United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 2021 Decided May 28, 2021

No. 20-1247

UNION OF CONCERNED SCIENTISTS,

PETITIONER

v.

UNITED STATES DEPARTMENT OF ENERGY,

RESPONDENT

On Petition for Review of an Order

of the Department of Energy

David C. Bender argued the cause for petitioner. On the 

briefs were Kim Smaczniak and Charles Carter Hall.

Sarah Carroll, Attorney, U.S. Department of Justice, 

argued the cause for respondent. With her on the brief were 

Brian M. Boynton, Acting Assistant Attorney General, and 

Michael S. Raab, Attorney.

Delia D. Patterson, John E. McCaffrey, Robert Stroh, 

Jonathan D. Schneider, and Nicholas J. Pascale were on the 

brief for amici curiae American Public Power Association, et 

al. in support of respondent.

Before: ROGERS and KATSAS, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.
2

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The Union of Concerned 

Scientists petitions for review of a Department of Energy rule 

concerning the designation of “critical electric infrastructure 

information,” 16 U.S.C. § 824o-1(a)(3). The Union contends 

that the rule exceeds the Department’s authority under section 

215A of the Federal Power Act, is arbitrary and capricious, and 

was promulgated in violation of the notice and comment 

requirements of the Administrative Procedure Act. Because 

the Union has not shown that it has standing under Article III 

of the Constitution to bring this facial challenge, the court lacks 

jurisdiction and must dismiss the petition.

I.

In 2015, Congress amended the Federal Power Act to add 

section 215A, authorizing the Federal Energy Regulatory 

Commission (“FERC”) and the Secretary of Energy (“DOE”)

to designate information as critical electric infrastructure 

information (“CEII”). See Fixing America’s Surface 

Transportation Act (the “FAST Act”), Pub. L. No. 114-94, 

§ 61003, 129 Stat. 1312, 1773–79 (2015) (codified at 16 U.S.C. 

§ 824o-1). Section 215A defines CEII as “information related 

to critical electric infrastructure, or proposed critical electrical 

infrastructure, generated by or provided to the [FERC] or other 

Federal agency, other than classified national security 

information, that is designated as [CEII]” by FERC or DOE. 

16 U.S.C. § 824o-1(a)(3). In turn, “critical electric 

infrastructure” is defined as “a system or asset of the bulkpower system, whether physical or virtual, the incapacity or 

destruction of which would negatively affect national security, 

economic security, public health or safety, or any combination 

of such matters.” Id. § 824o-1(a)(2). CEII is exempt from 

disclosure under the Freedom of Information Act (“FOIA”) and 
3

is not to be “made available by any Federal, State, political 

subdivision or tribal authority pursuant to any Federal, State, 

political subdivision or tribal law requiring public disclosure of 

information or records.” Id. § 824o-1(d)(1).

Section 215A directed that FERC, “after consultation 

with” the Secretary of Energy, “promulgate such regulations as 

necessary to . . . establish criteria and procedures to designate 

information as” CEII; prohibit its unauthorized disclosure;

ensure appropriate sanctions are in place for FERC and 

Department of Energy (also “DOE”) personnel and agents who 

make unauthorized disclosures; and “facilitate voluntary 

sharing of [CEII] with, between, and by” several specific 

categories of entities, as well as “other entities determined 

appropriate by the [FERC].” Id. § 824o-1(d)(2). On December 

21, 2016, FERC promulgated the necessary regulations. See

Regulations Implementing FAST Act Section 61003 —

Critical Electric Infrastructure Security & Amending Critical 

Energy Infrastructure Information; Availability of Certain 

North American Electric Reliability Corporation Databases

(“CEII 2016 Rule”), 157 FERC ¶ 61,123, 81 Fed. Reg. 93,732 

(Dec. 21, 2016) (codified as relevant at 18 C.F.R. § 388.113).

Section 215A also authorizes DOE to designate 

information as CEII, providing that “[i]nformation may be 

designated by the [FERC] or [DOE] as [CEII] pursuant to the 

criteria and procedures established by the [FERC.]” 16 U.S.C.

