USCA Case #23-1071 Document #2064887 Filed: 07/16/2024 Page 1 of 22

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2024 Decided July 16, 2024

No. 23-1069

HEALTHY GULF, ET AL.,

PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

COMMONWEALTH LNG, LLC,

INTERVENOR

Consolidated with 23-1071

On Petitions for Review of Orders of the

Federal Energy Regulatory Commission

Nathan Matthews argued the cause for petitioners. With

him on the briefs were Rebecca McCreary, Caroline Reiser,
Morgan Johnson, and Jared E. Knicley.

Susanna Y. Chu, Attorney, Federal Energy Regulatory

Commission, argued the cause for respondent. With her on the
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brief were Matthew R. Christiansen, General Counsel, and

Robert H. Solomon, Solicitor.

John Longstreth argued the cause for intervenor in support

of respondent. With him on the brief were David L. Wochner
and Timothy J. Furdyna.

Before: HENDERSON, PAN, and GARCIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARCIA.

GARCIA, Circuit Judge: Healthy Gulf and four other

environmental groups petition for review of the Federal Energy
Regulatory Commission’s decision to authorize the
construction and operation of liquefied natural gas facilities in
southwestern Louisiana. They argue that the Commission did
not properly address certain National Environmental Policy
Act and Natural Gas Act requirements. We agree, in part. The
Commission inadequately explained its failure to determine the
environmental significance of the project’s greenhouse gas
emissions, and it failed to adequately assess the cumulative
effects of the project’s nitrogen dioxide emissions. The
Commission did, however, satisfy its obligation to consider
alternatives to the project. We therefore grant the petitions in
part, deny them in part, and remand for further consideration.
I
A
The Commission exercises delegated authority under
Section 3 of the Natural Gas Act (“NGA”) to “approve or deny
an application for the siting, construction, expansion, or
operation” of facilities used to export liquefied natural gas
(“LNG”). 15 U.S.C. § 717b(e)(1); see EarthReports, Inc. v.
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FERC, 828 F.3d 949, 952–53 (D.C. Cir. 2016). The

Commission “shall” approve such an application unless it finds
that the project “will not be consistent with the public interest.”
15 U.S.C. § 717b(a); see EarthReports, 828 F.3d at 953.
“Before authorizing the construction and operation of a
proposed LNG facility . . . the Commission must conduct an
environmental review” under the National Environmental
Policy Act (“NEPA”). Vecinos para el Bienestar de la
Comunidad Costera v. FERC, 6 F.4th 1321, 1325 (D.C. Cir.
2021). If, as here, the Commission determines that approval of
the facility constitutes a “major Federal action[] significantly
affecting the quality of the human environment,” the
Commission must prepare an Environmental Impact Statement
(“EIS”). 42 U.S.C. § 4332(2)(C); see id. § 4336(b)(1). Among
other things, the EIS must address the “reasonably foreseeable
environmental effects” of the proposed action as well as “a
reasonable range of alternatives . . . that are technically and
economically feasible, and meet the purpose and need of the
proposal.” Id. §§ 4332(2)(C)(i), (iii). The EIS “forces the
[Commission] to take a ‘hard look’ at the environmental
consequences of its actions” and “ensures that [those]
consequences, and the [Commission’s] consideration of them,
are disclosed to the public.” Sierra Club v. FERC (“Sabal
Trail”), 867 F.3d 1357, 1367 (D.C. Cir. 2017).
B
On August 20, 2019, Commonwealth LNG, LLC
(“Commonwealth”) applied to the Commission for
authorization to build and operate a natural gas liquefaction and
export facility in Cameron Parish, Louisiana (the “Project”).
The Project would be located on approximately 153 acres of
land on the west side of the Calcasieu Ship Channel, near the
entrance to the Gulf of Mexico. As relevant here,
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Commonwealth’s proposal included six LNG storage tanks, a

