Two admin law (or adjacent) opinions, in both old and new cases, last week.

The new case is Citizens Action Coalition of Indiana v. FERC, No. 23-1046, which began somewhat lyrically for a FERC case: “As night follows day, an environmental challenge follows the approval of a natural gas pipeline.” In short, the court rejected the environmental challenge.

In longer form: Indiana planned to retire a coal-fired electric plant and replace it with renewable sources plus two natural-gas-powered turbines. The case was about a new gas pipeline approved by FERC to serve those turbines. Although there were other claims, the “core claim” of the environmental-organization challenger was that FERC was required under NEPA “to analyze non-gas alternatives before approving the natural gas pipeline.” The court disagreed. As for NEPA, the court reasoned that the utility and Indiana (not FERC) had made the decision that it was necessary to build natural gas units. The only question before FERC was how to serve the gas-powered units (e.g., a new pipeline or something else). Accordingly, “NEPA does not require FERC to consider non-gas alternatives that are outside of FERC’s jurisdiction and would fail to serve the purpose of the Project,” i.e., “supporting [the utility’s] new natural gas units.” In addition, the Court reasoned, the Natural Gas Act only authorizes FERC to approve pipelines (or not); it “does not permit FERC to regulate the energy generation facilities those pipelines supply.”

The old case is Lissack v. Comm’r of Internal Revenue, No. 21-1268, on remand from the Supreme Court for reconsideration in light of Loper Bright. In the original decision, as covered by my co-blogger here, the D.C. Circuit “affirmed the Tax Court’s denial of a whistleblower’s claim to proceeds from a IRS tax adjustment that was not based on information the whistleblower provided even though it was discovered during the investigation launched to probe the whistleblower’s allegations.” In the new decision … the court did the same thing, this time “[r]eviewing the challenged rules without deference,” but again concluding that the IRS “correctly interpreted and applied the Whistleblower Definitions Rule.”

In other D.C. Circuit news from last week, the court put Khalid Sheikh Mohammed’s plea hearing on hold before the military commission in Guantanamo pending its consideration of the government’s mandamus petition (and related stay motion) about the authority of the Secretary of Defense to revoke the plea agreements signed by the Convening Authority for Military Commissions (which precluded a death sentence). The court scheduled argument on the stay motion/mandamus petition for January 28.