§ 824o-1(d)(3). On October 29, 2018, DOE published a notice 

of proposed rulemaking on new CEII administrative 

procedures. See 83 Fed. Reg. 54,268 (proposed Oct. 29, 2018). 

Interpreting the CEII 2016 Rule’s designation procedures as 

applicable only to FERC, DOE proposed its own designation 

procedures, id. at 54,269, as well as procedures for non-federal 

entities to request access to CEII held by DOE, id. at 54,270–

71. On March 16, 2020, DOE issued the Critical Electric 
4

Infrastructure Information; New Administrative Procedures

(“CEII 2020 Rule”), 85 Fed. Reg. 14,756 (Mar. 16, 2020) 

(codified at 10 C.F.R. § 1004.13). Repeating that it “follows 

the designation criteria FERC has already formulated, but 

establishes its own procedures for such designation,” DOE 

described any differences in procedures as largely 

inconsequential and “consistent with FERC’s rule to the 

maximum extent possible[.]” Id. at 14,757.

II.

The Union is a national nonprofit organization consisting 

of scientists, engineers, analysts, and policy and 

communication experts who conduct “independent analyses” 

that the Union uses “to develop and test proposed policies, to 

educate the public and decision-makers, and to advocate for 

evidence-based solutions.” Pet’r’s Br. 31. Together with 

Public Citizen, the Union unsuccessfully petitioned DOE for 

rehearing of the CEII 2020 Rule, and it now petitions for 

judicial review. The Union contends that DOE exceeded its 

authority under section 215A by promulgating different criteria 

and procedures for CEII designation than those in the CEII 

2016 Rule. It also contends that DOE’s rule is arbitrary and 

capricious because it (1) conflicts with DOE’s obligations 

under FOIA and the Federal Records Act; (2) risks violation of 

the due process rights of parties in proceedings before DOE; 

and (3) contains overly broad CEII designation criteria and 

excessively restrictive limits on access to CEII by non-federal 

entities. Further, the Union contends that DOE violated the 

notice and comment requirements of the Administrative 

Procedure Act. DOE responds that the Union lacks standing to 

bring this challenge because there is no indication that DOE’s

rule would deprive the Union or its members of information 

they would receive if DOE were to apply the CEII 2016 Rule 

promulgated by FERC. 
5

As a threshold matter, the court must determine whether it 

has jurisdiction to consider this facial challenge to the CEII 

2020 Rule. The Union maintains that it has Article III standing 

because it will be denied access to information under DOE’s 

rule that it could obtain under FERC’s rule, namely both 

information designated as CEII by DOE and non-CEII that the 

Union would seek from DOE under FOIA. In its reply brief, 

the Union also claims for the first time a future drain on its 

resources because it “will have to spend additional personhours to meet the demands of [DOE]’s more burdensome 

procedures[.]” Reply Br. 10. For the following reasons, we 

hold that the Union’s first asserted injury, which is an 

informational injury, is speculative and that its second asserted 

injury is forfeited.

“To establish Article III standing, a petitioner must 

demonstrate it has suffered a concrete and particularized injury 

that is imminent and not conjectural, that was caused by the 

challenged action, and that is likely to be redressed by a 

favorable judicial decision.” Texas v. EPA, 726 F.3d 180, 198 

(D.C. Cir. 2013) (citing Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560–61 (1992)). The Union’s informational injury is a 

possible future injury and therefore implicates the imminence 

requirement. Cf. Arpaio v. Obama, 797 F.3d 11, 21 (D.C. Cir. 

2015). Although it is “a somewhat elastic concept,”

imminence “cannot be stretched beyond its purpose, which is 

to ensure that the alleged injury is not too speculative for 

Article III purposes[.]” Clapper v. Amnesty Int’l USA, 568 

U.S. 398, 409 (2013) (internal quotation marks omitted). 

