United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2019 Decided June 4, 2019

No. 18-1218

LORI BIRCKHEAD, ET AL.,

PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

TENNESSEE GAS PIPELINE COMPANY, LLC,

INTERVENOR

On Petition for Review of Orders of the 

Federal Energy Regulatory Commission

Carolyn Elefant argued the cause and filed the briefs for 

petitioners.

Robert H. Solomon, Solicitor, Federal Energy Regulatory 

Commission, argued the cause for respondent. With him on the 

brief were James P. Danly, General Counsel, and Scott Ray 

Ediger, Attorney. Elizabeth E. Rylander, Attorney, entered an 

appearance.

Brian D. O’Neill argued the cause for intervenor. With him 

on the brief were Michael R. Pincus and Frances Bishop 

Morris.
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Before: GARLAND, Chief Judge, and TATEL and WILKINS, 

Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Residents and business owners have 

petitioned for review of the Federal Energy Regulatory 

Commission’s decision to authorize the construction and 

operation of a new natural gas compression facility in 

Davidson County, Tennessee. They argue that the Commission

violated the National Environmental Policy Act (NEPA) by 

failing to adequately assess alternatives and by failing to 

consider the environmental effects of increased gas production 

and consumption related to the project. For the reasons set forth 

below, we deny the petition.

I.

In early 2015, Tennessee Gas Pipeline Co. applied for a 

certificate of public convenience and necessity for the Broad 

Run Expansion Project. Designed to enhance the company’s 

capacity to transport pressurized natural gas through the 

interstate pipeline network to markets in the southeastern 

United States, the Project called for construction of several gas 

compression facilities in Kentucky, Tennessee, and West 

Virginia. The most controversial of these facilities—at least as 

far as petitioners are concerned—was Compressor Station 563, 

which Tennessee Gas proposed to build near petitioners’ 

Nashville homes and businesses.

The Commission completed an Environmental 

Assessment of the Project in March 2016 and issued a

certificate order later that year. Shortly thereafter, petitioners—

collectively referred to here as “Concerned Citizens” because 

of their affiliation with local advocacy group Concerned 
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Citizens for a Safe Environment—sought rehearing, arguing 

that the Commission violated NEPA in two ways: by 

inadequately evaluating alternatives to the Project and by 

failing to address reasonably foreseeable indirect 

environmental effects resulting from increased gas production 

“upstream” from the compressor station and increased gas 

combustion “downstream” from the facility.

The Commission denied the request for rehearing in June 

2018, see Tennessee Gas Pipeline Co., 163 FERC ¶ 61,190

(2018) (“Rehearing Order”), and Concerned Citizens timely 

petitioned for review, raising the same two challenges. 

II.

“[W]e apply [an] arbitrary and capricious standard [of 

review] to a NEPA challenge.” Nevada v. Department of 

Energy, 457 F.3d 78, 87 (D.C. Cir. 2006). Our role is not to 

“‘flyspeck’ an agency’s environmental analysis, looking for 

any deficiency no matter how minor,” id. at 93, but instead

“simply to ensure that the agency has adequately considered 

and disclosed the environmental impact of its actions and that 

its decision is not arbitrary or capricious,” Baltimore Gas & 

Electric Co. v. Natural Resources Defense Council, Inc., 462 

U.S. 87, 97–98 (1983). Accordingly, we ask whether the 

agency “examine[d] the relevant data and articulate[d] a 

satisfactory explanation for its action[,] including a rational 

connection between the facts found and the choice made.” 

Motor Vehicle Manufacturers Ass’n, Inc. v. State Farm Mutual 

Automobile Insurance Co., 463 U.S. 29, 43 (1983) (internal 

quotation marks omitted).

A.

The regulations implementing NEPA provide that an 

Environmental Assessment must briefly discuss “reasonable 
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alternatives to the proposed action” and compare the respective 

environmental impacts of each. Myersville Citizens for a Rural 

Community, Inc. v. FERC, 783 F.3d 1301, 1323 (D.C. Cir. 

2015) (citing 40 C.F.R. § 1508.9(b)). “[T]he discussion of 

environmental effects of alternatives need not be exhaustive. 

What is required is information sufficient to permit a reasoned 

choice . . . .” Natural Resources Defense Council, Inc. v. 

Morton, 458 F.2d 827, 836 (D.C. Cir. 1972).

