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    DELAWARE RIVERKEEPER NETWORK and Maya Van Rossum, the Delaware Riverkeeper, Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Transcontinental Gas Pipe Line Company, LLC, Intervenor
    No. 16-1092
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 4, 2017
    Decided May 23, 2017

      Aaron Stemplewicz, Bristol, PA, argued the cause and filed the briefs for petitioners.
    Holly E. Cafer, Senior Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were Robert H. Solomon, Solicitor, and Lisa B. Luftig, Attorney. Karin L. Larson, Attorney, Federal Energy Regulatory Commission, entered an appearance.
    John F. Stoviak, Philadelphia, PA, argued the cause for intervenor. With him on the brief were Pamela S. Goodwin, Princeton, NJ, Elizabeth U. Witmer, Wayne, PA, and Patrick F. Nugent, Philadelphia, PA.
    Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge, and ■ EDWARDS, Senior Circuit Judge.
   EDWARDS, Senior Circuit Judge:

This case involves three federal statutes: the Natural Gas Act (“NGA”), 15 U.S.C. § 717, et seq.; the Clean Water Act (“CWA”), formally titled the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251, et seq.; and the National Environmental Policy. Act (“NEPA”), 42 U.S.C. § 4321, et seq. Although the Federal Energy Regulatory Commission (“FERC” or “Commission”) administers only the NGA, all three statutes apply to the disputed actions taken by the Commission in this case.

On September 30, 2013, Transcontinental Gas Pipe Line Company, LLC (“Tran-sco”) filed an application with FERC to construct and operate its proposed Leidy Southeast Project (“Leidy Project”). The project was designed to expand the capacity of Transco’s existing natural gas pipeline and add new facilities in Pennsylvania and New Jersey. Pursuant to the requirements of NEPA, FERC conducted an environmental review of the project and issued an environmental assessment (“EA”) on August 11, 2014. The EA found, with appropriate mitigating, measures, “no significant impacts” associated with the Leidy Project. However, it required Transco to obtain “all applicable authorizations required under federal law” prior to FERC authorizing construction. Because it was understood that the Leidy Project might result in discharges into navigable waters, Transco was obligated by § 401 of the CWA to obtain a water quality certification from the state in which the discharge would originate before FERC could authorize any activity that “may result” in such a discharge. See 33 U.S.C. § 1341(a)(1). The EA thus in turn required Transco to obtain this state certification before FERC would authorize any construction.

On June 10, 2014, Transco applied for a § 401 certification from Pennsylvania’s Department of Environmental Protection. On December 18, 2014, before Pennsylvania had acted on Transco’s application, FERC issued a Certificate of Public Convenience and Necessity (“Certificate Order”) under the NGA conditionally approving the Leidy Project. The Certificate Order made it clear that FERC would not authorize any construction until Transco had obtained a § 401 certification from Pennsylvania. Delaware Riverkeeper Network, a nonprofit organization, timely sought rehearing of the Certificate Order before the Commission. FERC denied the request for rehearing. Delaware River-keeper Network and Maya van Rossum, the current Delaware Riverkeeper (together “Riverkeeper”), then petitioned for review in this court. Transco intervened in support of the Commission.

Before this court, Riverkeeper contends that the ■ Commission violated the CWA because it granted Transco’s request to construct and operate the Leidy Project prior to the issuance of Pennsylvania’s § 401 water quality certification. River-keeper also claims that the Commission violated NEPA in failing to establish an accurate baseline from which to conduct its environmental review of the Leidy Project. In particular, Riverkeeper argues that FERC misidentified numerous specially protected wetlands, and miscalculated both the cover type categorization of those wetlands and the total acreage of those wetlands. We find no merit in these claims and, therefore, reject the petition for review.

I. Background

A. Statutory Background

Under the NGA, a natural gas pipeline company must obtain a Certificate of Public Convenience and Necessity from FERC prior to “undertak[ing] the construction or extension” of any natural gas facility for the transportation of natural gas in interstate commerce. 15 U.S.C. § 717f(e)(l)(A). FERC may place any reasonable conditions on the issuance of such a certificate “as the public convenience and necessity may require.” Id. § 717f(e). This court has jurisdiction to review challenges to certificates granted under the NGA, but petitioning parties must first seek rehearing before the Commission and may not raise any argument before this court that was not raised on rehearing. See 15 U.S.C. § 717r(b). Letter orders issued by FERC are also subject to review in this court subject to the same rehearing requirement. See 18 C.F.R. § 385.1902.

