 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 11, 2019                   Decided June 4, 2019

                        No. 18-1218

                  LORI BIRCKHEAD, ET AL.,
                       PETITIONERS

                              v.

       FEDERAL ENERGY REGULATORY COMMISSION,
                    RESPONDENT

         TENNESSEE GAS PIPELINE COMPANY, LLC,
                     INTERVENOR


          On Petition for Review of Orders of the
          Federal Energy Regulatory Commission


     Carolyn Elefant argued the cause and filed the briefs for
petitioners.

     Robert H. Solomon, Solicitor, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on the
brief were James P. Danly, General Counsel, and Scott Ray
Ediger, Attorney. Elizabeth E. Rylander, Attorney, entered an
appearance.

    Brian D. O’Neill argued the cause for intervenor. With him
on the brief were Michael R. Pincus and Frances Bishop
Morris.
                                2

    Before: GARLAND, Chief Judge, and TATEL and WILKINS,
Circuit Judges.

    Opinion for the Court filed PER CURIAM.

     PER CURIAM: Residents and business owners have
petitioned for review of the Federal Energy Regulatory
Commission’s decision to authorize the construction and
operation of a new natural gas compression facility in
Davidson County, Tennessee. They argue that the Commission
violated the National Environmental Policy Act (NEPA) by
failing to adequately assess alternatives and by failing to
consider the environmental effects of increased gas production
and consumption related to the project. For the reasons set forth
below, we deny the petition.

                                I.
     In early 2015, Tennessee Gas Pipeline Co. applied for a
certificate of public convenience and necessity for the Broad
Run Expansion Project. Designed to enhance the company’s
capacity to transport pressurized natural gas through the
interstate pipeline network to markets in the southeastern
United States, the Project called for construction of several gas
compression facilities in Kentucky, Tennessee, and West
Virginia. The most controversial of these facilities—at least as
far as petitioners are concerned—was Compressor Station 563,
which Tennessee Gas proposed to build near petitioners’
Nashville homes and businesses.

     The Commission completed an Environmental
Assessment of the Project in March 2016 and issued a
certificate order later that year. Shortly thereafter, petitioners—
collectively referred to here as “Concerned Citizens” because
of their affiliation with local advocacy group Concerned
                              3
Citizens for a Safe Environment—sought rehearing, arguing
that the Commission violated NEPA in two ways: by
inadequately evaluating alternatives to the Project and by
failing to address reasonably foreseeable indirect
environmental effects resulting from increased gas production
“upstream” from the compressor station and increased gas
combustion “downstream” from the facility.

     The Commission denied the request for rehearing in June
2018, see Tennessee Gas Pipeline Co., 163 FERC ¶ 61,190
(2018) (“Rehearing Order”), and Concerned Citizens timely
petitioned for review, raising the same two challenges.

                              II.
     “[W]e apply [an] arbitrary and capricious standard [of
review] to a NEPA challenge.” Nevada v. Department of
Energy, 457 F.3d 78, 87 (D.C. Cir. 2006). Our role is not to
“‘flyspeck’ an agency’s environmental analysis, looking for
any deficiency no matter how minor,” id. at 93, but instead
“simply to ensure that the agency has adequately considered
and disclosed the environmental impact of its actions and that
its decision is not arbitrary or capricious,” Baltimore Gas &
Electric Co. v. Natural Resources Defense Council, Inc., 462
U.S. 87, 97–98 (1983). Accordingly, we ask whether the
agency “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action[,] including a rational
connection between the facts found and the choice made.”
Motor Vehicle Manufacturers Ass’n, Inc. v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29, 43 (1983) (internal
quotation marks omitted).

                              A.
    The regulations implementing NEPA provide that an
Environmental Assessment must briefly discuss “reasonable
                                4
alternatives to the proposed action” and compare the respective
environmental impacts of each. Myersville Citizens for a Rural
Community, Inc. v. FERC, 783 F.3d 1301, 1323 (D.C. Cir.
2015) (citing 40 C.F.R. § 1508.9(b)). “[T]he discussion of
environmental effects of alternatives need not be exhaustive.
What is required is information sufficient to permit a reasoned
choice . . . .” Natural Resources Defense Council, Inc. v.
Morton, 458 F.2d 827, 836 (D.C. Cir. 1972).