Concerned Citizens first contend that the Commission 

acted arbitrarily and capriciously by selecting the proposed site 

for Compressor Station 563 over an allegedly environmentally 

superior alternative location. We disagree. The Environmental 

Assessment reflects that, in addition to Tennessee Gas’s 

proposed site, the Commission considered twelve 

alternatives—including Concerned Citizens’ favored site—and

evaluated each with respect to eighteen different environmental 

factors. Acknowledging that several factors weighed in favor 

of Concerned Citizens’ site, the Commission pointed out in the 

certificate order that other legitimate environmental factors

weighed in favor of the proposed site. The Commission 

explained that “[b]ased on [an] overall assessment of the 

various factors, which do not necessarily carry equal weight,

. . . [Concerned Citizens’] alternative site . . . does not have a 

significant advantage over the proposed site.” Tennessee Gas 

Pipeline Co., 156 FERC ¶ 61,157, at P 111 (2016) (“Certificate 

Order”). That explanation is sufficient under NEPA.

We also reject Concerned Citizens’ related claim that the

Commission violated NEPA by failing to consider the 

possibility that locating Compressor Station 563 at an 

alternative site more centrally located between two existing 

stations would enable Tennessee Gas to reduce emissions from 

the facility by forty percent. The Commission explained in its

rehearing order that any resulting “improvement in air quality 
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impacts” would “not be significant,” Rehearing Order, at P 26, 

because the Project as a whole would “not have a significant 

impact on regional air quality,” id. (citing Broad Run 

Expansion Project Environmental Assessment 

(“Environmental Assessment”) 104, Joint Appendix 321).

Because petitioners point to no record evidence that

undermines that conclusion, and because, as previously noted, 

the Commission identified certain other environmental factors 

that weigh in favor of the proposed site, we have no basis for 

saying that the Commission’s alternatives analysis was 

arbitrary or capricious.

Nor did the Commission err by placing some “weight upon 

avoidance of unnecessary use of eminent domain when 

analyzing alternatives to the proposed site.” Respondent’s Br. 

27. The Commission has long expressed a preference for 

minimizing the need for certificate holders to resort to eminent 

domain to acquire land for a given project. See, e.g., Florida 

Gas Transmission Co., 100 FERC ¶ 61,282, at P 27 n.16 (2002) 

(“Although a certificate confers the power of eminent domain 

on the certificate holder, the Commission much prefers that 

pipelines acquire sites for permanent, aboveground facilities 

from willing sellers without the need to rely on condemnation 

proceedings.”). And, notwithstanding Concerned Citizens’ 

assertion to the contrary, there is no indication that the 

Commission treated this factor as dispositive here. See

Rehearing Order, at P 25 (“[A]lthough site ownership is not 

dispositive, the avoidance of the need to exercise eminent 

domain is a relevant factor in evaluating the suitability of a site 

under consideration.” (emphasis added)). Under the 

circumstances of this case, the Commission’s selection of the 

proposed site was reasonable. NEPA requires nothing more.

We are similarly unpersuaded by petitioners’ contention 

that the Commission violated NEPA by failing to adequately 
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consider the option of building a smaller compressor station at 

the proposed site. The Commission addressed that possibility 

both in the certificate order and the rehearing order, explaining

that its engineering staff had reviewed the flow diagrams and 

hydraulic models submitted by Tennessee Gas and concluded 

that “Compressor Station 563[] [was] properly designed to 

provide the additional 200,000 Dth/d of incremental capacity 

proposed for the project.” Certificate Order, at P 17; see also 

Rehearing Order, at P 7 (reiterating that the Commission’s

engineering staff found that the Project, “including 

Compressor Station 563,” was “properly designed”). We 

decline Concerned Citizens’ invitation to second-guess the 

Commission’s informed conclusion on this highly technical 

point. See, e.g., Delaware Riverkeeper Network v. FERC, 753 

F.3d 1304, 1313 (D.C. Cir. 2014) (“Where an issue requires a 

high level of technical expertise, we defer to the informed 

discretion of the [Commission].” (alteration in original) 

(internal quotation marks omitted)).

B.

During the NEPA review process, the Commission “must 

consider not only the direct effects, but also the indirect

environmental effects” of a pipeline project. Sierra Club v. 

FERC, 867 F.3d 1357, 1371 (D.C. Cir. 2017). Indirect effects 

are those that “are caused by the action and are later in time or 

farther removed in distance, but are still reasonably 

foreseeable,” 40 C.F.R. § 1508.8(b), meaning that “they are 

sufficiently likely to occur [such] that a person of ordinary 

prudence would take [them] into account in reaching a 

decision,” Sierra Club, 867 F.3d at 1371 (second alteration in 

original) (internal quotation marks omitted). Here the 

Commission declined to consider the impacts of upstream gas 

production and downstream gas combustion, concluding 

instead that such impacts did not qualify as indirect effects. 
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Concerned Citizens claim that decision was both arbitrary and 

capricious and a violation of NEPA.