In addition to the requirements of the NGA, § 401 of the CWA requires “[a]ny applicant for a Federal license or permit to conduct any activity including ... the construction or operation of facilities, which may result in any discharge into the navigable waters,” to “provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate.” 33 U.S.C. § 1341(a)(1). The state must certify “that any such discharge will comply” with the CWA’s effluent limitations and other pollutant control requirements, including state-administered water quality standards. Id. The state may certify that there are no applicable limitations or standards for the discharge activity, or it may deny certification or waive the certification requirement. Id. But “[n]o license or permit shall be granted until the certification ... has been obtained or has been waived.” Id. Any limitation in a § 401 certification “shall become a condition” of the federal license or permit requiring such certification. Id. § 1341(d).

Section 401 is an important part of the CWA, in which “Congress sought to expand federal oversight of projects affecting water quality while also reinforcing the role of States as the prime bulwark in the effort to abate water pollution.” Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 971 (D.C. Cir. 2011) (citation and internal quotation marks omitted). The state certification authority under § 401 is “ ‘[o]ne of the primary mechanisms’ through which [states] may exercise this role, as it provides them with ‘the power to block, for environmental reasons, local water projects that might otherwise win federal approval.’” Id. (quoting Keating v. FERC, 927 F.2d 616, 622 (D.C. Cir. 1991)).

The last statute at issue in this case is NEPA, which was enacted in part to “promote efforts which will prevent or eliminate damage to the environment and biosphere ... [and] enrich the understanding of the ecological systems and natural resources important to the Nation.” 42 U.S.C. § 4821. As we recently explained:

The Commission, in exercising its ... authority, must comply with NEPA and its implementing regulations, which require that all federal agencies include an environmental impact statement (“EIS”) “in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see also 40 C.F.R. § 1508.11. To determine whether an EIS is necessary, an agency first prepares an environmental assessment, 40 C.F.R. § 1508.9, which must include, among other information, a discussion of “the environmental impacts of the proposed action,” id. § 1508.9(b). “Indirect effects ... are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. § 1508.8(b). “Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” Id. § 1508.7; see also id. § 1508.8. After preparing an environmental assessment, an agency may conclude that the proposed action would have no significant impact (often referred to as a “FONSI,” for “finding of no significant impact”) in lieu of issuing an EIS. Id. §§ 1508.9(a)(1), 1508.13.

Sierra Club v. FERC, 827 F.3d 59, 63 (D.C. Cir. 2016). For either an EA or an EIS, the purposes of NEPA require the Commission to “consider and disclose” the environmental effects of the actions it certifies. Balt Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 96, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). So long as the agency takes a hard look at the environmental consequences, NEPA “does not mandate particular results.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

B. Factual and Procedural Background

Transco maintains an interstate natural gas pipeline that runs from Texas to New York City, passing through Pennsylvania. In September 2013, Transco applied to FERC for a Certificate of Public Convenience and Necessity for the Leidy Project, which would add approximately thirty miles of looping to Transco’s existing pipeline in Luzerne and Monroe Counties, Pennsylvania and parts of New Jersey, to meet increasing energy demands. On August 11, 2014, FERC issued a finding of no significant impact and published its review of the environmental consequences of the Leidy Project in a 217-page EA. Environmental Assessment, Joint Appendix (“JA”) 168-331. Among a number of conditions, Environmental Condition No. 9 of the EA required Transco to obtain and file with the Secretary of the Commission “all applicable authorizations required under federal law (or evidence of waiver thereof)” prior to FERC authorizing construction. Id. at 324. The EA identified § 401 state water quality certifications as required authorizations. The EA also discussed mitigation for the Leidy Project’s impact on Pennsylvania wetlands and concluded that the project’s proposed pipeline gas flow velocities were safe.

Transco had timely applied for a § 401 certification from Pennsylvania’s Department of Environmental Protection on June 10, 2014. However, on December 18, 2014, FERC issued a Certificate Order to Tran-sco, conditionally approving the Leidy Project, before Pennsylvania had acted on Transco’s § 401 request. The Certificate Order adopted the conditions of the EA, including Environmental Condition No. 9, which clearly stated that Transco was required to obtain all applicable federal authorizations, including a § 401 certification from Pennsylvania. FERC was thus clear that it would not authorize any construction before the necessary § 401 certifications had been obtained. On January 16, 2015, Riverkeeper sought rehearing of the Certificate Order before the Commission.

