United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 8, 2021 Decided June 22, 2021

No. 20-1016

ENVIRONMENTAL DEFENSE FUND,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

SPIRE MISSOURI INC. AND SPIRE STL PIPELINE LLC,

INTERVENORS

Consolidated with 20-1017

On Petitions for Review of Orders

of the Federal Energy Regulatory Commission

Natalie M. Karas argued the cause for petitioner 

Environmental Defense Fund. With her on the briefs were Erin 

Murphy, Jason T. Gray, Kathleen L. Mazure, Matthew L. Bly, 

and Sean H. Donahue.

Henry B. Robertson argued the cause and filed the briefs 

for petitioner Juli Steck.
2

Jennifer Danis and Edward Lloyd were on the brief for 

amicus curiae Dr. Susan Tierney in support of petitioners.

Randy M. Stutz was on the brief for amicus curiae the 

American Antitrust Institute in support of petitioners.

Anand R. Viswanathan, 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.

Jonathan S. Franklin argued the cause for intervenors 

Spire STL Pipeline LLC and Spire Missouri Inc. in support of 

respondent. With him on the brief were Christopher J. Barr, 

Jessica R. Rogers, Matthew J. Aplington, Thomas E. Hirsch III, 

David T. Kearns, Daniel Archuleta, and Sean P. Jamieson.

Paul Korman, Michael R. Pincus, and Michael Diamond

were on the brief for amicus curiae Interstate Natural Gas 

Association of America in support of respondent. 

Before: TATEL and MILLETT, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge 

EDWARDS.

EDWARDS, Senior Circuit Judge: In the action leading to 

this petition for review, the Federal Energy Regulatory 

Commission (the “Commission” or “FERC”) issued a 

certificate of public convenience and necessity (“Certificate”)

under section 7(c) of the Natural Gas Act, 15 U.S.C. 

§ 717f(c)(1)(A), to Intervenor-Respondent Spire STL Pipeline 

LLC (“Spire STL”) to construct a new natural gas pipeline in 

the St. Louis area. The Commission may issue such a
3

Certificate only if it finds that construction of the new pipeline 

“is or will be required by the present or future public 

convenience and necessity.” Id. § 717f(e). 

Pursuant to the Commission’s “Certificate Policy 

Statement,” Certification of New Interstate Natural Gas 

Pipeline Facilities, 88 FERC ¶ 61,227 (Sept. 15, 

1999), clarified, 90 FERC ¶ 61,128 (Feb. 9, 2000), further 

clarified, 92 FERC ¶ 61,094 (July 28, 2000), FERC first 

considers whether there is a market need for the proposed 

project. If there is a need for the pipeline, FERC then 

determines whether there will be adverse impacts on “existing 

customers of the pipeline proposing the project, existing 

pipelines in the market and their captive customers, or 

landowners and communities affected by the route of the new 

pipeline.” Id. at 61,745. If adverse impacts on these 

stakeholders will result, the Commission “balanc[es] the 

evidence of public benefits to be achieved against the residual 

adverse effects.” Id. In analyzing the need for a particular 

project, the Certificate Policy Statement makes it clear that the 

Commission will “consider all relevant factors.” See id. at 

61,747 (emphasis added).

The issue in this case arose in 2016, when Spire STL 

announced its intent to build a pipeline in the St. Louis 

metropolitan area. In August of that year, Spire STL held an 

“open season” during which it invited natural gas “shippers” to 

enter into preconstruction contracts, also known as “precedent 

agreements,” for the natural gas the pipeline would transport.

But no shippers committed to the project during the open 

season. Instead, after the open season finished without any 

takers, Spire STL privately entered into a precedent agreement 

with one of its affiliates, Laclede Gas Company – now known 

as Intervenor-Respondent Spire Missouri Inc. (“Spire 
4

Missouri”) – for just 87.5 percent of the pipeline’s projected 

capacity.

In January 2017, Spire STL applied to the Commission for 

a Certificate. It conceded that the proposed pipeline was not 

being built to serve new load, as natural gas demand in the St. 

Louis area is projected to stay relatively flat for the foreseeable 

future. Rather, Spire STL claimed that the pipeline would result 

in other benefits, such as enhancing reliability and supply 

security, providing access to new sources of natural gas supply, 

and eliminating reliance on propane “peak-shaving” during 

periods of high demand. As evidence of need, Spire STL

principally relied on its precedent agreement with Spire 

Missouri. In September 2017, the Commission – pursuant to its 

obligations under the National Environmental Policy Act 

(“NEPA”) – released an Environmental Assessment (“EA”) for 

construction and operation of the proposed pipeline, finding 

that they would have no significant environmental impact.

Petitioner Environmental Defense Fund (“EDF”), along 

with several other parties, challenged Spire STL’s Certificate 

application. EDF contended, inter alia, that the precedent 

agreement between Spire STL and Spire Missouri should have 

only limited probative value in FERC’s assessment of Spire 

STL’s application because the two companies were corporate 

affiliates. In addition, Petitioner Juli Steck, then known as Juli 

Viel, contested the efficacy of the EA.

On August 3, 2018, in an Order Issuing Certificates

(“Certificate Order”), FERC granted the authorizations for the 

new pipeline. See Joint Appendix (“J.A.”) 932. FERC’s

decision acknowledged that the pipeline was not meant to serve 

new load demand. Nevertheless, FERC rejected arguments that 

a market study should be undertaken to establish the need for 

the project. Rather, the Commission’s decision principally 
5

focused on the precedent agreement between Spire STL and

Spire Missouri in finding that there was market need for the 

project. And the Commission stated that it would not “second 

guess” Spire Missouri’s purported “business decision” in 

entering into the precedent agreement with Spire STL, even 

though the shipper and the pipeline were affiliates. J.A. 968. In 

November 2019, by a 2-1 vote, FERC denied requests for 

rehearing filed by EDF and Steck. These two parties now seek 

review in this court.

EDF asserts that the Commission’s decision to award a 

Certificate to Spire STL was arbitrary and capricious because 

the Commission uncritically and exclusively relied on the 

affiliated precedent agreement to find need and because the 

Commission failed to sufficiently justify its conclusion that the 

new pipeline’s benefits would outweigh its adverse effects. 

Steck, in turn, renews many of her challenges to the 

Commission’s environmental analysis, including its EA.

For the reasons explained below, we find that Petitioner 

Steck lacks standing to pursue her claims. However, we find no 

jurisdictional infirmities in EDF’s petition for review. On the 

merits, we agree with EDF that the Commission’s refusal to

seriously engage with nonfrivolous arguments challenging the 

probative weight of the affiliated precedent agreement under 

the circumstances of this case did not evince reasoned and 

principled decisionmaking. In addition, we find that the 

Commission ignored record evidence of self-dealing and failed 

to seriously and thoroughly conduct the interest-balancing 

required by its own Certificate Policy Statement. Therefore,

FERC’s Certificate Order and Order on Rehearing do not 

survive scrutiny under the applicable arbitrary and capricious

standard of review. See Minisink Residents for Env’t Pres. & 

Safety v. FERC (“Minisink”), 762 F.3d 97, 105-06 (D.C. Cir. 

2014). Because “vacatur is the normal remedy” in 
6

circumstances such as we find in this case, we vacate FERC’s 

Orders and remand the case to the Commission for appropriate 

action. See Allina Health Servs. v. Sebelius, 746 F.3d 1102, 

1110 (D.C. Cir. 2014).

