United States Court of Appeals

for the Fifth Circuit

____________

No. 23-60027

____________

Citizens for Clean Air & Clean Water in Brazoria 

County; Texas Campaign for the Environment; Center 

for Biological Diversity; Turtle Island Restoration 

Network; Sierra Club, 

Petitioners,

versus

United States Department of Transportation; Pete 

Buttigieg, in his official capacity as Secretary of the U.S. Department of 

Transportation; United States Coast Guard, an agency of the U.S. 

Department of Homeland Security; Richard V. Timme; United 

States Maritime Administration, an agency of the U.S. 

Department of Transportation; Ann Phillips, in her official capacity as 

Administrator of the U.S. Maritime Administration; Linda L. 

Fagan, in her official capacity as Commandant of the U.S. Coast Guard, 

Respondents.

______________________________

Appeal from the Maritime Administration

Agency No. MARAD-2019-0011

______________________________

Before Wiener, Willett, and Douglas, Circuit Judges.

Dana M. Douglas, Circuit Judge:

A government agency approved a license to construct and operate a

large deepwater oil facility a few miles from Texas’s coast. Several 

United States Court of Appeals

Fifth Circuit

FILED

April 4, 2024

Lyle W. Cayce

Clerk

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2

environmental organizations allege that the approval was unreasonable, 

claiming that the reviewing agency failed to support its decision with a wellreasoned environmental impact analysis. Such a failure, the organizations 

assert, was in violation of the Deepwater Port Act and the National 

Environmental Policy Act. The question presented is whether the agency’s 

approval was arbitrary or capricious. We hold that the agency adequately 

considered the environmental consequences of the facility before approving 

its deepwater port license and, on those grounds, DENY the petition for 

review. 

I

America’s deepwater oil and gas industry was born in the late 1930s 

when proprietors discovered oil in the Gulf of Mexico’s open waters. To

access the valuable minerals, workers constructed wooden platforms with 

timber pilings and floating decks meant to wash away in the event of storms. 

Diane Austin, et al., MMS 2004-049, History of the Offshore 

Oil and Gas Industry in Southern Louisiana: Interim 

Report 72–74 (U.S. Dep’t of the Interior, vol. 1 2004). Little did anyone 

know then that these primitive wooden structures would lay the foundation 

for the more than 3,000 deepwater oil facilities in operation today. See Gulf 

of Mexico Data Atlas: Oil and Gas Structures, Nat’l Oceanic & 

Atmospheric Admin., https://www.ncei.noaa.gov/maps/gulf-data-atl

as/atlas.htm?plate=Offshore%20Structures (last visited Feb. 4, 2023).

With such an imposing modern infrastructure, it may come as no 

surprise that the Gulf leads the nation in producing and exporting domestic 

oil to markets worldwide. That reality nevertheless presents challenges the 

builders of the first offshore platforms likely never considered. One 

challenge, for example, is efficiently exporting the roughly 3.9 million barrels 

of crude oil that move from the region daily. Petroleum & Other Liquids,

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Annual-Thousand Barrels per Day (2023), U.S. Energy Info. 

Admin., https://www.eia.gov/dnav/pet/pet_move_exp_dc_R30-Z00_m

bblpd_a.htm (last visited Mar. 26, 2024). The most efficient practice today 

is utilizing large tankers capable of carrying over a million barrels at once. Yet 

moving these quantities of oil on such large vessels comes with a cost. The 

weight of the cargo makes the metal tankers weighty, requiring deep waters 

to support their hull. Practically, that means oil facilities near land cannot

load the vessels because the coastal waters are too shallow. To circumvent 

this issue, the industry employs a “reverse lightering” process where smaller 

ships ferry oil from coastal ports and transfer their cargo to larger vessels in 

deeper waters. While reverse lightering addresses the coastal-loading issue, 

the process has a few setbacks of its own: It multiplies shipping traffic and 

expenses for oil companies.

The Sea Port Oil Terminal (SPOT or Port) offers a possible 

alternative. Billed as the largest deepwater terminal of its kind, SPOT would 

directly load a maximum of 365 very large crude carriers (VLCCs) in deep 

waters each year. SPOT would operate several miles from the coast of Texas 

and connect to existing land-based oil facilities through subsea and onshore 

pipelines. Operating at total capacity, SPOT could store and export 18 

percent of total U.S. oil production annually. Such a capability would 

diminish the need for reverse lightering trips and consequently reduce oil 

transportation costs. 

For all its commercial promise, however, SPOT has drawn significant 

opposition from Petitioners who constitute local and national environmental

organizations. Among their many concerns, Petitioners argue that the 

project’s construction and operation will cause severe and lasting global 

consequences. Operating SPOT, Petitioners assert, would produce 

emissions on the Gulf Coast equivalent to “more than 80 new coal-fired 

power plants.” That staggering quantity of harmful pollutants, they say, will 

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not only undercut U.S. and global emission policies but also exacerbate the 

detrimental effects of climate change. Another worry is that SPOT could

increase the likelihood of mass oil spills along miles of Texas coastline. 

Petitioners believe such disasters would have catastrophic economic impacts 

throughout the region.

As for ecological effects, Petitioners say the project threatens the 

Gulf’s marine environment. By encouraging shipping traffic, increasing air 

pollution, discharging hazardous substances, and emitting harmful noise,

Petitioners claim that SPOT puts several endangered animals at risk. Of 

particular concern is the Rice’s whale, a non-migratory cetacean that lives in 

the region’s tropical waters. Sadly, scientists believe that no more than fifty

Rice’s whales remain in the natural world. Petitioners believe that operating 

the Port will bring these whales closer to extinction. 

