United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 19, 2016 Decided July 15, 2016

No. 15-1127

EARTHREPORTS, INC., DOING BUSINESS AS PATUXENT

RIVERKEEPER, ET AL.,

PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

DOMINION COVE POINT LNG, LP, ET AL.,

INTERVENORS

On Petition for Review of Orders of

the Federal Energy Regulatory Commission

Deborah Goldberg argued the cause for petitioner

EarthReports, Inc., et al. With her on the briefs were Moneen

Nasmith and Anne Havemann.

Hope M. Babcock, Daniel H. Lutz, and Sarah J. Fox were

on the brief for amici curiae Waterkeepers Chesapeake, et al. in

support of petitioners EarthReports, Inc., et al.

Karin L. Larson, Attorney, Federal Energy Regulatory

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

brief were Robert H. Solomon, Solicitor, and Susanna Y. Chu,
2

Attorney. Lisa B. Luftig, Attorney, entered an appearance.

Catherine E. Stetson argued the cause for intervenors

Dominion Cove Point LNG, LP and Statoil Natural Gas, LLC. 

With her on the brief were J. Patrick Nevins, Sean Marotta, and

Kirstin E. Gibbs. Christopher M. Heywood entered an

appearance.

Ben Norris argued the cause for respondent-intervenor

American Petroleum Institute. With him on the brief were John

Longstreth, David L. Wochner, and Stacy Linden.

Before: ROGERS, GRIFFITH and KAVANAUGH, Circuit

Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Several environmental

organizations petition for review of the Federal Energy

Regulatory Commission’s conditional authorization of the

conversion of the Cove Point liquefied natural gas (“LNG”)

facility from an import maritime terminal to a mixed-use, import

and export terminal. Petitioners contend that the Commission

failed to consider several possible environmental impacts that

the Cove Point conversion project may have, and thus did not

satisfy its obligations under the National Environmental Policy

Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq. We deny the

petition. For the reasons set forth in Sierra Club v. FERC

(Freeport), No. 14-1275, 2016 WL 3524262 (D.C. Cir. June 28,

2016), the Commission was not required under NEPA to

consider indirect effects of increased natural gas exports through

the Cove Point facility, including climate impacts. Petitioners’

remaining challenges — to the Commission’s NEPA analysis

of the impacts of ballast water on water quality, maritime traffic

on the North Atlantic right whale, and the Cove Point facility’s
3

operations on public safety — fail to show that the Commission

did not adequately address these concerns.

I.

The Cove Point LNG facility is located in Maryland on the

western shore of the Chesapeake Bay. It is owned by Dominion

Cove Point LNG, LP. The facility was originally constructed to

serve as an import terminal for maritime LNG shipments: Cove

Point would receive maritime shipments of LNG, vaporize the

LNG into conventional natural gas, and transport it through a

dedicated pipeline to facilities in Virginia. From there, the

natural gas could be transferred into national pipeline networks

for delivery to consumers. Due to changes in market conditions,

Cove Point was largely dormant from 1980 until 1994. In 1994,

the Commission authorized the reactivation of Cove Point’s

vaporization and storage facilities and the construction of a

liquefaction facility that could turn conventional natural gas into

LNG for storage. See Cove Point LNG Ltd. Partnership, 68

F.E.R.C. ¶ 61,377 (1994). A further reactivation of Cove

Point’s import terminal facilities was authorized in 2001, see

Cove Point LNG Ltd. Partnership, 97 F.E.R.C. ¶ 61,043 (2001),

and projects to expand and modernize its facilities were

authorized in 2006 and 2009, see Dominion Cove Point LNG,

LP, 128 F.E.R.C. ¶ 61,037 (2009), on reh’g, 129 F.E.R.C. ¶

61,137 (2009); Dominion Cove Point LNG, LP, 115 F.E.R.C. ¶

61,337 (2006), on reh’g, 118 F.E.R.C. ¶ 61,007 (2007). 

