Last week, the D.C. Circuit released an opinion deferring to the Federal Energy Regulatory Commission in light of Seven County Infrastructure Coalition v. Eagle County; an opinion deferring to the FBI in a Freedom of Information Act case; an opinion vacating a FERC order that departed from the cost-causation principle; an opinion on standing; and an opinion on the reporter’s privilege.

NEPA Deference

In Sierra Club v. FERC, the court denied a petition for review of FERC’s approval of a pipeline to supply a new Tennessee Valley Authority natural-gas turbine. The opinion is notable for at least two reasons.

First, deference may (or may not) be on its way out in statutory interpretation, but it is alive and well in National Environmental Policy Act cases. The court began with an epigraph from the Supreme Court’s recent decision in Seven County: “The bedrock principle of judicial review in NEPA cases: Deference.” The court went on to invoke deference in its review of FERC’s analysis of downstream emissions and the no-action alternative.

Second, the court held that, “after Seven County, agencies are no longer ‘required to analyze the effects of projects over which they do not exercise regulatory authority.” Seven County instructed that a duty to “consult with” other agencies did not require an agency to address the effects of a project outside its jurisdiction, as a matter of statutory text. The D.C. Circuit extended that rule to then-extant Council on Environmental Quality regulations. Accordingly, FERC was not required to analyze the pipeline and the TVA’s power plant as “connected actions.” Judge Katsas joined this section of Judge Walker’s opinion; Judge Pillard joined only the alternative holding that any error was harmless.

FOIA Deference

In Farahi v. FBI, the court deferred to the FBI and held that requested records were protected by FOIA Exemption 7(A). The court first concluded that the FBI showed the records were “compiled for law enforcement purposes,” and the court gave the FBI “a fair measure of deference” because of the law-enforcement context. The court then concluded that the breadth of the FBI’s investigation (as demonstrated by an ex parte declaration) “makes plausible its representation that the investigation remains ongoing.” (The plaintiff allegedly has ties to the Muslim Brotherhood, Khaled Sheikh Mohamed, Jose Padilla, the Holy Land Foundation, and the Global Relief Foundation.)

FERC Departure from Cost Causation

In Antero Resources Corp. v. FERC, the court vacated an order charging the petitioner an unfavorable fuel rate. Tennessee Gas Pipeline Company had expanded capacity so Antero could transport natural gas to market. The marginal cost of transporting gas increases as the amount of gas increases. And FERC approved a tariff charging Antero the highest marginal rate, regardless of whether the expansion capacity was being used.

The court first held that the tariff violated the default rule of cost causation, which requires that “rates charged to a given shipper must generally reflect the costs of shipping its gas.” The court acknowledged that FERC’s “rationale could perhaps justify charging Antero the highest marginal fuel cost when use of the post-expansion capacity actually increases fuel costs above the pre-expansion maximum,” but not all the time.

The court then held that the departure from cost causation was arbitrary and capricious. Among other things, the court rejected FERC’s argument based on its anti-subsidy policy. As the court explained, “Antero is already paying for the construction of the expansion facilities through a separate fee, and there is no unused capacity for which existing shippers must pay.” The court also rejected FERC’s argument that existing shippers had reliance interests, noting that “existing shippers are subject to similar (or lower) marginal fuel rates.”

FOIA Standing

In America First Legal Foundation v. Greer, the court held that the plaintiff lacked standing to compel the Office of Special Counsel to investigate the Department of Justice’s denial of a FOIA request. That two-step chain—OSC’s investigation of DOJ—turned out to be dispositive. Even under the relaxed standing requirement for procedural injuries, the alleged FOIA injury was not traceable to, or caused by, OSC (as opposed to DOJ). And no statute entitled the plaintiff to any information from OSC. Interestingly, the court raised the standing issue sua sponte.

Reporter’s Privilege

Finally, in Chen v. FBI, the D.C. Circuit refused to recognize a reporter’s privilege as a matter of federal common law. The plaintiff brought a Privacy Act suit against officials who allegedly disclosed FBI records about her. Journalist Catherine Herridge published the records, and the plaintiff sought to compel her to identify the leaker. Under D.C. Circuit precedent, the First Amendment reporter’s privilege did not protect Herridge. And the court declined to recognize a broader privilege under Federal Rule of Evidence 501. The court based that refusal on the existence of a qualified First Amendment privilege and the fact that state privileges “var[y] widely.”