El Puente De Williamsburg, Inc.-Enlace Latino De Acciónclimática, Inc. v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 1, 2025 Decided September 19, 2025
No. 23-1333
EL PUENTE DE WILLIAMSBURG, INC.-ENLACE LATINO DE
ACCIÓN CLIMÁTICA, INC., ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
NFENERGÍA LLC,
INTERVENOR
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Benjamin P. Chagnon argued the cause for petitioners. On
the briefs were Raghu Murthy, Jennifer Cassel, and Jordan
Luebkemann.
J. Houston Shaner, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were David L. Morenoff, Acting General Counsel, and
Robert H. Solomon, Solicitor.

-- 1 of 8 --

2
Jeremy C. Marwell argued the cause for intervenor in
support of respondent. With him on the brief were Matthew
Reinhard and John S. Decker.
Before: KATSAS and GARCIA, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: NFEnergía LLC operates a
facility to import natural gas in San Juan, Puerto Rico. After a
series of hurricanes battered Puerto Rico, NFEnergía sought
authorization to expand its facility by constructing and
operating a new pipeline running to an emergency generator
operated by the Army Corps of Engineers. The Federal Energy
Regulatory Commission declared that it would take no action
to prevent construction or operation pending its review of
license applications for the existing facility and the new
pipeline. Several environmental groups petitioned for review
of the relevant orders. We hold that the orders reflect an
unreviewable exercise of enforcement discretion.
I
A
Section 3 of the Natural Gas Act (NGA) makes it unlawful
to import or export natural gas without prior authorization from
FERC. 15 U.S.C. § 717b(a); see Big Bend Conservation All. v.
FERC, 896 F.3d 418, 420 (D.C. Cir. 2018). We have construed
section 3 also to require prior authorization to construct and
operate import or export facilities. See Distrigas Corp. v. Fed.
Power Comm’n, 495 F.2d 1057, 1064 (D.C. Cir. 1974).
Congress later confirmed FERC’s “exclusive authority” to
license the construction and operation of any “LNG

-- 2 of 8 --

3
terminal”—a kind of facility used to import or export liquid
natural gas. 15 U.S.C. § 717b(e)(1); see id. § 717a(11)
(statutory definition).
FERC may enforce this licensing regime in various ways.
Section 20 of the NGA provides that, if a person is violating
the statute, FERC “may in its discretion” bring an action for
injunctive relief in federal district court. 15 U.S.C. § 717s(a).
Section 22 authorizes FERC to assess civil penalties for NGA
violations. Id. § 717t-1.
B
Puerto Rico has experienced various crises over the last
decade. In 2017, it became unable to service its debt. Fin.
Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 590 U.S.
448, 453–54 (2020). A federal oversight board placed its main
energy instrumentality (the Puerto Rico Electric Power
Authority, or PREPA) into special bankruptcy proceedings. Id.
at 455. In September 2017, Hurricanes Irma and Maria
devastated the island’s electricity grid and caused an 11-month
blackout—the longest in United States history. See The
Longest Blackout in U.S. History: Hurricane Maria, U.S.
Army Corps of Eng’rs, https://perma.cc/KY5N-QVW2.
To ameliorate this energy crisis, NFEnergía began
importing LNG in 2020 through an onshore facility at the edge
of San Juan Bay. The facility transports LNG to the adjacent
San Juan Power Plant either by truck or through a 75-foot gas
pipeline. NFEnergía built and operated this facility without
receiving prior authorization from FERC. It contended that the
facility did not meet the statutory definition of an “LNG
Terminal” and that FERC therefore lacked jurisdiction over it.
FERC initially agreed, but changed its mind shortly after the
facility was built. In March 2021, FERC issued an order
concluding that the facility was subject to its section 3

-- 3 of 8 --

4
jurisdiction. See New Fortress Energy LLC, Order on Show
Cause, 174 FERC ¶ 61,207 (2021). This Court later upheld that
determination. New Fortress Energy Inc. v. FERC, 36 F.4th
1172 (D.C. Cir. 2022).
When FERC asserted jurisdiction over the import facility,
it instructed NFEnergía to apply for a section 3 authorization.
174 FERC ¶ 61,207, P 1. However, FERC expressly declined
to “require the facility to cease operating” unless and until it
secured the authorization. Id. P 39. In explaining its view that
continued operation was appropriate despite the lack of
authorization, FERC stressed that the facility supplies clean
energy to Puerto Rico, that the Coast Guard and the Army
Corps of Engineers had already approved various aspects of the
facility, and that Puerto Rican authorities had already
completed an environmental review. See id. P 38.
After NFEnergía applied for a section 3 authorization in
2021, Hurricane Fiona hit Puerto Rico. It ravaged the still-
recovering grid and left 1.5 million households without power.
The President declared a major disaster, and the Federal
Emergency Management Agency established the Puerto Rico
Power Stabilization Task Force, which convened
representatives from PREPA and four federal agencies to
improve the island’s capacity to generate electricity. The Task
Force determined that emergency generators would be
necessary to stabilize the grid during long-term repairs. The
Army Corps of Engineers was charged with operating the
generators. It enlisted NFEnergía to supply the necessary fuel.
NFEnergía determined that meeting this obligation would
require an additional 220-foot pipeline between the existing
import facility and the temporary generators.

