen’s arguments against mootness are
unavailing. Public Citizen emphasizes that, if we hold the
appeal moot and Nopetro’s plans change, the organization will
not have a later opportunity to challenge the orders on review
because the Natural Gas Act requires any such challenge to be
brought within 60 days of the Commission’s order on
reconsideration. See 15 U.S.C. § 717r(b). But that alleged
concern is conditioned on Nopetro changing its plans and
building the Port St. Joe facility in the first place. And as just
explained, the chances of that happening are speculative.
Public Citizen also contends that dismissing the case on
mootness grounds would leave intact the Commission’s
ongoing policy of excluding certain LNG facilities from its
Section 3(e)(1) jurisdiction based on what Public Citizen

-- 9 of 10 --

10
asserts is an impermissible reading of the Act. But the
organization points to no authority suggesting that this general
grievance suffices to preserve our jurisdiction over this
particular appeal. With the Port St. Joe project no longer a real
concern, Public Citizen now seeks an advisory opinion
addressing the Commission’s underlying interpretation of its
jurisdiction so that our opinion might be applied to other
currently hypothetical projects. Indeed, the circumstances
suggest that Nopetro may have the same reason to oppose
mootness and seek a resolution of this now-abstract dispute.
We may not oblige. See Nat’l Black Police Ass’n, 108 F.3d at
349 (“[A] federal court has no ‘power to render advisory
opinions . . . .’” (quoting Preiser v. Newkirk, 422 U.S. 395, 401
(1975))).
C.
Because the appeal is moot, we will exercise our equitable
authority to vacate the orders at issue. See M-Class Mining,
LLC, 1 F.4th at 25; S. Co. Servs., Inc. v. FERC, 416 F.3d 39,
44 (D.C. Cir. 2005). No party argues against vacatur, and it
will further the public interest by precluding any potential
reliance on the challenged orders we lack authority to review.
See Sands v. NLRB, 825 F.3d 778, 786 (D.C. Cir. 2016).
III.
We dismiss the petition for review as moot and vacate the
Commission’s orders.
So ordered.

-- 10 of 10 --