This appeal is not the first occasion that Petitioners raised these and 

other concerns about SPOT. For several years, they voiced their criticisms 

directly to the government agency reviewing SPOT’s deepwater port 

application. Even so, the project is slated to move forward. After conducting 

hearings, considering numerous public comments, and drafting a thousandpage environmental impact statement, the Government approved SPOT’s 

license for construction and operation. 

Continuing to believe that SPOT’s dangers far outweigh its benefits, 

however, Petitioners appealed the licensing decision. They allege that the 

agency failed to conduct the appropriate level of review in its environmental 

impact statement and follow relevant statutory provisions during the 

approval process. To remedy these alleged failures, Petitioners ask us to 

vacate the agency’s decision and remand this case for additional review. We 

consider Petitioners’ challenges below. But before addressing them, we must 

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first ensure that we have jurisdiction to do so. DaimlerChrysler Corp. v. Cuno, 

547 U.S. 332, 340 (2006).

II

The parties disagree about whether Petitioners have standing to 

challenge the agency’s licensing decision. Such a dispute invokes the 

constitutional limitations rooted in Article III’s “case” or “controversy”

clause. Satisfying the Article III threshold requires Petitioners to 

demonstrate their “‘personal stake’ in the case.” Biden v. Nebraska, 143 S. 

Ct. 2355, 2365 (2023) (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 

423 (2021)). To do so, at least one plaintiff must point to some concrete 

injury “‘fairly traceable’ to the actions of the defendant,” which will “likely 

be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 

(1997) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 562–63 (1992)).1

Enterprise Products Operating, LLC (Enterprise),2 one of SPOT’s 

principal designers, argues that Petitioners fail to articulate a cognizable 

injury.

3

It claims Petitioners offer only their subjective “concerns” without 

proof that they or anyone else will suffer the harms alleged. Enterprise 

_____________________

1 That Petitioners here constitute organizations adds another level of review to the 

standing inquiry: They must show “(1) the association’s members would independently 

meet the Article III standing requirements; (2) the interests the association seeks to protect 

are germane to the purpose of the organization; and (3) neither the claim asserted nor the 

relief requested requires participation of individual members.” Ctr. for Biological Diversity 

v. EPA, 937 F.3d 533, 536 (5th Cir. 2019) (quoting Tex. Democratic Party v. Benkiser, 459 

F.3d 582, 587 (5th Cir. 2006)). Despite this added layer of analysis, however, only the first 

element is in dispute—that is, whether the organizations here can point to a single member 

with standing to challenge the Secretary’s approval of SPOT’s license application.

2 Enterprise is appearing as Intervenor in this case along with SPOT Terminal 

Services, LLC, another entity who helped design the Port. Although the parties appeared 

together on appeal, this ruling refers to both Intervenors as “Enterprise” for clarity.

3 The Government does not dispute Petitioners’ constitutional standing.

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stresses that the concerns regarding harmful oil spills, decreased air quality, 

and danger to threatened species are all speculative, subjective, and purely 

“hypothetical.” Enterprise believes that the same logic extends to

Petitioners’ fears about decreased property values, damage to the local 

economy, loud noise from construction, and harmful air emissions from 

construction equipment. At most, Enterprise asserts, Petitioners have 

managed to identify “possible future injur[ies],” which “will not suffice”

under Article III. See Abdullah v. Paxton, 65 F.4th 204, 208 (5th Cir. 2023)

(per curiam) (internal quotation marks omitted). 

Enterprise’s claims are unpersuasive. It is true that SPOT’s 

construction has yet to break ground. And in that sense, it may not appear 

that Petitioners’ alleged injuries are “actual” or “imminent.” But “[t]he 

Supreme Court has expressly held that a ‘threatened injury’ will satisfy the 

‘injury in fact’ requirement for standing.” Sierra Club Lone Star Chapter v. 

Cedar Point Oil Co., 73 F.3d 546, 556 (5th Cir. 1996) (citing Valley Forge 

Christian Coll. V. Ams. United for Separation of Church & State, Inc., 454 U.S. 

464, 472 (1982)). This principle is an important one for environmental 

plaintiffs who, like the ones here, challenge “an administrative agency’s 

failure to satisfy a procedural requirement.” Ctr. For Biological Diversity, 937 

F.3d at 542; see also Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (“When 

a litigant is vested with a procedural right, that litigant has standing if there 

is some possibility that the requested relief will prompt the injury-causing 

party to reconsider the decision that allegedly harmed the litigant.”). 

According to Petitioners, the procedural violation here was the agency’s

approval of SPOT’s deepwater port application without the environmental 

review required by statute. See 33 U.S.C. § 1505. Although that allegation 

alone is insufficient to prove an injury, Summers v. Earth Island Inst., 555 U.S. 

488, 496 (2009), Petitioners may nevertheless establish standing if the 

agency’s unlawful action threatens their “concrete interest,” see Shrimpers 

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& Fishermen of RGV v. Tex. Comm’n on Env’t Quality, 968 F.3d 419, 426 (5th 

Cir. 2020) (quoting Lujan, 504 U.S. at 573 n.8).

The relevant question, then, is whether Petitioners have identified a 

concrete interest impaired by the agency’s inadequate environmental review. 

They have. Consider the sworn statements of Pamela Harris, a Sierra Club 

member4 who owns a home near Surfside Beach in Brazoria County, Texas. 

