For a Better Bayou v. FERC

majority opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 24, 2026 Decided August 25, 2026

No. 24-1291

FOR A BETTER BAYOU, ET AL.,

PETITIONERS

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

VENTURE GLOBAL CP EXPRESS, LLC AND VENTURE GLOBAL

CP2 LNG, LLC,

INTERVENORS

Consolidated with 24-1292, 25-1157

On Petitions for Review of Orders of the

Federal Energy Regulatory Commission

Nathan Matthews argued the cause for petitioners. With

him on the joint briefs were Megan Gibson, Spencer T. Gall,

Clara Derby, Caroline Reiser, Thomas Zimpleman, Gillian

Giannetti, and Rebecca McCreary.

Scott R. Ediger, Attorney Advisor, Federal Energy

Regulatory Commission, argued the cause for respondent.

With him on the brief was Robert H. Solomon, Solicitor.

Susanna Y. Chu, Senior Attorney, entered an appearance.

Eric Konopka argued the cause for intervenors in support

of respondent. With him on the brief were Gregory G. Garre,

Joel P. Nevins, Peter Prindiville, Halle H. Edwards, and

Sandra Snyder.

Before: HENDERSON and MILLETT, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

I. Background ...................................................................... 4

A. Relevant Statutes ...................................................... 4

B. Commission Proceedings ......................................... 9 II. Analysis ......................................................................... 11

A. Challenges under the NGA ..................................... 12

1. The Commission’s interpretation of the

NGA ................................................................ 13

2. The Commission’s application of the NGA .... 17

a. The project’s harms .................................. 17

b. The Terminal’s benefits ........................... 19

c. The authorization of the Pipeline ............. 20

B. Challenges under the NEPA ................................... 23

1. The Terminal’s cumulative effects .................. 23

a. New model ............................................... 24

b. Magnolia Terminal. .................................. 25

c. Marine vessels serving other terminals

.................................................................. 27

2. The Commission’s use of NAAQS in the

cumulative effects analysis.............................. 30

3. The Moss Lake Compressor Station’s

cumulative effects ........................................... 33

4. The harm to the commercial fishing

industry ............................................................ 37

a. Temporary harm................................... 37

b. Localized harm..................................... 38

III. Conclusion ..................................................................... 41

GINSBURG, Senior Circuit Judge: In December 2021

Venture Global CP2 LNG and Venture Global CP Express, the

Intervenors here, sought authorization from the Federal Energy

Regulatory Commission for the siting, construction, and operation of a terminal and pipeline for the exportation of liquefied natural gas (LNG). A long review process followed, resulting

in two environmental impact statements, an initial authorization order, three rehearing orders and, in 2025, the FERC’s

approval of the project.

The petitioners are individuals and advocacy groups seeking review of those orders. Leaving no stone unturned, they

improbably allege the Commission committed no fewer than

eleven errors under the Natural Gas Act (NGA) and the

National Environmental Policy Act (NEPA). Because these

arguments lack merit, we deny the petitions for review.

I. Background

This appeal implicates not only the NGA and the NEPA,

but also the Clean Air Act (CAA). We begin by discussing the

relevant provisions of these laws before turning to the procedural history of the case.

A. Relevant Statutes

The NGA regulates “the business of transporting and

selling natural gas for ultimate distribution to the public.”

15 U.S.C. § 717(a). It prohibits the export of natural gas by any entity “without first having secured an order of the

Commission authorizing it to do so.” § 717b(a). A party must

also obtain prior authorization before constructing a natural gas terminal or a pipeline. See Big Bend Conservation All. v.

FERC, 896 F.3d 418, 420 (D.C. Cir. 2018).

The United States Department of Energy (DOE) has delegated authority to the FERC to “[a]pprove or disapprove” the

siting, construction, and operation of particular facilities used to export natural gas, including LNG terminals. DOE,

Delegation Order No. S1-DEL-FERC-2006, § 1.21A (2006);

see § 717b(e)(1); see also § 717a(11) (defining “LNG

terminal”). 1 The Congress has laid down different standards for

the approval of an LNG export terminal than it has for the

approval of a pipeline used to transport natural gas. Under

Section 3 of the NGA the FERC “shall issue” an order authorizing an LNG export terminal “unless” it finds the terminal

“will not be consistent with the public interest.” § 717b(a). By

contrast, under Section 7 the FERC may not authorize the construction and operation of a pipeline unless it determines the

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

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

Although the FERC exercises authority over the approval

of LNG terminals, the DOE has “retained for itself the

authority to authorize exports . . . of natural gas.” Sierra Club v. DOE (Alaska Gasline), 134 F.4th 568, 570 n.2 (D.C. Cir.

2025). Any exportation of gas to a country with which the

United States has “a free trade agreement requiring national

treatment for trade in natural gas[] shall be deemed to be

consistent with the public interest, and applications for

such . . . exportation shall be granted without modification or

delay.” § 717b(c).

The FERC follows its longstanding Certificate Policy

Statement when it reviews an application for the construction

“Commission” as used in the NGA refers to the Federal Power

Commission, § 717a(9), the predecessor to the FERC. In 1977 the

Congress “transferred to” the Secretary of Energy “the function of the Federal Power Commission.” 42 U.S.C. § 7151(b), who as just

mentioned, has delegated some of those functions to the FERC.

of a pipeline. See Certification of New Interstate Nat. Gas

Pipeline Facilities, 88 FERC 61227 (1999), clarified, 90 FERC

61128 (2000), further clarified, 92 FERC 61094 (2000). The

Commission first considers whether there is a “market need”

for the project by asking whether it can proceed without subsidies from the applicant’s existing customers. Env’t Def. Fund

v. FERC, 2 F.4th 953, 961 (D.C. Cir. 2021). If it finds there is

a market need for the pipeline, then the FERC determines

whether the pipeline will have an adverse effect on the applicant’s existing customers, pipelines in the same market and

their captive customers, or landowners and communities surrounding the project. Id. If the pipeline will cause an adverse

effect, then the FERC balances that effect against the pipeline’s public benefits. Id. In doing so, the Commission will “consider

all relevant factors reflecting on the need for the project.” Id.

Under the NEPA, the FERC must prepare an

environmental impact statement (EIS) if it determines that the

approval of a terminal or pipeline would constitute a “major

federal action[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see § 4336(b)(1). The

NEPA, however, “imposes no substantive environmental

obligations or restrictions.” Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 605 U.S. 168, 173 (2025). It is “a purely

procedural statute that, as relevant here, simply requires an

agency to prepare an EIS — in essence, a report.” Id. The

NEPA does not require the Commission “to weigh

environmental consequences in any particular way. Rather, an

agency may weigh environmental consequences as the agency

reasonably sees fit under its governing statute and any relevant

substantive environmental laws.” Id. “The goal of the law is to

inform agency decisionmaking, not to paralyze it.” Id.

Still, the FERC must “look hard at the environmental

effects” of the action. Sierra Club v. FERC (Cumberland),

153 F.4th 1295, 1303 (D.C. Cir. 2025). Accordingly, an EIS

must consider the “reasonably foreseeable environmental

effects of the proposed agency action,” including any adverse

effects “which cannot be avoided should the proposal be

implemented.” § 4332(2)(C)(i)-(ii).

Under regulations in effect at the time of the proceedings

here under review, the FERC would consider the cumulative

environmental effects of a proposed project as part of its NEPA

analysis. See 40 C.F.R. § 1508.1(g)(3) (2023); see also 90 Fed.

Reg. 10610, 10611 (2025) (final rule promulgated by the

Council on Environmental Quality repealing the regulations

implementing the NEPA, including § 1508). The FERC

defined cumulative effects as “the incremental effects of the

action when added to the effects of other past, present, and

reasonably foreseeable actions.” § 1508.1(g)(3).

