The D.C. Circuit prides itself on making its decisions public in a timely fashion. An internal rule helps make that happen. A judge who has failed to circulate to the panel more than two of his assigned opinions by August 15 will not be allowed to hear arguments until he has. At first glance, one may think that not being allowed to work is no punishment at all, but it’s the shame of the matter that gives the rule teeth. I’m not aware of an instance in which the Chief Judge has ever needed to invoke that penalty (although I came dangerously close to having it meted out against me during my first year on the court). Which means that there is often a rush of opinions published in August. (Which also means that readers should be especially careful when studying August opinions. They may have been rushed.) Last week is evidence of the force of the deadline, although I’m not suggesting any of the decisions handed down last week have errors!

On Thursday, the court issued its public opinion in Hettena v. CIA, No. 24-5119, a case that it had decided on July 22. Seth Hettena, an investigative journalist, submitted a Freedom of Information Act (FOIA) request to the CIA for a report about an Iraqi national who died in CIA custody in the Abu Ghraib prison. The CIA disclosed parts of the report but redacted most of it. The district court held that the CIA’s redactions complied with FOIA. In an opinion written by Judge Garcia and joined by Judge Pillard and Senior Judge Rogers, the D.C. Circuit vacated and remanded, holding that the record does not adequately show that the redactions comply with FOIA.

After in camera review and a classified, ex parte hearing, the court concluded that although most of the CIA’s redactions comply with FOIA as they pertain to CIA “covert personnel,” “methods for collecting foreign intelligence,” “locations of Agency facilities,” and other similar information, the CIA had not adequately justified every redaction. In particular, the court found that the CIA failed to adequately justify redactions that related to the findings of the agency’s Inspector General about obstruction of its internal investigation, and remanded the matter to the CIA to do so.

In the American Innovation and Manufacturing (AIM) Act of 2020, Congress tasked EPA with administering a cap-and-trade program for hydrofluorocarbons (HFCs), which are useful in refrigeration and air conditioning but are extremely potent greenhouse gases. IGas Holdings, Inc. v. EPA, No. 23-1261 is about EPA’s 2024 rule allocating allowances to market participants based on their historic market share using data from the years 2011 to 2019. In an opinion written by Judge Pan and joined by Judges Pillard and Garcia, the court upheld that rule against challenges that Congress violated the nondelegation doctrine in granting EPA authority to allocate allowances and that EPA’s exclusion of 2020 data from its market-share calculations was arbitrary and capricious.

The court concluded that the AIM Act easily passes muster under the nondelegation doctrine because the structure and history of the AIM Act clearly show that Congress intended EPA to model its cap-and-trade program on a similar program under Title VI of the Clean Air Act, which allocates allowances to market participants based on their market share. The court also found that EPA’s decision to exclude 2020 data from its allocation methodology was not arbitrary and capricious. EPA reasonably explained that (1) the 2020 data was not representative of market share due to COVID-19 and supply chain disruptions, and (2) its inclusion would disrupt the market by upsetting the long-term planning of HFC producers and importers.

D. C.’s Tenant Opportunity to Purchase Act (“TOPA”) requires an owner of a housing accommodation to provide the tenant an opportunity to purchase the accommodation before selling it to a third party. FBI special agent David Paitsel was paid by a friend to provide information about residential tenants that Paitsel obtained from a non-public information system run by a private company that he accessed by representing that his search was part of an FBI investigation. In United States v. David Paitsel, No. 23-3212, the court affirmed Paitsel’s conviction and sentence for bribery under 18 U.S.C. § 201(b)(2)(C), which prohibits public officials from agreeing to accept compensation in exchange for performing an “official duty.” In an opinion written by Judge Wilkins and joined by Judge Millett, the court held Paitsel’s conduct fell within his official duties because the searches he performed were made possible only by his official position with the FBI. Senior Judge Randolph dissented, finding, among other things, that Paitsel was not performing “official acts.”

