GTN, Cumberland, Southgate: Early Trials of Seven County in FERC Litigation

Originally published for customers June 20, 2025.

What’s the issue?

The D.C. and Fifth Circuits are already beginning to grapple with the Supreme Court’s Seven County decision as it applies to FERC projects. Issues include the extent of agency discretion, connected actions, alternatives, and the required level of detail in analysis.

Why does it matter?

The extent to which Seven County limits traditional NEPA challenges will determine how FERC and the courts treat project segmentation, emissions analysis, and purpose-and-need framing, defining what counts as a legal requirement versus a discretionary agency judgment.

What’s our view?

Many traditional hooks for NEPA litigation may no longer carry the same weight. But that won’t mean the litigation ends. Future disputes will focus on whether agency decisions fall within a zone of discretion — and whether the courts are willing to stay out of it.

As explored in our earlier article, The Seven County Decision and the Boundaries of the NEPAverse, the decision clarified the boundary between judicial review and agency discretion in NEPA analysis. While the holding focused narrowly on indirect effects, its broader endorsement of deference to agency judgment could extend much farther.

That potential is already being tested in two pending federal cases — GTN Xpress in the Fifth Circuit and Cumberland in the D.C. Circuit. A third, MVP Southgate, has already been decided, and while NEPA was not a central focus in that case, it includes a concurrence that applies Seven County in ways that may influence future litigation.

Unresolved questions include:

• To what extent do connected actions fall under agency discretion — and when are they legally required?
• Does purpose-and-need framing insulate agencies from evaluating reasonable alternatives?
• If an agency cites environmental impacts to justify approval, does that trigger a duty to analyze those impacts in detail?

Each of these questions touches on common NEPA vulnerabilities like segmentation, alternatives, and downstream effects, and each is now being reinterpreted through the lens of Seven County. The answer may determine just how far the Court’s ruling stretches beyond its narrow facts.

GTN Xpress (Fifth Circuit) — The First Real Test Case

The GTN Xpress litigation is the clearest early indicator of how appellate courts may apply Seven County to FERC. In April, the Fifth Circuit requested supplemental letter briefs from Columbia Riverkeeper, FERC, and GTN Northwest specifically addressing the Supreme Court’s ruling. That request makes GTN Xpress the first appellate case to apply Seven County to a gas infrastructure project — and the first outside the D.C. Circuit.

The case consolidates NEPA claims with a separate dispute over rolled-in rate treatment. While the rate issue (summarized in Rate Cases Redux: A New Section 5 and GTN XPress Litigation) is unrelated to environmental review, the venue consolidation has positioned GTN Xpress as a meaningful test of post-Seven County judicial boundaries.

Key NEPA issues include:

Connected actions / segmentation: FERC excluded a previously authorized compressor station from the NEPA review. The Columbia Riverkeeper argues this is an impermissible segmentation of Phase I and Phase II of a single project. FERC asserts that it drew a “manageable line” consistent with Seven County, and that the compressor station was separate in time.

Alternatives: Petitioners argue FERC failed to evaluate non-gas or system-based alternatives. FERC contends those alternatives didn’t meet the project’s purpose and need.

Detailed analysis: Petitioners also challenge the sufficiency of FERC’s public safety and pipeline integrity review, arguing that the agency failed to consider increased pressure and volume risks.

GTN Xpress is significant because it provides an early look at how the Fifth Circuit will approach these cases, as opposed to the D.C. Circuit where most FERC cases are litigated. Additionally, the case will test the boundaries of the broader agency discretion reasoning from Seven County, as opposed to the narrower indirect effects arguments that were at issue. The outcome may define how much deference the Fifth Circuit will give to FERC’s segmentation and alternatives decisions going forward.

Cumberland Pipeline (D.C. Circuit) — When Exclusion Becomes Justification

The Cumberland litigation concerns FERC’s environmental review of a new pipeline meant to serve TVA’s proposed gas-fired replacement for the retiring Cumberland coal plant. After the Supreme Court issued its Seven County decision, FERC submitted a notice of supplemental authority to the court. Tennessee Gas and Sierra Club each filed responses. Thematically, some of the issues look similar to the GTN Xpress litigation in the Fifth Circuit. Resulting rulings could provide early indications of potential circuit splits.

Key NEPA issues include:

Connected actions: FERC declined to consider TVA’s gas plant as part of its environmental review, arguing it lacked jurisdiction. Sierra Club argues the two projects are physically interdependent and functionally connected.

Downstream effects: FERC claims the power plant’s GHG emissions were too remote in time and location to require analysis. Sierra Club counters that FERC explicitly relied on future emissions reductions in its decision, making the effects legally relevant. This issue is more squarely within the merits of the Seven County decision.

No-action alternative: FERC rejected the no-action alternative for failing to meet the project’s purpose and need. Sierra Club says FERC’s emissions comparison was flawed because it relied on unsupported assumptions about the coal plant’s retirement.

Procedurally, this case will demonstrate whether the D.C. Circuit will take a similar approach to the Fifth Circuit and request briefing on the issues. Additionally, how it approaches FERC’s line-drawing on connected actions and downstream emissions will be an early signal of how much discretion the D.C. Circuit is willing to afford to GHG emissions.

MVP Southgate (D.C. Circuit) — The Concurrence That Looked Ahead

While MVP Southgate was not a NEPA case — it involved a challenge to FERC’s decision to grant an extension of time for construction — it produced one of the first judicial concurrences to engage directly with Seven County and its potential impact on environmental review.

Judge Henderson’s concurrence was notable both for its tangential relationship to the merits of the case and for its forward-looking analysis on NEPA issues. She questioned how broadly courts had interpreted NEPA in recent years and welcomed Seven County as a needed corrective. Drawing parallels to the earlier Marin Audubon Society v. FAA case — where she served on the panel that challenged CEQ’s rulemaking authority — her concurrence signals growing judicial interest in recalibrating NEPA boundaries, even in cases not directly raising NEPA claims. It shows that some judges are already looking for opportunities to apply to Seven County, or extend it, giving early notice of where future litigation may go.

The table below presents a summary of the main issues being considered in the cases discussed:

The question going forward is how far courts will stretch the reasoning in Seven County in interpreting the line between legal mandates and agency discretion. These three cases are important indicators of that exercise. While it is very likely that many traditional hooks for NEPA litigation will no longer carry the same weight, the litigation won’t end. In the near term it will shift to focus on whether agency decisions fall within a zone of discretion, and whether the courts are willing to stay out of it.

If you would like help assessing how emerging case law is reshaping NEPA obligations, regulatory burdens, or litigation risk for infrastructure projects, please contact us.