SPOT plans to construct a pipeline connecting its offshore terminal to landbased facilities one mile from her property. Harris claims the proposed 

pipelines will carry increased risks of oil spills, unwanted noise, habitat 

destruction, and property devaluation. The construction and operation of the 

pipelines, she claims, would create an aesthetic and physical nuisance, 

negatively affecting her enjoyment of her property, her recreational activities 

on Surfside Beach, and her observation of the beach’s migratory birds and 

nesting sea turtles. As the Supreme Court has explained, environmental 

plaintiffs have a cognizable interest in their “desire to use or observe an 

animal species, even for purely esthetic purposes.” Lujan, 504 U.S. at 563. 

So too “when they aver that they use the affected area and are persons ‘for 

whom the aesthetic and recreational values of the area will be lessened’ by 

the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. 

(TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 

U.S. 727, 735 (1972)). 

Because Harris says she “plan[s] to make use of the specific sites”

where the environmental effects from SPOT would allegedly be felt, she has 

identified cognizable interests threatened by the project. See Summers, 555 

U.S. at 499. We are also satisfied that the agency’s alleged procedural 

_____________________

4 She is a member of Citizens for Clean Air & Clean Water in Brazoria County and 

the Sierra Club. 

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violations directly relate to Harris’s injuries: The agency approved SPOT’s 

license based on an allegedly deficient environmental review, which, in turn, 

will lead to the construction of a project causing the injuries claimed above.

See Lujan, 504 U.S. at 572 n.8. Harris has thus shown that she has standing 

to challenge the agency’s actions.5 And because only “one” plaintiff needs 

standing to consider a “petition for review,” Massachusetts, 549 U.S. at 518, 

this environmental suit may proceed accordingly, see Biden, 143 S. Ct. 

at 2365. Assured of our jurisdiction, we turn next to the heart of Petitioners’

appeal.

III

To “promote” efficient oil production in ocean waters, the 

Deepwater Port Act (DPA) establishes procedures for constructing and 

operating “deepwater ports.” See 33 U.S.C. § 1501. Deepwater ports, in 

turn, are “fixed or floating manmade structure[s] . . . located beyond State 

seaward boundaries . . . that are used or intended for use as a port or terminal 

for the transportation, storage . . . of oil or natural gas.” Id. § 1502(9)(A). 

The DPA grants the Secretary of Transportation authority to issue licenses 

“for the ownership, construction, and operation” of these structures, see id.

§ 1503; the Secretary delegates that reviewing authority to the Maritime 

Administration and the United States Coast Guard. 49 C.F.R. §§ 1.93(h)(1)–

(h)(2).

_____________________

5 We are likewise satisfied that standing’s traceability and redressability elements 

are met. As noted, the Secretary’s alleged procedural failures resulted in approving 

SPOT’s license without undergoing the legally mandated review process, which, in turn, 

will lead to the construction of a project, causing Harris’s injuries discussed above. See Ctr. 

for Biological Diversity, 937 F.3d at 543. And while an adequate environmental impact 

statement may not cause SPOT’s “license to be withheld or altered,” it may at least force 

the Government to reconsider its decision, which satisfies the redressability element.

Lujan, 504 U.S. at 572 n.7.

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Before approving a deepwater port license, the DPA mandates that 

the Secretary undergo several analyses. One mandated evaluation is 

considering whether the proposed port would be in the “national interest”

and whether it aligns with “national policy goals and objectives” like 

“national security . . . [and] energy sufficiency.” 33 U.S.C. § 1503(c)(3). As 

relevant here, the Secretary must also analyze the proposed project’s effect 

on “environmental quality.” Id. To do so, the DPA incorporates procedures 

outlined in the National Environmental Policy Act (NEPA). Id. § 1505. 

Recognizing the “profound impact” of human activity on the 

environment, Congress passed NEPA to “create and maintain conditions 

under which man and nature can exist in productive harmony.” 42 U.S.C. 

§ 4331(a). Among its many objectives, a core principle of NEPA is 

“fulfill[ing] the responsibilities of each generation as trustee of the 

environment for succeeding generations.” Id. § 4331(b)(1). Despite these 

ambitious goals, however, NEPA does not mandate environmentally 

friendly results; it imposes procedural requirements ensuring that the 

government considers “the environmental impact of [its] proposals and 

actions.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004) (citing 42 

U.S.C. § 4332). 

As pertinent here, one of these requirements is the drafting of 

environmental impact statements (EIS). NEPA mandates the creation of an

EIS whenever “major Federal actions significantly affect[] the quality of the 

human environment.” 42 U.S.C. § 4332(C); 40 C.F.R. § 1502.1. In crafting 

these reports, the government must collect accurate scientific data and 

“disseminate information concerning the projects’ environmental 

consequences.” Sabine River Auth. v. U.S. Dep’t of Interior, 951 F.2d 669, 676 

(5th Cir. 1992); see 40 C.F.R. §§ 1500.1(b), 1502.24. The review must also, 

among other evaluations, discuss the purpose and need of the proposed 

action, address reasonable alternatives, and consider the impacts of those 

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alternatives. 40 C.F.R. §§ 1502.1, 1502.13, 1502.14, 1502.16. Though 

demanding, these procedures are in place to ensure the government takes a 

“hard look” at the effects of its decisions before approving projects that alter 

our shared environment. See Robertson v. Methow Valley Citizens Council, 490 

U.S. 332, 356 (1989).

