The DC Circuit Court of Appeals upheld the decision of the Federal Energy Regulatory Commission (FERC) to allow construction of an extension of a mainline pipeline. One member of the three-judge panel filed a concurring opinion, which supported FERC’s decision and criticized the Petitioners challenging the project. According to this judge, “Petitioners—a collection of environmental groups—have developed a cottage industry that uses the nation’s environmental laws to retard new development.”

Good Cause, Adequacy of Prior Determinations
FERC set a construction deadline for the extension but also conditioned construction of the extension on the mainline receiving all the necessary permits. Due to delays in permitting the mainline, FERC allowed more time to build the extension. In rejecting the challenge to FERC’s grant of more time, the DC Circuit held that FERC properly determined that good cause existed. Also, FERC did not need to revisit its prior determinations regarding market need and environmental impact.

NEPA Decisions and their Misuse
The concurring judge used the case to criticize “interest groups” and the system they use “to transform the bench into a tool to stymie any new development.”

The concurrence identified four key problems created by judges using the National Environmental Policy Act (NEPA). First, courts have held that NEPA’s processes must be enforced “regardless of ‘administrative difficulty, delay, or economic cost.’”

Second, courts have vastly increased NEPA’s compliance burden, giving interest groups “a powerful new tool to strike down any development they opposed.”

Liberal standing requirements, both as to potentially injured individuals and organizations, is the third problem. This has allowed interest groups “to bring endless challenges to development, at times succeeding outright but more often by dint of delay.”

Finally, “courts have treated nonbinding guidance as a judicially enforceable mandate.” This has allowed NEPA challenges to extend far beyond Congress’s intent.

To see the DC Circuit’s opinion, which includes the concurrence, https://media.cadc.uscourts.gov/opinions/docs/2025/06/24-1094-2119519.pdf