In April 2013, Dominion filed an application for

authorization to convert its Cove Point LNG facility from a

facility for maritime LNG imports to a dual-use facility for

maritime LNG exports and imports. It sought authorization to

construct and operate liquefaction facilities for the export of

LNG under section 3 of the Natural Gas Act (“NGA”), 15

U.S.C. § 717b, and pipeline-related compressor facilities for the
4

transport of the natural gas under NGA § 7, id. § 717f. The

project called for the construction of an additional liquefaction

facility within the Cove Point facility’s existing footprint as well

as modifications to Cove Point’s marine terminal facilities and

compressors on its dedicated pipeline in Virginia. The project

did not include the addition of any LNG storage tanks or any

increase in the size or frequency of LNG marine traffic

previously authorized for the Cove Point LNG terminal. 

Under the NGA, regulatory oversight for the export of LNG

and supporting facilities is divided between the Commission and

the Department of Energy (“DOE”). Section 3(a) of the NGA,

15 U.S.C. § 717b(a), bars exportation of any natural gas from

the United States to a foreign country without “first having

secured an order . . . authorizing it to do so.” In 1977, Congress

transferred the regulatory functions of NGA § 3 to DOE. See 42

U.S.C. § 7151(b). DOE, in turn, delegated to the Commission 

authority to approve or deny an application for the siting,

construction, expansion, or operation of a LNG terminal, 15

U.S.C. § 717b(e), while retaining exclusive authority over the

export of natural gas as a commodity, id. § 717b(a). See DOE

Delegation Order No. 00-004.00A (effective May 16, 2006); see

also 42 U.S.C. § 7172(e). Section 7 of the NGA vests the

Commission with authority over the construction and operation

of interstate natural gas pipelines and related facilities. See 15

U.S.C. § 717f(c)(1)(A); see also 42 U.S.C. §§ 7151(b) &

7172(a)(1); Consol. Edison Co. of N.Y., Inc. v. FERC, 315 F.3d

316, 319 (D.C. Cir. 2003). Under NGA § 3, an LNG proposal

“shall” be authorized unless the proposal “will not be consistent

with the public interest[,]” 15 U.S.C. § 717b(a), while under

NGA § 7 a finding must be made that a proposal “is or will be

required by the present or future public convenience and

necessity[,]” id. § 717f(e); NGA § 3, unlike § 7, “sets out a

general presumption favoring such authorization.” W. Va. Pub.

Servs. Comm’n v. Dep’t of Energy, 681 F.2d 847, 856 (D.C. Cir.
5

1982).

NEPA requires federal agencies to include an

environmental impact statement (“EIS”) in “every

recommendation or report on proposals for . . . major Federal

actions significantly affecting the quality of the human

environment . . . .” 42 U.S.C. § 4332(2)(C); see also 40 C.F.R.

§ 1508.11. Under regulations promulgated by the Council on

Environmental Quality, agencies whose procedures do not

require preparation of an EIS must first prepare an

environmental assessment. See 40 C.F.R. § 1501.4. An

environmental assessment “[b]riefly provide[s] sufficient

evidence and analysis for determining whether to prepare an

[EIS][,]” including discussion of “the environmental impacts of

the proposed action and alternatives.” Id. § 1508.9. Such

assessments are to include consideration of both “[i]ndirect

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

farther removed in distance, but are still reasonably

foreseeable,” id. § 1508.8(b), and the “[c]umulative impact” that

“results from the incremental impact of the action when added

to other past, present, and reasonably foreseeable future

actions[,]” id. § 1508.7. If the agency concludes on the basis of

the environmental assessment that an EIS is not required

because the proposed actions “will not have a significant effect

on the human environment[,]” it must issue a finding of no

significant impact (“FONSI”) to fulfill NEPA’s documentation

requirements. Id. § 1508.13; see id. §§ 1501.4(e) &

1508.9(a)(1); Taxpayers of Mich. Against Casinos v. Norton,

433 F.3d 852, 857 (D.C. Cir. 2006). Congress has designated

the Commission as “the lead agency for the purposes of

coordinating all applicable Federal authorizations and for the

purposes of complying with [NEPA].” 15 U.S.C. § 717n(b)(1);