I. BACKGROUND

A. Statutory and Regulatory Background

The Natural Gas Act provides the Commission with 

authority “to regulate the transportation and sale of natural gas 

in interstate commerce.” City of Oberlin v. FERC, 937 F.3d 

599, 602 (D.C. Cir. 2019). To safeguard the public, “Section 7 

of the Act requires an entity seeking to construct or extend an 

interstate pipeline for the transportation of natural gas to obtain 

[a Certificate] from the Commission.” Id. (citing 15 U.S.C. 

§ 717f(c)(1)(A)). The Commission may issue Certificates only 

if, among other things, it finds that the proposed construction 

or extension “is or will be required by the present or future 

public convenience and necessity; otherwise such application 

shall be denied.” 15 U.S.C. § 717f(e). In deciding whether to 

issue Certificates under this standard, the Commission must 

“evaluate all factors bearing on the public interest.” Atl. Refin. 

Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959) 

(emphasis added). And there is good reason for the 

thoroughness and caution mandated by this approach: A 

Certificate-holder may exercise eminent domain against any 

holdouts in acquiring property rights necessary to complete the 

pipeline. 15 U.S.C. § 717f(h).

In its Certificate Policy Statement, the Commission has set 

forth the “analytical steps” that guide its dispositions of 

Certificate applications. See 88 FERC at 61,745. The first 

question the Commission considers is “whether the project can 

proceed without subsidies from [the applicant’s] existing 

customers.” Id. “To ensure that a project will not be subsidized 
7

by existing customers, the applicant must show that there is 

market need for the project.” Myersville Citizens for a Rural 

Cmty., Inc. v. FERC (“Myersville”), 783 F.3d 1301, 1309 (D.C. 

Cir. 2015). 

If there is market need, the Commission then determines 

whether there are likely to be adverse impacts on “existing 

customers of the pipeline proposing the project, existing 

pipelines in the market and their captive customers, or 

landowners and communities affected by the route of the new 

pipeline.” 88 FERC at 61,745. If adverse impacts on these 

stakeholders will result, “the Commission balances the adverse 

effects with the public benefits of the project, as measured by 

an ‘economic test.’” Myersville, 783 F.3d at 1309 (quoting 88 

FERC at 61,745). “Adverse effects may include increased rates 

for preexisting customers, degradation in service, unfair 

competition, or negative impact on the environment or 

landowners’ property.” Id. (citing 88 FERC at 61,747-48). 

Public benefits generally include “meeting unserved demand, 

eliminating bottlenecks, access to new supplies, lower costs to 

consumers, providing new interconnects that improve the 

interstate grid, providing competitive alternatives, increasing 

electric reliability, or advancing clean air objectives.” Id.

(quoting 88 FERC at 61,748).

As to market need and interest-balancing, the Certificate 

Policy Statement further provides:

Rather than relying only on one test for need, the 

Commission will consider all relevant factors

reflecting on the need for the project. These might 

include, but would not be limited to, precedent 

agreements, demand projections, potential cost 

savings to consumers, or a comparison of projected 

demand with the amount of capacity currently serving 
8

the market. The objective would be for the applicant 

to make a sufficient showing of the public benefits of 

its proposed project to outweigh any residual adverse 

effects . . . .

The amount of evidence necessary to establish 

the need for a proposed project will depend on the 

potential adverse effects of the proposed project on 

the relevant interests. Thus, projects to serve new 

demand might be approved on a lesser showing of 

need and public benefits than those to serve markets 

already served by another pipeline. However, the 

evidence necessary to establish the need for the 

project will usually include a market study. . . . Vague 

assertions of public benefits will not be sufficient.

88 FERC at 61,747-48 (emphases added).

The Certificate Policy Statement also specifically 

addresses the significance of precedent agreements in 

demonstrating need:

Although the Commission traditionally has 

required an applicant to present [preconstruction] 

contracts to demonstrate need, that policy . . . no 

longer reflects the reality of the natural gas industry’s 

structure, nor does it appear to minimize the adverse 

impacts on any of the relevant interests. Therefore, 

although contracts or precedent agreements always 

will be important evidence of demand for a project, 

the Commission will no longer require an applicant 

to present contracts for any specific percentage of the 

new capacity. Of course, if an applicant has entered 

into contracts or precedent agreements for the 

capacity, . . . they would constitute significant 

evidence of demand for the project.
9

Eliminating a specific contract requirement 

reduces the significance of whether the contracts are 

with affiliated or unaffiliated shippers, which was the 

subject of a number of comments. A project that has 

precedent agreements with multiple new customers 

may present a greater indication of need than a 

project with only a precedent agreement with an 

affiliate. The new focus, however, will be on the 

impact of the project on the relevant interests balanced 

against the benefits to be gained from the project. As 

long as the project is built without subsidies from the 

existing ratepayers, the fact that it would be used by 

affiliated shippers is unlikely to create a rate impact 

on existing ratepayers.

Id. at 61,748-49 (emphases added). 

B. The Instant Case

For the last two decades, natural gas consumption in the 

St. Louis area has been roughly flat. And when the Commission 

issued the Certificate Order in this case, all parties agreed that 

future demand projections were not expected to increase. See

Certificate Order, J.A. 979 (noting that “[a]ll parties” agreed 

that natural gas demand forecasts “for the region are flat for the 

foreseeable future”); see also, e.g., J.A. 583 (July 2017 report 

prepared by Concentric Energy Advisors on behalf of Spire 

Missouri and submitted to the Commission stating that Spire 

Missouri “does not expect any significant growth or decline 

in . . . forecasted demand over time”); Spire STL Pipeline LLC 

Docket Nos. CP17-40-000 and 001 Response to Data Request 

at 9, Accession No. 20180313-5193 (Mar. 13, 2018) (Spire 

STL submission to the Commission stating that its “gas supply 

annual demand requirement” was projected to “remain 
10

relatively constant” at “average historical usage” levels for the 

next 20 years).

As of 2016, five natural gas pipelines served the St. Louis 

region. At that time, a majority of Spire Missouri’s natural gas 

supply was provided via pipelines owned and operated by 

Enable Mississippi River Transmission, LLC (“Enable MRT”). 

It is undisputed that, prior to Spire STL’s application in this 

case, Spire Missouri had declined to subscribe to proposals for 

new natural gas pipelines in the region, stating that the 

proposed new pipelines did not make operational and economic 

sense for its customers. 

In 2016, Spire STL announced its intent to construct a new 

natural gas pipeline to serve homes and businesses in the St. 

Louis area. Following an amendment to its Certificate 

application, the final length of the proposed pipeline was 

approximately 65 miles. The initial estimated cost of the 

project was approximately $220 million, with a proposed 

overall rate of return of 10.5 percent – a return on equity of 14 

percent and a cost of debt of seven percent. 

Between August 1, 2016 and August 19, 2016, Spire STL 

held an “open season,” during which it sought to enter into 

precedent agreements with natural gas shippers. After an 

unsuccessful open season, Spire STL then entered into a single 

precedent agreement with its affiliate, Spire Missouri, for 87.5

percent of the pipeline’s 400,000 dekatherm-per-day transport 

capacity. Spire STL indicated that other shippers expressed 

interest, but it did not enter precedent agreements with any of 

them.

On January 26, 2017, Spire STL applied to the 

Commission for a Certificate to begin construction of the 

proposed pipeline. The stated purpose of the pipeline was to 

“enhance reliability and supply security; reduce reliance upon 
11

older natural gas pipelines; reduce reliance upon mature natural 

gas basins . . . ; and eliminate reliance on propane peakshaving infrastructure.” J.A. 89. In particular, the new pipeline 

would provide gas from newly accessed sources in the Rocky 

Mountains and Appalachian Basin; avoid transecting the New 

Madrid Seismic Zone, unlike other pipelines in the area; and 

reduce use of propane for “peaking” during periods of high 

demand, which purportedly has negative environmental, 

operational, and cost-related impacts. 

