Sierra Club v. United States Department of Energy

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2023 Decided July 16, 2024
No. 22-1218
SIERRA CLUB,
PETITIONER
v.
UNITED STATES DEPARTMENT OF ENERGY,
RESPONDENT
GOLDEN PASS LNG TERMINAL, LLC,
INTERVENOR
On Petition for Review of Orders
of the United States Department of Energy
Louisa Eberle argued the cause for petitioner. With her on
the briefs was Nathan Matthews.
Christopher Anderson, 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.

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Jonathan D. Brightbill argued the cause for intervenor-
respondent Golden Pass LNG Terminal LLC. With him on the
brief were Michael J. Woodrum and Spencer W. Churchill.
Before: WILKINS, KATSAS, and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: Since 2021, Golden Pass LNG
Terminal, LLC has been authorized to export up to 937 billion
cubic feet per year of liquified natural gas (LNG) from a new
facility in Jefferson County, Texas. Of that amount, 129 billion
cubic feet per year could be exported only to countries that have
a free-trade agreement (FTA) with the United States, while the
rest could be freely exported to FTA or non-FTA countries. In
2022, the Department of Energy removed the FTA-based
restriction for the 129 billion cubic feet per year.
Sierra Club challenges the removal of that restriction. It
argues that Golden Pass’s increased flexibility to select export
countries will cause its actual exports to increase, which will
cause increased shipping traffic and thus harm the aesthetic and
recreational interests of a Sierra Club member who lives near
the export facility. This chain of causation is far from obvious.
And in its opening brief, Sierra Club offered neither evidence
nor argument that removal of the FTA-based restriction is
substantially likely to cause export volumes to increase. For
that reason, we dismiss the petition for review for lack of
Article III standing.
I
The Natural Gas Act prohibits the export of natural gas
without prior approval by the Department of Energy. 15 U.S.C.
§ 717b(a). The standards for approval depend on the
destination country. For countries that have a free-trade

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agreement with the United States, exports are “deemed to be
consistent with the public interest,” and DOE must approve
export applications “without modification or delay.” Id.
§ 717b(c). For countries without an FTA, DOE must approve
applications unless it finds, after providing the opportunity for
a hearing, that the proposed exports “will not be consistent with
the public interest.” Id. § 717b(a). The Federal Energy
Regulatory Commission must separately approve construction
or expansion of export facilities. See id. § 717b(e).
In light of the different governing standards, DOE
separately processes applications to export to FTA and non-
FTA countries. For parallel applications involving the same
facility, DOE typically grants approvals on a non-additive
basis, with the later approval expanding the number of
countries to which the facility may export but not the total
amount of gas that may be exported. For example, suppose a
company first receives authorization to export one million
cubic feet of LNG to FTA countries and later receives
authorization to export one million cubic feet to non-FTA
countries. The company then would become authorized to
export a total of one million cubic feet of LNG, which it could
direct to countries in either category.
This case involves an LNG terminal that Golden Pass
operates in Jefferson County, Texas, near the Gulf of Mexico.
The terminal originally was designed as an import facility, but
Golden Pass sought to convert it into an export facility when
advancements in extraction technology made it economical to
export LNG from the continental United States. Golden Pass
began this conversion in 2012 and expects to begin exporting
around 2026.
By 2017, Golden Pass already had secured authorization
to export up to 808 billion cubic feet per year of LNG to FTA