During the early months of 2015, after the conditional Certificate Order had been issued, the Commission authorized Tran-sco via letter orders to conduct certain “pre-construction” activities, including tree-felling. Riverkeeper moved the Commission to stay the tree-felling activity. FERC denied this request. Riverkeeper never sought rehearing of this action or of any of FERC’s letter orders. Instead, on March 15, 2015, Riverkeeper filed a petition for an emergency stay with this court. The Petition was denied on March 19, 2015. Del. Riverkeeper Network v. FERC, No. 15-1052 (D.C. Cir. Mar. 19, 2015), ECF No. 1543345. By the end of March 2015, Transco had begun felling trees, as authorized, along a right-of-way by the projected pipelines, including in Pennsylvania wetlands.

On April 6, 2015, Pennsylvania’s Department of Environmental Protection issued a § 401 certification for the Leidy Project. Riverkeeper challenged the Pennsylvania certification by filing a petition for review in the Third Circuit, but the petition was denied. Del. Riverkeeper Network v. Sec’y Penn. Dep’t of Envtl. Prot., 833 F.3d 360, 385-88 (3d Cir. 2016) (upholding Pennsylvania’s decision to issue the § 401 certification).

On March 3, 2016, FERC denied River-keeper’s request for rehearing. Riverkeeper timely petitioned this court for review of FERC’s EA, Certificate Order, and order denying rehearing. Transco intervened.

II. Analysis

A. Standard of Review

“[I]n evaluating the Commission’s authority to issue [a] challenged certificate of public convenience and necessity[,] [w]e ... review[ ] the Commission’s interpretation of its authority to issue such a certificate by applying the two-step analytical framework of Chevron.” Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1315 (D.C. Cir. 2015) (citing Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Under the Chevron framework,

an agency’s power to regulate “is limited to the scope of the authority Congress has delegated to it.” Am. Library Ass’n v. FCC, 406 F.3d 689, 698 (D.C. Cir. 2005). Pursuant to Chevron Step One, if the intent of Congress is clear, the reviewing court must give effect to that unambiguously expressed intent. If Congress has not directly addressed the precise question at issue, the reviewing court proceeds to Chevron Step Two. Under Step Two, “[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are ... manifestly contrary to the statute.” Chevron, 467 U.S. at 843-44 [104 S.Ct. 2778]. Where a “legislative delegation to an agency on a particular question is implicit rather than explicit,” the reviewing court must uphold any “reasonable interpretation made by the administrator of [that] agency.” Id. at 844 [104 S.Ct. 2778]. But deference to an agency’s interpretation of its enabling statute “is due only when the agency acts pursuant to delegated authority.” Am. Library Ass’n, 406 F.3d at 699.

Edwards, Elliott, & Levy, Federal Standards of Review 166-67 (2d ed. 2013).

A court does not defer to an agency’s interpretation of a statute that it is not charged with administering. See Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 138 n.9, 117 S.Ct. 1953, 138 L.Ed.2d 327 (1997). Therefore, we do not accord Chevron deference to the Commission’s interpretation of the CWA because the Environmental Protection Agency, not FERC, administers the statute. See Alcoa Power, 643 F.3d at 972. Our review of the requirements of the CWA is de novo. Id.

Finally, we apply “a ‘rule of reason’ to an agency’s NEPA analysis and ha[ve] repeatedly refused to ‘flyspeck’ the agency’s findings in search of ‘any deficiency no matter how minor.’ ” Myersville, 783 F.3d at 1322-23 (citations omitted). Because “NEPA’s requirements are ‘essentially procedural,’ ” so “long as the agency’s decision is ‘fully informed’ and “well-considered,’ it is entitled to judicial deference.” Nat. Res. Def. Council v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988) (citations omitted). Especially “[w]hen considering FERC’s evaluation of ‘scientific data within its technical expertise,’ we afford FERC ‘an extreme degree of deference.’ ” Myersville, 783 F.3d at 1308 (citation omitted).