In 1989, the Fish and Wildlife Service listed the American Burying Beetle as an endangered species. In 2015, the Service began a reevaluation of the Beetle that resulted in the rules at issue in Center for Biological Diversity v. U.S. Fish and Wildlife Service, No. 23-5285. In that reevaluation, the Service concluded that the Beetle faces a relatively low near-term risk of extinction but that future land-use changes and climate change are likely to impact the viability of the species. In 2020, the Service downlisted the species from “endangered” to “threatened” and established protections for conservation of the Beetle under section 4(d) of the Endangered Species Act (ESA).

In an opinion by Judge Millett and joined by Chief Judge Srinivasan, the court held that the downlisting rule does not violate the ESA, is supported by the administrative record, and was reasonably explained, but that the Center for Biological Diversity lacked standing to challenge the section 4(d) rule. Judge Millett explained that the dispute over the downlisting decision turns the question of when a recognized prospective threat to a species comes so close in time that it is unreasonable for the Service not to treat the species as endangered in the present. The Center argued that, because the Beetle could be extinct in the Southern Plains as soon as 2040, it was “in danger of extinction” in the Southern Plains in 2020. The Court explained that the ESA allows the Service to determine the meaning of “foreseeable future” on a case-by-case basis taking into account the species’ lifespan and characteristics. Further, the Service’s decision was grounded in the record and adequately explained because the Service analyzed the Beetle’s current and short-term resiliency, redundancy, and representation consistent with its standard Species Assessment Framework. On the Center’s challenge to the section 4(d) protections, the court concluded the Center failed to establish the redressability prong of standing because it sought vacatur of only the section 4(d) protections in the Southern Plains region even though its injury was based on harm in the New England region.

Judge Pan wrote an opinion concurring in part and dissenting in part, explaining that in her view, the Service failed to adequately support its conclusion that the threat of climate change does not put the Beetle in danger of extinction in the near term. According to Judge Pan, the Service’s decision was arbitrary and capricious because it improperly relied on data that pertained to the Beetle’s immediate conditions and the distant future (2040-2069) and cited no evidence of the danger of extinction in the near term (2020-2039).

Under the Natural Gas Act (NGA), the Federal Energy Regulatory Commission (FERC) has jurisdiction over natural gas facilities when natural gas crosses the nation’s border (its so-called “§ 3 jurisdiction”) and when it crosses state lines (its so-called “§ 7 jurisdiction”). State regulators, on the other hand, have the power to regulate intrastate natural-gas infrastructure. When an otherwise intrastate pipeline runs to the border and connects with an international pipeline, FERC has § 3 jurisdiction over that pipeline, but FERC may cede its authority over the intrastate portion of the pipeline to the state regulator. In practice, FERC has almost invariably done so.

That is what FERC did when presented with the Saguaro Pipeline, a proposed pipeline that will span roughly 157 miles from the “Waha Hub” in West Texas to a 1,000 foot border facility in Hudspeth County, Texas, where it will cross the Rio Grande into Mexico and continue on to a terminal on the Sonoran coast. FERC declined to exercise jurisdiction over 157-mile portion of the pipeline crossing West Texas, reasoning that it will not cross the international border, will not cross a state line, and will not carry interstate gas upon entering service. As to the border facility, FERC conducted an Environmental Assessment under the National Environmental Policy Act (NEPA), determined that the environmental impact is minimal, elected not to produce a full-blown environmental impact statement, and deemed the Border Facility in the public interest.

Petitioners the Sierra Club and Public Citizen challenged FERC’s determination on four grounds, arguing (1) that FERC needed to exercise jurisdiction over the over 157-mile portion of the pipeline crossing West Texas, (2) that even if FERC properly declined jurisdiction, FERC should have considered the environmental impact of the West Texas portion, (3) that FERC improperly failed to consider alternatives to the border-crossing pipeline, and (4) that FERC’s approval of the border-crossing pipeline itself was arbitrary and capricious.