       Concerned Citizens first contend that the Commission
acted arbitrarily and capriciously by selecting the proposed site
for Compressor Station 563 over an allegedly environmentally
superior alternative location. We disagree. The Environmental
Assessment reflects that, in addition to Tennessee Gas’s
proposed site, the Commission considered twelve
alternatives—including Concerned Citizens’ favored site—and
evaluated each with respect to eighteen different environmental
factors. Acknowledging that several factors weighed in favor
of Concerned Citizens’ site, the Commission pointed out in the
certificate order that other legitimate environmental factors
weighed in favor of the proposed site. The Commission
explained that “[b]ased on [an] overall assessment of the
various factors, which do not necessarily carry equal weight,
. . . [Concerned Citizens’] alternative site . . . does not have a
significant advantage over the proposed site.” Tennessee Gas
Pipeline Co., 156 FERC ¶ 61,157, at P 111 (2016) (“Certificate
Order”). That explanation is sufficient under NEPA.

     We also reject Concerned Citizens’ related claim that the
Commission violated NEPA by failing to consider the
possibility that locating Compressor Station 563 at an
alternative site more centrally located between two existing
stations would enable Tennessee Gas to reduce emissions from
the facility by forty percent. The Commission explained in its
rehearing order that any resulting “improvement in air quality
                                5
impacts” would “not be significant,” Rehearing Order, at P 26,
because the Project as a whole would “not have a significant
impact on regional air quality,” id. (citing Broad Run
Expansion         Project     Environmental       Assessment
(“Environmental Assessment”) 104, Joint Appendix 321).
Because petitioners point to no record evidence that
undermines that conclusion, and because, as previously noted,
the Commission identified certain other environmental factors
that weigh in favor of the proposed site, we have no basis for
saying that the Commission’s alternatives analysis was
arbitrary or capricious.

     Nor did the Commission err by placing some “weight upon
avoidance of unnecessary use of eminent domain when
analyzing alternatives to the proposed site.” Respondent’s Br.
27. The Commission has long expressed a preference for
minimizing the need for certificate holders to resort to eminent
domain to acquire land for a given project. See, e.g., Florida
Gas Transmission Co., 100 FERC ¶ 61,282, at P 27 n.16 (2002)
(“Although a certificate confers the power of eminent domain
on the certificate holder, the Commission much prefers that
pipelines acquire sites for permanent, aboveground facilities
from willing sellers without the need to rely on condemnation
proceedings.”). And, notwithstanding Concerned Citizens’
assertion to the contrary, there is no indication that the
Commission treated this factor as dispositive here. See
Rehearing Order, at P 25 (“[A]lthough site ownership is not
dispositive, the avoidance of the need to exercise eminent
domain is a relevant factor in evaluating the suitability of a site
under consideration.” (emphasis added)). Under the
circumstances of this case, the Commission’s selection of the
proposed site was reasonable. NEPA requires nothing more.

     We are similarly unpersuaded by petitioners’ contention
that the Commission violated NEPA by failing to adequately
                               6
consider the option of building a smaller compressor station at
the proposed site. The Commission addressed that possibility
both in the certificate order and the rehearing order, explaining
that its engineering staff had reviewed the flow diagrams and
hydraulic models submitted by Tennessee Gas and concluded
that “Compressor Station 563[] [was] properly designed to
provide the additional 200,000 Dth/d of incremental capacity
proposed for the project.” Certificate Order, at P 17; see also
Rehearing Order, at P 7 (reiterating that the Commission’s
engineering staff found that the Project, “including
Compressor Station 563,” was “properly designed”). We
decline Concerned Citizens’ invitation to second-guess the
Commission’s informed conclusion on this highly technical
point. See, e.g., Delaware Riverkeeper Network v. FERC, 753
F.3d 1304, 1313 (D.C. Cir. 2014) (“Where an issue requires a
high level of technical expertise, we defer to the informed
discretion of the [Commission].” (alteration in original)
(internal quotation marks omitted)).

                               B.
     During the NEPA review process, the Commission “must
consider not only the direct effects, but also the indirect
environmental effects” of a pipeline project. Sierra Club v.
FERC, 867 F.3d 1357, 1371 (D.C. Cir. 2017). Indirect effects
are those that “are caused by the action and are later in time or
farther removed in distance, but are still reasonably
foreseeable,” 40 C.F.R. § 1508.8(b), meaning that “they are
sufficiently likely to occur [such] that a person of ordinary
prudence would take [them] into account in reaching a
decision,” Sierra Club, 867 F.3d at 1371 (second alteration in
original) (internal quotation marks omitted). Here the
Commission declined to consider the impacts of upstream gas
production and downstream gas combustion, concluding
instead that such impacts did not qualify as indirect effects.
                                7
Concerned Citizens claim that decision was both arbitrary and
capricious and a violation of NEPA.