marine facility consisting of an LNG carrier berth and barge
dock, and utilities for electricity generation.
On September 9, 2022, after taking public comments on
the Project’s potential environmental impacts, the Commission
issued a final EIS (“FEIS”). The FEIS found that, although the
Project would have a permanent and significant impact on
visual resources in the area, other impacts would not be
significant or would be reduced to less-than-significant levels
if certain recommended measures were incorporated into the
Project.
On November 17, 2022, the Commission authorized the
Project as modified by the FEIS’s recommendations. See
Order Granting Authorization Under Section 3 of the Natural
Gas Act, Commonwealth LNG, LLC, 181 FERC ¶ 61,143 (Nov.
17, 2022) (“Authorization Order”). The Authorization Order
found that the Project as modified constitutes an
“environmentally acceptable action,” id. ¶ 84, and that its
construction and operation are “not inconsistent with the public
interest,” id. ¶ 85.
On December 19, 2022, petitioners requested rehearing.
Petitioners claimed that the Commission failed to reasonably
assess the Project’s greenhouse gas (“GHG”) emissions, air
pollution impacts, and impacts on sensitive species; rigorously
explore all reasonable alternatives; and properly balance
adverse effects and benefits under the NGA Section 3 public
interest analysis. On January 19, 2023, after the Commission
failed to timely respond, petitioners’ request was deemed
denied by operation of law.
On March 15, 2023, petitioners asked this court to review
the Commission’s order. We granted Commonwealth leave to
intervene. On June 9, 2023, while the petitions were pending,
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the Commission issued an order addressing the rehearing

request and affirming the authorization. See Order Addressing
Arguments Raised on Rehearing, Commonwealth LNG, LLC,
183 FERC ¶ 61,173 (June 9, 2023) (“Rehearing Order”).
II
We review petitioners’ NEPA claims under the “arbitrary
and capricious” standard of the Administrative Procedure Act
(“APA”). Nevada v. U.S. Dep’t of Energy, 457 F.3d 78, 87
(D.C. Cir. 2006). “Our role is not to flyspeck an agency’s
environmental analysis, looking for any deficiency no matter
how minor, but instead simply to ensure that the agency has
adequately considered and disclosed the environmental impact
of its actions and that its decision is not arbitrary or capricious.”
Birckhead v. FERC, 925 F.3d 510, 515 (D.C. Cir. 2019) (per
curiam) (citations and quotation marks omitted). We therefore
ask whether the agency “examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action[,]
including a rational connection between the facts found and the
choice made.” Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation
marks omitted).
Petitioners assert that the Commission failed to comply
with NEPA because it arbitrarily declined to determine whether
the Project’s GHG emissions would be significant;
inadequately assessed the cumulative effects of the Project’s
nitrogen dioxide (“NO2”) emissions; and failed to properly
consider alternatives to Commonwealth’s proposal. We agree
with the first and second arguments but reject the third.
A
Petitioners contend that NEPA compels the Commission
to determine the significance of the Project’s GHG emissions.
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They cite Council of Environmental Quality (“CEQ”)

regulations stating that the “discussion” of environmental
consequences in an EIS “shall include . . . [t]he environmental
impacts of the proposed action . . . and the significance of those
impacts,” 40 C.F.R. § 1502.16(a)(1) (2020), 1 and the
Commission’s own regulations, which require an EIS to
disclose summaries of “[t]he significant environmental impacts
of the proposed action.” 18 C.F.R. § 380.7(a); see also id.
§ 380.7(d) (mandating disclosure of “significant environmental
impacts” that “cannot be mitigated”). In the orders on review,
the Commission did not dispute the premise that it is generally
required to determine whether the impacts of GHG emissions
are significant or not when it can reasonably do so. 2

1
The CEQ regulations cited here and elsewhere in the opinion
have since been amended, but those amendments did not take effect
until after the Commission entered the challenged orders. See
National Environmental Policy Act Implementing Regulations
Revisions Phase 2, 89 Fed. Reg. 35,442 (May 1, 2024) (effective July
1, 2024). Thus, we cite and apply the regulations in effect at the time
of the orders. See Ctr. for Biological Diversity v. FERC, 67 F.4th
1176, 1181 n.2 (D.C. Cir. 2023).
2
After oral argument, this court held in another case that NEPA
and the CEQ regulation cited above do not require an agency to
formally label GHG emissions and their ensuing costs “as either
significant or insignificant,” so long as the agency prepares an EIS
and adequately discusses the emissions and their significance. Food
& Water Watch v. FERC, 2024 WL 2983833, at *6 (D.C. Cir. 2024).
That holding does not affect this case for the reason mentioned
above: In the orders on review here, the Commission did not dispute
the premise that it must make a significance determination absent a
sufficient explanation for not doing so in a particular proceeding, see
Authorization Order ¶¶ 75–76; Rehearing Order ¶¶ 38–41. The
longstanding Chenery principle requires us to “judge the propriety of
[agency] action solely by the grounds invoked by the agency.” SEC
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In the FEIS, the Commission estimated that the direct