see also 42 U.S.C. § 7172(a)(2).
6

The Commission devoted almost two years to preparing an 

environmental assessment of over 200 pages for the Cove Point

expansion project. See Office of Energy Projects, Fed. Energy

Regulatory Comm’n, Environmental Assessment for the Cove

Point Liquefaction Project (May 2014) (“Environmental

Assessment”). (In June 2012, Dominion had obtained

authorization from the Commission to begin pre-filing

procedures for a proposed project to convert the Cove Point

LNG facility to a dual-use facility so as to obtain timely review

and approval of its application.) Commission staff reviewed

numerous public comments, including petitioners’, and

considered the direct, indirect, and cumulative impacts of new

liquefaction facilities at Cove Point and the modification of

pipeline and related facilities in Virginia. The Environmental

Assessment prepared by Commission staff concluded that the

Cove Point conversion project “would not constitute a major

federal action significantly affecting the quality of the human

environment,” provided Dominion complied with specific

mitigation measures, and recommended that the Commission

issue a FONSI. Id. at 186–198.

Following another period of public comment, the

Commission adopted the Environmental Assessment’s findings,

issued a FONSI, and conditionally authorized the Cove Point

conversion project. See Dominion Cove Point LNG, LP, 148

F.E.R.C. ¶ 61,244 at P 281 (2014) (“2014 Authorization

Order”). The Commission determined that an EIS was not

required because the new facilities would be “within the

footprint of the existing LNG terminal,” and the environmental

issues were “relatively small in number and well-defined.” Id.

¶ 275. Petitioners, among others, requested rehearing and

moved for a stay. On rehearing, the Commission rejected

petitioners’ challenges to the FONSI and denied requests for a

stay as moot. See Dominion Cove Point LNG, LP, 151 F.E.R.C.

¶ 61,095 at PP 82, 86 (2015) (“Rehearing Order”). Petitioners
7

petition for review of the authorization and rehearing orders; the

court denied the request for an emergency stay, see Order, No.

15-1127 (June 12, 2015).

Meanwhile, the Commission advises, DOE conditionally

granted Dominion’s request for NGA § 3 authorization to export

LNG through Cove Point, in 2011, to countries with which the

United States has a free-trade agreement, and in 2013, to nonfree trade nations. See Resp’t’s Br. 23. DOE completed its

environmental review in 2015 and conditionally approved the

exports. Id. at 23-24; see Office of Fossil Energy, U.S. Dep’t of

Energy, Opinion and Order Denying Request for Rehearing of

Order Granting Long-Term, Multi-Contract Authorization to

Export Liquefied Natural Gas by Vessel from the Cove Point

LNG Terminal in Calvert County, Maryland, to Non-Free Trade

Agreement Nations (Dkt. No. 11-128-LNG) (Apr. 18, 2016) at

4-8. 

II.

Petitioners contend that the Commission, contrary to its

NEPA obligations, failed to take a hard look at several possible

environmental impacts that could result from the Cove Point

conversion project. In their view, the Commission’s review

should have included the impacts of the increased domestic

natural gas production that will result from the exports passing

through the converted Cove Point facility, as well as the climate

impact of emissions from the production, transport, and

consumption of the exported natural gas. In addition, petitioners

contend that the Commission failed to adequately consider

several direct effects of the conversion project: the impacts of

ballast water on water quality, maritime shipping on the North

Atlantic right whale, and the modified Cove Point facility’s

operations on public safety. The Commission responds that it

correctly concluded that the former are not within the scope of
8

NEPA because they are not reasonably foreseeable

consequences of the conversion project, and that it adequately

addressed the latter.