     Heeding a famous and sensible instruction, we “[b]egin at
the beginning” of the pipeline, with the challenge to the
Commission’s failure to consider the impacts of upstream gas
production. Lewis Carroll, Alice’s Adventures in Wonderland
142 (Edmund R. Brown ed., International Pocket Library 1936)
(1865). At oral argument, the Commission conceded that there
may well be instances in which upstream gas production is both
reasonably foreseeable and sufficiently causally connected to a
pipeline project to qualify as an indirect effect. See Oral Arg.
Rec. 38:26–39:29. But according to the Commission, unless
the record demonstrates that the proposed project represents the
only way to get additional gas “from a specified production
area” into the interstate pipeline system, Certificate Order, at P
68, no such “reasonably close causal relationship” exists, id. at
P 65 (internal quotation marks omitted); see also id. at P 68
(explaining the Commission’s position that gas production is
sufficiently causally connected to a pipeline project only if
“there will be no . . . way to move the gas” from a given
production area in the absence of the proposed project).

     The record in this case, the Commission contends, is
devoid of the information necessary to establish that causal
relationship. And even assuming causation, the Commission
continues, the environmental effects of any upstream gas
production induced by this project would not be reasonably
foreseeable because the source area for the gas to be
transported is ill-defined and “the number or location of any
additional wells are matters of speculation.” Id. at P 82.
Commissioner LaFleur, who concurred in the rehearing order,
suggested that “[o]ne reason the Commission lacks the
specificity of information to determine causation and
reasonable foreseeability is because we have not asked
                               8
applicants to provide this sort of detail.” Rehearing Order, 2018
WL 2986387, *21 n.184 (LaFleur, Comm’r, concurring)
(emphasis added). According to the Commission, however,
asking for such information “would be an exercise in futility,”
because the applicants themselves are unlikely to have it. Id. at
P 60. Concerned Citizens have failed to either persuasively
rebut the Commission’s analysis or meaningfully dispute its
assertion of futility.

     To begin with, Concerned Citizens have identified no
record evidence that would help the Commission predict the
number and location of any additional wells that would be
drilled as a result of production demand created by the Project.
Moreover, although they suggest that Antero, the natural gas
producer and shipper that has contracted with Tennessee Gas
for the Project’s extra transportation capacity, “would not
extract and produce [the] gas” in the absence of the Project
“because it would not have the ability to bring the gas to
market,” Petitioners’ Br. 41, Concerned Citizens cite no
evidence supporting that allegation. Instead, they merely point
to the Commission’s determination that there is a “need” for
the Project “based on the fact that Tennessee [Gas] has
executed a binding precedent agreement for . . . 100 percent of
the design capacity.” Certificate Order, at P 17. We have
repeatedly held that a project applicant may demonstrate
market need “by presenting evidence of preconstruction
contracts for gas transportation service.” Sierra Club, 867 F.3d
at 1379 (internal quotation marks omitted)). But just because
the Commission is satisfied there is a market need for a given
project does not necessarily mean that a shipper/producer
“would not have the ability to bring the gas to market” via
another channel were the Commission to deny a certificate for
the project. Petitioners’ Br. 41. And although we are dubious
of the Commission’s assertion that asking Tennessee Gas to
provide additional information about the origin of the gas
                                9
would be futile, Concerned Citizens nowhere claim that the
Commission’s failure to seek out additional information
constitutes a violation of its obligations under NEPA. We are
thus left with no basis for concluding that the Commission
acted arbitrarily or capriciously or otherwise violated NEPA in
declining to consider the environmental impacts of upstream
gas production.

     This brings us to the other end of the pipeline and to
whether the Commission reasonably declined to consider
greenhouse-gas emissions and other environmental impacts
related to downstream gas consumption. The parties’ dispute
on this point centers largely on the breadth of our court’s 2017
decision in Sierra Club v. FERC. In that case, we held that
downstream greenhouse-gas emissions resulting from the
combustion of natural gas were a reasonably foreseeable
indirect effect of a pipeline project designed to transport gas to
certain power plants in Florida. See Sierra Club, 867 F.3d at
1371–72.