Two standards set by the Environmental Protection

Agency are relevant to the FERC’s analysis of cumulative

effects on air quality. First, the EPA has identified significant impact levels (SILs) for certain air pollutants, “below which

the EPA considers [the] source to have an insignificant effect

on ambient air quality.” Sierra Club v. EPA, 705 F.3d 458, 461

(D.C. Cir. 2013); see May 2025 Rehearing Order, 191 FERC

61153, ¶ 5 n.25 (discussing EPA guidance documents on the

SILs for, as relevant here, NO2 and PM2.5). Second, the CAA

requires the EPA to set national ambient air quality standards

(NAAQS) for each air pollutant for which the EPA has issued

air quality criteria. See 42 U.S.C. § 7409(a). The EPA must set

primary NAAQS at a level “requisite to protect the public

health” with “an adequate margin of safety.” § 7409(b). The

CAA prohibits the construction of a “major emitting facility”

unless the applicant demonstrates the facility “will not cause,

or contribute to, air pollution in excess of” any NAAQS.

§ 7475(a)(3). The EPA has delegated authority to enforce this

provision to state agencies, here the Louisiana Department of

Environmental Quality (the LDEQ).

When analyzing the cumulative effects of a proposed project on air quality, the FERC applied a three-step framework in

accordance with EPA guidelines for evaluating a project’s

emissions:

1. Preliminary screening: The FERC first

compares the project’s predicted emissions to the SILs for those emissions. If

the FERC predicts the emissions will

fall below the SILs, then the emissions

are “insignificant” and the FERC’s

analysis is at an end.

2. Cumulative effects: If the FERC

predicts the emissions will exceed a

relevant SIL, then the FERC adds the

emissions from the source under review

to those from sources already existing in

the area and compares the cumulative

emissions to the NAAQS. In doing so,

the FERC may rely upon an emissions

inventory maintained by a state agency

such as the LDEQ. If the cumulative

effects of the emissions do not exceed

the NAAQS, then the FERC ends its

analysis.

3. Cause and contribution: If the

predicted cumulative emissions will

exceed a NAAQS, then the FERC considers whether the predicted SIL

exceedance and the predicted NAAQS

exceedance will occur simultaneously at

the same receptor. If it will not, then the

project is deemed to “not cause or

contribute to the potential NAAQS

exceedance.”

May 2025 Rehearing Order, 191 FERC ¶¶ 5-6 (citing 40 C.F.R.

pt. 51, app. W).

B. Commission Proceedings

In December 2021 the Intervenors sought the FERC’s

authorization for the siting, construction, and operation of a

new LNG terminal on the Calcasieu Ship Channel in Cameron

Parish, Louisiana and of a natural gas pipeline running 85 miles

from East Texas to the Terminal. The Pipeline will also include

the Moss Lake Compressor Station.

In July 2023 FERC staff completed the EIS, which ran

more than 600 pages plus appendices. 2 The EIS predicted the

project would cause some adverse environmental effects and

recommended more than 100 measures to reduce those effects.

As for the cumulative effects analysis of the Terminal and the

Compressor Station, the EIS predicted there would be exceedances of the SILs and NAAQS for PM2.5 and NO2, but it

concluded that those exceedances would not occur

simultaneously and the project therefore would not cause or

contribute to any NAAQS exceedances. The EIS also concluded that the project would not cause significant harm to the

commercial fishing industry.

In June 2024 the FERC issued an order authorizing the

Terminal and the Pipeline. 187 FERC 61199, ¶¶ 199-200. For

The Congress has since imposed a general 150-page limit for an

EIS and a 300-page limit for an EIS “for a proposed agency action of extraordinary complexity.” 42 U.S.C. § 4336a(e)(1).

a Better Bayou, other advocacy groups, and several individuals

(together, Bayou), filed a request for rehearing, which the

FERC granted in part. November 2024 Rehearing Order, 189

FERC 61148, ¶ 2. Out of concern that our decisions in Healthy

Gulf v. FERC, 107 F.4th 1033 (2024), and City of Port Isabel

v. FERC, 111 F.4th 1198 (2024), may have undermined part of

its cumulative effects analysis, the FERC set aside its analysis

of the project’s NO2 and PM2.5 emissions and ordered an additional environmental review. Id. ¶ 185. The FERC also said it

would address “other air quality issues raised by” Bayou in a

future order; it otherwise rejected Bayou’s arguments. Id.

In May 2025 FERC staff issued the Supplemental EIS

(SEIS). Unlike the original EIS, which had predicted SIL and

NAAQS exceedances for the Terminal and the Compressor

Station, the SEIS predicted no NAAQS exceedances for the

Terminal and no SIL exceedances for the Compressor Station.

The SEIS accordingly ended its cumulative effects analysis at

step one for the Compressor Station and at step two for the

Terminal, concluding that “there would be no significant

cumulative air quality impacts.”

Two weeks later the FERC issued an order again authorizing the Terminal and the Pipeline, based upon the conclusions

in the EIS and the SEIS. May 2025 Rehearing Order, 191

FERC ¶¶ 92-93. Bayou filed another request for rehearing,

which the Commission denied. August 2025 Rehearing Order,

192 FERC 61157, ¶ 2.

After the Initial Authorization Order issued in June 2024,

the FERC had authorized limited construction activities. Bayou

sought a stay of those activities, which was twice denied by the

FERC and by this court.

II. Analysis

We have jurisdiction over Bayou’s petitions for review

under 15 U.S.C. § 717r(b). 3 Insofar as Bayou’s challenges raise

questions of statutory interpretation, our review is de novo. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412-13

Bayou filed its first petition for review in September 2024 — after its request for rehearing had been denied by operation of law but before the Commission set aside part of its order in the November 2024 Rehearing Order. A request for rehearing will be denied by

operation of law if the Commission does not act on it within thirty days, but the Commission may still modify or set aside the initial order until “the record in [the] proceeding shall have been filed in a court of appeals.” § 717r(a). One month after the Commission issued the November 2024 Rehearing Order, Bayou filed a motion to clarify whether the November 2024 Rehearing Order was encompassed by

its existing petition for review and, if necessary, to amend its petition to seek review of that order.

We dismiss that motion as moot. After Bayou filed the motion, the FERC issued the May 2025 Rehearing Order that modified the

Commission’s discussion in the first two orders and addressed

Bayou’s “original claims on rehearing of the Authorization order

regarding air quality.” 189 FERC ¶ 2. After the Commission denied Bayou’s request for rehearing of the May 2025 Rehearing Order,

Bayou filed a petition seeking review of the November 2024 and the May 2025 Rehearing Orders. Based upon those subsequent events,

we have no reason to decide precisely which orders were covered by Bayou’s initial petition for review.

We have Article III jurisdiction. Bayou has associational standing on behalf of its members who reside and fish near the project. Because “at least one [petitioner] has standing,” we “may proceed” to the merits of its petitions. Biden v. Nebraska, 600 U.S. 477, 489 (2023); see also Horne v. Flores, 557 U.S. 433, 446-47 (2009); Woodhull

Freedom Found. v. United States, 948 F.3d 363, 371 (D.C. Cir.

2020).

(2024). We review the FERC’s exercise of its discretion under

the NGA and its NEPA analysis under the familiar arbitraryand-capricious standard of the Administrative Procedure Act.

See Vecinos para el Bienestar de la Comunidad Costera v.

FERC, 6 F.4th 1321, 1327, 1331 (D.C. Cir. 2021). We will set

aside the Commission’s action if it “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 [it],” or has reached a result that “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); see

Cumberland, 153 F.4th at 1305 (“We review FERC’s public

convenience and necessity determination for whether it was

based on a consideration of the relevant factors and whether

there has been a clear error of judgment” (cleaned up)). Under

the NGA, “the finding of the Commission as to the facts, if

supported by substantial evidence, shall be conclusive.”