GHG emissions from the Project’s operation would result in an
annual increase of about 3.2 million metric tons of carbon
dioxide equivalent (“CO2e”). J.A. 380. The FEIS also
compared those estimated emissions to current state and
national emissions levels and estimated the Project’s impact
using the “social cost of carbon,” a method of quantifying in
dollars the climate change impact of greenhouse gas emissions.
J.A. 380–82; see Del. Riverkeeper Network v. FERC, 45 F.4th
104, 111 (D.C. Cir. 2022). But the Commission then explained
why it could not reasonably determine whether those emissions
are significant:
To date, Commission staff have not identified a
methodology to attribute discrete, quantifiable,
physical effects on the environment resulting
from the Project’s incremental contribution to
GHGs. Without the ability to determine
discrete resource impacts, Commission staff are
unable to assess the Project’s contribution to

v. Chenery Corp., 332 U.S. 194, 196 (1947); see Calcutt v. FDIC,
598 U.S. 623, 624 (2023) (same). We therefore assess the
Commission’s explanation—and only that explanation—for not
making a significance determination here.
Petitioners would further distinguish Food & Water Watch on
the ground that the opinion did not address Commission regulations
that—petitioners argue—independently require the agency to make
a binary significance determination for GHG emissions. Petitioners’
F.R.A.P. 28(j) Letter at 1 (June 24, 2024) (citing 18 C.F.R.
§§ 380.7(a), (d)). But petitioners never relied on those regulations in
making their argument below, so we lack jurisdiction to consider
them. 15 U.S.C. § 717r(b).
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climate change through any objective analysis

of physical impact attributable to the Project.
J.A. 380. In the Rehearing Order, the Commission restated its
explanation: “[T]here currently are no accepted tools or
methods for the Commission to use to determine [GHG]
significance.” Rehearing Order ¶ 41.
Petitioners argued below, and now argue before us, that
the Commission could have used either of two specific
methods to determine the significance of project-level GHG
emissions. But the agency adequately explained why it
rejected each of those approaches.
First, petitioners submit the Commission should have
“consider[ed]” applying its February 2022 policy statement on
the evaluation of climate impacts. Petitioners’ Brief 30. Per
the statement, “[a] project with estimated emissions of 100,000
metric tons per year of CO2e or greater” is “presumed to have
a significant effect” on the environment. Interim Policy
Statement, Consideration of Greenhouse Gas Emissions in
Natural Gas Infrastructure Project Reviews, 178 FERC
¶ 61,108, ¶ 81 (Feb. 18, 2022). Because the Project’s
emissions are projected to exceed that threshold many times
over, petitioners argue that they are significant. But as the
Commission explained, that policy has since been suspended
and opened to further public comment as a draft statement.
Rehearing Order ¶ 41 n.135. Indeed, in its order reclassifying
the statement as a draft, the Commission declared that it would
not apply the policy “to pending applications or applications
filed before the Commission issues any final guidance.” Order
on Draft Policy Statements, Consideration of Greenhouse Gas
Emissions in Natural Gas Infrastructure Project Reviews, 178
FERC ¶ 61,197, ¶ 2 (Mar. 24, 2022). In an opinion issued after
the parties completed briefing, we upheld the Commission’s
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decision to not apply the February 2022 policy statement on the