B. Jurisdiction

FERC argues that Riverkeeper’s Clean Water Act claim “may no longer present an ongoing case or controversy” as “[i]t is not clear what relief would be available to remedy Riverkeeper’s sequencing claims—if they prevailed—where the [state] water quality certifications have been issued and affirmed on appeal [by the Third Circuit].” Br. for FERC at 22 n.3. In other words, according to FERC, even if the agency issued the conditional Certificate Order prematurely, no remedy is needed for the sequencing error because the state water quality certifications have been issued and found lawful. FERC’s argument is misguided.

First, the principal issue before the Third Circuit was whether Pennsylvania “was required to engage in an environmental review prior to issuing a Water Quality Certification.” Del. Riverkeeper, 833 F.3d at 385. Here, in contrast, the question raised by Riverkeeper is whether the Commission (not Pennsylvania) violated the sequencing requirement of the CWA by issuing its Certificate Order before Pennsylvania issued its § 401 certification. These are entirely distinct issues and the former does not subsume the latter. FERC does not argue otherwise.

Furthermore, Riverkeeper’s claim is not moot because once the CWA’s sequence has been flouted, the only fix is to start the process over. Riverkeeper asks this court to “rescind[ ] the Commission’s Orders, or remand[] the decision to ensure that the Orders comply with the [Clean Water Act] and NEPA.” Br. for Pet’rs at 15. We could provide Riverkeeper the remedy it seeks by rescinding the conditional Certificate Order. That would halt the project and force FERC to follow the proper sequence of action. See Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 272 (D.C. Cir. 2015) (rejecting similar mootness argument because granting relief on the NEPA claim would undo the conditional certificate, which could start the CWA sequence over).

Perhaps FERC means to suggest that no effectual relief can be granted because vacating the Certificate Order and remanding the matter to the agency would almost certainly have no real world consequences. In other words, in FERC’s view, even if the court were to remand the case, the agency could immediately re-issue the conditional Certificate Order because the state water quality certifications have been issued. Such a response by FERC is not unlikely, but it is surely not guaranteed. In any event, “[cjourts often adjudicate disputes where the practical impact of any decision is not assured.” Chafin v. Chafin, 568 U.S. 165, 133 S.Ct. 1017, 1025, 185 L.Ed.2d 1 (2013). Therefore, we could grant Riverkeeper vacatur of FERC’s conditional Certificate Order even if its victory might be short lived. “Such relief would of course not be ‘fully satisfactory,’ but with respect to the case as whole, ‘even the availability of a partial remedy is sufficient to prevent [a] case from being moot.’ ” Id. at 1026 (quoting Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (per curiam)).

In sum, we agree with Riverkeeper that we have jurisdiction to consider its challenge to the Certificate Order on the ground that FERC violated the sequencing requirement of the CWA by issuing its Certificate Order before Pennsylvania issued its § 401 certification. We therefore proceed to the merits of Riverkeeper’s claims under both the CWA and NEPA.

C. Riverkeeper’s Challenges Under the CWA

Riverkeeper argues that the Commission violated § 401 of the CWA by “issuing] its approval of the [Leidy] Project prior to Pennsylvania’s issuance of its Clean Water Act Section 401 water quality certification].” Br. for Pet’rs at 19. We disagree. We hold that the sequencing requirement of § 401 was not triggered because the Commission’s conditional approval of the Leidy Project construction did not authorize any activity which might result in a discharge in navigable waters.

We decline to review Riverkeeper’s alternative CWA challenge to the letter orders approving pre-construction tree-felling. The NGA requires that, prior to challenging an order before this Court on review, a party first must file a petition for rehearing with the Commission and then specify the challenged orders in a petition for judicial review. 15 U.S.C. §§ 717r(a), (b). Because Riverkeeper failed to seek rehearing of any of the disputed letter orders authorizing pre-construction activities, those individual decisions are not properly before this court.

1. The Sequencing of the Certifícate Order and the § 401 Certification

Section 401 of the CWA requires that “[a]ny applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters” must first obtain a water quality certification from the state in which the discharge will originate, and that “[n]o license or permit shall be granted until the certification required by this section has been obtained or has been waived.” 33 U.S.C. § 1341(a)(1).