§ 717r(b).

A. Challenges under the NGA

Bayou first challenges the FERC’s authorization of the

Terminal and the Pipeline under the NGA. To reiterate: Under

Section 3 of that Act, the Commission “shall” authorize a terminal “unless” it finds the terminal “will not be consistent with the public interest.” § 717b(a); under Section 7, the

Commission will authorize a pipeline only if it determines the

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

convenience and necessity.” § 717f(e). “Section 3 is in this

respect the reverse of [Section 7].” Panhandle Producers &

Royalty Owners Ass’n v. Econ. Regul. Admin., 822 F.2d 1105,

1111 (D.C. Cir. 1987). Whereas Section 3 “requires an

affirmative showing of inconsistency with the public interest to

deny an application,” Section 7 “requires an affirmative

showing of public convenience and necessity to grant one.” Id.;

see also Vecinos, 6 F.4th at 1326 (similar).

Bayou argues that the Commission’s interpretation of

Section 3 was arbitrary and unlawful and that its application of

both Section 3 and Section 7 was arbitrary and capricious.

These arguments all lack merit.

1. The Commission’s interpretation of the NGA

In its first rehearing request, Bayou argued that the

Commission had failed to explain how it balanced the

Terminal’s benefits against its harms to determine whether the

Terminal would be inconsistent with the public interest. The

Commission responded in the November 2024 Rehearing

Order that Bayou’s balancing argument was “misplaced”

because “section 3 of the NGA does not charge the

Commission with demonstrating that the benefits of a proposal

outweigh its potential harms.” 189 FERC ¶ 41 (quoting Alaska

Gasline Dev. Corp., 172 FERC 61214, ¶ 16 (2020)). Later in

that order the Commission reiterated that it “does not weigh the

public benefits against potential harms in its NGA section 3

public interest determination.” Id. ¶ 158 n.647.

Bayou says this was wrong for several reasons. First, the

Commission’s position is not the “best” interpretation of

Section 3. Second, the Commission offered no explanation as

to the standard it applies under Section 3. Third, the

Commission had previously engaged in balancing under

Section 3, but it departed from its precedents without any

explanation. The Commission responds that these arguments

are foreclosed by our precedent or not properly before us. We

agree with the Commission.

We start, as usual, with the text of the statute: As we have

said, the Commission “shall” authorize the construction and

operation of a terminal “unless” doing so “will not be

consistent with the public interest.” § 717b(a). This statute is

“not neutral” but rather demonstrates a clear congressional

preference for authorization. Alaska Gasline, 134 F.4th at 572.

Consequently, we have long held that Section 3 establishes a

“presumption” in favor of authorization. See, e.g., Sierra Club

v. FERC (Saguaro), 145 F.4th 74, 87 (2025); Alaska Gasline,

134 F.4th at 572-73; Ctr. for Biological Diversity v. FERC, 67

F.4th 1176, 1188 (2023); Sierra Club v. DOE (Freeport), 867

F.3d 189, 203 (2017); EarthReports, Inc. v. FERC, 828 F.3d

949, 953 (2016); W. Va. Pub. Servs. Comm’n v. DOE, 681 F.2d

847, 856 (1982).

This long-standing presumption conflicts with Bayou’s

attempt to read Section 3 as imposing a balancing requirement

on the Commission. As the Intervenors explain, an ordinary

balancing test would require the Commission to start its review

from “equipoise,” with “the scales tip[ping] in favor of a

particular outcome” based upon the evidence presented. Not so

here. The Commission begins its review from the position that

it will — indeed, that it must — authorize a terminal unless the

presumption is rebutted.

Bayou acknowledges this presumption but says it rebutted

it by producing some evidence of harm, at which point the

Commission needed to balance that evidence against the

Terminal’s benefits. If the presumption were that easy to dispel, then it is hard to imagine a case in which an opponent

would fail to do so. Unsurprisingly then, our case law provides

a different answer: The petitioner must “show, affirmatively,

that approving the [terminal] is inconsistent with the public

interest.” Saguaro, 145 F.4th at 87. Satisfying that standard

requires a petitioner to do more than simply produce some

evidence of harm. See, e.g., Freeport, 867 F.3d at 203 (holding

the petitioner “fail[ed] to overcome the presumption in favor of

exports” even assuming the environmental effects of the

exports were “significant”); Saguaro, 145 F.4th at 87 (rejecting

argument that the Commission “treated adverse impacts versus

benefits inconsistently” and reaffirming its reliance upon the

presumption in favor of authorization). 4

Bayou next argues the Commission did not offer an

adequate explanation of what Section 3 requires. It characterizes the Commission’s approach to reviewing a terminal for

inconsistency with the public interest as meaning “we’ll know

it when we see it.” We disagree. Relying upon our precedent,

the Commission cited the presumption in favor of authorization

and explained that Bayou bore the burden of making an

“affirmative showing” that the Terminal would be inconsistent

with the public interest. Initial Authorization Order, 187 FERC

¶ 23; November 2024 Rehearing Order, 189 FERC ¶ 36. It then

After entirely ignoring Saguaro in its opening brief, Bayou argues in its reply brief that requiring it “not only to produce evidence of harm, but to prove themselves that the Terminal was inconsistent

with the public interest” is “unsupported.” To make that argument Bayou attempts to rewrite our precedent, claiming Saguaro did not establish that a petitioner’s burden “entails anything more than

producing evidence of harm” because the petitioners in that case did not produce any evidence of direct harm. Saguaro did not, however, even mention a lack of evidence of direct harm when discussing the petitioners’ burden. The petitioners argued that the Commission had “asymmetrically considered benefits downstream of the [proposed

facility] while dismissing adverse impacts upstream.” 145 F.4th at 87. In response, we said the petitioner needed to make “an

affirmative showing of inconsistency with the public interest” and affirmed the Commission’s reliance upon the presumption in favor

of authorization. Id. To the same effect, see Freeport, 867 F.3d at 203. Bayou makes no attempt to distinguish our discussion of this burden in Freeport.

discussed specific benefits and harms it had considered and

concluded that Bayou had not satisfied its burden. See below at

18-20; Initial Authorization Order, 187 FERC ¶¶ 23-32;

November 2024 Rehearing Order, 189 FERC ¶¶ 37-46.

Insofar as Bayou seeks something akin to a bright-line rule

for when a terminal will be inconsistent with the public interest, it is out of luck. Whether a terminal will be inconsistent with

the public interest is a fact-bound inquiry that does not easily

lend itself to bright-line rules. This does not mean the

Commission’s discretion is limitless; as relevant here, its

orders must still be “reasonable and reasonably explained, and

its factual findings must be supported by substantial evidence.”

Saguaro, 145 F.4th at 80 (cleaned up); see § 717r(b). Those

requirements have been applied by this court on many occasions and provide a sufficient standard against which to review

the Commission’s orders. See, e.g., Vecinos, 6 F.4th at 1331;

Wash. Gas Light Co. v. FERC, 532 F.3d 928, 932-33 (2008).

The FERC was required to provide an explanation that was

“clear enough that its path may reasonably be discerned,”

Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016)

(cleaned up), which it did here.

That leaves Bayou with its argument that the Commission

departed from its own precedent without explaining its decision

to do so. We do not reach this argument because, as the

Commission and the Intervenors point out, Bayou did not raise

this argument to the Commission. See § 717r(b) (“No objection

to the order of the Commission shall be considered by the court

unless such objection shall have been urged before the

Commission in the application for rehearing unless there is

reasonable ground for [the] failure so to do”). Although Bayou

argued the Commission was required to engage in balancing, it

did not argue that the Commission’s own precedent required it

to do so. See Port Isabel, 111 F.4th at 1217-18 (holding that

§ 717r(b) prevents courts from considering “specific arguments” that were not raised to the Commission on rehearing).