IV

In this case, Petitioners claim that the reviewing agency failed to take 

that “hard look” as it crafted the Final Environmental Impact Statement 

(FEIS) for SPOT. They contend that the FEIS applied a “flawed”

alternatives analysis and “grossly underestimate[ed]” SPOT’s 

environmental impacts concerning a host of foreseeable consequences, 

including oil spills, harmful impacts on animals, catastrophic ruptures, and 

diminished air quality. Compounding issues further, Petitioners say that the 

agency failed to follow certain procedures that the DPA mandates—like 

approval timelines and energy sufficiency considerations. In their briefing, 

Petitioners ask that we remand this case for the agency to engage in more 

robust analyses. 

A

We review an EIS under the rule of reason and “must not substitute 

[our] judgment for that of the agency.” Miss. River Basin All. v. Westphal, 230 

F.3d 170, 175 (5th Cir. 2000) (cleaned up). We apply a highly deferential 

review standard in these cases because preparing an EIS requires highly 

technical knowledge. Id. As we lack such expertise, we must “defer to the 

informed discretion of the responsible federal agencies.” Id. (quoting Marsh 

v. Or. Nat. Res. Council, 490 U.S. 360, 377 (1989)). Agencies, however, are 

not infallible. And when their decisions are arbitrary or capricious, we have 

the power to set them aside. See 5 U.S.C. § 706. An arbitrary or capricious 

action is one that relies on improper factors, fails to consider key information, 

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offers a decision that the record does not support, or lacks plausibility. See

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983). 

In applying that standard to an EIS, we are guided by several 

principles. Most importantly, we consider, 

(1) whether the agency in good faith objectively has taken a 

hard look at the environmental consequences of a proposed 

action and alternatives; (2) whether the EIS provides detail 

sufficient to allow those who did not participate in its 

preparation to understand and consider the pertinent 

environmental influences involved; and (3) whether the EIS 

explanation of alternatives is sufficient to permit a reasoned 

choice among different courses of action.

Westphal, 230 F.3d at 174 (quoting Isle of Hope Hist. Ass’n v. U.S. Army Corps 

of Eng’rs, 646 F.2d 215, 220 (5th Cir. 1981)). With these guideposts in mind, 

we address each of Petitioners’ challenges in turn. 

Oil Spill Risks

We begin with oil spill risks. Petitioners first contend that “[t]he 

FEIS ignores the full scope of probable oil spill locations and sizes expected 

to occur throughout SPOT’s network.” Among the omissions, Petitioners 

argue that the agency never addressed probable spill analyses for several 

miles of pipelines, loading and processing facilities, and Port components 

near communities. As Petitioners put it, the agency instead only addressed 

“likely” oil spill models with limited releases. As for the spills the FEIS did 

consider, Petitioners assert that the agency failed to evaluate the broad effects 

to wildlife habitats or marine ecosystems. One prominent oversight, they 

note, is the FEIS’s failure to analyze the harmful compounds in the most 

likely spills on marine species near SPOT and the effect of those compounds 

on endangered sea life. On this argument, Petitioners insist that the agency 

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shirked its responsibility and “punt[ed]” direct evaluations in favor of brief 

and superficial analyses. 

We disagree. To start, we note that the FEIS includes two thorough 

analyses of SPOT’s oil spill risks: one performed by the applicant and the 

other by the Coast Guard. The first analysis considered spillage throughout 

SPOT’s infrastructure. That review also included oil spill modeling for a 

2,200-barrel hypothetical release of three different oil types. In the second 

spill analysis, the Coast Guard analyzed the scope and effects of varying oil 

spills, ranging from 17.5 to over 600,000 barrels.6 Using these varying ratios, 

the agency examined several spill scenarios from SPOT, SPOT’s coastal 

pipelines, and SPOT’s possible collision with tankers. 

The FEIS also considered oil spill risks to marine species in similar 

depth. It explains, for instance, that spills could cause severe skin and eye 

wounds, lung disease, and gastrointestinal injuries to aquatic species. And it

discusses explicitly how a large oil spill could affect threatened and 

endangered marine mammals, sea turtles, and fish. To bolster its analysis, the 

agency even consulted with the National Marine Fisheries Service, who 

produced a report that the EIS incorporates by reference. Considering the 

detail and extent of the analysis in the record, the agency adequately 

considered the direct and indirect effects of varying spills. In so doing, the 

agency’s review did not violate NEPA.

Worst-Case Oil Spill

Petitioners next argue that the agency’s analysis of SPOT’s worstcase disasters is deficient. They explain that the FEIS fails to examine 

impacts caused by a catastrophic rupture or the broad effects of worst-case 

_____________________

6

It discussed the possible effects on groundwater, surface water, soil, wetlands, 

vegetation, habitats, onshore oyster reefs, wildlife, and listed and non-listed species.

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scenarios from different points in SPOT’s infrastructure. According to 

Petitioners, the agency should have applied data projecting a maximum 

possible spill to a worst-case discharge impact analysis. See 40 C.F.R. 

§§ 1500.1(b), 1502.24. But in Petitioners’ telling, the FEIS traded those 

considerations for “mere generalization[s]” insufficient to satisfy the “hard 

look” standard. 