Heeding a famous and sensible instruction, we “[b]egin at 

the beginning” of the pipeline, with the challenge to the

Commission’s failure to consider the impacts of upstream gas 

production. Lewis Carroll, Alice’s Adventures in Wonderland

142 (Edmund R. Brown ed., International Pocket Library 1936) 

(1865). At oral argument, the Commission conceded that there 

may well be instances in which upstream gas production is both 

reasonably foreseeable and sufficiently causally connected to a 

pipeline project to qualify as an indirect effect. See Oral Arg. 

Rec. 38:26–39:29. But according to the Commission, unless 

the record demonstrates that the proposed project represents the 

only way to get additional gas “from a specified production 

area” into the interstate pipeline system, Certificate Order, at P

68, no such “reasonably close causal relationship” exists, id. at 

P 65 (internal quotation marks omitted); see also id. at P 68 

(explaining the Commission’s position that gas production is 

sufficiently causally connected to a pipeline project only if 

“there will be no . . . way to move the gas” from a given

production area in the absence of the proposed project). 

The record in this case, the Commission contends, is 

devoid of the information necessary to establish that causal 

relationship. And even assuming causation, the Commission 

continues, the environmental effects of any upstream gas 

production induced by this project would not be reasonably 

foreseeable because the source area for the gas to be 

transported is ill-defined and “the number or location of any 

additional wells are matters of speculation.” Id. at P 82. 

Commissioner LaFleur, who concurred in the rehearing order,

suggested that “[o]ne reason the Commission lacks the 

specificity of information to determine causation and 

reasonable foreseeability is because we have not asked
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applicants to provide this sort of detail.” Rehearing Order, 2018 

WL 2986387, *21 n.184 (LaFleur, Comm’r, concurring)

(emphasis added). According to the Commission, however,

asking for such information “would be an exercise in futility,” 

because the applicants themselves are unlikely to have it. Id. at 

P 60. Concerned Citizens have failed to either persuasively 

rebut the Commission’s analysis or meaningfully dispute its

assertion of futility. 

To begin with, Concerned Citizens have identified no

record evidence that would help the Commission predict the 

number and location of any additional wells that would be 

drilled as a result of production demand created by the Project.

Moreover, although they suggest that Antero, the natural gas 

producer and shipper that has contracted with Tennessee Gas 

for the Project’s extra transportation capacity, “would not 

extract and produce [the] gas” in the absence of the Project

“because it would not have the ability to bring the gas to 

market,” Petitioners’ Br. 41, Concerned Citizens cite no

evidence supporting that allegation. Instead, they merely point 

to the Commission’s determination that there is a “need” for 

the Project “based on the fact that Tennessee [Gas] has 

executed a binding precedent agreement for . . . 100 percent of 

the design capacity.” Certificate Order, at P 17. We have 

repeatedly held that a project applicant may demonstrate

market need “by presenting evidence of preconstruction 

contracts for gas transportation service.” Sierra Club, 867 F.3d 

at 1379 (internal quotation marks omitted)). But just because 

the Commission is satisfied there is a market need for a given 

project does not necessarily mean that a shipper/producer 

“would not have the ability to bring the gas to market” via 

another channel were the Commission to deny a certificate for 

the project. Petitioners’ Br. 41. And although we are dubious 

of the Commission’s assertion that asking Tennessee Gas to 

provide additional information about the origin of the gas 
9

would be futile, Concerned Citizens nowhere claim that the 

Commission’s failure to seek out additional information 

constitutes a violation of its obligations under NEPA. We are 

thus left with no basis for concluding that the Commission

acted arbitrarily or capriciously or otherwise violated NEPA in 

declining to consider the environmental impacts of upstream 

gas production.

This brings us to the other end of the pipeline and to 

whether the Commission reasonably declined to consider 

greenhouse-gas emissions and other environmental impacts 

related to downstream gas consumption. The parties’ dispute 

on this point centers largely on the breadth of our court’s 2017

decision in Sierra Club v. FERC. In that case, we held that 

downstream greenhouse-gas emissions resulting from the 

combustion of natural gas were a reasonably foreseeable 

indirect effect of a pipeline project designed to transport gas to 

certain power plants in Florida. See Sierra Club, 867 F.3d at

1371–72.