Bayou argues it had a reasonable ground for not raising

this argument earlier, namely, that the Commission had not disclaimed a balancing approach under Section 3 until the

November 2024 Rehearing Order. But that is not correct. In an

order issued nearly four years before the Initial Authorization

Order in this case, the Commission stated that “section 3 of the

NGA does not charge the Commission with demonstrating that

the benefits of a proposal outweigh its potential harms.” Alaska

Gasline Dev. Corp., 172 FERC ¶ 16. Although Bayou contends

other sections of that order suggest the Commission did in fact

engage in balancing, the order nonetheless put Bayou on notice

that the Commission took a contrary position as to what Section

3 required.

In sum, the Commission’s interpretation of Section 3 was

neither unlawful nor arbitrary.

2. The Commission’s application of the NGA

Bayou next argues that the Commission’s application of

the NGA was unlawful and arbitrary in three ways: The

Commission incorrectly dismissed the project’s harms as insignificant or inconsequential; failed to explain how the

Terminal’s benefits would outweigh its harms; and did not

meaningfully balance the Pipeline’s benefits and harms

because it placed undue weight on a precedent agreement

between the Intervenors.

a. The project’s harms

Bayou claims the Commission failed to give proper weight

to the evidence of the Terminal’s harms or to explain its reasons for discounting them. In Bayou’s view, the FERC did not

take a “hard look” at the project’s effects on air quality, commercial fishing, or climate change.

Bayou’s arguments regarding air quality and commercial

fishing overlap substantially with its NEPA claims, to the merits of which we turn below. Because its NEPA claims fail, so

too do these arguments. See Ctr. for Biological Diversity,

67 F.4th at 1188 (holding that a petitioners’ meritless NEPA

challenges “fare[d] no better when framed as NGA

challenges”).

Bayou’s argument that the Commission simply dismissed

the project’s contributions to climate change is without merit.

The Commission cited the project’s estimated greenhouse gas

emissions and the social cost of those emissions, Initial

Authorization Order, 187 FERC ¶¶ 165, 168; compared the

project’s greenhouse gas emissions to the existing national and

state levels, id. ¶¶ 171-73; and approved mitigation measures

proposed by the Intervenors, which responded to recommendations made by the EPA, id. ¶¶ 176-77. The Commission also

explained that it would not characterize the project’s emissions

as significant or insignificant because “there currently are no

accepted tools or methods for [it] to use to determine

significance,” but it had still “taken the required ‘hard look’”

at the evidence. Id. ¶¶ 179-80; see also November 2024

Rehearing Order, 189 FERC ¶¶ 90-99. Although Bayou says

the Commission should have done more to explain why the

project’s greenhouse gas emissions did not warrant the denial

of the project, we have previously approved similar analyses

by the Commission. See, e.g., Citizens Action Coal. of Ind., Inc. v. FERC, 125 F.4th 229, 240-42 (2025); Food & Water Watch

v. FERC, 104 F.4th 336, 346-47 (2024); Ala. Mun. Distribs.

Grp. v. FERC, 100 F.4th 207, 214-15 (2024); Ctr. for

Biological Diversity, 67 F.4th at 1183-84. Bayou has not

provided any reason we should not do the same here.

b. The Terminal’s benefits

Insofar as the Commission attempted to balance the

Terminal’s benefits against its harms, Bayou argues the record

does not support the Commission’s decision to authorize the

Terminal. For the reasons discussed above at 14-15, the

Commission did not bear that burden; it was Bayou that needed

to make an affirmative showing that the Terminal would be

inconsistent with the public interest. See Saguaro, 145 F.4th at

87.

In any event, the Commission explained why the Terminal

would not be inconsistent with the public interest. In addition

to invoking the presumption in favor of authorization, the

Commission cited § 717b(c), which provides that the exportation of gas to any country with which the United States has

entered into a free trade agreement “shall be deemed to be

consistent with the public interest.” Initial Authorization Order, 187 FERC ¶ 23; November 2024 Rehearing Order, 189 FERC

¶¶ 39, 46. Here the DOE had authorized the Terminal to export

LNG to such countries. Initial Authorization Order, 187 FERC

¶ 8. Bayou attempts to minimize the significance of these considerations, but the Commission was obligated to consider

them. See Saguaro, 145 F.4th at 87; § 717b(c).

The Commission also acknowledged the potential adverse

effects of the Terminal, but it found that those effects “would

not be significant or would be reduced to less-than-significant

levels with the implementation of avoidance, minimization,

and mitigation measures recommended in the EIS and adopted

by the [Commission].” Initial Authorization Order, 187 FERC

¶ 29. The Commission therefore concluded that Bayou had not

made “the affirmative showing of inconsistency with the public

interest that [was] necessary to overcome the presumption in

section 3.” Id.; see November 2024 Rehearing Order, 189

FERC ¶ 37. That conclusion was reasonable, reasonably

explained, and supported by substantial evidence.

c. The authorization of the Pipeline

As we have said, the Commission will issue a certificate

for the construction of a pipeline only if the pipeline “is or will be required by the present or future public convenience and

necessity.” § 717f(e). Recall that the Commission follows a

three-step approach under Section 7, asking whether there is a

“market need” for the pipeline; whether the project will cause

certain adverse effects; and if so, whether the pipeline’s benefits are greater than its adverse effects. Env’t Def. Fund, 2 F.4th at 961.

Bayou primarily takes issue with the Commission’s

analysis at the first and third steps. In Bayou’s telling, the

Commission relied “almost exclusively on a single precedent

agreement between two Venture Global subsidiaries” to take

the Pipeline’s full capacity. A precedent agreement is a

“preconstruction contract[] . . . for the natural gas the pipeline would transport.” Id. at 959. Bayou argues the Commission’s

reliance upon the precedent agreement was arbitrary because

the benefits of the Pipeline identified by the Commission

depended upon the Terminal, the approval of which was itself

arbitrary, and the Commission did not explain why those benefits outweighed the harms caused by the Pipeline.

We can easily dispose of Bayou’s first argument. For the

reasons explained above at 13-20, the Commission’s approval

of the Terminal complied with the NGA. Consequently, it

could consider the benefits stemming from the Terminal when

considering the application for the Pipeline.

As for Bayou’s second argument, we see no error in the

Commission’s weighing of the Pipeline’s benefits and harms.

At the first step — identifying a “market need” — the

Commission cited the long-term precedent agreement between

the Venture Global subsidiaries to take the Pipeline’s full

capacity. See Initial Authorization Order, 187 FERC ¶¶ 37-38;

November 2024 Rehearing Order, 189 FERC ¶¶ 48-51. “As a

general rule,” we have held that the “FERC may find market

need by relying solely on a precedent agreement.”

