An internal rule of the D.C. Circuit encourages the circulation among the panel of all opinions for the previous term by August 15 of each year. Which means that July and early August can be stressful times in chambers. They certainly were in mine because, try as I might, I never mastered the skill of finishing my opinions in time to have a more relaxed summer.  Last week the D.C. Circuit issued seven opinions that beat the deadline.

Environmental groups petitioned for review of FERC’s decision to authorize construction and operation of liquified natural gas facilities in southwestern Louisiana arguing that FERC failed to comply with certain requirements of the National Environmental Policy Act and the Natural Gas Act. In Healthy Gulf v. FERC, No. 23-1069, the D.C. Circuit, in an opinion written by Judge Garcia and joined by Judges Henderson and Pan, granted the petition in part and remanded without vacatur, agreeing with the environmental groups that FERC had failed to adequately explain why it did not examine the environmental impact of the project’s greenhouse gas emissions and failed to adequately assess the effects of the project’s nitrogen dioxide emissions. The court also denied the petition in part, rejecting the argument that FERC did not satisfy its obligation to consider alternatives to the project.

In Tenaska Clear Creek Wind v. FERC, No. 22-1059, the D.C. Circuit, in an opinion written by Judge Childs and joined by Judge Garcia and Senior Judge Ginsburg, rejected a challenge brought by Tenaska Clear Creek Wind LLC to FERC’s decision to allow Southwest Power Pool, Inc., a regional transmission organization, to charge Clear Creek $100 million for upgrades needed so that Clear Creek could connect it’s wind-powered generation project to SPP’s system. The court concluded that it was reasonable for FERC to assign mitigation costs to Clear Creek because its project caused operational issues for SPP that would not have existed but for Clear Creek’s project.

In Sierra Club v. U.S. Department of Energy, No. 22-1218, the D.C. Circuit, in an opinion written by Judge Katsas and joined by Judges Wilkins and Pan, reaffirmed the importance of demonstrating standing in an opening brief.  Unless standing to challenge an agency action is “apparent from the administrative record,” challengers must adequately set forth their “arguments and evidence” in support of standing in their opening brief.  The court noted that only in “narrow circumstances” can petitioners establish standing in a reply brief: when the petitioner reasonably, but mistakenly, believed” that its opening brief adequately proved standing; when the petitioner “reasonably assumed” that standing was “self-evident” from the administrative record; and when a “reply brief fleshes out a timely raised theory of standing and also makes standing ‘patently obvious and irrefutable.’”  The court dismissed Sierra Club’s petition for review because it alleged necessary steps in the causal chain only in its reply brief and none of these “narrow circumstances” were present.

In Coalition for Renewable Gas v. EPA, No. 23-1248, Judge Millett, joined by Judges Henderson and Garcia, denied an industry group’s petition to overturn the EPA’s regulation modifications regarding the agency’s administration of the Renewable Identification Number “RIN” process for biogas-derived renewable fuel.  The Coalition for Renewable Natural Gas argued that the EPA’s updated rule was “too rigid and burdensome” for its members and that the EPA had no authority to regulate biogas producers.  The court found seven of the nine substantive or procedural arguments against the EPA’s regulation updates were without merit and the other two were not properly before the Court. Therefore, the EPA may put processes in place which may require biogas producers to follow the processes if the producer chooses to participate in the RIN program under Section 7545(o). Further, the Court determined that regulations related to biogas-producers, testing, and measurement were not arbitrary and capricious because the EPA’s modifications were reasonable and supported by substantial evidence.

Chance Barrow was charged with two counts of wire fraud, 18 U.S.C. § 1343, and one count of concealment of material facts, 18 U.S.C. § 1001(a)(1), stemming from his application for employment as a criminal investigator for the State of Maryland.  Barrow had previously resigned from the Army Criminal Investigation Division after being told he “no longer had a future with [the] agency” due to sexual-assault allegations.  However, he provided less than transparent answers regarding this departure in his subsequent employment application, leading to these charges.  Following conviction on all counts, the district court entered a prison sentence and restitution award.  The D.C. Circuit, in United States v. Barrow, No. 21-3081, vacated or reversed all three convictions and vacated the restitution award.  In an opinion by Judge Childs, and joined by Judges Henderson and Millett, the court held that there was insufficient evidence to show that any false or misleading statements in Barrow’s job application “deprive[d] the employer of the benefit of its bargain” in hiring him, as required for a wire-fraud conviction.  Therefore, these convictions were vacated and remanded for entry of a judgment of acquittal.  As for the concealment conviction, the court held that the district court erred in excluding evidence that tended to prove Barrow lacked the requisite intent to deceive.  That conviction was reversed and remanded for further proceedings.  Finally, because all three convictions were vacated, there was no longer a basis for the restitution award, which the court likewise vacated.

In Wye Oak Technology, Inc. v. Iraq, No. 23-7009, Wye Oak brought suit against Iraq for breach of contract for failing to pay for services Wye Oak provided to rebuild Iraqi military equipment for Iraq’s armed forces after the toppling of Saddam Hussein’s government in the early 2000s. Under the Foreign Sovereign Immunities Act (“FSIA”), foreign states are immune from civil lawsuits in the United States unless an exception applies.  The commercial exception requires Wye Oak to show that the lawsuit is (1) based on an act by Iraq outside of the United States, (2) that was taken in connection with commercial activity, and (3) that caused a direct effect in the United States.   The contractual relationship between Wye Oak and the Iraqi government was fully based Iraq, including the negotiations, services agreements, physical assets, and payment methods.  Judge Millett, writing for the Court and joined by Judge Walker and Senior Judge Ginsburg, held that the commercial exception did not apply to Iraq’s breach of contract because there was no direct effect in the United States.

In Kowal v. DOJ, Nos. 22-5231 and 22-5287, Judge Rao, joined by Judges Henderson and Pillard, affirmed the district court’s grant of summary judgments in favor of the government finding the agencies’ searches were adequate and the records sought by a public defender were exempt from disclosure under the Freedom of Information Act (“FOIA”).  Kowal’s client was accused, convicted, and ultimately sentenced to death for a “gangland-style” murder of a family.  Kowal’s client asserted the government failed to disclose exculpatory evidence against him at trial, which led Kowal to submit identical FOIA requests to the Drug Enforcement Administration (“DEA”), Federal Bureau of Investigation (“FBI”), and Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) seeking all documents, files, records, etc. pertaining to her client.  The agencies produced documents pursuant to FOIA but withheld many documents pursuant to FOIA exemptions.  Kowal brought two suits, one against the DOJ, ATF, and FBI, and one against the DEA, for failing to make adequate searches and wrongfully withholding records under multiple FOIA exemptions.  The D.C. Circuit determined the legal and factual issues substantially overlapped and issued one opinion for both appeals. Because the agencies’ record searches were adequate and the FOIA exemptions asserted were proper, the D.C. Circuit affirmed the district court’s summary judgments in favor of the government.