According to Concerned Citizens, the Commission’s 

refusal to quantify or otherwise consider downstream 

emissions related to the Broad Run Expansion Project directly 

contravenes Sierra Club, which they characterize as standing 

for the general proposition that combustion-related emissions 

are necessarily a reasonably foreseeable indirect effect of a 

pipeline project that “must be considered and quantified by the 

Commission under NEPA.” Petitioners’ Reply Br. 17.

For its part, the Commission contends that far from 

“establishing a bright-line rule that [it] must evaluate 

downstream . . . greenhouse gas emissions in all 

circumstances,” Sierra Club is narrowly limited to the facts of 

that case. Respondent’s Br. 34–35. The Commission 

emphasizes that in Sierra Club, “the destination and use of the 
10

gas were actually known.” Id. at 35. For that reason, and for 

that reason only, the Commission says, “it was reasonably 

foreseeable that the gas would be burned by those power plants 

and produce new greenhouse gas emissions at their respective 

locations.” Id. Here, as the Commission sees it, the 

circumstances are markedly different because the destination 

and the end user (or users) remain a mystery; all that is known

is that the gas is headed somewhere in the Southeast. As a 

result, the Commission claims, it is impossible to assess 

whether the Project will result in increased emissions overall 

or offset emissions by reducing demand for other (perhaps 

dirtier) fuel sources. According to the Commission, then,

unlike in Sierra Club, “[a]ny attempt to quantify 

downstream . . . emissions on the record before us” in this case

“would result in a number so imprecise as to be meaningless.”

Rehearing Order, at P 61.

Neither side has it exactly right. As an initial matter, the 

Commission is wrong to suggest that downstream emissions 

are not reasonably foreseeable simply because the gas 

transported by the Project may displace existing natural gas 

supplies or higher-emitting fuels. Indeed, that position is a total 

non-sequitur: as we explained in Sierra Club, if downstream 

greenhouse-gas emissions otherwise qualify as an indirect 

effect, the mere possibility that a project’s overall emissions

calculation will be favorable because of an 

“offset . . . elsewhere” does not “excuse[]” the Commission 

“from making emissions estimates” in the first place. 867 F.3d 

at 1374–75. For their part, Concerned Citizens go too far to the 

extent they claim emissions from downstream gas combustion 

are, as a categorical matter, always a reasonably foreseeable 

indirect effect of a pipeline project. See Calvert Cliffs’ 

Coordinating Committee, Inc. v. U.S. Atomic Energy 

Commission, 449 F.2d 1109, 1122 (D.C. Cir. 1971) (“NEPA

compels a case-by-case examination . . . of discrete factors.”). 
11

But contrary to the Commission’s position, Sierra Club hardly 

suggests that downstream emissions are an indirect effect of a 

project only when the project’s “entire purpose” is to transport 

gas to be burned at “specifically-identified” destinations. 

Respondent’s Br. 35. Indeed, the Commission itself backed 

away from this extreme position during oral argument in 

Otsego 2000, a companion case heard the same day as this one. 

See Oral Arg. Rec. 25:48–26:27, Otsego 2000 v. FERC, No. 

18-1188 (D.C. Cir. Apr. 11, 2019) (acknowledging that

whether downstream greenhouse-gas emissions qualify as an 

indirect effect “has to be [decided] on a case-by-case basis 

because every one of these projects is different” and declining 

“to draw a line that . . . is not mandated by the Court”). Sierra 

Club therefore falls short of resolving this case in favor of 

either party.

The Commission suggests an alternative justification: that 

it need not consider downstream greenhouse-gas emissions if

it “‘cannot be considered a legally relevant cause’” of such

emissions due to its lack of jurisdiction over any entity other

than the pipeline applicant. Respondent’s Br. 37 (quoting 

Department of Transportation v. Public Citizen, 541 U.S. 752, 

770 (2004)); see also Apr. 15, 2019 Letter from the 

Commission (“[T]he Commission continues to take the 

position that . . . jurisdictional limitations in the Natural Gas 

Act break the causal chain for NEPA purposes in most 

circumstances.” (internal quotation marks omitted)). But this 

line of reasoning gets the Commission nowhere. Although it is 

true that “[a]n agency has no obligation to gather or consider 

environmental information if it has no statutory authority to act 

on that information,” in the pipeline certification context the 

Commission does have statutory authority to act. Sierra Club, 

867 F.3d at 1372. As we explained in Sierra Club, “Congress 

broadly instructed the [Commission] to consider ‘the public 

convenience and necessity’ when evaluating applications to 
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construct and operate interstate pipelines.” Id. at 1373 (quoting 

15 U.S.C. § 717f(e)). Because the Commission may therefore

“deny a pipeline certificate on the ground that the pipeline 

would be too harmful to the environment, the agency is a 

‘legally relevant cause’ of the direct and indirect environmental 

effects of pipelines it approves”—even where it lacks

jurisdiction over the producer or distributor of the gas 

transported by the pipeline. Id. Accordingly, the Commission 

is “not excuse[d] . . . from considering these indirect effects” 

in its NEPA analysis. Id.