Spire STL made it clear that its new pipeline “was not 

[being] developed to serve new demand.” J.A. 265. It further 

stated that “conjecture” as to whether Spire Missouri might 

“reduce its contract entitlements on other pipelines” as a result 

of contracting for capacity on the proposed pipeline “would be 

inappropriate.” J.A. 104. The application also asserted that the 

proposed project was “the result of a fair process undertaken 

by [Spire Missouri] to examine competitive alternatives and 

select the one that would best meet its needs.” J.A. 105. In

materials it later submitted to the Commission, Spire Missouri 

acknowledged that it used propane peaking on only three days 

between 2013 and 2018 – a consecutive three-day period in 

January 2014. 

Several parties either protested or conditionally protested

Spire STL’s application, including the Missouri Public Service 

Commission (the “Missouri Commission”) – a state body that 

regulates natural gas shippers – and Enable MRT. In its 

conditional protest, the Missouri Commission expressed 

skepticism as to the “need for the project,” J.A. 143, while also 

urging FERC to undertake a particularly thorough review of the 

impact the project might have on customers of existing 

pipelines given that “the St. Louis market is static and there is 

no demonstrated need . . . for . . . new capacity,” see J.A. 152. 

In its protest, Enable MRT claimed that the project “ha[d] been 
12

shielded from a truly competitive market,” J.A. 155, and that 

“where a proposed project does not have precedent agreements 

for all of the capacity of the project and the project’s only 

precedent agreement is with a single affiliated shipper with 

predominantly captive retail customers, the mere existence of 

such a precedent agreement is insufficient to show adequate 

market demand,” J.A. 161. See also J.A. 181 (“As a[] [shipper] 

with captive retail customers, [Spire Missouri] can pass 

through to those customers the costs associated with its 

contract with Spire [STL]. Rather than pay lower rates to 

receive gas from an unaffiliated pipeline, Spire [STL] and 

[Spire Missouri] can maximize the revenue and return earned 

by their corporate parent by having [Spire Missouri] pay to 

receive service from Spire’s Project.”). Enable MRT also 

highlighted certain public-facing comments by Spire Missouri

and Spire STL’s corporate parent indicating that construction 

of the pipeline would increase shareholder earnings. And in 

later submissions to the Commission, Enable MRT asserted 

“that the affiliate relationship between [Spire Missouri] and 

Spire STL [had] thwarted fair competition,” J.A. 812, and that

economic risks of the pipeline would be shifted onto Spire 

Missouri’s “captive ratepayers [for natural gas] and the 

ratepayers of pipelines that would experience decontracting 

due to” the new pipeline, J.A. 813. 

In May 2017, EDF sought to intervene and filed a protest. 

It raised several arguments regarding the probative weight of 

the precedent agreement between Spire STL and Spire 

Missouri in demonstrating market need for the proposed 

pipeline, given their affiliated relationship. In particular, EDF 

expressed concerns regarding the growing trend for

utility holding companies [to] enter[] into affiliate 

transactions whereby the retail utility affiliate 

commits to new long term capacity with its pipeline 
13

developer affiliate. The essence of this financing 

structure is to take a cost pass-through for a retail gas 

or electric distribution utility – a contract for natural 

gas transportation services – and pay those 

transportation fees to an affiliated pipeline developer 

entitled to accrue return on its investment from that 

same revenue. Thus ratepayer costs which may not be 

justified by ratepayer demand are being converted 

into shareholder return. 

J.A. 550 (footnote omitted). EDF also requested that the 

Commission “apply heightened scrutiny” to the Certificate 

application given the affiliated relationship between Spire STL 

and Spire Missouri. See J.A. 556-58; see also J.A. 856 

(asserting that “there is a gap . . . between state and federal 

regulatory oversight of affiliate precedent agreements, such as 

the one Spire STL has submitted in this proceeding to 

demonstrate market need”). And it asserted that “[w]here, as 

here, there is evidence of self-dealing calling into question the 

need for a project, th[e] Commission should take steps to 

ensure that customers are protected.” J.A. 558; see also J.A. 

559 (explaining why “record evidence” should have resulted in 

“enhanced regulatory scrutiny” in this case); J.A. 855 

(reiterating “that the pursuit of earnings growth must be 

balanced against the inherent risk to customers embedded in 

[this] affiliate transaction”).

In September 2017, Commission staff published an 

Environmental Assessment for the proposed pipeline, 

including their finding of no significant impact from

constructing and operating the pipeline. In reaching that 

conclusion, the EA noted that the pipeline “was not developed 

to serve new demand.” J.A. 765, 768. 
14

On October 30, 2017, Petitioner Steck moved to intervene. 

In comments to the Commission, she alleged that there were

several deficiencies in the EA, “particularly in its treatment of 

the purpose and need for the project and of climate change.” 

J.A. 791. She therefore requested preparation of either a full 

Environmental Impact Statement or a revised EA. 

On August 3, 2018, by a 3-2 vote, the Commission issued 

the Certificate Order, granting a Certificate to Spire STL. 

Therein, the Commission referenced the concerns of the 

protestors and intervenors regarding the affiliated precedent 

agreement, see, e.g., J.A. 938-40, 944-47, 950-51, and noted 

that “[a]ll parties, including Spire, agree that the new capacity 

is not meant to serve new demand, as load forecasts for the 

region are flat for the foreseeable future,” J.A. 979. The 

Commission also found that data provided by Spire STL and 

Enable MRT “show[ed] that the difference in the cost of gas 

delivered to Spire Missouri via the proposed [pipeline] as 

compared with gas accessed via” current pipelines “was not 

materially significant.” J.A. 980. 

The Commission purported to apply the Certificate Policy 

Statement in reaching its decision. See J.A. 940-41; see also

J.A. 941 n.31 (“[T]he current Certificate Policy Statement 

remains in effect and will be applied to natural gas certificate 

proceedings pending before the Commission as appropriate.”

(citation omitted)). However, the Commission’s decision 

appeared to rely entirely on the precedent agreement between 

Spire STL and Spire Missouri in finding that there was market 

need for the project. See J.A. 963 (“The fact that Spire Missouri 

is affiliated with the project’s sponsor does not require the 

Commission to look behind the precedent agreements to 

evaluate project need. . . . [T]he Commission may reasonably 

accept the market need reflected by the applicant’s existing 

contracts with shippers and not look behind those contracts to 
15

establish need.” (footnotes omitted)); J.A. 967 (“We disagree 

with [Enable] MRT’s stance that the mere existence of a 

precedent agreement is insufficient to show adequate market 

demand when a project is subscribed by affiliates for less than 

the full project capacity.” (footnote and internal quotation 

marks omitted)). FERC also explicitly rejected calls for a 

market study to assess the need for a new pipeline. See J.A. 

966-67. And it dismissed arguments that Spire STL had 

engaged in anticompetitive behavior, while finding that 

whether Spire Missouri or its corporate parent had engaged in 

anticompetitive behavior was irrelevant to its determination. 

Rather, according to the Commission, any concerns regarding 

anticompetitive behavior could only be addressed by the 

Missouri Commission, as “Spire Missouri is not regulated by 

this Commission and thus we have no authority to dictate its 

practices for procuring services.” J.A. 964. 