same grounds. See Ala. Mun. Distribs. Grp. v. FERC, 100
F.4th 207, 214–15 (D.C. Cir. 2024). Because we see no reason
or basis to distinguish Alabama Municipal, we reach the same
conclusion here.
Second, petitioners fault the Commission for not applying
the “social cost of carbon” to determine GHG significance.
The FEIS estimated that the social cost of the Project’s
reasonably foreseeable GHG emissions up to the year 2050
ranged from approximately $900 million to $5.5 billion,
depending on the discount rate applied. J.A. 381. In the
Rehearing Order, the Commission explained that it disclosed
those figures for “informational purposes” but declined to use
the method to make a significance determination because
“there are no criteria to identify what monetized values are
significant for NEPA purposes,” and the Commission is
“currently unable to identify any such appropriate criteria.”
Rehearing Order ¶ 40. Put differently, the “social cost of
GHGs tool merely converts GHG emissions estimates into a
range of dollar-denominated figures; it does not, in itself,
provide a mechanism or standard for judging ‘significance.’”
Id. ¶ 40 n.128. Once again, we have previously found this
rationale sufficient to survive APA review, and we see no basis
to deviate now. See Ctr. for Biological Diversity v. FERC, 67
F.4th 1176, 1183–84 (D.C. Cir. 2023); EarthReports, 828 F.3d
at 956.
Petitioners emphasize that, in both Center for Biological
Diversity and EarthReports, the Commission identified
additional reasons for not using the social cost of carbon to
determine significance—reasons the Commission does not
advance here. Compare Ctr. for Biological Diversity, 67 F.4th
at 1184 (explaining “the lack of consensus about how to apply
the social cost of carbon on a long time horizon” and that the
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method “places a dollar value on carbon emissions but does not

measure environmental impacts as such”) and EarthReports,
828 F.3d at 956 (same), with Rehearing Order ¶ 40 (relying
solely on the lack-of-significance-criteria rationale). In
petitioners’ view, this distinction matters because no court has
held that the Commission’s lack-of-criteria explanation alone
justifies refusing to use the method to determine GHG
significance.
But petitioners fail to convincingly articulate why that
explanation is insufficient on its own. They argue that
significance determinations for environmental effects always
involve subjective judgment calls, and that NEPA requires
agencies to make informed judgments the best they can with
the data they have. See Duncan’s Point Lot Owners Ass’n v.
FERC, 522 F.3d 371, 376 (D.C. Cir. 2008); Spiller v. White,
352 F.3d 235, 244 n.5 (5th Cir. 2003); Mont. Wilderness Ass’n
v. McAllister, 666 F.3d 549, 559 (9th Cir. 2011). But those
points do not engage with the Commission’s concern. The
Commission’s reluctance to assess the significance of the
Project’s GHG emissions using the social cost of carbon is not
based on an aversion to subjective judgments, nor is it based on
a lack of data. Instead, the Commission explained that it has
not yet identified criteria that would allow it to non-arbitrarily
determine when identified social costs become significant
under NEPA. Petitioners in this case do not offer any such
criteria themselves, nor do they provide us with any other basis
to question the Commission’s expert judgment.
Separately, petitioners raise one more challenge to the
adequacy of the Commission’s explanation of why it did not
determine whether the Project’s GHG emissions were
significant: They contend that the Commission failed to
explain its apparent departure from the approach it took in
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Northern Natural Gas Co., 174 FERC ¶ 61,189 (2021). On this

point, we agree.
In Northern Natural, the Commission compared a
project’s reasonably foreseeable GHG emissions to the total
GHG emissions of the United States and determined that the
emissions were not significant. Id. ¶ 34. “That
comparison . . . provide[d] [the Commission] with a reasoned
basis to consider the significance of the project’s GHG
emissions and their potential impact on climate change.” Id.
The Commission found that the project’s operations would
increase national GHG emissions by only 0.000006%. Id.
Because the increase was so marginal, the Commission
concluded that “[h]owever [its] approach to the significance
analysis evolves, the reasonably foreseeable GHG emissions
associated with th[e] project would not be considered
significant.” Id. ¶ 33.
Petitioners argued to the Commission that the converse is
true here. See J.A. 483. Recall that the Project would emit an
estimated 3.2 million metric tons of CO2e a year. That number
represents a 0.06% increase in national emissions levels and a
1.7% increase in Louisiana’s emissions levels, J.A. 381, and is
roughly thirty-two times the Commission’s draft significance
threshold of 100,000 metric tons. 3 Petitioners raise a
meaningful argument that it is unclear why the Commission
could not have concluded, using the logic of Northern Natural,
that the Project’s GHG emissions were significant because they
would register above any threshold the Commission could
reasonably adopt.

