As August rolls on, the D.C. Circuit released five published opinions in administrative law cases last week. One vacated a do-over by the Federal Energy Regulatory Commission, two addressed standing, one addressed mootness, and one applied the Freedom of Information Act.

FERC

In City of Port Isabel v. FERC, the court vacated FERC’s reauthorization of two liquefied natural gas export terminals and a pipeline. The court had previously remanded without vacatur. This time, in an opinion written by Judge Garcia and joined by Chief Judge Srinivasan and Judge Childs, it held the orders unlawful in three respects and vacated them.

First, the court concluded that FERC acted unlawfully by failing to prepare a supplemental environmental impact statement for its environmental justice analysis. The court had previously remanded for further consideration of that analysis. FERC declined to prepare a formal supplemental EIS, which allowed it to bypass notice and comment. The court held that FERC was required to prepare a supplemental EIS because it had considered new information and reached a new conclusion. That holding represented a middle position between requiring a supplemental EIS only when there is a new significance determination and requiring one whenever the original EIS is deficient.

The court next concluded that FERC’s error was prejudicial, even though FERC solicited public comment on some data. The petitioners identified data and analysis on which public comment was not sought. The court also noted that FERC’s 15-day comment period was shorter than the 45 days required by law, although it is unclear whether the shortened time period alone would render the error prejudicial.

The court also held that FERC acted unlawfully by failing to prepare a supplemental EIS regarding a carbon capture and sequestration system for one of the terminals. The court explained that the system was a “connected action” within the meaning of the relevant regulation because it was not independently useful and was submitted in response to the earlier remand. The court independently concluded that including the system was an alternative that required a supplemental EIS.

The court addressed several other issues as well. Among other things, it held that FERC acted unlawfully by failing to explain its refusal to consider certain air quality data. The court also held that FERC adequately explained why 40 C.F.R. § 1502.21(c)(4) does not require use of a social cost of carbon protocol, although the court reserved judgment on the adequacy of FERC’s explanation for declining to use it.

Finally, the court discussed the proper remedy. Although the court previously remanded without vacatur, the court vacated FERC’s reauthorization orders this time. It explained that the agency could not justify its decision to skip procedural steps and the orders were FERC’s second bite at the apple.

Standing and Mootness

The D.C. Circuit also addressed justiciability issues in three cases this week.

In Animal Legal Defense Fund, Inc. v. Vilsack, the court (by Chief Judge Srinivasan) held that ALDF lacked associational standing to challenge the Department of Agriculture’s approval of labels for certain poultry products and the Department’s policy of not evaluating graphics on poultry labels. The labels in question depicted birds outside, even though the birds were actually kept inside. The court reasoned that any injury from the approval is not ongoing or imminent because the allegedly injured ALDF member now knows that the birds are raised indoors. With respect to the text-only policy, the court reasoned that any injury is not ongoing or imminent because ALDF failed to identify another product label depicting the living conditions of poultry.

Judge Katsas filed a concurrence. He noted that the plaintiff might not be entitled to information about the birds’ living conditions, as would be required to show redressability. He also noted that ALDF’s challenge might impermissibly concern a programmatic agency action, rather than a discrete action. And he noted that the ALDF member’s injury might be self-inflicted if the label contained factual information about the treatment of the birds.

In Johnson v. Becerra, the court (by Judge Rao) held that Medicare beneficiaries lacked standing to seek systemwide changes to HHS policies for in-home healthcare services. The court explained that any injury was not redressable because decisions not to serve patients by private home health agencies break any causal chain.

In Givens v. Bowser, the court (by Judge Walker) addressed two claims brought by a Medicaid applicant. The court first held that the proposed class’s fair-hearing claim became moot when the named plaintiff received a post-complaint administrative hearing. The court then held that the named plaintiff’s claim for out-of-pocket payments was not moot. But the court affirmed on the ground that she failed to identify a government policy or practice for purposes of Monell v. Department of Social Services. Given procedural complexities arising from the named plaintiff’s death, the court remanded for further proceedings on whether the dismissal should be with prejudice.

FOIA

Finally, in Connell v. CIA, the court (by Judge Garcia) upheld the CIA’s Glomar response—neither admitting nor denying the existence of records—to a FOIA request. The requestor sought records about the CIA’s “operational control” over Guantanamo Bay. The CIA identified three documents that had previously been cleared for release or released, but it declined to confirm or deny the existence of other records. The court held that neither a Senate committee’s reference to “operational control” nor the three documents waived the CIA’s ability to assert a Glomar response. The court further held that non-CIA statements could not render the CIA’s response illogical or implausible. In the process, it disagreed with the Second Circuit’s decision in Florez v. CIA, which remanded a case involving the CIA based on disclosures made by the FBI.