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or non-FTA countries from the Jefferson County facility.
Golden Pass sought to increase or “uprate” that amount to 937
billion cubic feet per year. In January 2021, FERC approved
expansion of the facility’s authorized production capacity. In
June 2021, DOE approved the increased authorization for
export to FTA countries. DOE gave public notice of the
pending application to increase authorized exports to non-FTA
countries. No party opposed the application, which DOE
granted in 2022. Sierra Club then requested rehearing of the
2022 decision, but DOE denied the request.
Sierra Club seeks judicial review of the orders allowing
greater export to non-FTA countries and then denying
rehearing of that decision.
II
We begin—and end—with the question of constitutional
standing. Article III limits the jurisdiction of federal courts to
“Cases” or “Controversies.” U.S. Const. art. III, § 2. Standing
doctrine implements this case-or-controversy requirement.
See, e.g., Allen v. Wright, 468 U.S. 737, 750–51 (1984).
Sierra Club asserts representational standing on behalf of
its members. So, at least one of the members must have
standing to sue individually. Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977). To have such individual
standing, the member “must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016). An injury in fact must be concrete, particularized, and
“actual or imminent.” Id. at 339 (cleaned up). For imminence,
a “substantial risk” of future injury is enough. See Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (cleaned
up).

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The party invoking federal jurisdiction must establish its
standing “in the same way as any other matter” on which that
party bears the burden of proof. Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992). So, whenever standing is “not apparent
from the administrative record,” a party seeking review of
agency action usually must set forth its “arguments and
evidence” for standing when filing its opening brief. D.C. Cir.
R. 28(a)(7); see Twin Rivers Paper Co. v. SEC, 934 F.3d 607,
613 (D.C. Cir. 2019); Sierra Club v. EPA, 292 F.3d 895, 899–
900 (D.C. Cir. 2002). But despite this familiar rule, we have
allowed a petitioner to establish standing in its reply brief in
two narrow circumstances: first, if the petitioner “reasonably,
but mistakenly, believed” that its opening brief adequately
proved standing; and second, if the petitioner “reasonably
assumed” that its standing was “self-evident” from the
administrative record. Twin Rivers, 934 F.3d at 614 (cleaned
up). In these circumstances, if the case for standing is at least
reasonably apparent when the opening brief is filed, the
government may fairly be expected to fully develop any
opposing evidence or arguments when filing its brief as the
respondent. We have also allowed petitioners to proceed if a
reply brief fleshes out a timely raised theory of standing and
also makes standing “patently obvious and irrefutable.” Id. at
614–15 (cleaned up). In that circumstance, irrefutability
indicates that the government suffered no prejudice from the
lateness of the petitioner’s showing.
Sierra Club asserts a claim of representational standing
based on harms to a member who lives near the LNG terminal.
Tracing these harms to the orders under review requires a three-
step causal chain: First, by increasing the volume of LNG that
Golden Pass may export to non-FTA countries, the orders
under review will cause an increase in the total volumes of
LNG that Golden Pass will export. Second, an increase in these
export volumes will cause an increase in tanker traffic leaving

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the export facility. Third, an increase in tanker traffic will harm
the aesthetic or recreational interests of one Mary Bernard, a
Sierra Club member who boats and fishes in waters adjacent to
the terminal. When filing its opening brief, Sierra Club
submitted a declaration from Ms. Bernard, which adequately
shows the third step in the causal chain. And we will assume
the second step arguendo. But neither the opening brief nor
the declaration shows that the orders under review are
substantially likely to cause increased exports.
Sierra Club’s opening brief devotes three lines to the first
two causation elements highlighted above. First, Sierra Club
asserts that “[i]ncreasing export volumes necessarily increases
shipping tanker traffic.” Opening Br. at 33. Perhaps so, but
that proposition says nothing about whether the orders under
review will increase export volumes. Then, Sierra Club
provides a single record citation, which it says estimates the
“volume of increased traffic.” Id. But the cited item is the
2020 environmental assessment prepared by FERC in
authorizing the increased production capacity of the facility
from 808 billion cubic feet of LNG per year to 937 billion cubic
feet of LNG per year. J.A. 375. Accordingly, the assessment
addressed environmental impacts from increasing the total
authorized production capacity and export volumes, without
distinguishing between FTA and non-FTA countries. It did not
consider whether a non-additive uprate authorization would
likely increase total export volumes.
After DOE contested standing, Sierra Club significantly
elaborated on this point in its reply brief. But Sierra Club
satisfies no exception allowing it to raise new standing
evidence or arguments for the first time in reply.
To begin, Sierra Club could not have reasonably believed
that its initial submissions adequately proved standing. Sierra