     According to Concerned Citizens, the Commission’s
refusal to quantify or otherwise consider downstream
emissions related to the Broad Run Expansion Project directly
contravenes Sierra Club, which they characterize as standing
for the general proposition that combustion-related emissions
are necessarily a reasonably foreseeable indirect effect of a
pipeline project that “must be considered and quantified by the
Commission under NEPA.” Petitioners’ Reply Br. 17.

     For its part, the Commission contends that far from
“establishing a bright-line rule that [it] must evaluate
downstream . . . greenhouse gas emissions in all
circumstances,” Sierra Club is narrowly limited to the facts of
that case. Respondent’s Br. 34–35. The Commission
emphasizes that in Sierra Club, “the destination and use of the
                                10
gas were actually known.” Id. at 35. For that reason, and for
that reason only, the Commission says, “it was reasonably
foreseeable that the gas would be burned by those power plants
and produce new greenhouse gas emissions at their respective
locations.” Id. Here, as the Commission sees it, the
circumstances are markedly different because the destination
and the end user (or users) remain a mystery; all that is known
is that the gas is headed somewhere in the Southeast. As a
result, the Commission claims, it is impossible to assess
whether the Project will result in increased emissions overall
or offset emissions by reducing demand for other (perhaps
dirtier) fuel sources. According to the Commission, then,
unlike in Sierra Club, “[a]ny attempt to quantify
downstream . . . emissions on the record before us” in this case
“would result in a number so imprecise as to be meaningless.”
Rehearing Order, at P 61.

     Neither side has it exactly right. As an initial matter, the
Commission is wrong to suggest that downstream emissions
are not reasonably foreseeable simply because the gas
transported by the Project may displace existing natural gas
supplies or higher-emitting fuels. Indeed, that position is a total
non-sequitur: as we explained in Sierra Club, if downstream
greenhouse-gas emissions otherwise qualify as an indirect
effect, the mere possibility that a project’s overall emissions
calculation       will  be    favorable     because      of     an
“offset . . . elsewhere” does not “excuse[]” the Commission
“from making emissions estimates” in the first place. 867 F.3d
at 1374–75. For their part, Concerned Citizens go too far to the
extent they claim emissions from downstream gas combustion
are, as a categorical matter, always a reasonably foreseeable
indirect effect of a pipeline project. See Calvert Cliffs’
Coordinating Committee, Inc. v. U.S. Atomic Energy
Commission, 449 F.2d 1109, 1122 (D.C. Cir. 1971) (“NEPA
compels a case-by-case examination . . . of discrete factors.”).
                               11
But contrary to the Commission’s position, Sierra Club hardly
suggests that downstream emissions are an indirect effect of a
project only when the project’s “entire purpose” is to transport
gas to be burned at “specifically-identified” destinations.
Respondent’s Br. 35. Indeed, the Commission itself backed
away from this extreme position during oral argument in
Otsego 2000, a companion case heard the same day as this one.
See Oral Arg. Rec. 25:48–26:27, Otsego 2000 v. FERC, No.
18-1188 (D.C. Cir. Apr. 11, 2019) (acknowledging that
whether downstream greenhouse-gas emissions qualify as an
indirect effect “has to be [decided] on a case-by-case basis
because every one of these projects is different” and declining
“to draw a line that . . . is not mandated by the Court”). Sierra
Club therefore falls short of resolving this case in favor of
either party.

     The Commission suggests an alternative justification: that
it need not consider downstream greenhouse-gas emissions if
it “‘cannot be considered a legally relevant cause’” of such
emissions due to its lack of jurisdiction over any entity other
than the pipeline applicant. Respondent’s Br. 37 (quoting
Department of Transportation v. Public Citizen, 541 U.S. 752,
770 (2004)); see also Apr. 15, 2019 Letter from the
Commission (“[T]he Commission continues to take the
position that . . . jurisdictional limitations in the Natural Gas
Act break the causal chain for NEPA purposes in most
circumstances.” (internal quotation marks omitted)). But this
line of reasoning gets the Commission nowhere. Although it is
true that “[a]n agency has no obligation to gather or consider
environmental information if it has no statutory authority to act
on that information,” in the pipeline certification context the
Commission does have statutory authority to act. Sierra Club,
867 F.3d at 1372. As we explained in Sierra Club, “Congress
broadly instructed the [Commission] to consider ‘the public
convenience and necessity’ when evaluating applications to
                               12
construct and operate interstate pipelines.” Id. at 1373 (quoting
15 U.S.C. § 717f(e)). Because the Commission may therefore
“deny a pipeline certificate on the ground that the pipeline
would be too harmful to the environment, the agency is a
‘legally relevant cause’ of the direct and indirect environmental
effects of pipelines it approves”—even where it lacks
jurisdiction over the producer or distributor of the gas
transported by the pipeline. Id. Accordingly, the Commission
is “not excuse[d] . . . from considering these indirect effects”
in its NEPA analysis. Id.