Transco argues preliminarily that the Commission’s Certificate Order is not a “license or permit” subject to the CWA because it is a “certificate[] of public convenience and necessity.” Br. for Transco at 16; see id. at 15-19. We reject this argument out of hand. The Commission agrees with Riyerkeeper that its Certificate Order was a “license or permit” potentially subject to the requirements of § 401. Furthermore, Transco’s assertion comes too late: before the Commission, Transco never claimed that § 401 was inapplicable and the company applied to Pennsylvania for the certification without protest. Finally, it is clear that Congress intended § 401 to apply broadly to federal approval of potential pollution activity.

The Supreme Court has noted that:

State certifications under § 401 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now § 401 was first proposed:
“No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under' a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements.” 116 Cong. Rec. 8984 (1970).
These are the very reasons that Congress provided the States with power to enforce “any other appropriate requirement of State law,” 33 U.S.C. § 1341(d), by imposing conditions on federal licenses for activities that may result in a discharge, ibid.

S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 386, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006).

The CWA in its entirety “provides for a system that respects the States’ concerns” in application to all federal agencies. Id. And the act of “licensing” or “permitting” clearly extends to “certifying,” which is merely a different name for the stamp of federal approval Congress intended to capture. Transco’s reliance on the doctrine of expressio unius, that Congress’s selection of “license or permit” excludes a “certificate,” is misplaced because that doctrine applies “only when ‘circumstances support[] a sensible inference that the term left out must have been meant to be excluded.’ ” NLRB v. SW Gen., Inc., — U.S. -, 137 S.Ct. 929, 933, 197 L.Ed.2d 263 (2017) (citation omitted). Here, the broad sweep of the statute raises no such inference.

The principal issue here is not whether FERC’s disputed Certificate Order is a “license or permit” covered by the CWA, but whether it approved “activity ... which may result in any discharge” and thus triggered the requirements of the CWA. 33 U.S.C. § 1341(a)(1). We have previously stated that the “logically antecedent” question under § 401 is whether the disputed federal permit or.license “is subject to the provisions of Section 401(a)(1)” in the first place. North Carolina v. FERC, 112 F.3d 1175, 1186 (D.C. Cir. 1997). If the activity that FERC approved would not result in a discharge, then the sequencing requirement of § 401 was not “trigger[ed].” See id. at 1188.

Here, the record indicates that the Certificate Order did not authorize any activity that could result in a discharge. Instead, the conditional Certificate Order was merely a first step for Transco to take in the complex procedure to actually obtaining construction approval. Br. for FERC at 25-28. And, as explained above, FERC required Transco to obtain the appropriate state agency permits, including a § 401 certification from Pennsylvania, prior to FERC granting Transco permission to proceed with activity that could result in a discharge.

. Judge Rogers’ concurring statement in Gunpowder Riverkeeper, which we adopt, disposes of Riverkeeper’s claim in this case:

The plain text of the Clean Water Act does not appear to prohibit the kind of conditional certificate the Commission issued here. On its face, section 401(a)(1) does not prohibit all “licensefe] or per-mitís]” issued without state certification, only those that allow the licensee or permittee “to conduct any activity ... which may result in any discharge into the navigable waters.” 33 U.S.C. § 1341(a)(1). Petitioner has pointed to no activities authorized by the conditional certificate itself that may result in such discharge prior to the state approval and the Commission’s issuance of a Notice to Proceed.

807 F.3d at 279 (Rogers, J., dissenting in part and concurring in the judgment) (second emphasis added); see also MyersviUe, 783 F.3d at 1320-21 (upholding FERC’s conditional approval of a natural gas facility construction project where FERC conditioned its approval on the applicant securing a required federal Clean Air Act air quality permit from the state); Del. Dep’t. of Nat. Res. & Envtl. Control v. FERC, 558 F.3d 575, 578-79 (D.C. Cir. 2009) (holding Delaware suffered no concrete injury from FERC’s conditional approval of a natural gas terminal construction despite statutes requiring states’ prior approval because FERC conditioned its approval of construction on the states’ prior approval).

Because the Certificate Order expressly conditioned FERC’s approval of potential discharge activity on Transco first obtaining the requisite § 401 certification, and was not itself authorization of any potential discharge activity, the issuance of the Certificate Order before Pennsylvania’s issuance of its § 401 certificate did not violate § 401 of the CWA.