The Commission explained that it was generally unwilling 

to consider arguments raising “issues fall[ing] within the scope 

of the business decision of a shipper,” even if the shipper and 

the pipeline were affiliates. J.A. 968; see also J.A. 943 (“The 

Commission is not in the position to evaluate Spire Missouri’s 

business decision to enter a contract with Spire [STL] for 

natural gas transportation, which . . . will be evaluated by the 

[Missouri Commission].”). In particular, FERC was unwilling 

to assess the challenges that protestors had raised questioning

the purported justifications that Spire STL had offered in 

support of the proposed new pipeline. As the Commission 

phrased it:

The lengthy arguments the protestors make regarding 

whether Spire Missouri should have chosen to utilize 

existing infrastructure to meet the project purposes or 

committed to capacity on previously proposed 

projects, whether retiring Spire Missouri’s propane 
16

peaking facilities and replacing them with capacity 

from the [proposed pipeline] is a cost effective 

approach, whether choosing a transportation path that 

avoids the New Madrid fault is unnecessarily 

cautious, and even, in the first instance, the extent to 

which the [proposed pipeline] will provide economic 

and rate benefits to Spire Missouri’s customers, all go 

to the reasonableness and prudence of Spire 

Missouri’s decision to switch transportation 

providers.

J.A. 968. As to why Spire Missouri had declined to subscribe 

to, or otherwise endorse, “prior failed [pipeline] projects” in the 

area, the Commission found that such questions were “not 

necessarily relevant to [its] decision” and explicitly declined to 

resolve any related factual questions. See J.A. 968-69.

Regarding its balancing of the benefits and adverse 

impacts of the project, the Commission, without deeper 

analysis, simply concluded 

that the benefits that the [proposed pipeline] will 

provide to the market, including enhanced access to 

diverse supply sources and the fostering of 

competitive alternatives, outweigh the potential 

adverse effects on existing shippers, other pipelines 

and their captive customers, and landowners or 

surrounding communities. Consistent with the criteria 

discussed in the Certificate Policy Statement and 

[Natural Gas Act] section 7(e), . . . we find that the 

public convenience and necessity requires approval of 

Spire [STL]’s proposal.

J.A. 986. 
17

Finally, the Commission rejected the vast majority of 

challenges to its Environmental Assessment, including those of

Petitioner Steck. 

Commissioners LaFleur and Glick dissented. Both 

believed that the Commission should have looked behind and 

beyond the precedent agreement in evaluating market need, 

given the facts of the case and the affiliated nature of the two 

Spire entities. Commissioner Glick noted that “[t]here are 

several potential business reasons why [Spire STL]’s corporate 

parent might prefer to own a pipeline rather than simply take 

service on it, such as the prospect of earning a 14 percent return 

on equity rather than paying rates to [Enable] MRT or another 

pipeline company.” J.A. 1058. In addition, both dissenting 

Commissioners would have found that adverse impacts of the 

proposed pipeline outweighed benefits. 

Several parties filed rehearing requests, including Steck on 

August 31, 2018 and EDF on September 4, 2018. In her 

request, Steck renewed several of her challenges to the EA and 

also objected to the Commission’s environmental analysis in 

the Certificate Order. EDF argued that the precedent agreement 

was not dispositive evidence of market need. It also challenged 

Spire STL’s contentions as to the benefits of the new pipeline, 

including possible cost savings to Spire Missouri and whether 

the new pipeline was needed to allow Spire Missouri to cease 

using propane peaking facilities. And more generally, EDF 

argued that the Commission had failed to adequately balance 

costs and benefits in the Certificate Order. 

On October 1, 2018, the Secretary of the Commission 

issued a tolling order solely “to afford additional time for 

consideration of the matters raised.” J.A. 1107. It appears that 

during the period between the issuance of the Certificate Order 

and September 2019, Spire STL completed virtually all 
18

construction of the pipeline. See J.A. 1135 (notice of Enable 

MRT withdrawing its petition for rehearing and asserting that

“[i]n the year in which the [rehearing requests] ha[d] been 

pending, Spire STL . . . ha[d] nearly completed construction of 

the proposed pipeline”). During that period, Spire STL also 

submitted a revised cost estimate to the Commission of almost 

$287 million, or approximately $67 million more than it had 

originally estimated. 

On November 21, 2019, the Commission issued an Order 

on Rehearing (the “Rehearing Order”), denying the requests for 

rehearing on the merits. The Commission reaffirmed its belief

that it “is not required to look behind precedent agreements to 

evaluate project need, regardless of the affiliate status of the . . . 

shipper.” J.A. 1149 (footnote omitted). It also asserted that it 

had “evaluated the record and did not find evidence of 

impropriety or self-dealing to indicate anti-competitive 

behavior or affiliate abuse.” J.A. 1152 (footnote omitted). And 

it reiterated that, in its view, it was “not in the position to 

evaluate Spire Missouri’s business decision to enter a contract 

with Spire STL for natural gas transportation.” J.A. 1152

(footnote omitted). 

The Commission also stated that several of the benefits 

Spire STL touted in its application and subsequent submissions 

to the Commission were “sufficient to overcome any concerns 

of overbuilding.” J.A. 1155. As to cost, the Commission 

clarified that the Certificate Order had “evaluated cost 

differences of gas delivered to Spire Missouri from both the” 

proposed new pipeline and Enable MRT’s existing system and 

found that they “were not materially significant.” J.A. 1159 

(citing J.A. 980). Finally, the Rehearing Order found that the 

EA, and the Commission’s resulting environmental analysis, 

were sound. 
19

Commissioner Glick again dissented. He argued that the 

Commission had acted arbitrarily and capriciously by refusing 

to engage with counterevidence or seriously consider 

countervailing arguments as to market need and benefits of the 

pipeline. See, e.g., J.A. 1183 (“Whatever probative weight that 

[precedent] agreement has, the Commission cannot simply 

point to the agreement’s existence and then ignore the evidence 

that undermines the agreement’s probative value.”); J.A. 1185 

(“The Spire companies’ obvious financial motive coupled with 

the abundant record evidence casting doubt on the need for the 

project ought to have caused the Commission to carefully 

scrutinize the record to determine whether the [proposed 

pipeline] is actually needed or just financially advantageous to 

the Spire companies.”). In his view, the issuing of the 

Certificate to Spire STL had also represented “an unreasonable 

application of the . . . Certificate Policy Statement.” J.A. 1188. 

Steck and EDF filed their petitions for review in this court 

on January 21, 2020.

II. ANALYSIS

A. Standard of Review

The Commission’s award of a Certificate is reviewed 

under the Administrative Procedure Act’s arbitrary and 

capricious standard. See Minisink, 762 F.3d at 105-06 (citations 

omitted); 5 U.S.C. § 706(2)(A). Under this standard, an action 

by the Commission may be set aside “if the agency has relied 

on factors which Congress has not intended it to consider, 

entirely failed to consider an important aspect of the problem, 

offered an explanation for its decision that runs counter to the 

evidence before the agency, or is so implausible that it could 

not be ascribed to a difference in view or the product of agency 

expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Thus, the 
20

overarching question in this case is whether “the Commission’s 

‘decisionmaking [wa]s reasoned, principled, and based upon 

the record.’” Myersville, 783 F.3d at 1308 (quoting Am. Gas 

Ass’n v. FERC, 593 F.3d 14, 19 (D.C. Cir. 2010)). “A passing 

reference to relevant factors . . . is not sufficient to satisfy the 

Commission’s obligation to carry out ‘reasoned’ and 

‘principled’ decisionmaking”; this means that “[t]he 

Commission must ‘fully articulate the basis for its decision.’” 

Am. Gas Ass’n, 593 F.3d at 19 (quoting Mo. Pub. Serv. 

Comm’n v. FERC, 234 F.3d 36, 41 (D.C. Cir. 2000)). When the 

Commission’s explanation for a contested action is lacking or 

inadequate, it will not survive judicial review and the matter 

will be returned to FERC for appropriate action. See, e.g., Mo. 