Our review of the Commission’s compliance with NEPA is

limited to determining whether its NEPA analysis was

“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” Nat’l Comm. for the New River, Inc. v.

FERC, 373 F.3d 1323, 1327 (D.C. Cir. 2004) (quoting 5 U.S.C.

§ 706(2)(A)). Review is intended to ensure that the agency

“t[ook] a ‘hard look’ at the environmental consequences before

taking a major action[,]” and “adequately considered and

disclosed the environmental impact of its actions . . . .” Balt.

Gas & Elec. Co. v. NRDC, Inc., 462 U.S. 87, 97-98 (1983). 

“[A]s long as the agency’s decision is fully informed and wellconsidered, it is entitled to judicial deference and a reviewing

court should not substitute its own policy judgment.” NRDC,

Inc. v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988) (internal

quotation omitted). 

A.

Petitioners’ primary contention is that the Commission

unlawfully refused to consider the indirect effects that the Cove

Point conversion project will have by inducing greater natural

gas exports. Such exports, they maintain, will lead to increased

U.S. domestic production of natural gas in areas like the

Marcellus shale region in the northeast United States, which in

turn will lead to increased extraction through hydraulic

fracturing, pipeline development, and other activities with a

substantial adverse environmental effect. Increased exports,

they maintain, will result in additional greenhouse gas emissions

from the production, transmission, and consumption of any

newly exported natural gas, which in turn will contribute to

climate change. The Commission declined to consider upstream

domestic natural gas production in its NEPA review because it
9

was “not sufficiently causally related” to the Cove Point

conversion project and was “speculative and not reasonably

foreseeable[,]” and concluded “[t]he same principle holds true

for potential downstream [greenhouse gas] emissions.” 2014

Authorization Order, ¶¶ 228, 246. 

Petitioners’ contentions here are similar, if not identical, to

those addressed in Sierra Club (Freeport), 2016 WL 3524262. 

There petitioners also contended that the Commission had failed

to give adequate consideration under NEPA to the indirect

effects of a different proposed LNG project, which petitioners

maintained would facilitate greater LNG exports and thereby

induce increased domestic gas production and prompt greater

domestic reliance on coal as a fuel source. See id. at *6. 

Looking to Department of Transportation v. Public Citizen, 541

U.S. 752 (2004), the court emphasized that the Commission was

not required to “examine everything for which the [project]

could conceivably be a but-for cause” in order to satisfy NEPA. 

Sierra Club (Freeport), 2016 WL 3524262, at *6 (citing Pub.

Citizen, 541 U.S. at 767; Village of Bensenville v. FAA, 457 F.3d

52, 65 (D.C. Cir. 2006)). Instead, to warrant consideration

under NEPA, an effect had to be “sufficiently likely to occur

that a person of ordinary prudence would take it into account in

reaching a decision.” Id. (quoting City of Shoreacres v.

Waterworth, 420 F.3d 440, 453 (5th Cir. 2005) (quoting Sierra

Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992))). The court

held:

[T]he Commission’s NEPA analysis did not have to

address the indirect effects of the anticipated export of

natural gas . . . because [DOE], not the Commission,

has sole authority to license the export of any natural

gas going through the Freeport facilities. In the

specific circumstances where, as here, any agency “has

no ability to prevent a certain effect due to” that
10

agency’s “limited statutory authority over the relevant

action[],” then that action “cannot be considered a

legally relevant ‘cause’ of the effect” for NEPA

purposes.

Id. at *7 (quoting Pub. Citizen, 541 U.S. at 771). The court

reached the same conclusion, citing Sierra Club (Freeport), in

the related case of Sierra Club v. FERC (Sabine Pass), No. 14-

1249, 2016 WL 3525562 (D.C. Cir. June 28, 2016), and rejected

almost identical contentions regarding the indirect effects of

increasing a different LNG terminal’s production capacity. See

id. at *5-6. We do so here as well.