-- 4 of 8 --

5
C
In July 2023, NFEnergía applied for a section 3
authorization to build the new pipeline. It urged that the
pipeline was necessary to meet Puerto Rico’s energy needs
during the rapidly approaching hurricane season and to avoid
imminent rolling blackouts. The Army Corps informed FERC
that it was unaware of any alternative source of fuel.
After soliciting comments, FERC issued the order at issue.
It disclaimed any “explicit statutory authority” to authorize the
new pipeline while still deciding whether to authorize the
larger import facility. NFEnergía LLC, Order on Request for
Section 3 Authorization, 184 FERC ¶ 61,061, P 3. But FERC
also stated that it would “not take action to prevent the
immediate construction and operation” of the pipeline. Id.
FERC noted the “involvement of … multiple other federal
agencies in an effort to protect the Puerto Rican electric grid
during the upcoming heart of the hurricane season.” Id. And
it promised to “conduct a complete examination of the merits”
of the pipeline “as part of the pending proceeding related to the
authorization of the LNG terminal.” Id. NFEnergía then
constructed and began operating the pipeline.
FERC denied rehearing. The Commission clarified that it
viewed NFEnergía’s request to build and operate the pipeline
as “an application for an amendment to its pending section 3
authorization application for its LNG terminal.” NFEnergía
LLC, Order Addressing Arguments Raised on Rehearing, 186
FERC ¶ 61,078, P 9. And FERC reiterated that it would
continue reviewing the two together. Id. Since then, FERC has
continued to process NFEnergía’s section 3 application for the
facility and the new pipeline in a consolidated proceeding.

-- 5 of 8 --

6
Various environmental organizations petitioned for review
of these orders. NFEnergía intervened in support of FERC.
We have jurisdiction under 15 U.S.C. § 717r(b).
II
Petitioners argue that the orders under review effectively
authorized construction and operation of the pipeline without
addressing substantive requirements imposed by the NGA or
performing the environmental review required by the National
Environmental Policy Act. FERC responds that the orders
merely reflect an unreviewable exercise of enforcement
discretion. We agree with FERC.
The Administrative Procedure Act exempts from judicial
review agency actions that are “committed to agency discretion
by law.” 5 U.S.C. § 701(a)(2). In Heckler v. Chaney, 470 U.S.
821 (1985), the Supreme Court held that agency decisions
declining to take enforcement action presumptively fall within
this provision. Id. at 828–34. Several considerations support
the presumption. First, a decision not to enforce often involves
balancing considerations within the agency’s expertise, such as
whether enforcement would involve a wise use of scarce
agency resources. Id. at 831. Second, a refusal to enforce does
not involve the exercise of “coercive power” over individuals.
Id. at 832. Third, such a decision resembles a prosecutor’s
decision not to indict, “which has long been regarded as the
special province of the Executive Branch.” Id.
The orders under review reflect an exercise of enforcement
discretion. FERC stated that it “will not take action to prevent
the immediate construction and operation of the proposed
facilities.” 184 FERC ¶ 61,061, P 3. On its face, that statement
did not authorize construction and operation of the pipeline,
thereby making those activities lawful under section 3. Instead,
the agency merely announced that it would not seek “to

-- 6 of 8 --

7
prevent” NFEnergía from building and operating the pipeline,
as it could by filing an injunctive action under section 20.
Moreover, FERC confirmed that a section 3 authorization
proceeding remained pending for both the new pipeline and the
larger import facility. See id.; 186 FERC ¶ 61,078, P 9. And
it gave prudential reasons for forgoing immediate
enforcement—the urgent need to “stabilize Puerto Rico’s
electrical grid in preparation for the 2023 hurricane season”
and the involvement of multiple federal and commonwealth
agencies in ensuring safe operation of the pipeline during the
emergency. 184 FERC ¶ 61,061, P 3. Given all this, we reject
petitioners’ characterization of the orders as a de facto
authorization.
We also reject petitioners’ contention that the NGA rebuts
the presumption that agency decisions not to enforce a statute
are unreviewable. In Chaney, the Supreme Court explained
that this presumption “may be rebutted where the substantive
statute has provided guidelines for the agency to follow in
exercising its enforcement powers.” 470 U.S. at 833. But the
NGA provides no such guidelines. Section 20 simply provides
that FERC “may in its discretion” bring an enforcement action
in district court. 15 U.S.C. § 717s(a). Likewise, section 22
simply provides that a person violating the NGA is “subject to
a civil penalty,” while leaving to FERC the decision whether to
assess it. Id. § 717t-1(a). Given such language, we have held
that the NGA does not rebut Chaney’s presumption. Balt. Gas
& Elec. Co. v. FERC, 252 F.3d 456, 460–61 (D.C. Cir. 2001).
In doing so, we explained that the NGA “lacks guidelines
against which to measure FERC’s exercise of its enforcement
discretion” and “does not lay out any circumstances in which
the agency is required to undertake or to continue an
enforcement action.” Id. at 460 (cleaned up). To the contrary,
“[a]t every turn the NGA confirms that FERC’s decision how,
or whether, to enforce … is entirely discretionary.” Id.

-- 7 of 8 --

8
Finally, petitioners worry that FERC’s approach here
portends what they call a “build first, review later” regime for
pipelines. That concern is overstated. For one thing, FERC
stressed the grave emergency supporting its non-enforcement
decision in this case. And absent such an emergency, we think
it unlikely that companies would undertake to build pipelines
without section 3 authorization, based only on non-
enforcement decisions that FERC would have discretion to
reverse later. Finally, if FERC were to adopt a general policy
refusing to enforce section 3, judicial review might be available
based on the agency’s wholesale “abdication of its statutory
responsibilities.” Chaney, 470 U.S. at 833 n.4. Nothing
remotely like that is present here.
III
Because the orders at issue reflect an unreviewable
exercise of enforcement discretion, we deny the petition for
review.
So ordered.

-- 8 of 8 --