In Sierra Club v. FERC, No. 24-1199), authored by Judge Walker and joined by Judges Millett and Katsas, the Court rejected each of Petitioners’ arguments. Relying on its prior decisions in Distrigas Corp. v. Federal Power Commission, 495 F.2d 1057, 1064 (D.C. Cir. 1974), and Big Bend Conservation Alliance v. FERC, 896 F.3d 418, 422-23 (D.C. Cir. 2018), the Court held that FERC (1) reasonably declined to exercise NGA § 3 jurisdiction over the West Texas portion and (2) correctly declined to assert NGA § 7 jurisdiction. The Court further held that the record did not support an arbitrary-and-capricious finding and rejected each of Petitioners NEPA-based arguments. Notably, in upholding FERC’s NEPA analysis, the Court quoted extensively from the U.S. Supreme Court’s recent decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, 145 S. Ct. 1497 (2025).

The U.S. government has long been wary of foreign influence over U.S. airwaves. In 2021, prompted by concerns about the influence of China and Russia, the Federal Communications Commission (FCC) promulgated a rule requiring broadcasters to disclose if any of their programming was paid for by a foreign governmental entity. The National Association of Broadcasting (NAB) successfully challenged part of that rule. In 2024, the FCC issued an amended rule that changed (1) the programming covered by the rule and (2) the so-called “reasonable diligence” steps that broadcasters must take in making disclosures. The 2024 rule subjects two new categories of ads to regulation—public service announcements and issue ads not paid for by candidates for office—and allows licensees to prove compliance with disclosure requirements by obtaining simple certifications from lessees of airtime.

NAB challenged the 2024 rule, pressing First Amendment, Administrative Procedure Act, and statutory arguments. In National Association of Broadcasters v. FCC, No. 24-1296, Judge Henderson, joined by Judges Katsas and Rao, rejected each of NAB’s challenges. The Court held that the 2024 rule was a logical outgrowth of the notice of proposed rulemaking, that the Commission did not act arbitrarily and capriciously in promulgating the rule, and that NAB’s challenge to one aspect of the rule that had not changed since the 2021 version was time barred under the Hobbs Act.

The Court spent much of its opinion explaining its First Amendment conclusions. It found that the foreign sponsorship disclosure rule was content-based because the rule subjects an advertisement to regulation based on the identity of the speaker—candidate or non-candidate—and the content of the message—politics and issues or goods and services. But because the government has long “used a heavy regulatory hand on broadcast communications,” and emphasizing historic concerns about spectrum scarcity and the tragedy of the commons in national broadcasting, the Court applied “exacting” rather than strict scrutiny. Because the Court found that the FCC has a bona fide and substantial interest in combatting foreign interference, and that the 2024 rule is narrowly tailored to that end, the Court held that the rule passed constitutional muster.

Indian tribes can administer federally funded health programs. For programs that require a facility, tribes can receive compensation from the government for those facilities. 25 U.S.C. § 5324(l)(2). A tribe can procure a facility in multiple ways, including renting a facility and being reimbursed for rent payments; owning a facility and demanding reimbursement for the depreciation; or receiving a loan to build a new facility for reimbursement by the government.

In Red Lake Band of Chippewa Indians v. HHS, No. 24-5090, the Red Lake Band of Chippewa Indians argued that the Department of Health and Human Services (HHS) must compensate the Tribe for its Obaashiing Chemical Health Treatment Center by reimbursing the Tribe for depreciation expenses and principal-and-interest loan payments. In 2020 and 2021, HHS compensated the Tribe only for depreciation, reasoning that it lacked authority to “repay a construction loan furnished by another federal agency.” In 2022, HHS compensated the Tribe only for the loan payments—the more valuable of the two—reasoning that the depreciation and loan payments were duplicative. The agency argued that compensating the Tribe for both depreciation and loan payments is prohibited under 25 C.F.R. § 900.70 because they are duplicative.

In an opinion written by Judge Walker and joined by Judges Henderson and Millett, the court held that “[c]ompensation for depreciation and principal-and-interest payments is duplicative because each independently makes the Tribe whole.” The court affirmed the district court’s judgment in regard to the 2022 payments because it recognized that the two forms of compensation were duplicative. The court reversed the district court’s judgment as to the 2020 and 2021 payments because it did not and remanded the matter to HHS to revise its decisions for the 2020 and 2021 payments to match its decision for the 2022 payment.