Cumberland, 153 F.4th at 1309. True, as Bayou notes, we had

previously said that a precedent agreement is not “always

sufficient” to show market need. Env’t Def. Fund, 2 F.4th at

972. As we have since clarified, however, that decision provided only a narrow exception to the general rule “when an

agreement involves affiliated entities and there is plausible

evidence of self-dealing.” Cumberland, 153 F.4th at 1309

(cleaned up). As the Commission found below and the

Intervenors note on appeal, Bayou has not presented evidence

of — or even alleged — self-dealing by the Intervenors. See

November 2024 Rehearing Order, 189 FERC ¶ 48 (“Here,

there is no evidence of impropriety or self-dealing to indicate

anti-competitive behavior or affiliate abuse”). “[A]bsent selfdealing, FERC was entitled to rely on the precedent agreement

without considering additional evidence.” Cumberland,

153 F.4th at 1310.

Bayou also argues the Commission used the precedent

agreement as “a proxy for the foreign sales the Terminal would

enable,” which was inappropriate because the DOE exercises

exclusive authority over those exports. The Congress has

already settled this issue by declaring that exports to countries with which the United States has a free trade agreement are

“consistent with the public interest.” § 717b(c). Accepting

Bayou’s position would “thwart Congress’ directive and intent,

as expressed in Section 3.” City of Oberlin v. FERC, 39 F.4th

719, 727 (D.C. Cir. 2022) (cleaned up). Accordingly, we have

held “[n]othing in Section 7 prohibits considering export

precedent agreements in the public convenience and necessity

analysis.” Id. at 726. In Oberlin we upheld the Commission’s

approval of a pipeline precisely because the Commission had

relied upon a precedent agreement for the exportation of gas to

a free-trade-agreement country. See id. at 726-27. “We would

be hard pressed,” we explained, “to conclude that FERC’s

reliance on [the] clear statutory directive [in § 717b(c)] was

unjustified.” Id. at 727. So too here. It was reasonable for the

Commission, when determining whether to approve the

Pipeline, to consider how the Pipeline would support the

Terminal and, hence, the exports authorized by the DOE. See

November 2024 Rehearing Order, 189 FERC ¶ 58; above at 19.

At the third step, Bayou claims the Commission did not

adequately explain how the benefits of the Pipeline outweighed

the adverse effects. We find the Commission’s explanation sufficiently clear. In the November 2024 Rehearing Order the

FERC addressed Bayou’s argument about the Pipeline’s

adverse effects on landowners, noting that Venture Global CP

Express had already taken steps to mitigate those effects, such

as by revising the route of the Pipeline. 189 FERC ¶ 63. As for

the Pipeline’s benefits, the Commission cited not only the precedent agreement; it also found the project would “provide

domestic public benefits, including: adding new transportation

options for producers and shippers; boosting the domestic

economy and the balance of international trade; and supporting

domestic jobs in gas production and transportation.” Id. ¶ 68;

see also id. ¶ 69 (citing “an increase in the local population,

increased employment opportunities, increased demand for

housing and public services, and an increase in state and local

government revenues” as other benefits associated with the

Pipeline). The Commission also cited “minor positive

economic impacts” that would occur during the construction of

the project, including increased employment and spending. Id.

¶ 69 & n.299. That the Commission considered some of these

benefits to be “minor” compared to the precedent agreement is

of no moment because it was obligated to consider “all relevant

factors.” Env’t Def. Fund, 2 F.4th at 959; see Atl. Refin. Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959) (Section

7 “requires the Commission to evaluate all factors bearing on

the public interest”).

The Commission therefore concluded that the “net positive

benefit to the domestic economy . . . . in addition to the

significant evidence of need as demonstrated by the long-term,

binding precedent agreement,” demonstrated that the Pipeline

was required by public convenience and necessity. November

2024 Rehearing Order, 189 FERC ¶ 69. Bayou may disagree

with the result of the Commission’s balancing, but its decision

was reasonably explained and supported by substantial

evidence. We therefore reject Bayou’s challenge to the authorization of the Pipeline.

B. Challenges under the NEPA

Bayou raises several challenges under the NEPA. As the

Supreme Court recently explained, “The bedrock principle of

judicial review in NEPA cases can be stated in a word:

Deference.” Seven Cnty., 605 U.S. at 185.

Bayou’s challenges ultimately ask us to engage in a more

searching review than precedent allows. See Cumberland,

153 F.4th at 1311 (“After Seven County, the era of searching

NEPA review is over”). Considering the “substantial judicial

deference required in NEPA cases,” Seven Cnty., 605 U.S. at

174, we must reject Bayou’s NEPA challenges.

1. The Terminal’s cumulative effects

Bayou first takes issue with the FERC’s analysis of the

Terminal’s cumulative effects on air quality. At step two of the

analysis, the EIS predicted exceedances of the 1-hour NAAQS

for NO2. The SEIS, however, did not predict any exceedances

of the NAAQS for NO2 or PM2.5. The FERC adopted the findings of the SEIS in the May 2025 Rehearing Order. 191 FERC

¶ 55.

Bayou asserts this was arbitrary for three reasons. First, the

Commission relied upon a new model in the SEIS “without

demonstrating awareness of why it reached a different

conclusion” than it had in prior analyses, referring to the EIS

for this project and to its review of other nearby terminals.

Second, the FERC did not account for emissions from the

Magnolia LNG Terminal in the SEIS, a project which was

included in the cumulative effects analysis in the EIS. Third,

the FERC did not account for emissions from marine vessels

serving other nearby terminals.

a. New model

The record squarely contradicts Bayou’s first argument.

The SEIS explained that the updated air quality modeling submitted by Venture Global CP2 LNG “used the most recent

validated air quality monitor data and the most recent

emissions inventory revisions provided by the LDEQ.” The

FERC then showed its awareness of that update in both its May

and August 2025 Rehearing Orders. The FERC noted that the

updated air quality modeling relied upon the “most recent

emissions inventory” data from the LDEQ, which had changed

since the EIS and which “largely” accounted for the differences

between the modeling in the EIS and the SEIS. August 2025

Rehearing Order, 192 FERC ¶ 13; May 2025 Rehearing Order,

191 FERC ¶¶ 55 n.204, 63. The FERC also explained that it

reached a different conclusion in the SEIS than it had in its

analyses of other nearby terminals because of differences in the

air dispersion modeling, “including differences in emission

rates, stack heights, variability in terrain near each facility, and other terminal-specific factors.” August 2025 Rehearing Order,

192 FERC ¶ 13; May 2025 Rehearing Order, 191 FERC ¶ 65.

The FERC did not detail every particular change to the inventory, but it was not required to do so; “all we may demand” is

“a reasonable level of detail.” Save the Sound, Inc. v. FAA, No.

24-1028, 2026 WL 2093931, at *5 (D.C. Cir. July 26, 2026)

(citing Seven Cnty., 605 U.S. at 180-81).

b. Magnolia Terminal

Bayou next challenges the FERC’s omission of the

Magnolia Terminal from the cumulative effects analysis in the

SEIS. The FERC had authorized the Magnolia Terminal, which

was also located on the Calcasieu Ship Channel, in 2016.

Before the FERC completed the SEIS for this terminal,

however, the Magnolia Terminal’s LDEQ-issued air permits

had expired, and the LDEQ had accordingly omitted the

Magnolia Terminal from its emissions inventory. See August

2025 Rehearing Order, 192 FERC ¶ 14. This was one of several

changes the LDEQ had made to its emissions inventory. 5

According to Bayou, the Magnolia Terminal nonetheless

remained a “reasonably foreseeable” source of emissions

because the loss of its permits did not invalidate the FERC’s

authorization of the terminal, so the FERC needed to include it

in the cumulative effects analysis.

The FERC reasonably explained its reasons for omitting

the Magnolia Terminal. The Commission considered the

LDEQ’s emissions inventory “the most reliable data input for

the cumulative [effects] analysis,” and that agency had omitted

the Magnolia Terminal because its air permits had expired.

August 2025 Rehearing Order, 192 FERC ¶ 15. Bayou argues

See LDEQ, Public Notice, at 261-65 (Jan. 31, 2025),

https://edms.deq.louisiana.gov/app/doc/view?doc=14632557.

that the Commission still should have included the Magnolia

Terminal because it did not say that terminal was no longer a

“reasonably foreseeable” source of emissions. But that is, as a

practical matter, just what the Commission concluded. The

FERC noted that the Magnolia Terminal’s authorization under

§ 717b remained in effect, but finding “no record evidence

explaining why Magnolia LNG’s air permits ha[d] allegedly

expired,” declined to “speculate as to the reasons why.” Id.