When promulgating EIS regulations in the 1970s, the Council for 

Environmental Quality (CEQ) required agencies to consider a project’s 

“worst case scenarios” if “certain information relevant to the agency’s 

evaluation of the proposed action is either unavailable or too costly to 

obtain.” Robertson, 490 U.S. at 354. In the ensuing decade, however, a new 

regulation supplanted the “worst case” guidance: The CEQ modified the 

rule to mandate that federal agencies generally consider “significant adverse 

impacts” that are “reasonably foreseeable” “even if their probability of 

occurrence is low.” See National Environmental Policy Act Regulations, 50 

Fed. Reg. 32234-01 (Aug. 9, 1985) (to be codified at 40 C.F.R. pt. 1502); 

Robertson, 490 U.S. at 354. Today, that modification remains largely 

unchanged. See 40 C.F.R. §§ 1502.21(c), (d) (explaining that federal agencies 

should generally consider “reasonably foreseeable significant adverse 

impacts . . . even if their probability of occurrence is low.”). 

Addressing Petitioners’ argument therefore requires us to ask 

whether the agency evaluated SPOT’s reasonably foreseeable significant 

adverse effects. Id. Answering that question does not require much heavy 

lifting. The record shows that the FEIS indeed analyzed potential effects and 

risks of worst-case oil spills in several situations that the agency considered 

“reasonably foreseeable.” For example, the agency considered SPOT’s 

worst-case discharge for both onshore and offshore components and 

simulated the resulting oil dispersion across the Gulf. The agency also 

projected the extent of catastrophic oil slick spread by applying 

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meteorological conditions such as waves, winds, currents, and solar 

radiation. In weighing the data, the agency acknowledged that the worst-case 

spill “may harm communities, contaminate the water source, and destroy or

damage sensitive breeding grounds and important species.” It further

referenced a biological assessment that analyzed the largest spill scenario and 

the collateral impacts on endangered species. Because the FEIS offered an 

in-depth assessment of such adverse effects, its analysis was neither arbitrary 

nor capricious. 

Perhaps anticipating such a result, Petitioners alternatively argue that 

the FEIS’s worst-case analysis suffers irredeemable formatting flaws. They 

explain that the agency confined the relevant examination to the FEIS’s 

safety impact portion. In choosing to do so, Petitioners argue that the agency

prevented adequate public disclosure of SPOT’s worst-case environmental 

threats. On this argument, Petitioners conclude that the agency’s formatting 

was not only confusing, but grounds for vacating the FEIS.

Stylistic choices within an EIS, however, are not dispositive of 

whether an agency took a “hard look” at a project’s environmental 

consequences. See Mont. Wilderness Ass’n v. Connell, 725 F.3d 988, 1002 (9th 

Cir. 2013) (“An agency . . . has discretion in deciding how to organize and 

present information in an EIS.”). NEPA does not require that an EIS

strictly adhere to a formal structure. Its own regulations say as much: An EIS

can be valid so long as it includes the substantive discussion required by its 

corresponding guidelines. See 40 C.F.R. § 1502.10. And because Petitioners 

here fail to show how the agency’s formatting decisions affect “the substance 

of [the] decision reached,” see United States v. Johnson, 632 F.3d 912, 930 

(5th Cir. 2011) (quoting U.S. Steel Corp. v. EPA, 595 F.2d 207, 215 (5th Cir.

1979)), any challenge to the FEIS’s format is meritless. 

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Impacts on Protected Species

Petitioners next challenge the FEIS’s review of protected species. Of 

principal concern, Petitioners say the agency failed to supplement the FEIS

with new data concerning the habitat of Rice’s whales. As mentioned, the 

Rice’s whale is a highly imperiled cetacean with one of the world’s smallest 

whale populations. As the agency crafted the FEIS, it was understood that 

the Rice’s whale was generally confined near Florida’s coast. But that 

understanding was called into question by a recent scientific discovery: After 

a period of sea acoustic monitoring in the western Gulf, scientists detected 

Rice’s whale vocalizations near the coast of Texas. Scientists outlined these 

findings in a research article, which was not published until after SPOT’s 

FEIS review. As the FEIS lacks any reference to these new scientific 

findings, Petitioners urge us to remand this case to the agency for a

supplemental evaluation. 

We decline to do so. Agencies must indeed supplement their EIS

when “significant new circumstances or information” comes to light. 40 

C.F.R. §§ 1502.9(c)(1)(i)–(ii). But not all “new” information is 

“significant.” See Marsh, 490 U.S. at 373. And when determining what 

information warrants EIS supplementation, courts generally defer to the 

agency’s well-informed judgment. Id. at 377. Here, the agency concluded 

that the new data on Rice’s whales did not require a supplemental EIS. The 

vocalization study, the agency reasoned, did not alter the FEIS analysis 

because it already considered possible effects the Port may have on Rice’s 

whales in the region. When addressing SPOT’s potential harm to the 

species, the FEIS concluded that the whale’s occurrence near SPOT would 

be “extremely unlikely” because its core distribution area would still be “in 

water depths ranging from 100–400 m[eters]” or 328–1312 feet. The agency 

explained that SPOT will be constructed in 115-foot waters, meaning any 

encounter with the whale would be “quite rare.”

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At no point did the FEIS say that an encounter with a Rice’s whale 

was impossible; it observed that the whale “could be affected by temporary 

changes in water quality and noise” and that the greatest threats to the whale 

would be vessel strikes and oil spills. The agency also conducted a post-EIS

Biological Opinion, affirming these conclusions and restating that Rice’s 

whales are “most commonly observed along the northeastern [Gulf] . . . off 

the west coast of Florida, far from the project site.” These findings are 

uncontroverted by the whale vocalization study. Indeed, the relevant article 

acknowledged that Rice’s whale populations largely remain confined in the 

northeastern Gulf. See Melissa S. Soldevilla et al., Rice’s Whales in the 

Northwestern Gulf of Mexico: Call Variation and Occurrence Beyond the Known 

Core Habitat, 48 Endang. Species Res. 155–174 (2022). For these 

reasons, the agency reasonably determined that it need not supplement its 

FEIS,

7 and Petitioners’ challenge accordingly fails. 