2. The Letter Orders

Riverkeeper alternatively contends that the Commission’s letter orders authorizing pre-construction tree-felling impermissibly approved activity that might have resulted in a proscribed discharge before Pennsylvania could issue its water quality certification. In response, the Commission contends that its letter orders did not trigger the requirements of § 401 because the U.S. Army Corps of Engineers determined that Transco’s “proposed tree cutting activities would not result in a discharge,” JA 638, and FERC relied on the Corps’ determination, JA 644-45. We need not decide this issue, however, because River-keeper did not independently challenge the letter orders. Neither FERC nor River-keeper dispute that the letter orders reflected final agency action and were separately appealable after rehearing before the Commission. See 18 C.F.R. § 385.1902(a)-(b). But as it conceded at oral argument and in its briefing, Reply Br. for Pet’rs at 3-5, Riverkeeper did not request rehearing of the letter orders, so the letters are not properly before us for review. See 15 U.S.C. § 717r(a)-(b); see also Darby v. Cisneros, 509 U.S. 137, 145, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (recognizing the statutory rehearing requirement of § 717r as mandatory).

In sum, we need not decide whether the letter orders impermissibly approved activity that might have resulted in a discharge before Pennsylvania issued its § 401 certification.

D. The Commission’s Wetlands Analysis

Riverkeeper contends that FERC violated NEPA by misclassifying wetlands in two ways: (1) under Pennsylvania’s own state classification system; and (2) under the “Cowardin” classification system. We reject both challenges. FERC did not purport to rely on Pennsylvania’s classification system and Riverkeeper does not show how any misclassification under the Cow-ardin system was prejudicial error.

Nowhere in the EA does FERC even discuss, much less rely on, the application of Pennsylvania’s system. In Appendix I, the EA includes a secondary reference to wetlands as either “exceptional” or “other,” which is pursuant to the Pennsylvania Administrative Code. 25 Penn. Admin. Code § 105.17. See JA 330-31. But the wetlands discussion in the EA itself does not use the terms “exceptional” or “other,” and does not refer to the Pennsylvania system at all.

As Riverkeeper concedes, FERC was not bound to use Pennsylvania’s classification system. And the EA clearly explains that the “field delineations of wetlands” in Pennsylvania were performed according to the U.S. Army Corps of Engineers’ “Wetlands Delineation Manual (COE, 1987),” JA 202, and that delineated wetlands “were classified as described in Cowardin, et al., (1979),” JA 203. The EA thus classifies the wetlands as either Pa-lustrine Forested, Palustrine Scrub-Shrub, or Palustrine Emergent wetlands. These three Palustrine wetland types are consistent with the Cowardin classification system referenced in the Corps’ delineation manual. See U.S. Army Corps of Eng’rs, Wetlands Delineation Manual 3 (1987); Lewis M. Cowardin, et al., Classification of Wetlands and Deepwater Habitats of the United States 10-13 (1979).

On rehearing, FERC again rejected Riv-erkeeper’s contention that the agency had used Pennsylvania’s system: “As indicated in the EA and the December 18 [Certificate] Order, Transco’s wetlands delineations were conducted using the Corps’ Wetlands Delineation Manual.” JA 716. Moreover, FERC made it clear that each state was to oversee its own delineation, clearly implying this was to be done for purposes of classification: “It is at the discretion of the Corps [and] the Pennsylvania Department of Environmental Protection ... to determine whether Tran-sco’s wetland delineations comply with each agency’s permit application process, prior to issuing the appropriate water quality permit.” JA 514; see also JA 203 (using “delineate[ ]” in reference to identifying cover types). There is no evidence the secondary wetlands identifications in Appendix I as “exceptional” or “other,” even if erroneous, had any effect on FERC’s consideration of the environmental impact of the Leidy Project. Accordingly, there is no NEPA violation here.