Pub. Serv. Comm’n, 234 F.3d at 42.

B. Standing

The “irreducible constitutional minimum” of standing 

requires three elements. Spokeo, Inc. v. Robins, 136 S. Ct. 

1540, 1547 (2016) (citation omitted). “The plaintiff 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.” Id. (citation 

omitted). The party invoking federal jurisdiction bears the 

burden of demonstrating standing. Id. (citation omitted). 

Generally, “[t]o establish injury in fact, a plaintiff must show 

that he or she suffered an invasion of a legally protected interest 

that is concrete and particularized and actual or imminent.” Id.

at 1548 (citation and internal quotation marks omitted). 

However, where a party alleges procedural injury, “courts relax 

the normal standards of redressability and imminence.” Sierra 

Club v. FERC, 827 F.3d 59, 65 (D.C. Cir. 2016) (citing 

Summers v. Earth Island Inst., 555 U.S. 488, 496-97 (2009)). 
21

In a NEPA procedural injury case, the causation 

requirement is met when a “causal chain” contains “at least two 

links: one connecting the omitted [NEPA analysis] to some 

substantive government decision that may have been wrongly 

decided because of the lack of [proper NEPA analysis] and one 

connecting that substantive decision to the plaintiff’s 

particularized injury.” Id. (alterations in original) (citation 

omitted). In other words, “[i]t must be substantially probable 

that the substantive agency action that disregarded a procedural 

requirement created a demonstrable risk, or caused a 

demonstrable increase in an existing risk, of injury to the 

particularized interests of the plaintiff.” Id. (citation and 

internal quotation marks omitted).

1. Steck’s Standing

Steck does not have standing to pursue her claims against 

FERC in this court. She does not own land transected by Spire 

STL’s pipeline and has not had property rights taken via 

eminent domain. Instead, Steck asserts in a declaration that she 

lives “half a mile from” the new Chain of Rocks meter and 

regulation station (the “Chain of Rocks Station”) at “the 

southern end of the pipeline,” Final Br. of Pet’r Juli Steck 

Addendum 1 (hereinafter “Steck Decl.”) ¶ 4; that the metering 

station “sits between . . . blind curves,” id. ¶ 5; that the station 

“is a looming eyesore and a traffic hazard” which “is not in 

keeping with the character of [her] neighborhood,” and which

she passes approximately three times per week, id. ¶ 7; and that 

the now-completed construction of the pipeline “interfered 

with [her] use and enjoyment of” a local park through which 

part of the pipeline was built, id. ¶¶ 9-10, and that she 

“experienced the noise, dust, diesel fumes, and traffic stops 

from construction both at home and in” the park, id. ¶ 8.
22

Steck claims that the “blind curves” near the metering 

station are a “traffic hazard” to which she objects. Even if this 

is sufficient to show a cognizable injury-in-fact, Steck has not 

met her burden on causation as to this alleged injury. This is so 

because she does not claim that the blind curves resulted from 

the construction of the Chain of Rocks Station. Therefore, she 

has not shown that issuance of a Certificate to Spire STL 

caused any “traffic hazard” that now exists. 

In addition, any alleged injuries that Steck suffered during

the now-completed construction of the pipeline and metering 

station cannot support standing for want of redressability.

Those alleged injuries, including that Spire’s “drill[ing] under 

[a] lake” to construct the pipeline interfered with her “use and 

enjoyment of the [nearby] park,” id. ¶ 9, ended when the 

construction was completed. Nor does Steck assert that there is 

any lasting impact from these prior injuries. Therefore, a 

favorable judicial decision will not redress her alleged injuries.

Steck also alleges that the metering station “is a looming 

eyesore,” id. ¶ 7, as if to suggest that this constitutes a 

cognizable injury-in-fact. It is true that some intangible injuries 

may be concrete enough to support standing. See Spokeo, 136 

S.Ct. at 1549. And “[t]he Supreme Court has recognized that 

harm to ‘the mere esthetic interests of [a] plaintiff . . . will 

suffice’ to establish a concrete and particularized injury”

sufficient to support standing. Sierra Club v. Jewell, 764 F.3d 

1, 5 (D.C. Cir. 2014) (third alteration in original) (quoting 

Summers, 555 U.S. at 494). However, Steck’s claims that 

allude to aesthetic injuries do not correspond with the types of 

aesthetic interests that the Supreme Court has said will suffice 

to establish concrete and particularized injuries.

At no point in her declaration does Steck indicate any ways 

in which the new metering station injures her specific aesthetic 
23

interests, beyond labeling it a “looming eyesore” that “is not in 

keeping with the character of [her] neighborhood.” See Steck 

Decl. ¶ 7. She never alleges that she used and enjoyed the land 

on which the station now exists; that she intended to use the 

land in the future; or that her planned future uses of the land 

have been foreclosed by the construction. In other words, she 

never indicates how she derived aesthetic value from the land 

as it had existed before the construction. See, e.g., Sierra Club 

v. Morton, 405 U.S. 727, 735 (1972) (holding that 

environmental group lacked standing because “[n]owhere in 

the pleadings or affidavits did the [group]state that its members 

use [the affected area] for any purpose, much less that they use

it in any way that would be significantly affected by the 

proposed actions of the respondents” (emphases added)); Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 565-66 (1992) (explaining 

that “a plaintiff claiming injury from environmental 

damage must use the area affected by the challenged activity” 

(emphasis added)); Friends of the Earth, Inc. v. Laidlaw Env’t 

Servs. (TOC), Inc., 528 U.S. 167, 181-83 (2000) (explaining 

that organizations’ members would have had standing as a 

result of the detailed ways in which the challenged actions had 

led them to modify their prospective behavior, reduced their 

property values, or otherwise diminished their enjoyment of the 

affected areas); Jewell, 764 F.3d at 5-6 (recounting detailed 

declarations explaining the ways in which the challenged 

action would diminish declarants’ ability to “use, enjoy, and 

appreciate,” or “ability to visit and enjoy,” affected areas

(citations omitted)). 

Steck does not even allege that she can see the new station 

from her property. Rather, the only aesthetic injury that might 

be implied from her declaration is that she must look at an 

“eyesore” several times per week while driving past. Viewed 

in full frame, Steck’s alleged aesthetic injuries reflect nothing 

more than generalized grievances, which cannot support 
24

standing. See Lujan, 504 U.S. at 573-74 (explaining that 

generalized grievances do not raise Article III cases or 

controversies for standing purposes).

At oral argument, Steck’s counsel was unable to identify 

any authority that would allow mere incidental viewership of 

something unappealing to qualify as an injury-in-fact for 

standing purposes. See Oral Arg. Tr. at 27:21-28:23. This is not 

surprising, for we can find nothing in the existing case law to 

suggest that a person who incidentally views something 

unpleasant has suffered an injury-in-fact for purposes of 

standing. In her brief, Steck cites Sierra Club v. FERC for the 

proposition that “[a]esthetic and recreational harm [may] 

bestow[] standing.” Final Br. of Pet’r Juli Steck 10 (citing 827 

F.3d 59, 66 (D.C. Cir. 2016)). However, the declaration in 

support of standing in Sierra Club is strikingly different from 

Steck’s declaration in this case. The declarant in Sierra Club

“fishe[d], boat[ed], and seasonal duck hunt[ed] frequently 

around” the affected areas. 827 F.3d at 66 (citation and 

alterations omitted). The declarant further averred that the 

resulting “‘increase in liquefied natural gas vessel 

traffic’ . . . w[ould]: (1) harm his aesthetic interests in the 

[nearby] waterways . . . ; (2) inconvenience him, given the 

‘large exclusion zone the Coast Guard maintains around 

tankers’; and (3) ‘diminish his use and enjoyment of the 

waterways.’” Id. (citation and alterations omitted). He also 

noted that, because of the “existing levels of operation” in the 

affected areas, he had “moved his ‘primary boat’” away from 

them. Id. (citation omitted). These concrete injuries, including

those to his aesthetic interests, are a far cry from those asserted 

by Steck, who has neither altered her behavior nor explained 

why she has any particularized connection to the land on which 

the metering station now sits.
25

Finally, Steck claims that she has suffered a procedural 

injury as a result of the Commission’s alleged failure to comply 

with its NEPA obligations. See Final Br. of Pet’r Juli Steck 10; 

Steck Decl. ¶ 10; see also Oral Arg. Tr. at 27:18-20, 33:19-25.