Instead, it “grant[ed] the LDEQ — the state agency tasked with

implementing the CAA — a presumption of regularity formed

by general principles of administrative law.” Id.

This was consistent with the Commission’s longstanding

practice of relying upon “other agencies’ expertise in carrying

out its NEPA responsibilities.” May 2025 Rehearing Order,

191 FERC ¶ 61. It was neither unreasonable nor arbitrary for

the FERC to rely upon the LDEQ’s most recent emissions

inventory, to grant that inventory a presumption of regularity,

and to omit the effects of a terminal the future of which was not foreseeable. Cf. Appalachian Voices v. FERC, 139 F.4th 903,

927 (D.C. Cir. 2025) (Henderson, J., concurring) (“[C]ourts

cannot demand that agencies run down every rabbit hole”).

Bayou also argues the FERC needed to consider the

Magnolia Terminal because the Magnolia Terminal’s authorization under § 717b remained in effect, so the Commission

would not have another opportunity to consider the cumulative

effects of the proposed Terminal and the Magnolia Terminal if

the latter were to obtain new air permits. Under the NEPA,

however, an agency is supposed to focus upon “the project at

hand.” Seven Cnty., 605 U.S. at 186-87. That is what the FERC

did by excluding the speculative re-emergence of a different

project. 6

c. Marine vessels serving other terminals

When considering the cumulative effects of the Terminal,

the FERC limited its consideration of mobile source emissions

to those attributable to the proposed Terminal and to Global

Venture’s Calcasieu Pass LNG Terminal. Initial Authorization

Order, 187 FERC ¶ 185; May 2025 Rehearing Order, 191

FERC ¶ 61. Bayou claims the FERC should have also considered emissions from ship traffic related to six other terminals.

The FERC included the mobile source emissions attributable to the Terminal and to the Calcasieu Pass LNG Terminal

principally because of their proximity to each other and

because the Commission had updated emissions data for the

Calcasieu Pass LNG Terminal. May 2025 Rehearing Order,

191 FERC ¶ 61 & n.229. In order to account for their emissions, the FERC treated these mobile sources as stationary

Bayou also alleges the FERC included the Magnolia Terminal in

the cumulative effects analysis of an SEIS issued one week after it issued the SEIS in this proceeding. In both instances the FERC relied upon the emissions inventory from the LDEQ. In the other SEIS,

however, the FERC explained in response to comments that the

emissions inventory used in the initial EIS “was not the subject of the court proceeding and remand” in Healthy Gulf and thus was

“outside the scope of th[e] supplemental final EIS.” Commonwealth LNG SEIS, No. CP19-502-001, Accession No. 20250516-3002, app.

D at 5 (May 16, 2025). The timing of the inventory used in the

proceedings may therefore explain the Commission’s treatment of

the Magnolia Terminal. We express no view on the Commission’s

decision not to update the emissions inventory in the other

proceeding. Here we conclude only that it was reasonable for the

FERC to rely upon the most recent emissions inventory from the

LDEQ in preparing the SEIS.

sources. Id. ¶ 58. This approach involved a “large number of

assumptions,” including “calculating emissions based on the

upper limit of ships that the applicant can utilize.” Id. ¶ 58 &

n.220.

The FERC then explained why applying that approach to

mobile sources related to the six terminals would have been too

speculative. Specifically, the FERC addressed the EPA’s preferred air-dispersion model (AERMOD), which Bayou says the

FERC should have used to model mobile source emissions.

Given the large number of assumptions the FERC needed to

make in order to model the mobile source emissions related to

the two Venture Global terminals, the FERC concluded that

extending this approach to other mobile sources “would not

provide accurate” information. Id. ¶ 60. Emissions from those

other mobile sources were therefore not “reasonably

foreseeable.” Id.; see Del. Riverkeeper Network v. FERC,

753 F.3d 1304, 1310 (D.C. Cir. 2014) (stating the NEPA “does

not demand forecasting that is not meaningfully possible”

(cleaned up)).

Bayou did not point to any methodology other than

AERMOD the FERC could have used to measure the emissions

from additional mobile sources. In insisting the FERC could

have used the AERMOD tool to measure mobile source emissions, Bayou cites one case in which the FERC did that. The

FERC persuasively distinguished that case in the May 2025

Rehearing Order: The cumulative effects modeling in that case

“reflected unique situational circumstances” because “all three

[relevant] LNG terminals were simultaneously undergoing

initial environmental review at the time.” 191 FERC ¶ 59. The

FERC therefore included mobile emissions from those terminals because it “possessed current, facility-specific mobile

source emissions data for each individual project.” Id. In this

case the FERC was not currently reviewing all the other termi29

nals, id., and those terminals “may have undergone changes”

since the FERC had completed its NEPA analysis of them several years earlier, August 2025 Rehearing Order, 192 FERC

¶ 20; see J.A. 786 (Bayou’s Request for Rehearing of the Initial

Authorization Order citing EIS’s completed between 2015 and

2022 for other terminals). So much for Bayou’s claim that the

Commission “offer[ed] no facts distinguishing the scenario

here from [the] other scenario[] in which AERMOD was

successfully used to model the impact of ship emissions.”

The FERC also explained that its decision to omit mobile

source emissions from the other six terminals was consistent

with both EPA regulations and with the LDEQ’s emissions

inventory. See May 2025 Rehearing Order, 191 FERC ¶ 61

(citing 40 C.F.R. pt. 51, App. W). The FERC consulted with

both agencies when preparing the SEIS, and “neither suggested

that the Commission should analyze mobile source emissions

more than it had already done.” Id. ¶ 58 n.219. For the reasons

already explained above at 25-26, and those discussed below at

31-33, the FERC was entitled to rely upon the expertise of

those agencies.

In order to comply with its NEPA obligations, “an agency

will invariably make a series of fact-dependent, contextspecific, and policy-laden choices about the depth and breadth

of its inquiry.” Seven Cnty., 605 U.S. at 182-83. We will affirm

those choices “so long as they fall within a broad zone of

reasonableness.” Id. at 183. The FERC provided its reasons for

excluding the disputed emissions sources in its cumulative

effects analysis. Under our deferential standard of review, we

may not set aside that well-reasoned decision.

2. The Commission’s use of NAAQS in the

cumulative effects analysis

Even accepting the FERC’s conclusion that the Terminal’s

emissions would not cause exceedances of the NAAQS for

NO2 and PM2.5, Bayou says the Terminal’s emissions would

still cause harms such as “premature deaths, asthma, and lost

days of school and work.” Bayou claims it was arbitrary and

capricious for the FERC to rely upon the NAAQS rather than

the EPA’s CO-Benefits Risk Assessment Health Impacts

Screening and Mapping Tool (COBRA), which Bayou says

would have more accurately accounted for the health effects of

the Terminal’s emissions. We disagree.

As an initial matter, the FERC and the Intervenors argue

that Bayou forfeited this argument by failing to raise it in its

first request for rehearing. We will not ordinarily consider an

objection that was not “urged before the Commission in the

application for rehearing,” unless, that is, there is a “reasonable ground for [the] failure so to do.” § 717r(b). Bayou acknowledges that it did not challenge the Commission’s reliance upon

the NAAQS until its second rehearing request but argues its

delay should be excused because only the “SEIS and

subsequent rehearing orders . . . made relevant the question of

whether air pollution below the NAAQS was safe.” But it

seems Bayou was on notice of, and aggrieved by, the

Commission’s reliance upon the NAAQS long before it raised

its challenge; the EIS predicted that the O3 emissions from both

the Terminal and the Compressor Station would exceed the

SILs but not the relevant NAAQS. As for the NO2 and PM2.5

emissions, the EIS predicted no exceedances of the annual

NAAQS for NO2 or of the annual and 24-hour NAAQS for

PM2.5 with respect to the Terminal. In short, the Commission’s

use of the NAAQS as a threshold in the cumulative effects

analysis was clear before Bayou filed its first rehearing request.