3
Petitioners cite the Project’s 3.6 million tons of annual CO2e
emissions, Reply Brief 9, which is equivalent to 3.2 million metric
tons.
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The Commission’s orders, however, did not acknowledge

petitioners’ argument nor provide any other explanation of why
Northern Natural’s logic would not apply here. That failure is
a straightforward violation of the APA’s reasoned decision-
making requirements: When “a party makes a significant
showing that analogous cases have been decided differently,
the agency must do more than simply ignore that argument.”
LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55, 61 (D.C. Cir.
2004).
We have no occasion to decide whether Northern
Natural’s logic in fact applies here. Perhaps the Commission
would distinguish between insignificance determinations like
the one made in Northern Natural, for which there is a logical
lower bound of comparison (zero), and significance
determinations, for which no comparable upper bound of
comparison exists. Or perhaps the Commission would offer a
different distinction. In any event, what matters for purposes
of our review is that the Commission did not offer any
explanation at all for not factoring in Northern Natural’s mode
of analysis. Because the Commission neglected to address
whether and why its order in Northern Natural is
distinguishable, we remand for it to do so.
B
Next, petitioners correctly argue that the Commission’s
analysis of the cumulative effects of the Project’s NO2
emissions was arbitrary.
NEPA regulations mandate that an EIS consider not only
a proposed project’s “[d]irect” and “[i]ndirect” effects on the
environment—which together are the project’s “incremental
effects”—but also its “[c]umulative effects.” 40 C.F.R.
§§ 1508.1(g)(1)–(3) (2022). Cumulative effects are the
“effects on the environment that result from the incremental
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effects of the action when added to the effects of other past,

present, and reasonably foreseeable actions regardless of what
agency . . . or person undertakes such other actions.” Id.
§ 1508.1(g)(3). They “can result from individually minor but
collectively significant actions taking place over a period of
time.” Id. NEPA’s mandate to consider the cumulative effects
of a project makes sense: A project’s incremental emissions do
not exist in a vacuum, and requiring consideration of the
overall state of the surrounding environment helps ensure that
agencies do not overlook the full impact of those emissions.
See Grand Canyon Trust v. FAA, 290 F.3d 339, 342 (D.C. Cir.
2002) (agencies “must give a realistic evaluation of the total
impacts and cannot isolate a proposed project, viewing it in a
vacuum”).
The FEIS endorsed Commonwealth’s cumulative
modeling of the Project’s air quality effects, including NO2
emissions. The model adopted two thresholds set by the
Environmental Protection Agency: National Ambient Air
Quality Standards (“NAAQS”) and Significant Impact Levels
(“SILs”). The Clean Air Act (“CAA”) requires EPA to publish
a list of air pollutants that “may reasonably be anticipated to
endanger public health or welfare.” 42 U.S.C. § 7408(a)(1)(A).
For each such pollutant, EPA must issue NAAQS, which it sets
at the level “requisite to protect the public health” while
“allowing an adequate margin of safety.” Id. § 7409(b)(1). As
part of the CAA permitting process, to determine whether a
proposed emissions source (such as the Project) causes or
contributes to a NAAQS exceedance for a particular pollutant,
the permitting agency applies that pollutant’s SIL. See 40
C.F.R. § 51.165(b)(2). Petitioners challenge the way the
Commission used those thresholds to assess the cumulative
effects of the Project’s NO2 emissions.
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In the FEIS, the Commission identified certain NO2

NAAQS exceedances in the Project’s vicinity. J.A. 374. It
then used the SIL to determine whether the Project’s
incremental emissions were significant and concluded they
were not. See J.A. 342 (noting that “emissions only associated
with the Project” are compared to “corresponding significant
impact levels” to determine if the emissions concentrations are
“‘significant’”). The Commission then redeployed the SIL to
determine whether the Project’s cumulative effects were
significant. It concluded that they were not, for the same reason
as for the incremental emissions: because the Project’s
incremental contribution “would be less than the [1-hour]
significant impact level at each exceedance location.” J.A.
316; see also J.A. 376 (noting the Project “would only
contribute a minor amount to cumulative air impacts”);
Authorization Order ¶ 63 (endorsing this analysis).
We agree with petitioners that the Commission’s approach
to assessing cumulative NO2 effects was arbitrary. The
Commission does not dispute that it found the Project’s NO2
emissions’ cumulative effects insignificant because the
Project’s incremental NO2 emissions fell below the 1-hour NO2
SIL at each NAAQS exceedance location. In other words, the
Commission said that because the project’s incremental effects
were insignificant, its cumulative effects were, too. That is a
non sequitur. Again, NEPA requires the Commission to assess
the Project’s cumulative effects, which are the “effects on the
environment that result from the incremental effects of the
action when added to the effects of other past, present, and
reasonably foreseeable actions.” 40 C.F.R. § 1508.1(g)(3)
(2022) (emphasis added). Simply measuring the Project’s own
emissions against the SIL fails to satisfy that requirement.
Indeed, on the Commission’s view, the cumulative effect of a
Project’s emissions would never be deemed significant unless
the Project’s incremental emissions were already significant on
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their own. That approach would eviscerate the purpose behind