Steck argues that this procedural injury is “an independent 

source of standing.” Oral Arg. Tr. at 33:24-25. “But 

deprivation of a procedural right without some concrete interest 

that is affected by the deprivation—a procedural right in 

vacuo—is insufficient to create Article III standing.” Summers, 

555 U.S. at 496; see also Spokeo, 136 S. Ct. at 1550 (explaining 

that a plaintiff “cannot satisfy the demands of Article III by 

alleging a bare procedural violation”). Because Steck has failed 

to allege a concrete injury that is “tethered to” the 

Commission’s issuance of the Certificate, she has not shown a 

viable Article III injury. Sierra Club v. FERC, 827 F.3d 36, 43 

(D.C. Cir. 2016) (quoting WildEarth Guardians v. Jewell, 738 

F.3d 298, 305 (D.C. Cir. 2013)).

In sum, on the record before us, we hold that Steck has 

failed to satisfy her burden of demonstrating standing. We

therefore dismiss her petition for review.

2. EDF’s Standing

EDF clearly has standing to pursue its claims. 

“An association has standing to bring suit on behalf of its

members when: (1) its members would otherwise have 

standing to sue in their own right; (2) the interests it seeks to 

protect are germane to the organization’s purpose; and (3) 

neither the claim asserted nor the relief requested requires the 

participation of individual members in the lawsuit.” Nat’l 

Lifeline Ass’n v. FCC, 983 F.3d 498, 507-08 (D.C. Cir. 2020) 

(citation and internal quotation marks omitted). EDF’s 

members include at least four individuals who own land 

transected by Spire STL’s pipeline, each of whom have had 
26

property rights taken via eminent domain. These EDF members 

also allege various ways in which the presence of the pipeline 

has harmed, and continues to harm, their property, economic, 

aesthetic, and emotional interests. 

“[A] landowner made subject to eminent domain by a 

decision of the Commission has been injured in fact because 

the landowner will be forced either to sell its property to the 

pipeline company or to suffer the property to be taken through 

eminent domain. . . . [I]t is enough that [eminent domain 

proceedings] have been deemed authorized and will proceed 

absent a sale by the owner.” Gunpowder Riverkeeper v. FERC, 

807 F.3d 267, 271-72 (D.C. Cir. 2015) (citing B&J Oil & Gas 

v. FERC, 353 F.3d 71, 74-75 (D.C. Cir. 2004)). Moreover, 

“credible claims of exposure to increased noise and . . . 

disruption of daily activities . . . are sufficient to satisfy Article 

III’s injury-in-fact requirement.” Sierra Club v. FERC, 867 

F.3d 1357, 1366 (D.C. Cir. 2017) (quoting Sierra Club, 827 

F.3d at 44). Those injuries were caused by the Commission’s 

orders, which allowed for the exercise of eminent domain 

against the EDF members’ land, and vacatur of those orders 

likely will allow those injuries to be redressed. See City of 

Oberlin, 937 F.3d at 604-05. “And nobody disputes that the 

prevention of this sort of injury is germane to [EDF]’s 

conservation-oriented purposes, or cites any reason why these 

individual members would need to join the petition in their own 

names.” Sierra Club, 867 F.3d at 1366. Thus, EDF has 

associational standing.

C. EDF’s Petition Was Timely

The Natural Gas Act requires that, prior to obtaining 

judicial review, an aggrieved party must have sought rehearing 

before the Commission “unless there [wa]s reasonable ground 

for failure so to do.” 15 U.S.C. § 717r(b). The Act also states 
27

that “[u]nless the Commission acts upon the application for 

rehearing within thirty days after it is filed, such application 

may be deemed to have been denied.” Id. § 717r(a) (emphasis 

added). As to the timing of judicial review, the act provides that 

an aggrieved party “may obtain a review” of a Commission 

order “by filing” a petition for review “within sixty days after 

the order of the Commission upon the application for 

rehearing.” Id. § 717r(b). 

In Allegheny Defense Project v. FERC, 964 F.3d 1 (D.C. 

Cir. 2020) (en banc), we confronted the Commission’s thenconsistent practice of issuing “tolling orders” following 

rehearing requests. See id. at 9-11. The tolling orders were 

fashioned so that they “d[id] nothing more than prevent 

[rehearing requests] from being deemed denied by agency 

inaction and preclude . . . applicant[s] from seeking judicial 

review until the Commission act[ed]” on the merits. Id. at 9. 

This court found that such tolling orders were insufficient for 

FERC to avoid a “deemed denial” per 15 U.S.C. § 717r(a). Id.

at 18-19. 

In this case, EDF filed a request for rehearing with the 

Commission on September 4, 2018. On October 1, 2018, the 

Secretary issued a tolling order that did nothing more than 

“afford additional time for consideration of the matters raised” 

in rehearing requests. J.A. 1107; see Allegheny Def. Project, 

964 F.3d at 6-7 (same language in tolling order at issue). The 

Commission did not dispose of the merits of the rehearing 

requests in this case until November 21, 2019, when it issued 

the Rehearing Order. See J.A. 1144. EDF then filed its petition 

for review in this court on January 21, 2020. According to the 

Spire Intervenor-Respondents (but not the Commission), 

EDF’s petition for review was untimely because, under 

Allegheny Defense Project, the requests for rehearing were 

“deemed denied” as of October 4, 2018. And, since the petition 
28

for review was submitted more than 60 days thereafter, the 

court lacks jurisdiction. See Br. for Intervenors-Resp’ts Spire 

STL Pipeline LLC and Spire Missouri Inc. 1-2. We reject this 

argument. 

In Texas-Ohio Gas Co. v. Federal Power Commission, 207 

F.2d 615 (D.C. Cir. 1953), we held that the 60-day requirement 

of Section 717r(b) did not preclude our consideration of a 

petition for review from a final denial of relief, even if there 

had been a deemed denial in the interim and the petition for 

review was filed more than 60 days following that deemed 

denial. See id. at 616-17. Allegheny Defense Project did not 

disturb this binding precedent, which is squarely controlling in 

this case. 

Moreover, in Allegheny Defense Project, the petitioners 

filed two sets of petitions for review. See 964 F.3d at 6-9. The 

first set was filed in March and May 2017, within 60 days of 

the March 2017 tolling order, see id. at 6-7, while the second 

was filed in December 2017 and January 2018, after the 

Commission rejected the merits of the rehearing requests, see 

id. at 8-9. Though this court found that the tolling order failed 

to prevent a deemed denial as of March 2017, the court 

proceeded to evaluate the merits of both sets of petitions for 

review, including the later set of petitions filed more than 60 

days following the date of “deemed denial.” See id. at 19. 

EDF filed its petition for review on January 21, 2020, 

within the period allowed by statute “after the order of the 

Commission upon the application for rehearing.” 15 U.S.C. 