In any event, even assuming Bayou had reasonable ground

for not raising this argument earlier, it fails on the merits. The EPA sets NAAQS at a level “requisite to protect the public

health” with “an adequate margin of safety.” 42 U.S.C.

§ 7409(b)(1). We have previously held the FERC

“appropriately relied on [NAAQS] as a standard of comparison

for air-quality impacts” because that approach “enabled

decisionmakers and the public to meaningfully evaluate the

project’s air-pollution effects by reference to a generally

accepted standard.” Sierra Club v. FERC (Sabal Trail),

867 F.3d 1357, 1370 n.7 (2017), abrogated on other grounds

by Seven Cnty., 605 U.S. 168. Other circuits have similarly held

that federal agencies may rely upon the NAAQS in making

their own health-related determinations consistent with the

NEPA. See, e.g., Diné Citizens Against Ruining Our Env’t v.

Haaland, 59 F.4th 1016, 1045-46 (10th Cir. 2023) (Bureau of

Land Management’s review of applications for permits to drill

for oil and gas); Lowman v. FAA, 83 F.4th 1345, 1364-66 (11th

Cir. 2023) (Federal Aviation Administration’s review of proposed airport expansion); Coal. for Advancement of Reg’l

Transp. v. Fed. Highway Admin., 576 F. App’x 477, 491-92 &

n.1 (6th Cir. 2014) (Federal Highway Administration’s review

of the proposed construction of bridges).

As the FERC notes, Bayou has not pointed us to a single

case in which a court has overturned an agency’s reliance upon

the NAAQS as part of its NEPA analysis. Bayou instead argues

our decision in Sabal Trail, upholding the FERC’s use of

NAAQS in its cumulative effects analysis, does not apply here

because the petitioners in that case did not present evidence

“directly forecasting the health impacts that the specific

project’s pollution would cause.” Our reasoning in Sabal Trail,

however, did not rest upon a lack of evidence. We specifically

approved the Commission’s reliance on NAAQS because they

provided a “generally accepted standard” against which

interested parties could “meaningfully evaluate” the proposed

project. 867 F.3d at 1370 n.7.

Bayou also disputes the FERC’s assertion that the NAAQS

are “designated as safe by [the] EPA.” Bayou again argues that

NAAQS-compliant emissions are not completely harmless and

points to the benefits of achieving an emissions level below the

NAAQS. We do not doubt that achieving an emissions level

below the NAAQS may result in additional benefits, but that

does not mean the NAAQS are not set at a “safe” level. Again,

federal law mandates that the EPA set primary NAAQS at a

level “requisite to protect the public health” with an “adequate

margin of safety.” 42 U.S.C. § 7409(b)(1). Therefore, “the

Agency’s establishment of . . . NAAQS demonstrates that it

did reach a conclusion regarding ‘safe’ . . . levels.” Am.

Trucking Ass’ns v. EPA, 283 F.3d 355, 368 (D.C. Cir. 2002).

Finally, Bayou touts the utility of the COBRA, but the

FERC explained its reasons for choosing instead to rely upon

the NAAQS: The EPA is “the air quality authority with the

expertise to establish air quality thresholds/limits to protect

public health required by the CAA.” August 2025 Rehearing

Order, 192 FERC ¶ 29 (quoting May 2025 Rehearing Order,

191 FERC ¶ 49). According to the EPA, the NAAQS are

“designed to ensure public safety by setting acceptable

concentration limits that minimize health risks and to protect

sensitive populations.” Id. And the EPA must “periodically

review the NAAQS and the data used to develop the

standards,” ensuring that the standards remain up to date. May

2025 Rehearing Order, 191 FERC ¶ 72. In contrast, the EPA

had described the COBRA as a “screening tool” used primarily

at “the state or county level” that was not yet appropriate for

the modeling of “project-specific analyses” because of remaining uncertainties regarding “key components” of the model.

August 2025 Rehearing Order, 192 FERC ¶ 29 & n.116.

The FERC thus did not blindly defer to the NAAQS but

rather made an independent judgment that using them as part

of its cumulative effects analysis was more appropriate than

using the COBRA. Bayou may disagree with the FERC’s decision, but the FERC’s “choice among reasonable analytical

methodologies is entitled to deference.” Sabal Trail, 867 F.3d

at 1370 n.7 (quoting Cmtys. Against Runway Expansion, Inc. v.

FAA, 355 F.3d 678, 689 (D.C. Cir. 2004)); cf. Ala. Mun.

Distribs., 100 F.4th at 214 (holding the FERC was not required

to use the “social cost of carbon tool” when it had not yet

determined how to “render that tool useful for project-level

analyses”).

3. The Moss Lake Compressor Station’s cumulative

effects

The SEIS concluded at step one of its cumulative effects

analysis that the Compressor Station’s emissions would not

exceed any SILs for any criteria pollutant. Bayou argues the

FERC’s decision to end its analysis there is inconsistent with

our decision in Healthy Gulf.

In Healthy Gulf, the petitioners argued the FERC’s

cumulative effects analysis of a project’s NO2 emissions was

arbitrary because of the way the FERC relied upon the SILs.

107 F.4th at 1043. After the FERC determined the project’s

NO2 emissions would not exceed the relevant SIL, the FERC

“then redeployed the SIL to determine whether the Project’s

cumulative effects were significant.” Id. The FERC concluded

the project’s cumulative effects were insignificant because its

incremental NO2 emissions did not exceed the relevant SIL at

each NAAQS exceedance location. Id. “In other words, the

Commission said that because the project’s incremental effects

were insignificant, its cumulative effects were, too.” Id. at

1044. This “non sequitur” made the FERC’s decision arbitrary:

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. 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 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. (cleaned up). We remanded the matter for the Commission

either to explain how its use of the SILs was “consistent with a

proper cumulative effects analysis” or to use a different

methodology. Id.

Bayou argues this reasoning also applies to the

Commission’s analysis of the cumulative effects of the

Compressor Station. For its part, the FERC reads Healthy Gulf

as a case about the third step of the cumulative effects

analysis — i.e., whether a project’s predicted SIL exceedance

and its NAAQS exceedance will occur simultaneously. On that

reading of Healthy Gulf, the FERC says it can still end its

analysis at step one if it determines that a project’s emissions

will not exceed the relevant SIL. See August 2025 Rehearing

Order, 192 FERC ¶ 23 (concluding that “Healthy Gulf disa35

greed with the Commission’s re-use of the SIL” at step three

but not with its initial use at step one).

Healthy Gulf is not applicable only to the third step of the

FERC’s cumulative effects analysis. In that case the FERC’s

error occurred at the third step, but nothing in the opinion suggests our reasoning turned on that. Rather, we explained

without regard to the step that the Commission’s approach

“would eviscerate the purpose behind requiring a distinct

cumulative effects analysis.” 107 F.4th at 1044.

Still, nothing in Healthy Gulf requires us to remand this

matter. After all, we did not hold the FERC could never end its

analysis of cumulative effects after finding that a project’s

emissions would not exceed the relevant SIL, that is, at step

one. On the contrary, we left open the possibility that the FERC

could explain on remand “how its use of the . . . SIL [was]

consistent with a proper cumulative effects analysis.” Id.