Riverkeeper’s second wetlands argument attacks the Cowardin classification system that the Commission actually used. Riverkeeper contends that FERC “failed to accurately account for the expected ground disturbance impacts that will result from the [Leidy] Project’s construction and operational activity,” Br. for Pet’rs at 44, because it misidentified the cover types of fourteen wetlands—totaling approximately 3.8 'acres that would be impacted by operation or construction—pursuant to the Cowardin system, see id. at 44-49. For example, Riverkeeper argues that aerial photographs show that a wetland classified as Palustrine Emergent (non-forested) was “clearly” forested and therefore should have been classified as Palustrine Forested. Id. at 46. However, Riverkeeper does not explain how this inexorably leads to the conclusion that FERC faded to accurately account for the Leidy Project’s impact on the environment. Indeed, the ultimate implication Riverkeeper raises for this alleged erroneous classification is an “alteration of wetland value due to vegetation clearing.” Id. at 45 (quoting JA 205). But the EA identifies only one difference in vegetation clearing: the time it takes for the three different types of wetlands to re-vegetate. See JA 205. Riverkeeper does not raise any unaccounted-for consequences of this. In other words, even assuming FERC misclassified a small area- of Pennsylvania wetlands, this merely means the Leidy Project will result in a longer re-vegetation process for some wetlands, and a shorter re-vegetation process for others. Riverkeeper fails to explain how this caused FERC’s mitigation plan to be significantly deficient.

What we see from the record in this case is that FERC responsibly addressed Riverkeeper’s misclassifieation argument in its Certificate Order. The Commission stated that it relied on its classification only to “disclose and evaluate potential impacts on wetlands and to serve as a starting point for the development of protective mitigation.” JA 514. FERC thus disclosed its methodology and purpose as a starting point for mitigation, which would subsequently involve the Corps and state agencies to further oversee mitigation. See id.; JA 716-17 (order denying rehearing). It seems clear here that FERC took the requisite “hard look” at the impact of the Leidy Project on the environment. Hodel, 865 F.2d at 294 (quoting Izaak Walton League of America v. Marsh, 655 F.2d 346, 371 (D.C. Cir. 1981)). Even if FERC technically erred in some of its classifications, Riverkeeper has not shown any prejudice by virtue of the agency “failing] to comply precisely with NEPA procedures.” Nevada v. Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir. 2006); see also Hodel, 865 F.2d at 295-97 (refusing to remand despite an agency error because it had “serve[d] NEPA’s informational function”).

E. The Commission’s Gas Flow Velocity Analysis

In its final challenge, Riverkeeper contends that FERC “repeatedly failed to disclose information addressing both the safety and independent viability” of the Leidy Project’s projected pipeline gas flow velocities. Br. for Pet’rs at 57. This argument rests on Riverkeeper’s claims that FERC failed to consider and disclose (1) key information about Transco’s projected gas flow velocities, (2) the project’s interdependence on past or future pipeline projects, and (3) the safety risks of its gas flow velocities. Id. at 50-60. Riverkeeper also contends that FERC treated the Leidy Project differently than a similarly situated project. We find no merit in these claims.

First, the record belies Riverkeeper’s claim that FERC withheld critical information regarding the projected gas flow velocities. Riverkeeper asserts that it never received answers to nine questions it asked, regarding, inter alia, data about the pipe diameter, grade, wall thickness, and gas flow rates and pressures. Id. at 54-55. The record shows, however, that FERC and Transco responded to River-keeper’s queries and made it clear that the flow diagrams contained in Exhibits G and G-II answered the questions that had been raised. JA 159. On appeal, Riverkeeper summarily asserts that the cited exhibits were non-responsive to its questions, but it does not explain how so.

In fact, the record before us shows that Riverkeeper was invited to view Transco’s hydraulic flow modeling software, used to project gas flow velocity, via video conference or in person (due to the software’s proprietary nature). River-keeper concedes that this offer was made but asserts it “made the decision” to “not waste ... limited time and resources to fly their expert from Washington to Texas” to view the software. Reply Br. for Pet’rs at 24-25. This is hardly a compelling response, especially since Riverkeeper could have viewed the modeling software via video conferencing.

In sum, on the record before us, we have no basis upon which to credit Riverkeeper’s vague and unsubstantiated assertions that FERC withheld key data from the public. Indeed, the record reflects that FERC made every effort to comply with requests for information and no information was withheld from Riverkeeper.

Second, Riverkeeper contends that the EA’s data on the projected gas flow velocity was insufficient and, therefore, it could not review the dependence of the Leidy Project on future pipeline expansions. Riverkeeper says the information is important because FERC’s regulations require the agency to review connected, cumulative, or similar actions. See 40 C.F.R. § 1508.25(a); Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1309 (D.C. Cir. 2014). In support of this claim, Riverkeeper points to this court’s decision in Delaware Riverkeeper Network. That case is plainly distinguishable, however. There, the court determined that FERC had impermissibly segmented NEPA review by approving one of four “indisputably related and significantly ‘connected’ ” pipeline upgrade projects without looking at the projects’ cumulative impact. Id. at 1313-14. Here, in contrast, FERC evaluated the cumulative impact of recent related projects, see JA 320, and found that “[t]he location of any future expansion facilities is entirely speculative.” JA 499. Riverkeeper offers no evidence to the contrary.