We are left, then, to decide whether the Commission acted 

reasonably in declining to consider greenhouse-gas emissions 

and other environmental impacts from downstream gas 

combustion in this particular case. We are troubled, as we were 

in the upstream-effects context, by the Commission’s attempt 

to justify its decision to discount downstream impacts based on 

its lack of information about the destination and end use of the 

gas in question. See, e.g., Rehearing Order, at P 61 (“The 

Commission does not know where the gas will ultimately be 

consumed or what fuels it will displace, and likely neither does 

the entity over which the Commission has jurisdiction . . . .”). 

“NEPA analysis necessarily involves some ‘reasonable 

forecasting,’ and . . . agencies may sometimes need to make 

educated assumptions about an uncertain future.” Sierra Club, 

867 F.3d at 1374 (quoting Delaware Riverkeeper Network, 753 

F.3d at 1310)). It should go without saying that NEPA also 

requires the Commission to at least attempt to obtain the 

information necessary to fulfill its statutory responsibilities.

See Delaware Riverkeeper Network, 753 F.3d at 1310 (“While 

the statute does not demand forecasting that is not 

meaningfully possible, an agency must fulfill its duties to the 

fullest extent possible.” (internal quotation marks omitted));

see also Barnes v. U.S. Department of Transportation, 655 

F.3d 1124, 1136 (9th Cir. 2011) (“While foreseeing the 
13

unforeseeable is not required, an agency must use its best 

efforts to find out all that it reasonably can.” (internal quotation 

marks omitted)).

In this case, the Commission made no effort to obtain the 

missing information from Tennessee Gas. As Commissioner 

Glick observed in his partial dissent from the rehearing order, 

“[i]n deeming an entire category of potential consequences not 

reasonably foreseeable and any inquiry into the matter an 

‘exercise in futility,’ the Commission excuses itself from 

making any effort to develop [the] record in the first place.”

Rehearing Order, 2018 WL 2986387, at *22 (Glick, Comm’r, 

dissenting in part). Despite initially attempting, once again, to 

invoke the limited nature of its jurisdiction in order “to point 

out that there are limitations to [its] ability to ask” for the 

necessary information, the Commission ultimately conceded 

during oral argument that its lack of jurisdiction over shippers,

distributors, and end users “doesn’t preclude or foreclose” it 

from further developing the record by requesting additional 

data from the project applicant. Oral Arg. Rec. 27:39–29:50.

Although the Commission asserts that the project applicant 

itself is unlikely to possess the needed information, we are 

skeptical of any suggestion that a project applicant would be 

unwilling or unable to obtain it if the Commission were to ask 

for such data as part of the certificate application process. In 

fact, when we asked counsel for Tennessee Gas during oral 

argument “what would have happened if the Commission . . . , 

as part of your application,” had requested that “you . . . ask the 

shipper/marketer where the gas is coming from,” he replied that 

the company “would have gone to Antero [the shipper] and 

posed the question.” Oral Arg. Rec. 41:37–56. “When the 

regulator asks us questions,” counsel explained, “we generally 

answer them as promptly as possible and as completely as 

possible.” Id. at 43:01–08.
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Despite our misgivings regarding the Commission’s 

decidedly less-than-dogged efforts to obtain the information it 

says it would need to determine that downstream greenhousegas emissions qualify as a reasonably foreseeable indirect 

effect of the Project, Concerned Citizens failed to raise this

record-development issue in the proceedings before the 

Commission. We therefore lack jurisdiction to decide whether 

the Commission acted arbitrarily or capriciously and violated 

NEPA by failing to further develop the record in this case. See 

15 U.S.C. § 717r(b) (“No objection . . . shall be considered by 

the court unless such objection shall have been urged before 

the Commission in the application for rehearing unless there is 

reasonable ground for failure so to do.”). Therefore, taking the 

record as it currently stands, we have no basis for concluding

that the Commission acted unreasonably in declining to 

evaluate downstream combustion impacts as part of its indirect 

effects analysis.

III.

For the foregoing reasons, we deny Concerned Citizens’ 

petition for review.

So ordered.