requiring a distinct cumulative effects analysis in the first
place, which is to account for “collectively significant”
environmental impacts that may result from “individually
minor” actions. Id.
We therefore remand for the Commission either to explain
how its use of the 1-hour NO2 SIL is consistent with a proper
cumulative effects analysis or to adequately assess the
cumulative effects of the Project’s NO2 emissions using a
different methodology.
Petitioners also raise a distinct challenge to the
Commission’s air quality analysis that we find unpersuasive.
Petitioners assert that the 1-hour NO2 SIL should not be used at
all in NEPA effects analyses, even for assessing a project’s
incremental effects. They argue that, unlike with the
corresponding NAAQS, “EPA did not engage in any
comparable analysis or expert judgment in proposing the
interim one-hour nitrogen dioxide Significant Impact Level.”
Petitioners’ Brief 49. Petitioners are mistaken. EPA “derived”
the 1-hour NO2 SIL “by using an impact equal to 4% of the 1-
hour NO2 NAAQS,” and EPA has explained its choice of the
4% threshold. See EPA, Guidance Concerning the
Implementation of the 1-Hour NO2 NAAQS for the Prevention
of Significant Deterioration Program Att. 1 (“2010 EPA
Guidance”), at 12 (June 29, 2010), [Link]
VBXD. Because the NAAQS are a “generally accepted
standard” for evaluating air-pollution effects in the NEPA
context, see Sabal Trail, 867 F.3d at 1370–71 n.7, we see no
reason why the Commission could not also apply the derivative
SIL as part of its analysis.
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C
Petitioners next contend that the Commission failed to
adequately consider three alternatives to the Project: replacing
the terminal’s simple-cycle power plant with a 120-megawatt
combined-cycle power plant, eliminating one of the six LNG
storage tanks, and mandating the use of carbon capture and
sequestration.
Although NEPA regulations require the Commission to
“[e]valuate reasonable alternatives to the proposed action,” 40
C.F.R. § 1502.14(a) (2020), the Commission “need not provide
the same level of detailed analysis . . . that it provides for the
action under review,” Ctr. for Biological Diversity, 67 F.4th at
1183. The discussion of alternatives “need not be exhaustive”
so long as there is “information sufficient to permit a reasoned
choice.” Birckhead, 925 F.3d at 515. Here, the Commission’s
consideration of each of the three alternatives sufficed.
1
Public comments asked Commonwealth to consider a
combined-cycle power plant instead of its proposed simple-
cycle power plant to generate 120 megawatts of onsite power
for the Project. J.A. 302. The FEIS explained that, compared
to a simple-cycle generator, the combined-cycle alternative
“converts more energy from fuel gas to electricity,” but its
“refrigerant compressor gas turbine drives consume more
fuel.” Id. The net result would be fuel and emissions savings
of “less than 10 percent.” Id. On the other side of the equation,
the Commission noted that the combined-cycle alternative
would need “significant[ly]” more land “to accommodate [its]
waste heat recovery equipment, steam turbine, air-cooled
condenser, and water treatment facilities.” Id. That additional
space “would require an expansion of the [t]erminal into
eastern black rail habitat and wetlands.” Id. Weighing the
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potential emissions reduction against the increased land use,