§ 717r(b). The petition for review was therefore timely and we 

may consider the merits of EDF’s contentions.
29

D. FERC’s Grant of a Certificate of Public 

Convenience and Necessity Was Arbitrary and 

Capricious

Under established law, precedent agreements are 

“always . . . important evidence of demand for a project.” 

Minisink, 762 F.3d at 111 n.10 (quoting 88 FERC at 61,748). 

And, in some cases, such agreements may demonstrate both 

market need and benefits that outweigh adverse effects of a 

new pipeline. See City of Oberlin, 937 F.3d at 605-06; 

Myersville, 783 F.3d at 1311. But there is a difference between 

saying that precedent agreements are always important versus 

saying that they are always sufficient to show that construction 

of a proposed new pipeline “is or will be required by the present 

or future public convenience and necessity.” 15 U.S.C. 

§ 717f(e).

According to the Commission’s Certificate Policy 

Statement, “the evidence necessary to establish the need for [a]

project will usually include a market study. . . . Vague 

assertions of public benefits will not be sufficient.” 88 FERC 

at 61,748. In addition, the Certificate Policy Statement 

indicates that pipelines built for reasons other than demand 

growth might require greater showings of need and public 

benefits. See id. (“[P]rojects to serve new demand might be 

approved on a lesser showing of need and public benefits than 

those to serve markets already served by another pipeline.”). 

The Policy Statement also explicitly states that “[a] project that 

has precedent agreements with multiple new customers may 

present a greater indication of need than a project with only a 

precedent agreement with an affiliate.” Id. In addressing why 

it is unnecessary for the Commission to categorically discount 

the value of affiliated precedent agreements when assessing 

applications to construct new pipelines, the Policy Statement 

explains that, in all cases, the Commission invariably focuses
30

on “the impact of the project on the relevant interests balanced 

against the benefits to be gained from the project.” Id. Finally, 

it is noteworthy that nothing in the Certificate Policy Statement 

suggests that a precedent agreement is conclusive proof of need

in a situation in which there is no new load demand, no 

Commission finding that a new pipeline would reduce costs,

only a single precedent agreement in which the pipeline and 

shipper are corporate affiliates, the affiliate precedent 

agreement was entered into privately after no shipper 

subscribed during an open season, and the agreement is not for 

the full capacity of the pipeline.

In this case, the Commission was presented with strong 

arguments as to why the precedent agreement between Spire 

STL and Spire Missouri was insufficiently probative of market 

need and benefits of the proposed pipeline. Indeed, those 

arguments drew on the Commission’s own Certificate Policy 

Statement for support. But rather than engaging with these 

arguments, the Commission seemed to count the single 

precedent agreement between corporate affiliates as conclusive 

proof of need. Nothing in the Certificate Policy Statement 

endorses this approach.

Furthermore, we can find no judicial authority endorsing a 

Commission Certificate in a situation in which the proposed 

pipeline was not meant to serve any new load demand, there 

was no Commission finding that a new pipeline would reduce 

costs, the application was supported by only a single precedent 

agreement, and the one shipper who was party to the precedent 

agreement was a corporate affiliate of the applicant who was 

proposing to build the new pipeline. This is hardly surprising

because evidence of “market need” is too easy to manipulate

when there is a corporate affiliation between the proponent of 

a new pipeline and a single shipper who have entered into a

precedent agreement. See Chinook Power Transmission, LLC,
31

126 FERC ¶ 61,134, 61,767 (2009) (explaining that, in a 

different context, the Commission “will apply a higher level of 

scrutiny” to certain affiliate transactions “due to the absence of 

arms’ length negotiations as a basis for the commitment, 

concerns that the affiliate would receive unduly preferential 

treatment, further concerns that a utility affiliate contract could 

shift costs to captive ratepayers of the affiliate and subsidize 

the . . . project inappropriately, and the lack of transparency 

that would surround the arrangement”).

Moreover, in this case the Commission failed to 

adequately balance public benefits and adverse impacts. This 

is a serious problem in a case in which there is no new load 

demand and only one affiliated shipper. In the Certificate 

Order, the Commission’s balancing of costs and benefits 

consisted largely of its ipse dixit “that the benefits that the 

[proposed pipeline] will provide to the market, including 

enhanced access to diverse supply sources and the fostering of 

competitive alternatives, outweigh the potential adverse effects 

on existing shippers, other pipelines and their captive 

customers, and landowners or surrounding communities.” J.A. 

986. The Commission pointed to no concrete evidence to 

support these assertions.

In the Rehearing Order, the Commission made a 

superficial effort to remedy the obvious deficits of the 

Certificate Order by noting that Spire Missouri had articulated 

several public benefits for the proposed pipeline. See J.A. 

1155-56. However, the Commission never addressed the 

claims raised by EDF and others challenging whether these 

purported benefits were likely to occur. Instead of evaluating 

the legitimate claims that had been raised, the Commission 

simply stated that it had “no reason to second guess the 

business decision of” Spire Missouri as reflected in the 

precedent agreement. Rehearing Order, J.A. 1155; see also
32

Rehearing Order, J.A. 1159 (declining to evaluate extent to 

which Spire Missouri’s customers would experience economic 

benefit from pipeline construction because doing so would 

“second guess the business decisions of an end user”). Before 

this court, EDF has continued to challenge the Commission’s 

failure to appropriately scrutinize the costs and alleged benefits 

of the project. See Final Opening Br. of Pet’r EDF 39-40; see 

also Final Reply Br. of Pet’r EDF 15-18 (asserting that 

purported benefits of proposed pipeline were invoked post hoc 

by the Commission, unlikely to be realized, or pretextual). 

Under the circumstances presented in this case – with flat 

demand as conceded by all parties, no Commission finding that 

a new pipeline would reduce costs, and a single precedent 

agreement between affiliates – we agree with EDF that the 

Commission’s approach did not reflect reasoned and principled 

decisionmaking. 

The Commission and the Spire Intervenor-Respondents 

advance several arguments in response, but none carry the day. 

First, they rely on isolated statements this court has made while 

reviewing previous Commission grants of Certificates. In 

Minisink, we echoed the Certificate Policy Statement in 

explaining that precedent “agreements ‘always will be 

important evidence of demand for a project.’” 762 F.3d at 111 

n.10 (quoting 88 FERC at 61,748). Similarly, in Myersville, we 

noted that the petitioners had “‘identif[ied] nothing in the 

policy statement or in any precedent construing it to suggest 

that it requires, rather than permits, the Commission to assess 

a project’s benefits by looking beyond the market need 

reflected by the applicant’s existing contracts with shippers.’” 

783 F.3d at 1311 (quoting Minisink, 762 F.3d at 111 n.10). In 

City of Oberlin, we upheld the Commission’s decision to treat 

both affiliated and unaffiliated precedent agreements as 

evidence of market need, as “it is Commission policy to not 

look behind precedent or service agreements to make 
33

judgments about the needs of individual shippers.” 937 F.3d at

606 (quoting Myersville, 783 F.3d at 1311). And in 

Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199,

(D.C. Cir. Feb. 19, 2019) (per curiam) (unpublished), the court 

upheld the Commission’s decision not to distinguish between 

affiliated and unaffiliated precedent agreements under the facts 

of that case. See id. at *1. According to the Commission and 

the Spire Intervenor-Respondents, these cases stand for two 

broad propositions: (1) that the Commission generally need not 

look behind precedent agreements in determining whether 

there is market demand; and (2) that affiliated precedent 

agreements should almost always be treated the same as 

unaffiliated precedent agreements. We disagree, because it is 

quite clear that our case law does not go so far as Respondents 

claim. 