Air Quality Analysis

Petitioners also say the FEIS was insufficient because the agency 

failed to take a “hard look” at SPOT’s direct, indirect, and cumulative air 

quality impacts. They begin by arguing that the FEIS does not evaluate the 

full extent of the Port’s ozone effects. Ozone is a harmful pollutant that is not 

directly emitted but reacts to other compounds or “ozone precursors” often 

produced from industrial projects. As it stands, the Port is slated for 

construction in a “non-attainment” area, meaning ozone pollution in the 

region exceeds levels the EPA deems safe for human health. As Petitioners 

note, however, the EPA recently downgraded the region’s non-attainment 

_____________________

7 Beyond the Rice’s whale, the FEIS also addressed the cumulative impacts of 

SPOT on other protected Gulf species from vessel strikes, underwater noise, 

entanglement, marine debris, and oil spills. Perhaps more importantly, it conducted a tenpage threatened and endangered species review. In sum, the agency’s review was 

substantial, and its conclusions were not arbitrary or capricious.

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classification from “serious” to “severe” just before the agency approved 

SPOT’s application. Such a downgrade is consequential because it generally

requires that agencies undergo added layers of air quality analyses—analyses 

that Petitioners say are absent from the FEIS. For example, Petitioners 

assert that the agency should have considered the Port’s “cumulative” air 

quality impacts. But it did not. As Petitioners put it, the agency instead relied

on the Port’s single stationary source emissions. In doing so, it concluded in 

the FEIS that SPOT would have minimal effects on the region’s air quality 

standards. But had the agency instead relied on cumulative ozone emissions, 

Petitioners insist that the agency would have reached a different conclusion. 

The Government takes a different view. It maintains that the agency

was correct to look at single stationary source emissions data. In so arguing, 

the Government points to the EPA’s own guidance: “If the single-source 

analysis shows that a proposed source will not have a significant impact on air 

quality, permitting authorities may generally conclude that there is no need 

to conduct a cumulative impact analysis to assess whether there will be any 

violations of the [national ambient air quality standards (NAAQS)] . . . .”

Memorandum: Guidance on Significant Impact Levels for Ozone and Fine 

Particles in the Prevention of Significant Deterioration Permitting Program, 

Env’t Prot. Agency, https://www.epa.gov/sites/default/files/2018-

04/documents/sils_policy_guidance_document_final_signed_4-17-18.pdf

(last visited Mar. 24, 2024); 40 C.F.R. § 51.166. Using these guidelines and 

working alongside state officials, the agency produced a report that analyzed 

whether SPOT would conform with state and federal air quality standards.8

The upshot of the report was that constructing the Port would have no 

_____________________

8 The Clean Air Act establishes requirements that ensure that actions approved by 

federal agencies do not adversely affect a state’s ability to meet the NAAQS. 42 U.S.C. 

§ 7506(c)(1). 

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negative impacts on the region’s air quality. As a result, the Government says 

the agency need not engage in further analysis. 

We agree and conclude that the agency’s air quality review was 

sufficient and aligned with government regulations. True enough, the EPA 

downgraded the region’s non-attainment rating after the FEIS was issued. 

But that downgrade did not alter the agency’s review because the FEIS

determined that SPOT would not increase the severity of any existing 

ozone-standard violation in any area. The agency even responded to postEIS concerns about the air quality downgrade and mandated that SPOT

meet certain reporting requirements in the agency’s record of decision. 

Beyond SPOT’s stationary effects, the FEIS also considered ozone 

pollutants from mobile sources, such as ships, that would use SPOT. The 

agency compared these findings against the pollution emitted through 

current oil export practices, such as reverse lightering. In so comparing, the 

FEIS concluded that, in the end, SPOT “could result in fewer overall 

emissions” because it would reduce shipping traffic to and from onshore 

facilities.9 We agree with the Government that the change in attainment 

status, in this case, does not rise to the kind of significant new information 

that would have required supplementing the FEIS. See 40 C.F.R. 

§§ 1502.9(d)(1)(i)–(ii). On this point, Petitioners’ argument fails.

Petitioners’ other challenge to the air quality analysis is also without 

merit. Their remaining concern is that the FEIS never considered the 

cumulative impacts of ozone pollutants alongside other regional deepwater 

ports. That omission, Petitioners think, means that the FEIS’s conclusions 

_____________________

9

It also referenced a study conducted by SPOT’s applicants that considered 

SPOT’s offshore pollutants, which the agency acknowledged “determined that the 

operational project would remain in compliance with all applicable air quality standards.”

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on air quality are incomplete and based on erroneous assumptions. But that 

is not so. According to the agency, the FEIS considered impacts from a 31.1-

mile radius—a scope of review suggested by EPA regulations. Because the 

other offshore terminals and SPOT’s own onshore components do not fall 

within a 31.1-mile span, the FEIS omitted a cumulative impact analysis of 

other facilities. We find that the agency’s approach was reasonable. Even if 

Petitioners might propose another analytical method, “[c]ourts are not in a 

position to decide the propriety of competing methodologies . . . but instead, 

should determine simply whether the challenged method had a rational basis 

and took into consideration the relevant factors.” Silverton Snowmobile Club 

v. U.S. Forest Serv., 433 F.3d 772, 782 (10th Cir. 2006) (quoting Comm. to 

Pres. Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1553 (10th Cir. 1993)).