Consequently, a threatened injury must be “certainly 

impending” or there has to be a “substantial risk that the harm 

will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 

158 (2014) (internal quotation marks omitted) (citing Clapper, 

568 U.S. at 414 n.5).
6

Here, the Union is concerned about future access to two 

kinds of information: CEII held by DOE and information that 

DOE will decide should not be designated as CEII and that 

would therefore be subject to FOIA. Declarations in the 

addendum to its opening brief reflect that the Union regularly 

seeks and relies on the availability of both kinds of information 

from DOE. See, e.g., Decl. of Steve Clemmer, Director of 

Energy Research and Analysis, Climate and Energy Program

¶¶ 7–8, 10–11, 13–14; Decl. of Sam Gomberg, Senior Analyst, 

Climate and Energy Program ¶¶ 7–8. And the Union intends 

to continue seeking these kinds of information from DOE in 

the future. See, e.g., Clemmer Decl. ¶¶ 11, 13–14; Decl. of 

Michael Jacobs, Senior Energy Analyst, Climate and Energy 

Program ¶¶ 8–9.

As to CEII held by DOE, the Union contends its access 

will be impaired because, compared to FERC’s rule, DOE’s 

rule contains broader criteria for CEII designation and more 

restrictions on CEII access. In terms of designation criteria, the 

Union points out that even though DOE changed course 

between its proposed and final rules on the “pre-designation” 

of certain categories of information as CEII, the preamble to 

DOE’s rule provides that in determining whether information 

qualifies as CEII, DOE still plans to consider whether the 

information falls into one or more of those categories, namely:

“[1] Defense Critical Electric Infrastructure; [2] information on 

electric incidents and emergencies reported to DOE through the 

Electric Emergency Incident and Disturbance Report (Form 

OE-417); and/or [3] Federal spectrum information managed by 

the National Telecommunications and Information 

Administration (NTIA).” CEII 2020 Rule, 85 Fed. Reg. at 

14,762. And the preamble, the Union explains, serves as 

“evidence of [DOE’s] contemporaneous understanding of its” 

rule, Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 

43, 53 (D.C. Cir. 1999), and “is informative with respect to how 
7

[DOE] intended to determine” whether information should be 

designated as CEII, Howmet Corp. v. EPA, 614 F.3d 544, 550–

51 (D.C. Cir. 2010).

Turning to access restrictions, the Union highlights two 

aspects of DOE’s rule that it has concluded will result in 

reduced access to CEII. First, unlike FERC’s rule, DOE’s rule 

does not include designated procedures for access to CEII by 

participants in proceedings before DOE. Second, DOE’s rule 

requires that CEII-requesting non-federal entities 

“demonstrate[] that the release of [CEII] is in the national 

security interest,” or their requests “shall not be entertained.” 

10 C.F.R. § 1004.13(j)(2). FERC’s rule does not similarly 

burden requesters. Once a requester demonstrates a legitimate 

need for the CEII, FERC is to balance the need for the 

information against its “sensitivity,” without requiring the 

requester to demonstrate that releasing the information would 

serve some sort of interest. See 18 C.F.R. § 388.113(g)(5)(iii).

DOE responds that it adopted the same CEII designation 

criteria as FERC and sufficiently similar access procedures and 

therefore “there is no indication that the rule will cause [DOE] 

to withhold information” that the Union would receive if DOE 

were instead to apply FERC’s regulations. Resp’t’s Br. 21. At 

this stage, the court must assume the validity of the Union’s 

interpretation of DOE’s rule. See Del. Dep’t of Nat. Res. & 

Env’t Control v. EPA, 785 F.3d 1, 7 (D.C. Cir. 2015). That 

means the court may not now “pronounce upon the meaning” 

of DOE’s rule, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 

83, 101–02 (1998), which, in essence, is what DOE invites. 

But DOE also maintains, appropriately at this stage, that the 

Union’s first claimed injury is too speculative for Article III 

purposes, “describing harms [the Union] might suffer if [DOE] 

someday denied access to information.” Resp’t’s Br. 24.
8

Assuming that DOE’s rule is more restrictive than FERC’s

in the ways the Union describes, the Union is less likely to be 

granted access to DOE CEII in the future. Take, for instance, 

a request for Form OE-417 data, on which the Union relies for 

its research and analysis. See, e.g., Clemmer Decl. ¶¶ 11, 13–

14; Jacobs Decl. ¶ 9. Setting two identical requests for Form 

OE-417 data against one another — one pre-DOE rule and one 

post — a request under DOE’s rule is more likely to be denied. 