Petitioners’ contentions regarding the indirect effect of

increased exports on upstream natural gas production resemble

those rejected in Sierra Club (Freeport) and Sierra Club (Sabine

Pass). And while those cases did not address whether NEPA

reaches the effects of emissions arising from the transport and

consumption of exported natural gas, this indirect effect

similarly “cannot occur unless a greater volume of [LNG] is

shipped from [Cove Point] and enters the international

marketplace.” Sierra Club (Sabine Pass), 2016 WL 3525562,

at *5. Because “[DOE] alone has the legal authority to authorize

[Dominion] to increase commodity exports of liquefied natural

gas[,]” the challenged orders here too “are not the legally

relevant cause of the[se] indirect effects” and “the Commission

did not need to consider [them] in its NEPA review.” Id. As in

Sierra Club (Freeport) and Sierra Club (Sabine Pass), 

petitioners “remain[] free to raise these issues in a challenge to

the [DOE’s] NEPA review of its export decision.” Id. 

One aspect of petitioners’ challenge, however, does not

stem from increased natural gas exports, namely the

Commission’s failure to use “social cost of carbon” analysis or

a similar analytical tool to analyze the environmental impacts of
11

greenhouse gas emissions from the construction and operation

of the converted Cove Point facilities. The Commission

acknowledged the availability of the “social cost of carbon” tool,

but, in its opinion concluded that, “it would not be appropriate

or informative to use for this project” for three reasons: the lack

of consensus on the appropriate discount rate leads to

“significant variation in output[,]” the tool “does not measure

the actual incremental impacts of a project on the

environment[,]” and “there are no established criteria identifying

the monetized values that are to be considered significant for

NEPA purposes.” Rehearing Order, ¶ 54. Petitioners’ response,

that the Commission should have “present[ed] values calculated

with the full range of rates” or “disclosed the limitations of the

tool[,]” Pet’rs’ Reply Br. 15-16, belies their contention that the

Commission acted unreasonably in finding the tool inadequately

accurate to warrant inclusion under NEPA. As for using other

tools, the Commission observed that “there is no standard

methodology to determine how a project’s incremental

contribution to [greenhouse gas emissions] would result in

physical effects on the environment, either locally or globally.” 

2014 Authorization Order, ¶ 246; see Environmental

Assessment at 171. Although petitioners take a different

position, they identify no method other than the “social cost of

carbon” tool that the Commission could have used. Hence,

petitioners provide no reason to doubt the reasonableness of the

Commission’s conclusion. See WildEarth Guardians v. Jewell,

738 F.3d 298, 309-12 (D.C. Cir. 2013). 

B.

Petitioners’ remaining challenges to the adequacy of the

Commission’s NEPA analysis are unpersuasive because, as

discussed infra, the Commission fulfilled its NEPA obligations

by adequately considering petitioners’ concerns.
12

1. Ballast Water. Petitioners contend that the Commission

“arbitrarily minimized” the impact that the unloading of ballast

water by maritime vessels taking on LNG at the Cove Point

facility may have on local water quality, particularly through the

introduction of foreign invasive species. Pet’rs’ Br. 47. The

Commission acknowledged these risks and concluded that “the

currently-required measures for all ships entering U.S. waters,

including offshore ballast water exchange, provide best

management practices to minimize risks from invasive species

and contamination from non-U.S. ports” and that “new rules and

discharge standards approved by the Coast Guard would further

minimize” these risks. 2014 Authorization Order, ¶ 128; see 

Rehearing Order, ¶ 72; Environmental Assessment at 53-54. 

Petitioners object that the new Coast Guard regulations will

not be in effect by the time the conversion project is complete. 

See Pet’rs’ Br. 47-48. Citing expert opinion, they note that

existing measures are “limited in [] ability to reduce the risk of

ballast water invasive species” and that the introduction of such

species could pose substantial risks to the local ecosystem as

well as the operation of a nearby nuclear power plant. Id. at 48

(quoting Letter from Dr. Mario Tamburri, Dir., Mar. Envtl.