The record here shows that the agency at least took a “hard look” at the 

project’s effects on air quality. As a result, we need not question the agency’s 

chosen method of analysis. See Westphal, 230 F.3d at 175. 

Alternatives Analysis

Petitioners next fault the FEIS’s alternatives analysis. They first 

suggest that the agency failed to address an alternative smaller-sized project 

that could meet the primary purpose and need for SPOT with less severe 

environmental impacts. According to Petitioners, other than reviewing the 

relocation of specific Port components, the agency’s only alternative analyses 

involved moving oil at SPOT’s maximum capacity—that is, two million 

barrels per day. Without considering anything else, Petitioners contend that 

the agency’s review was arbitrary and capricious. 

A core component of an EIS is its discussion of “a reasonable range of 

alternatives . . . that are technically and economically feasible, and meet the 

purpose and need of the proposal.” 42 U.S.C. § 4332(C)(iii). Agencies must 

examine these alternatives in a way that “permit[s] a reasoned choice among 

different courses of action.” Westphal, 230 F.3d at 174 (quoting Isle of 

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Hope, 646 F.2d at 220). That said, a party who challenges an agency’s failure 

to consider a specific alternative usually must alert the agency to the proposed 

alternative, which “[g]enerally . . . means raising the alternative in the 

comments addressed to the agency.” Shrimpers & Fisherman of RGV v. U.S. 

Army Corps of Eng’rs, 56 F.4th 992, 997–98 (5th Cir. 2023). The parties 

dispute whether Petitioners ever suggested the specific reduced-capacity 

alternative they now raise on appeal. Even assuming Petitioners did, 

however, their challenge fails on the merits. This is because agencies need 

not consider alternatives “at odds with the [p]roject’s purpose,” Westphal, 

230 F.3d at 177; NEPA only requires the consideration of “alternatives 

relevant to the applicant’s goals,” which the agency may not define. City of 

Shoreacres v. Waterworth, 420 F.3d 440, 450–51 (5th Cir. 2005). 

Put another way, the EIS should only identify “alternatives to a 

project which would reduce environmental harm while still achieving the 

goals to be accomplished by the proposed action.” S. La. Env’t Council, Inc. 

v. Sand, 629 F.2d 1005, 1017 (5th Cir. 1980). A primary purpose for SPOT

was to “provide a safe, efficient, and reliable facility to allow full capacity 

loading of a maximum of 365 VLCCs per year.” Weighing that objective, the 

agency examined nearly two dozen alternatives.10 For instance, it considered 

expanding existing terminals’ capacities. The agency found, however, that a 

smaller terminal “would not meet the volume that would be exported by the 

Proposed Action without substantial design modifications and facility 

additions.” In other words, a smaller capacity alternative, like Petitioners 

suggest, would not meet the specific goals set by the applicant. Though

_____________________

10 The agency identified an alternative onshore pipeline route, four possible 

onshore terminal sites, two onshore terminal design options, three possible deepwater port 

locations, three possible deepwater port design options, various possible control 

technologies and alternate construction methods, and four options for SPOT’s eventual 

decommissioning. 

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Petitioners may question the wisdom and purpose of SPOT’s proposed 

capacity, they have not shown how the agency’s alternatives evaluation was 

arbitrary or capricious. 

Petitioners second challenge to the FEIS’s alternatives analysis fares 

no better. According to Petitioners, the agency failed to analyze the “no 

action alternative” as NEPA requires. True to its name, this consideration 

mandates that agencies analyze the consequences if no action is taken on a 

project. 40 C.F.R. § 1502.14(c). When addressing no action alternatives, 

courts have held that the FEIS may consider the reasonably foreseeable 

development that would result if the project did not exist. See Gulf Restoration 

Network v. Haaland, 47 F.4th 795, 801 (D.C. Cir. 2022). In a world without 

SPOT, Petitioners say, the FEIS assumed that federal agencies would 

approve other identical ports or that existing ports would export the same 

volumes of oil as SPOT proposed. But this conclusion, they claim, is 

untethered to reality. They insist that existing Gulf Coast ports are physically 

constrained from exporting increasing volumes of oil. To that end, 

Petitioners aver that those facilities cannot accommodate the volume of 

shipping traffic necessary to expand export capacity through the existing 

reverse lightering system. 

In SPOT’s absence, Petitioners say the agency also overlooked

industry forecasts that global oil demand will decline during the project’s 

lifetime. If the Port is built, Petitioners claim that the project will induce new 

production for export that would not otherwise occur. In fact, Petitioners 

contend that SPOT will exponentially multiply oil consumption and demand 

by decreasing transportation costs. Because the agency ignored this apparent

reality, Petitioners argue that the no-alternative analysis “frustrated public 

review” and “obscured” SPOT’s significant environmental harm analysis, 

resulting in an arbitrary and capricious decision. 

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We disagree. The record here demonstrates that the agency 

reasonably concluded that excess crude oil in the United States would be 

exported through means other than through the proposed Port. In SPOT’s 

absence, the agency reasoned, “it is likely that exports of oil that are already 

occurring due to international global demand and domestic excess 

production would continue to use shoreside terminals in combination with 

offshore ship-to-ship transfers.” And the fact that existing terminals cannot 

support SPOT’s proposed capacity supports the agency’s conclusion that 

more applicants will apply for licenses to meet the unmet need. As for 

projecting crude oil demand, the agency relied on scientific studies from the 

Energy Information Administration. Though reasonable minds may disagree 

with the conclusions reached in those studies, the court’s task here is not to 

ensure that the agency makes the best decision, but only that the decision is 

informed. See Robertson, 490 U.S. at 351. As the FEIS here makes an 

informed no-action conclusion, it does not violate NEPA standards. 