the Commission concluded that the combined-cycle alternative
“would not provide a significant environmental advantage to
Commonwealth’s proposal.” Id.; see Rehearing Order ¶ 26.
Petitioners counter that “[n]othing in the record supports
[the Commission’s] claim that a combined cycle alternative
would require a bigger footprint.” Petitioners’ Brief 57. They
argue that although the waste heat recovery equipment for
combined-cycle plants takes up space, that does not
“necessarily” translate into “a larger overall footprint,”
“because the turbine itself can be smaller.” Id. But as the
Commission explained, the air-cooled condenser and water
treatment facilities would also take up additional space
compared to a simple-cycle plant. J.A. 302. Petitioners do not
dispute that fact, nor do they claim that the added footprint
from those features is canceled out by some other space-saving
aspect of the combined-cycle design.
Petitioners also contend that the Commission should have
assessed exactly how much additional space would be needed
to implement the combined-cycle alternative. But they point
to no authority indicating that the Commission must precisely
quantify competing environmental considerations when
evaluating alternatives. Moreover, the Commission did present
a space estimate, explaining that the 120-megawatt combined-
cycle alternative’s footprint would fall in between the proposed
simple-cycle generator’s footprint and the 100-acre 500-
megawatt combined-cycle alternative that the Commission had
also considered as part of its analysis. Id. Although the
Commission certainly could have been more precise in its
estimate, that alone does not render its assessment of the
combined-cycle alternative arbitrary or capricious. See Indian
River Cnty. v. U.S. Dep’t of Transp., 945 F.3d 515, 533 (D.C.
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Cir. 2019) (“[W]e must give deference to agency judgments as

to how best to prepare an EIS.”).
2
Next, Petitioners argue that the Commission failed to
reasonably consider an alternative terminal configuration that
would have incorporated five LNG storage tanks instead of the
proposed six.
In Commonwealth’s original 2019 application to the
Commission, the Project design included six LNG storage
tanks, each with a 40,000 m3 capacity, for a total storage
capacity of 240,000 m3. J.A. 300. In its 2021 application
amendment, however, Commonwealth adjusted the proposed
design of the tanks so that each one would have a 50,000 m3
capacity, for a total storage capacity of 300,000 m3. Id.
Despite the increase in proposed storage capacity,
Commonwealth did not propose a corresponding increase in
LNG production. Id. That prompted a commenter to request
that Commonwealth alter the configuration of the terminal to
incorporate five 50,000 m3 tanks, for a total storage capacity of
250,000 m3. Id. That capacity would still be greater than what
Commonwealth originally proposed and would potentially
reduce the Project footprint. Id.
The Commission considered and rejected the five-tank
alternative, concluding that operational considerations
outweighed the maximum 2.3-acre potential reduction in the
Project’s wetlands encroachment. Id. The Commission
explained that the additional storage capacity from
Commonwealth’s updated six-tank configuration “reduce[d]
the likelihood that the [t]erminal would need to shut down”
during inclement weather events, when LNG carriers “would
not be able to berth at the [t]erminal and offload LNG from the
[t]erminal in a timely fashion.” Id. Without that added
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capacity, Commonwealth would need to shut down and restart

the terminal more often, which would result in greater adverse
air impacts due to the associated “flaring events.” Id.
Mirroring their earlier argument, petitioners assert that the
Commission needed to quantify the emissions savings
attending the six-tank configuration before concluding that
those savings justified rejecting the footprint-reducing five-
tank proposal. But again, petitioners point to no precedent
requiring such granular analysis when considering alternatives.
What matters is whether the Commission based its decision to
prioritize operational flexibility on “information sufficient to
permit a reasoned choice.” Birckhead, 925 F.3d at 515
(quotation omitted). It did. In the Rehearing Order, the
Commission explained that it viewed Commonwealth’s
operational considerations as “well-founded” because the
company had provided a list of the thirty-three instances in
which the nearby Calcasieu Ship Channel closed over an eight-
month period due to inclement weather. Rehearing Order ¶ 31.
The Commission also noted that Commonwealth had proposed
to construct only a single berthing dock for the Project, which
further “limit[ed] the flexibility with which [it] could reduce
tank inventory when needed compared to facilities with
multiple berths.” Id. These concerns formed an adequate basis
for the Commission’s decision to reject the five-tank
alternative.
Zooming out, petitioners argue that the Commission’s
consideration of the five-tank alternative is inconsistent with
its assessment of the 120-megawatt combined-cycle
alternative. With the former, the Commission chose to “protect
wetlands at the expense of air” while with the latter, it chose to
“protect[] air at the expense of wetlands.” Petitioners’ Brief
64. In context, however, these choices are not inherently in
conflict with one another. As petitioners concede, in
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considering the two alternatives, the Commission did “not