Research Ctr., Research Professor, Chesapeake Biological Lab.

UMCES (June 2, 2014) at 2). The Commission recognized the

timeline for implementing the new Coast Guard regulations and

concluded that existing measures are adequate, explaining that

“[w]hether the regulations are updated in 2016 or at some point

in the future, Dominion’s operators will be subject to the most

recent regulations” and that, particularly as “Maryland does not

currently require more stringent standards than the federal

ballast water program, the Commission has no grounds to

presume the established regulations are not satisfactory . . . .” 

Rehearing Order, ¶¶ 72-74. The Commission acknowledged Dr.

Tamburri’s analysis and found unfeasible the onshore ballast

water collection and treatment process he recommended because
13

Dominion “does not own or control the LNG carriers visiting the

terminal” and thus cannot “requir[e] adaptations to the vessels

to allow for pumping ballast water into an onshore system[,]”

among other reasons. 2014 Authorization Order, ¶¶ 126, 130. 

Petitioners, in their Reply Brief, criticize an analysis by a

Maryland state agency that the Commission cited in authorizing

the conversion project for failing to take account of the

difference in ballast water effects that vessels receiving as

opposed to unloading LNG are likely to have. The

Environmental Assessment, however, described that “[d]uring

the LNG transfer process, LNG ships would discharge ballast

water . . . .” Environmental Assessment at 53. On rehearing,

the Commission made clear that it did not rely solely on that

state agency’s analysis in reaching its conclusion. See

Rehearing Order, ¶ 72. 

To the extent petitioners view the Commission’s statement

that “[i]t is outside of [its] jurisdiction and expertise to

promulgate regulations or invent best management practices

regarding ballast water exchange and invasive species

control[,]” id., ¶ 74, to be an abdication of responsibility, see

Pet’rs’ Br. 49-50, we disagree. Rather, it represents the

Commission’s reasonable assessment that having “fairly

evaluated” possible environmental impacts of ballast water, it

had “no grounds” for requiring more stringent conditions than

those required by the Coast Guard and the state of Maryland. 

Rehearing Order, ¶ 74. The cases cited by petitioners are

distinguishable because the agencies deferred to another

agency’s assessment without independently evaluating the

relevant impacts. See Del. Dep’t of Nat. Res. & Envtl. Control

v. EPA, 785 F.3d 1, 16 (D.C. Cir. 2015); New York v. Nuclear

Regulatory Comm’n, 681 F.3d 471, 481 (D.C. Cir. 2012).
14

2. North Atlantic Right Whale. Petitioners also contend

that the Commission “refused to analyze,” Pet’rs’ Br. 50, the

possible impact of maritime traffic on the North Atlantic right

whale, which petitioners characterize as “so critically

endangered that the loss of even one individual could threaten

the recovery of the entire population.” Id. But the Commission

acknowledged the threat that maritime traffic can pose to such

creatures and concluded that the Cove Point conversion project

did not affect those risks because the Commission was not

authorizing any maritime traffic over previously authorized

levels already addressed by existing mitigation measures. See

Rehearing Order, ¶¶ 75-78; 2014 Authorization Order, ¶ 142;

Environmental Assessment at 71-72. 

Petitioners criticize the Commission — as well as the

National Oceanic and Atmospheric Administration (“NOAA”)

with which it consulted — for relying on a 2007 study prepared

in connection with prior Cove Point authorizations. They

maintain the study is outdated and does not reflect subsequent

changes, including maritime traffic and coastal development,

and that the Commission should have supplemented the study. 

On rehearing, the Commission stated its “staff and NOAA,

during the informal consultation process, reviewed the previous

extensive analyses for past Cove Point projects,” namely, the

2006 expansion project and the 2009 pier reenforcement project.