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Club challenges only the 2022 orders permitting increased
exports to non-FTA countries. By then, Golden Pass already
was authorized to export a total of 937 billion cubic feet of
LNG per year: 808 billion cubic feet to either FTA or non-FTA
countries, as well as an additional 129 billion cubic feet to FTA
countries only. And the orders under review merely removed
the country-based restriction from that last increment of
volume. Sierra Club’s minimal analysis in its opening brief—
which suggests that any increase in total exports would cause
more tanker traffic—does not tend to show that the 2022
orders, by permitting the final 129 billion cubic feet of LNG to
be exported to non-FTA countries as well as to FTA countries,
would likely cause an increase in total exports.
Nor could Sierra Club reasonably have thought that the
administrative record made this point self-evident. Sierra Club
notes that DOE, in its environmental assessment of the
requested uprate, assumed that removing the FTA restriction
would cause greater exports. But DOE never made any such
finding. Instead, the agency reasoned that neither increased
domestic drilling for natural gas (if any), nor increased burning
of natural gas abroad (if any), would justify scuttling the
requested uprate. J.A. 44–47. In doing so, DOE cited studies
about the environmental effects of drilling for natural gas and
burning it, not studies about whether removing FTA-based
restrictions would be likely to cause greater exports. See Life
Cycle Greenhouse Gas Perspective on Exporting Liquefied
Natural Gas From the United States: 2019 Update—Response
to Comments, 85 Fed. Reg. 72 (Jan. 2, 2020); Addendum to
Environmental Review Documents Concerning Exports of
Natural Gas From the United States, 79 Fed. Reg. 48,132 (Aug.
15, 2014). None of this suggests that removing the FTA-based
restriction would cause greater total exports.

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Finally, the presentation in Sierra Club’s reply brief does
not make its standing patently obvious and irrefutable. Sierra
Club begins with some statistics. It asserts that the United
States exports LNG to only seven FTA countries accounting
for only 10 percent of all LNG exports. Reply Br. at 7 & n.2.
Sierra Club then calculates that, if Golden Pass were to export
the entire uprated amount to FTA countries, total U.S. exports
to those countries would increase by about 33 percent. Id. at
7–8 & n.3. And, it says, “[n]othing indicates that the FTA
market could or would absorb these exports.” Id. at 8. In other
words, removing the FTA restriction will cause increased
exports because Golden Pass would have been unable to export
129 billion cubic feet per year of LNG just to FTA countries.
This analysis does not tell the whole story. For one thing,
as DOE explained, there is “rapid” growth in the total demand
for LNG exports from the United States. J.A. 41. Sierra Club’s
statistics reflect export volumes in 2022, yet the Golden Pass
facility is not expected to begin exporting until 2026. J.A. 372
n.1, 397. So a 33 percent increase after four years of rapid
growth does not seem obviously infeasible. Moreover, the
uprated volume of LNG that Golden Pass may now export
without restriction makes up less than 14 percent of the total
volume of LNG that Golden Pass may export annually. In
other words, even without the uprate authorization, Golden
Pass still could have exported to FTA and non-FTA countries
in percentages roughly tracking the national averages. So if
Golden Pass exports to FTA countries would significantly
increase total U.S. exports to FTA countries, as Sierra Club
contends, then Golden Pass exports to non-FTA countries
likewise would significantly increase total U.S. exports to those
countries. Yet Sierra Club does not suggest that Golden Pass
will have any difficulty exporting its authorized volumes to
non-FTA countries. Nor does it suggest that demand for U.S.
exports of LNG is growing any more quickly in non-FTA