Concluding as much does not require the court to rely on a

“speculative chain of possibilities” that would defeat standing. 

See Clapper, 568 U.S. at 414. And, contrary to DOE’s 

assertions, absolute certainty is not required; it is enough that 

the increased risk of harm is substantial. See id. at 414 n.5; 

Susan B. Anthony, 573 U.S. at 158; N.Y. Republican State 

Comm. v. SEC, 927 F.3d 499, 504–05 (D.C. Cir. 2019). DOE’s 

attempt to evoke conjecture by challenging the Union’s reading 

of the rule and then citing conditional statements from the 

Union’s supporting declarations, see Resp’t’s Br. 24 & n.5, is 

therefore unpersuasive.

Yet, in making designation and access decisions, DOE 

exercises discretion. See, e.g., 10 C.F.R. §§ 1004.13(g)(5)(i), 

(g)(6)(i), (j)(2), (k)(4). And this court has been reluctant to find 

standing based on predictions of how agencies will exercise 

discretion in future proceedings, stating, for instance, that “[i]t

is premature for a court to consider the legality of how the

Government might wield the orderly liquidation authority in 

a potential future proceeding,” State Nat’l Bank of Big Spring 

v. Lew, 795 F.3d 48, 56 (D.C. Cir. 2015). Here the discretion 

DOE has in making designation and access decisions takes the 

denial of access to CEII from the decidedly likely to the 

speculative. 

The Union’s non-CEII theory fares no better. The Union

contends that DOE would indirectly withhold public 
9

information from it as a result of DOE’s “commitment to return 

and destroy information not designated as [CEII] rather than 

produce that information in response to a FOIA request.” 

Pet’r’s Br. 33 (emphasis removed). DOE questions the logic 

of the Union’s argument, explaining that DOE must “return or 

destroy non-CEII consistent with the Federal Records Act, and 

DOE handling of agency records in accordance with DOE 

Order O.243.1A, Records Management Program, and related 

requirements and responsibilities . . . in accordance with law 

and regulatory requirements,” 10 C.F.R. § 1004.13(g)(6)(iii)

(emphasis added). In DOE’s view, therefore, the Union’s nonCEII injury theory also rests on speculation. 

To be denied access to non-CEII under this theory, (1) the 

Union would need to submit a FOIA request (2) that happens 

to concern information DOE will have already determined was 

non-CEII and (3) does not fall under a FOIA exemption, and 

(4) DOE would need to have determined that returning or 

destroying that information comports with its various recordkeeping policies and requirements. Cf. Clapper, 568 U.S. at 

410. What is more, to produce the injurious scenario of which 

the Union warns, these moving pieces would have to come 

together at the same time. That is indeed a hypothetical chain 

of events on which standing cannot rest. New York Reg’l 

Interconnect, Inc. v. FERC, 634 F.3d 581, 587 (D.C. Cir. 

2011). 

As for the Union’s asserted injury resulting from a future 

resource drain, it is forfeited because the Union raised it for the 

first time in its reply brief. See Twin Rivers Paper Co. v. SEC, 

934 F.3d 607, 615 (D.C. Cir. 2019); Manitoba v. Bernhardt, 

923 F.3d 173, 179 (D.C. Cir. 2019). The Union suggests that 

this theory is a mere corollary of its position that DOE’s rule 

imposes more restrictive procedures on requesters than 

FERC’s rule. See Oral Arg. Recording at 40:18–41:15. Yet
10

any drain on the Union’s resources resulting from some aspect 

of DOE’s rule is not obvious, much less the specific drain that

the Union identifies on reply. At best, the Union was “‘obscure 

on the issue in [its] opening brief and only warmed to the issue 

in [its] reply brief.’” Twin Rivers, 934 F.3d at 615 (quoting 

Novak v. Cap. Mgmt. & Dev. Corp., 570 F.3d 305, 316 n.5 

(D.C. Cir. 2009)). That still results in forfeiture. Id.

Accordingly, because the Union has notsatisfied the injury 

requirement of Article III standing, the petition is dismissed for 

lack of jurisdiction.