Rehearing Order, ¶ 76. They “did not find a significant

difference in the type of impacts and available mitigation

measures associated with the project that would necessitate a

change in the previous determination of effect for the North

Atlantic right whale.” Id. NEPA regulations encourage

“tiering” of environmental studies where they address the same

subject. See 40 C.F.R. § 1502.20. Further, the Commission

concluded that its earlier analysis “adequately characterizes the

threat of impact on the North Atlantic right whale” from changes

in climate and development, and that “in the review of future
15

threats . . . NOAA will direct appropriate measures to protect the

species” with which Dominion would be obligated to comply. 

Rehearing Order, ¶ 78. Petitioners point to nothing to question

the reasonableness of the Commission’s conclusion that its

earlier analyses sufficiently anticipated the changes they

identified and remain adequate to address the risks to the North

Atlantic right whale. The Commission, thus, did not act

arbitrarily and capriciously in relying on them. See Theodore

Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 510-12

(D.C. Cir. 2010).

3. Public Safety. Petitioners further contend that the

Commission failed to adequately consider several threats to

public safety, including the intensity of the impact that a

catastrophic incident might have given what petitioners view as

an under-sized footprint for the Cove Point facility and its

proximity to nearby residences. For its part, the Commission

discussed public safety concerns at length and made its

conditional authorization subject to several safety-related

conditions, including compliance with relevant federal, state,

and local requirements and coordinating with relevant agencies. 

See 2014 Authorization Order, ¶¶ 184-217; Rehearing Order,

¶¶ 66-69; Environmental Assessment at 123-59. 

Petitioners’ primary public safety-related concern is that the

Commission failed to adequately account for the fact that the

Cove Point facility will handle dangerous chemicals on what

petitioners view as a small footprint proximate to residential

areas, which they maintain amplifies the possible effects of any

safety incident. The Commission acknowledged public safety

concerns because “toxic and flammable chemicals would be

trucked to and from the facility[,]” “LNG storage tanks . . . are

a safety hazard to nearby homes in the event of a . . . rupture[,]”

and “the evacuation route is adjacent to the facility[,]” and

identified various safety measures addressing each. 2014
16

Authorization Order, ¶¶ 200, 205-06. The Environmental

Assessment included a detailed overview of the facility and its

environs, noting the Cove Point facilities would be “situated

within a 131-acre area . . . located within an approximately

1,017-acre parcel owned by [Dominion].” Environmental

Assessment at 3. Petitioners fail to provide support for their

assertion that the disparity between Cove Point’s footprint-tofacility ratio and that of other, less densely occupied facilities

impacts public safety as would show that the Commission failed

adequately to identify and consider public safety issues. 

Petitioners object that the Commission’s repeated

assurances that the Cove Point LNG facility would comply with

federal and local standards and coordinate with appropriate

authorities constitutes an abdication of its responsibility to

conduct an independent public safety evaluation. As evidence,

petitioners refer to a September 2014 news article and several

affidavits from local residents attached to petitioners’ brief to

establish Article III standing. But the court’s review is limited

to the administrative record before the agency at the time of its

decision. See James Madison Ltd. v. Ludwig, 82 F.3d 1085,

1095-96 (D.C. Cir. 1996). Regardless, as noted, the

Commission conducted an extensive independent review of

safety considerations; the opinions and standards of – and

Dominion’s future coordination with – federal and local

authorities were one reasonable component. 

Finally, amici’s identification of additional possible

environmental impacts they claim were not adequately

considered by the Commission are not properly before the court. 

See Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001), aff’d,

on other grounds, 537 U.S. 186 (2003); see also 16AA Wright,

Miller, & Cooper, Federal Practice and Procedure § 3975.1

& n.4 (4th ed. Apr. 2016).
17

Accordingly, because petitioners fail to show that the

Commission’s NEPA analysis was deficient for failing to

consider indirect effects of the Cove Point conversion project or

inadequately considered their remaining concerns and that the

Commission thus acted arbitrarily and capriciously, we deny the

petition for review.