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countries than it is in FTA countries. Finally, Sierra Club’s
analysis assumes that the behavior of other exporters will
remain constant. But if other companies shift exports from
FTA countries to non-FTA countries, Golden Pass could
increase exports to FTA countries even if nationwide volumes
remained constant in the FTA and non-FTA sectors.
Sierra Club next invokes the “basic economic principles”
of supply and demand. Reply Br. at 8. According to Sierra
Club, increasing the number of potential customers for the 129
billion cubic feet per year of LNG will increase demand for it
and thus result in more of it being exported. See id. But unless
the relevant economic principles are “self-evident,” both in the
abstract and as applied to a specific case, we require
evidentiary support to establish standing. Airlines for Am. v.
TSA, 780 F.3d 409, 411 (D.C. Cir. 2015) (cleaned up). For
example, in Competitive Enterprise Institute v. FCC, 970 F.3d
372 (D.C. Cir. 2020), we found standing based on an expert
affidavit confirming the applicability of economic principles
that were themselves supported by a Supreme Court decision,
agency regulations and guidance, and a leading treatise in the
field. See id. at 386. By contrast, in Utility Workers Union v.
FERC, 896 F.3d 573 (D.C. Cir. 2018), we found no standing
where the asserted economic principles were unaccompanied
by data, analysis, affidavits, or explanations of the specific
“market dynamics that might support [the petitioners’] theory
of causation.” Id. at 578. And we required such supporting
materials even though the economic principle asserted there—
that removal of one large supplier from the relevant market
would likely cause a price increase—might have seemed
“intuitive, given the laws of supply and demand.” Id. at 579.
In other words, despite invoking an economic principle that
seemed “intuitive” in the abstract, the petitioners still needed
to put forth evidence showing how the principle governed in
the specific case. See id.

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This case is like Utility Workers. Sierra Club invokes the
laws of supply and demand at a high level of generality and
without further data, analysis, affidavits, or explanations. And
its assertions, while superficially plausible, are by no means
self-evident. For example, while increased demand generally
causes increased output, it may cause only higher prices if the
relevant supply curves are price inelastic. And here, the supply
curves for exported LNG are inelastic to the extent that
exporters may supply only amounts previously approved by the
government. If those amounts are below what a free market
would otherwise achieve, an increase in demand might cause
prices but not output to increase.
Finally, Sierra Club posits that if removal of the FTA
restriction would not cause export volumes to increase, then it
would have been pointless for Golden Pass to seek it. But as
DOE explains, adding non-FTA countries to an authorization
provides companies with greater flexibility and thus insures
against deteriorating market conditions in the future. That
could be valuable even absent a substantial likelihood that
Golden Pass would have been unable to export 129 billion
cubic feet per year of LNG just to FTA countries. Buying fire
insurance often makes sense even absent any substantial risk of
fire. Alternatively, as noted above, increased demand might
translate into higher prices but not higher volumes, which
would be independently valuable to Golden Pass. For these
reasons, we cannot confidently infer that export volumes will
likely increase just because Golden Pass sought removal of the
FTA restriction.
We acknowledge that the case for standing made out by
Sierra Club in its reply brief is at least plausible. But it is not
“patently obvious and irrefutable.” Twin Rivers, 934 F.3d at
615 (cleaned up). And because Sierra Club made this case only
in its reply brief, DOE lost the opportunity to muster a full

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opposition in the ordinary course. Regardless of whether Sierra
Club’s case would have been sufficient to show standing if
made in its opening brief—a question that we need not
decide—we cannot permit Sierra Club to make it in these
circumstances.1
III
Sierra Club failed to offer any argument or evidence in its
opening brief showing that the orders under review are
substantially likely to increase export volumes, which is an
essential element of its case for Article III standing.
Accordingly, we dismiss the petition for review.
So ordered.
1 The parties contest whether we have statutory jurisdiction
under 15 U.S.C. § 717r(b), which provides judicial review to any
“party” aggrieved by an order in any “proceeding” under the Natural
Gas Act. Because we resolve this case on alternative jurisdictional
grounds, we need not address that question. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 584 (1999).

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