conclude[] that air impacts are categorically more important
than wetland or habitat, or vice versa.” Id. Rather, the
Commission made decisions based on the relevant
considerations specific to each alternative, and it explained
those decisions in sufficient detail.
3
Finally, petitioners maintain that the Commission failed to
adequately consider requiring carbon capture and sequestration
for the Project.
In the FEIS, the Commission relied on Commonwealth’s
representation that, although the Project could technically
capture and transport CO2, “there are no CO2 sequestration
facilities beneath the Gulf of Mexico seabed in Cameron Parish
or near the Project site.” J.A. 382. The Commission thus
determined that carbon capture and sequestration was presently
infeasible. See id. The Commission acknowledged that
Venture Global, the sponsor of a different project, had
proposed a carbon capture and sequestration system for its
nearby CP2 LNG facility. J.A. 383. But the Commission
explained that it was too early to tell whether the Project could
use that sequestration infrastructure, as the CP2 sequestration
facility was not yet approved, much less constructed. Id.
(noting that CP2’s “pipeline alignment, platform location, and
well location are in the siting stage of project development”).
“Without additional information,” the Commission concluded,
“we are unable to evaluate the feasibility of CP2 LNG’s
sequestration site for the Commonwealth Project.” Id. In the
Rehearing Order, the Commission determined that “because
the requisite infrastructure does not exist,” carbon capture and
sequestration “is appropriately rejected and infeasible.”
Rehearing Order ¶ 28.
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Petitioners object that, before dismissing the alternative,

the Commission should have sought more information on the
feasibility of using CP2’s proposed facilities. This criticism is,
at best, impermissible flyspecking. “NEPA . . . requires the
Commission to at least attempt to obtain the information
necessary to fulfill its statutory responsibilities.” Birckhead,
925 F.3d at 520. The Commission did so here. It examined the
status of the CP2 facilities and found that basic elements of the
project were still in flux. In the context of evaluating
alternatives, the Commission satisfied its NEPA obligations.
And under the circumstances, it reasonably rejected carbon
capture and sequestration as infeasible.
III
Because the Commission failed to adequately explain why
it could not determine the significance of the Project’s GHG
impacts and failed to properly consider the cumulative effects
associated with the Project’s NO2 emissions, it must also
reevaluate its public interest determination under Section 3 of
the NGA.
“We review the Commission’s orders approving LNG
facilities and pipelines, like its NEPA analyses, under the
arbitrary and capricious standard of the APA.” Vecinos,
6 F.4th at 1331. “Where the Commission rests a decision, at
least in part, on an infirm ground, we will find the decision
arbitrary and capricious.” Id.
Here, the Authorization Order found that the Project is
“not inconsistent with the public interest” in part due to “the
findings and recommendations of the final EIS.” Authorization
Order ¶ 18. Because the FEIS’s findings incorporate the
Commission’s deficient NEPA analyses, we necessarily
conclude that the resulting public interest determination is
deficient as well. See Vecinos, 6 F.4th at 1331. Accordingly,
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on remand, the Commission must reconsider that

determination.
IV
As for the appropriate remedy, we find that the
Commission’s errors do not merit vacating the Authorization
Order. “The decision to vacate depends on two factors: the
likelihood that ‘deficiencies’ in an order can be redressed on
remand, even if the agency reaches the same result, and the
‘disruptive consequences’ of vacatur.” Black Oak Energy, LLC
v. FERC, 725 F.3d 230, 244 (D.C. Cir. 2013) (quoting Allied-
Signal v. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C.
Cir. 1993)).
Both factors counsel against vacatur. We think it
“reasonably likely” that, on remand, the Commission can
redress the defects in its GHG-emissions and cumulative-
effects analyses and still authorize the Project. Vecinos, 6 F.4th
at 1332. Moreover, vacating the authorization would
“needlessly disrupt” Commonwealth’s construction plans and
commercial operations. Id.; see Commonwealth Brief 39
(explaining that the company “has executed a binding, 20-year
contract for the supply of 2 million tons per year of the
Project’s output”).
We therefore grant the petitions for review in part, deny
them in part, and remand to the Commission without vacatur
for further proceedings consistent with this opinion.
So ordered.