      We are left, then, to decide whether the Commission acted
reasonably in declining to consider greenhouse-gas emissions
and other environmental impacts from downstream gas
combustion in this particular case. We are troubled, as we were
in the upstream-effects context, by the Commission’s attempt
to justify its decision to discount downstream impacts based on
its lack of information about the destination and end use of the
gas in question. See, e.g., Rehearing Order, at P 61 (“The
Commission does not know where the gas will ultimately be
consumed or what fuels it will displace, and likely neither does
the entity over which the Commission has jurisdiction . . . .”).
“NEPA analysis necessarily involves some ‘reasonable
forecasting,’ and . . . agencies may sometimes need to make
educated assumptions about an uncertain future.” Sierra Club,
867 F.3d at 1374 (quoting Delaware Riverkeeper Network, 753
F.3d at 1310)). It should go without saying that NEPA also
requires the Commission to at least attempt to obtain the
information necessary to fulfill its statutory responsibilities.
See Delaware Riverkeeper Network, 753 F.3d at 1310 (“While
the statute does not demand forecasting that is not
meaningfully possible, an agency must fulfill its duties to the
fullest extent possible.” (internal quotation marks omitted));
see also Barnes v. U.S. Department of Transportation, 655
F.3d 1124, 1136 (9th Cir. 2011) (“While foreseeing the
                                13
unforeseeable is not required, an agency must use its best
efforts to find out all that it reasonably can.” (internal quotation
marks omitted)).

     In this case, the Commission made no effort to obtain the
missing information from Tennessee Gas. As Commissioner
Glick observed in his partial dissent from the rehearing order,
“[i]n deeming an entire category of potential consequences not
reasonably foreseeable and any inquiry into the matter an
‘exercise in futility,’ the Commission excuses itself from
making any effort to develop [the] record in the first place.”
Rehearing Order, 2018 WL 2986387, at *22 (Glick, Comm’r,
dissenting in part). Despite initially attempting, once again, to
invoke the limited nature of its jurisdiction in order “to point
out that there are limitations to [its] ability to ask” for the
necessary information, the Commission ultimately conceded
during oral argument that its lack of jurisdiction over shippers,
distributors, and end users “doesn’t preclude or foreclose” it
from further developing the record by requesting additional
data from the project applicant. Oral Arg. Rec. 27:39–29:50.
Although the Commission asserts that the project applicant
itself is unlikely to possess the needed information, we are
skeptical of any suggestion that a project applicant would be
unwilling or unable to obtain it if the Commission were to ask
for such data as part of the certificate application process. In
fact, when we asked counsel for Tennessee Gas during oral
argument “what would have happened if the Commission . . . ,
as part of your application,” had requested that “you . . . ask the
shipper/marketer where the gas is coming from,” he replied that
the company “would have gone to Antero [the shipper] and
posed the question.” Oral Arg. Rec. 41:37–56. “When the
regulator asks us questions,” counsel explained, “we generally
answer them as promptly as possible and as completely as
possible.” Id. at 43:01–08.
                              14
     Despite our misgivings regarding the Commission’s
decidedly less-than-dogged efforts to obtain the information it
says it would need to determine that downstream greenhouse-
gas emissions qualify as a reasonably foreseeable indirect
effect of the Project, Concerned Citizens failed to raise this
record-development issue in the proceedings before the
Commission. We therefore lack jurisdiction to decide whether
the Commission acted arbitrarily or capriciously and violated
NEPA by failing to further develop the record in this case. See
15 U.S.C. § 717r(b) (“No objection . . . shall be considered by
the court unless such objection shall have been urged before
the Commission in the application for rehearing unless there is
reasonable ground for failure so to do.”). Therefore, taking the
record as it currently stands, we have no basis for concluding
that the Commission acted unreasonably in declining to
evaluate downstream combustion impacts as part of its indirect
effects analysis.

                              III.
     For the foregoing reasons, we deny Concerned Citizens’
petition for review.

                                                    So ordered.