In sum, we hold that the agency took a “hard look at the 

environmental consequences” of the Port, offered enough detail for the 

public “to understand and consider the pertinent environmental influences 

involved,” and evaluated alternatives in a way that “permit[s] a reasoned 

choice among different courses of action.” See Westphal, 230 F.3d at 174

(quoting Isle of Hope, 646 F.2d at 220).

B

Having found that Petitioners’ NEPA claims fail, we next turn to 

their remaining challenges under the DPA. Petitioners first contend that the 

agency violated the Act by exceeding statutory timelines during SPOT’s 

approval process. The DPA incorporates several deadlines relevant to the 

review of deepwater port license applications.In total, the statute permits 356 

days between when an applicant applies for a license and when the agency

issues its final decision. See 33 U.S.C. §§ 1504(c)(1), 1504(g), 1504(i)(1).

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When considering SPOT, the agency exceeded that timeframe by more than 

600 days. In consequence, Petitioners say this court should vacate SPOT’s 

approval. 

The Government responds that Petitioners lack the statutory 

authority to stake such a challenge. It claims the timeline provisions were 

meant to ensure that license applications were processed promptly; they 

were created to benefit project applicants, the Government says, not groups 

challenging the project on environmental grounds. We agree. To understand 

why, start with the Act’s citizen suit provision. It allows “[a]ny 

person . . . who is adversely affected or aggrieved by the Secretary’s decision 

to issue . . . a license” to “seek judicial review” of that “decision in the 

United States Court of Appeals . . . .” Id. § 1516.

Determining whether Petitioners were “adversely affected” by the 

agency’s violation of the deadline turns on whether the injury Petitioners 

complain of falls within the “zone of interests” the statute in question seeks

to protect or regulate. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); 

Bennett, 520 U.S. at 163. Petitioners here, of course, allege environmental 

injuries, and the DPA has a broad environmental purpose. See 33 U.S.C. 

§ 1501. Still, its citizen suit provision is intended to address substantive

decisions made by the agency with respect to licenses. See id. § 1516.

Unfortunately for Petitioners, the DPA’s statutory deadlines do not serve a 

substantive purpose in support of the statute’s environmental goals; they are 

administrative and for the applicant’s benefit. See id. §§ 1504(c)(1), 1504(g), 

1504(i)(1). Indeed, it is unclear how Petitioners were “affected or aggrieved

by” the agency exceeding the review timeline. See id. § 1516. In any case, the

DPA does not provide any indication that it would allow litigants to challenge 

the approval of a license if the agency exceeded its mandated review 

deadlines. And because “it cannot reasonably be assumed that Congress 

authorized [Petitioners] to sue” for such a violation, the “legislatively 

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conferred cause of action” in § 1516 does not “encompass” Petitioners’

challenge. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 

118, 127, 130 (2014) (internal quotation marks omitted). 

But the same cannot be said for Petitioners’ second DPA claim. 

According to Petitioners, the agency also failed to determine whether the 

Port would be consistent with the nation’s energy sufficiency goals. Before 

issuing a license under the DPA, the Secretary of Transportation must 

conclude that the deepwater port “will be in the national interest and 

consistent with national security and other national policy goals and 

objectives, including energy sufficiency and environmental quality.” 33 

U.S.C. § 1503(c)(3). Though the agency here engaged in that inquiry, 

Petitioners say it did so in “conclusory” fashion without a reasoned 

determination or record evidence. If true, the agency’s failure relates to the 

grant of the license, and Petitioners’ environmental interests are more than 

“marginally related to . . . the purposes implicit in the statute.” See Lexmark, 

572 U.S. at 130 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi 

Indians v. Patchak, 567 U.S. 209, 225 (2012)). As Petitioners’ argument, in 

this regard, challenges a substantive decision, the DPA grants Petitioners the 

authority to contest the agency’s action. Id.

Yet even though Petitioners may have the statutory authority to bring 

this claim, it nonetheless fails on the merits. When reviewing an agency’s 

determination, we “must give due deference to the agency’s ability to rely on 

its own developed expertise.” Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 

F.2d 897, 905 (5th Cir. 1983) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 36 

(D.C. Cir. 1976)). So long as an agency’s decision was rational and based on 

consideration of the relevant factors, it should be upheld. Contrary to 

Petitioners’ allegation, the record shows that the agency did engage in an 

energy sufficiency inquiry before licensing SPOT. Indeed, after consulting 

with economists from the Department of Transportation, the agency found 

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that the Port would support local and national economic growth. It further 

found that the project would be “in the national interest and consistent with 

other policy goals, including energy sufficiency and environmental quality.”

Even if these conclusions were brief, they were based on consultations with 

the agency’s experts and a detailed review of the record. Given that fact, we 

cannot say that the agency’s determination here was an arbitrary or 

capricious one. Petitioners’ challenge, therefore, cannot serve as a basis to 

vacate the agency’s ultimate decision. 

V

After drafting thousands of pages in reports, reviewing lengthy 

biological studies, and considering hundreds of public comments, the 

government approved SPOT’s deepwater port application. Though 

Petitioners may disagree with that decision, it was, at the very least,

informed. And because NEPA and the DPA require nothing more, 

Petitioners’ petition for review is accordingly DENIED.

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