In both Minisink and Myersville, the precedent agreements 

at issue were not alleged to be between affiliated entities. See

Minisink, 762 F.3d at 111 n.10; Myersville, 783 F.3d at 1307, 

1309-10. Thus, those cases presented significantly different 

facts than the instant Certificate application. Appalachian 

Voices was an unpublished opinion, meaning that the panel 

found its opinion to be of “no precedential value” when

disposing of the case. See D.C. CIR. R. 36(e)(2). Moreover, 

unlike in this case, the Certificate applicant in that case had 

submitted a market study to the Commission to show the need 

for, and benefits of, the proposed project. See Mountain Valley 

Pipeline, LLC, 161 FERC ¶ 61,043, 61,297 (2017).

In City of Oberlin, the pipeline applicant had entered into 

four precedent agreements with affiliate shippers but had 

entered eight precedent agreements in total. See 937 F.3d at 

603. The facts of that case are therefore easily distinguishable, 

and the evidence of market demand was much stronger than in 

the instant case, where there is but a single precedent 
34

agreement and it is with an affiliated shipper. It is true that City 

of Oberlin says that FERC can put precedent agreements with 

affiliates on the same footing as non-affiliate precedent 

agreements (i.e., it may “fully credit[]” them), but only so long 

as FERC finds “no evidence of self-dealing” or affiliate abuse 

and the pipeline operator “bears the risk for any unsubscribed 

capacity.” Id. at 605. And tellingly, the Commission made an 

uncontested finding that there was “no evidence of selfdealing” or affiliate abuse in City of Oberlin. See id.

Here, by contrast, EDF and others have identified 

plausible evidence of self-dealing. This evidence includes that 

the proposed pipeline is not being built to serve increasing load 

demand and that there is no indication the new pipeline will 

lead to cost savings. FERC’s failure to engage with this 

evidence did not satisfy the requirements of reasoned 

decisionmaking. Indeed, as noted above, FERC’s ostrich-like 

approach flies in the face of the guidelines set forth in the 

Certificate Policy Statement. The challenges raised by EDF

and others were more than enough to require the Commission 

to “look behind” the precedent agreement in determining 

whether there was market need. If it was not necessary for the 

Commission to do so under these circumstances, it is hard to 

imagine a set of facts for which it would ever be required. 

Because the Commission declined to engage with EDF’s

arguments and the underlying evidence regarding self-dealing, 

its decisionmaking was arbitrary and capricious.

Next, the Commission contends that its balancing of 

benefits and adverse impacts was sufficient because the Natural 

Gas Act “vests the Commission with ‘broad discretion to 

invoke its expertise in balancing competing interests and 

drawing administrative lines.’” Br. for Resp’t FERC 42 

(quoting Minisink, 762 F.3d at 111). The Commission’s 

discretion in this sphere is, indeed, broad, but it may not go 
35

entirely unchecked. The Commission must provide a cogent 

explanation for how it reached its conclusions. As discussed, 

FERC failed to balance the benefits and costs in both the 

Certificate Order and Rehearing Order. 

Finally, Respondents claim that there is evidence in the 

record supporting their assertions as to the benefits of the 

pipeline, even in the absence of increasing demand or potential 

cost savings. However, it is not enough that such evidence may 

exist within the record; the question is whether the 

Commission’s decisionmaking, as reflected in its orders, will 

allow us to conclude that the Commission has sufficiently 

evaluated that evidence in reaching a reasoned and principled 

decision. See SEC v. Chenery Corp., 318 U.S. 80, 87-88, 93-95

(1943); SEC v. Chenery Corp, 332 U.S. 194, 196 (1947). Based 

on the Certificate Order and Rehearing Order, we cannot say 

that the Commission has done so. It is not surprising that the 

Commission failed to seriously engage with the question of 

whether these benefits were real or illusory given that it took 

the position that it would “not second guess the business 

decisions” of the pipeline shipper in this case. Certificate

Order, J.A. 968.

In sum, it was arbitrary and capricious for the Commission 

to rely solely on a precedent agreement to establish market 

need for a proposed pipeline when (1) there was a single 

precedent agreement for the pipeline; (2) that precedent 

agreement was with an affiliated shipper; (3) all parties agreed 

that projected demand for natural gas in the area to be served 

by the new pipeline was flat for the foreseeable future; and (4)

the Commission neglected to make a finding as to whether the 

construction of the proposed pipeline would result in cost 

savings or otherwise represented a more economical alternative 

to existing pipelines. In addition, the Commission’s cursory 
36

balancing of public benefits and adverse impacts was arbitrary 

and capricious.

III. REMEDY

The final question that we must address concerns remedy. 

The Spire Intervenor-Respondents urge that, if we set aside 

FERC’s certification, we should remand without vacatur. EDF, 

in turn, contends that vacatur is appropriate. “The decision 

whether to vacate depends on the seriousness of the order’s 

deficiencies (and thus the extent of doubt whether the agency 

chose correctly) and the disruptive consequences of an 

interim change that may itself be changed.” Allied-Signal, Inc. 

v. Nuclear Regul. Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 

1993) (citation and internal quotation marks omitted).

However, “[v]acatur ‘is the normal remedy’ when we are faced 

with unsustainable agency action.” Brotherhood of Locomotive 

Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83, 117 

(D.C. Cir. 2020) (quoting Allina Health Servs. v. Sebelius, 746 

F.3d 1102, 1110 (D.C. Cir. 2014)).

Based on these considerations, we believe that vacatur is 

appropriate. Given the identified deficiencies in the 

Commission’s orders, it is far from certain that FERC “chose 

correctly,” see Allied-Signal, 988 F.2d at 150 (citation 

omitted), in issuing a Certificate to Spire STL. We understand 

that the pipeline is operational, and thus there may be some 

disruption as a result of the “interim change,” see id. at 150-51 

(citation omitted), i.e., de-issuance of the Certificate, caused by 

vacatur. However, we have identified serious deficiencies in 

the Certificate Order and Rehearing Order. And “the 

second Allied–Signal factor is weighty only insofar as the 

agency may be able to rehabilitate its rationale.” Comcast 

Corp. v. FCC, 579 F.3d 1, 9 (D.C. Cir. 2009) (citation omitted). 
37

The Commission’s ability to do so is not at all clear to us at this 

juncture. 

Furthermore, remanding without vacatur under these 

circumstances would give the Commission incentive to allow 

“build[ing] first and conduct[ing] comprehensive reviews 

later.” Standing Rock Sioux Tribe v. Army Corps of Eng’rs, 985 

F.3d 1032, 1052 (D.C. Cir. 2021). We certainly do not wish to 

encourage such an approach given the significant powers that 

accompany a certificate of public convenience and necessity. 

See 15 U.S.C. § 717f(h) (allowing holder of Certificate to 

exercise eminent domain); see also Rehearing Order, J.A. 

1195-96 (Glick, Comm’r, dissenting) (noting that “Spire STL 

prosecuted eminent domain actions against over 100 distinct 

entities . . . involving well over 200 acres of privately owned 

land”). See generally Rehearing Order, J.A. 1202 (Glick, 

Comm’r, dissenting) (“A regulatory construct that allows a 

pipeline developer to build its entire project while 

simultaneously preventing opponents of that pipeline from 

having their day in court ensures that irreparable harm will 

occur before any party has access to judicial relief.”).

IV. CONCLUSION

For the foregoing reasons, we dismiss Juli Steck’s petition 

for review and grant EDF’s petition for review. We vacate the 

Certificate Order and Rehearing Order and remand to the 

Commission for further proceedings.