The FERC provided that explanation in this case. The

SEIS reported that “the maximum emission impacts for all criteria pollutants” from the Compressor Station were “effectively

insignificant,” so the emissions did not “add any meaningful

amount when combined with past, present, and reasonably

foreseeable emissions within the regional air environment.” In

reaching this conclusion, the SEIS also looked at “facilities in

the vicinity of the Moss Lake Compressor Station” and

determined that the cumulative effects of the NO2 and PM2.5

emissions were not significant based upon four considerations:

(1) the magnitude of the emissions and the distance between

the Compressor Station and other emitting facilities; (2) that

the facilities were subject to permitting programs under the

CAA that ensured they would not cause or contribute to any

NAAQS exceedances; (3) that local monitors showed ambient

levels below the NAAQS; and (4) that the magnitude of the

effects of the Compression Station were below the SILs. See

May 2025 Rehearing Order, 191 FERC ¶¶ 51-52.

“Black-letter administrative law instructs that when an

agency makes those kinds of . . . predictive or scientific

judgments, and decides what qualifies as significant or feasible

or the like, a reviewing court must be at its ‘most deferential.’” Seven Cnty., 605 U.S. at 182 (quoting Balt. Gas & Elec. Co. v.

NRDC, 462 U.S. 87, 103 (1983)); see also Save the Sound,

2026 WL 2093931, at *5 (collecting cases demonstrating our

long history of deference to agency decisions requiring

“technical expertise”). This is particularly appropriate here,

because “requiring extensive air modeling for every source is

costly and overly burdensome, especially where the source is

projected to emit insignificant amounts of pollution.” Sierra

Club v. LDEQ, 100 F.4th 555, 565 (5th Cir. 2024).

In sum, the Commission reasonably explained why, in the

context of this proceeding, the Compressor Station’s emissions

did not warrant further analysis. 7 Given the deference we owe

the Commission on this point, we reject Bayou’s argument to

the contrary.

Bayou also questions whether it was appropriate for the FERC to

use the SILs as a statistical threshold because they also reflect policy considerations. We do not share this concern. As mentioned above at 7, we have described SILs as a numerical value “below which the

EPA considers a source to have an insignificant effect on ambient air quality.” Sierra Club, 705 F.3d at 461. We have no reason to think that does not hold true here considering the FERC consulted with the EPA on the final SEIS “regarding the methodologies for various

impact analyses.” May 2025 Rehearing Order, 191 FERC ¶ 58 n.219.

4. The harm to the commercial fishing industry

Finally, Bayou argues the FERC failed to take a hard look

at the Terminal’s effects on the commercial fishing industry in

Cameron Parish. According to Bayou, the FERC “downplayed

the harm” to the commercial fishing industry by describing it

as “temporary” and erroneously concluding that the Terminal’s

effects would be “localized.”

a. Temporary harm

Bayou argues the FERC failed to consider whether the

adverse effects on the aquatic ecosystem would have a longterm effect on the commercial fishing industry, namely, that a

single season with a reduced catch could force commercial

fishers out of business permanently. But the FERC did not

ignore this potential effect.

In the Initial Authorization Order the FERC acknowledged

comments claiming the Terminal would “threaten[] the

viability of the fishing and shrimping industries . . . in the

project area.” 187 FERC ¶ 107. The Commission also noted

that the EIS analyzed the “potential socioeconomic impacts on

commercial fisheries and shrimping, impacts to commercial

fisheries and fishermen in environmental justice communities,

and cumulative temporary and permanent impacts on

commercial fishing.” Id. ¶ 110 (cleaned up). For example, the

Commission observed that construction would occur “during

peak fishing and recreational seasons,” id. ¶ 111, and cited

potential effects such as increased vessel traffic, obstructed

access to certain fishing locations, and changes to the population of shrimp, fish, and crab, id. ¶ 112. The FERC even

acknowledged that “[p]ermanent impacts on recreational and

commercial fisheries in the ship channel may occur due to the

loss of available fishing areas from operation of the LNG

terminal’s marine facilities and LNG carrier traffic.” Id. ¶ 111.

The FERC went on, however, to consider efforts to mitigate these potential harms as recommended in the EIS. Those

efforts included project-specific procedures designed to minimize the effects on wildlife and habitats, a training program to

inform workers about wildlife and endangerment factors, and

an engagement plan to allow local fishers and residents to communicate problems directly to Venture Global. Id. ¶¶ 109, 113.

The Commission also concluded the “overall size of the

waterway and access to and maneuverability within the

Calcasieu Ship Channel” would minimize the effects of the

“proposed use of barges” on fishing activities. Id. ¶ 111.

The FERC again considered Bayou’s argument in the

November 2024 Rehearing Order,189 FERC ¶ 101, once more

acknowledged the “serious and potentially long-term impacts”

identified in the EIS, id. ¶ 102, and again emphasized the mitigation efforts recommended in the EIS and adopted by the

Commission, id.; see also id. ¶¶ 106-08. Based upon these

orders, we readily conclude that the FERC considered the

potential long-term effects on the commercial fishing industry

and provided a reasoned explanation for approving the

Terminal despite those potential effects.

b. Localized harm

Bayou next disputes the FERC’s conclusion that the

Terminal’s effects “would be localized.” Id. ¶ 112.

Specifically, Bayou argues the FERC erroneously concluded

that the area near the Terminal does not have any “unique

features” not found in other parts of the Calcasieu Ship

Channel. Id. ¶ 114.

The EIS explained that the waters near the terminal are

divided by what is referred to as the “Firing Line.” In waters

north of the Firing Line, shrimp harvesting season varies by

year; south of the line, where the Terminal is located, shrimp

harvesting occurs year-round. According to Bayou, this means

the area near the Terminal is “prime real estate” because it is

“the only portion of the Calcasieu Ship Channel that is open for

commercial shrimp harvesting year-round.” Bayou further

claims the Terminal will cover part of the area through which

shrimp migrate to and from Calcasieu Lake.

Citing the EIS, the FERC recognized that “impacts on

shrimping vessels would be greatest near the Terminal.” Id.

¶ 109. It further explained, however, that the waters around the

Terminal do not have any “unique features or habitat

characteristics” not found in “other locations within the

Calcasieu Ship Channel” and that the Terminal would “leav[e]

approximately 25 river miles upstream” available with “the

same fish common to the lower estuarine area.” Id. ¶¶ 109, 114.

Bayou says this was erroneous, again emphasizing the distinction between waters north and south of the Firing Line. As the

Intervenors note, however — and as shown on the map

below — the Terminal (outlined in green) covers only a small

portion of the area south of the Firing Line (outlined in white). Even accepting Bayou’s characterization of waters south of the

Firing Line as “prime real estate,” the Terminal leaves most of

those waters available to commercial fishers.

The Commission also explained that commercial fishing

vessels would still have access to those waters. “[D]ue to the

overall size of the waterway and access to and maneuverability

within the Calcasieu Ship Channel,” fishing activities “would

not be significantly affected by the proposed use of barges”

during the construction of the Terminal. Id. ¶ 106. The FERC

acknowledged that once the Terminal becomes operational,

“LNG carriers in transit could impact commercial and

recreational fishing vessels” in the Channel insofar as those

vessels would have to give way until the LNG carrier passed,

but they could then resume their activities throughout the

Channel. Id. ¶ 107. This meant the Terminal “would have a

moderate, but not significant impact on commercial fishing.”

Id. ¶¶ 107-08. Bayou gives us no reason to disturb the FERC’s

conclusion on this point.

III. Conclusion

For the reasons stated, the petitions for review are

Denied.

For a Better Bayou v. FERC

Summary · law.co

Key issues

Procedural posture

Authorities cited

Opinion · public domain