Third, Riverkeeper alleges that it presented expert evidence to FERC that Transco’s proposed gas flow velocities were potentially unsafe, and these concerns were left “wholly unanswered and unrebutted.” Br. for Pet’rs at 57. The record indicates otherwise. The EA concluded that Transco’s proposed gas flow velocities, not to exceed 60-61 feet per second, were safe based on an American Petroleum Institute report that gave a conservative guideline for maximum flow velocity as Í00 feet per second for pipelines exposed to liquid droplet erosion. The Commission concluded that Transco’s 60-61 feet per second maximum flow velocity was safe, especially since Transco’s pipelines would not be subject to liquid droplets. JA 498. In both instances, FERC highlighted the fact that Riverkeeper did not “cite any industry or government standard, regulation, or study to support its position” when expressing its concern that gas flow velocities beyond 50 feet per second would be unsafe. JA 315; see JA 496. We therefore reject Riverkeeper’s claims, which are based on sheer speculation, that FERC erred in its determinations regarding the safety of the Leidy Project’s gas flow velocities.

Finally, we reject Riverkeeper’s contention that FERC treated similarly situated parties differently and, therefore, the agency’s determinations on gas flow velocity are arbitrary and capricious. Br. for Pet’rs at 57-60. In 2011, FERC determined that a pipeline project, the Northeast Upgrade Project, was not hydraulically feasible because its gas flow velocity would exceed 40 feet per second. River-keeper thus asserts that FERC’s approval of the Leidy Project’s gas flow velocity of 60 feet per second is unjustified. The two projects are quite different, however. The Northeast Upgrade Project proposed adding compression to an existing 24-inch diameter pipeline, without adding additional looping. See Br. for FERC at 44. In contrast, the Leidy Project proposed to add looping of 42-inch diameter pipeline, nearly double that of the Northeast Upgrade Project. Riverkeeper is conspicuously silent as to these salient differences.

The Commission’s NEPA review of the Leidy Project’s proposed gas flow velocities appears to be fully informed and well-considered. Riverkeeper presents no countervailing evidence. As such, the Commission’s judgment is “entitled to judicial deference.” Hodel, 865 F.2d at 294.

III. Conclusion

For the foregoing reasons, we deny the petition for review.

So ordered.


source: Caselaw Access Project

author: GRIFFITH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee v. James Wendell BROWN, also known as Jimmy, Appellant
    No. 16-3076
    United States Court of Appeals, District of Columbia Circuit.
    Submitted March 20, 2017
    Decided May 23, 2017

      Barbara E. Kittay, Rockville, MD, appointed by the court, was on the brief for appellant.
    Elizabeth Trosman and Lauren R. Bates, Assistant U.S. Attorneys, were on the brief for appellee.
    Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge, and SENTELLE, Senior Circuit Judge.
   GRIFFITH, Circuit Judge:

A trial court imposed on James Brown a stiffer sentence than the U.S. Sentencing Guidelines recommend. But the court followed proper procedures, and the sentence was not so harsh as to be an abuse of discretion. We therefore affirm Brown’s sentence against his procedural and substantive challenges.

I

The facts are grim. In 2012, James Brown was drawn into an online sting operation with a police detective. In a plea agreement, Brown conceded that the government had clear and convincing evidence that he had asked for sex with a prepubescent child, talked about having sexually abused certain minors every chance he got, expressed a preference for very young children, and abused his daughter and granddaughters when they were as young as three to six years old. As part of the plea agreement, Brown pled guilty to one count of distributing child pornography. See 18 U.S.C. § 2252(a)(2)(A).

For his cooperation, federal and state officials agreed not to prosecute Brown further for any of the conduct to which he admitted. The plea deal also specified an “offense level” under the Guidelines for the sentencing court to consider. An offense level is calculated by taking the number assigned by the Guidelines to the defendant’s “base offense” and adding or subtracting points as needed to reflect certain aggravating or mitigating factors. See 18 U.S.C. § 3551 et seq. In Brown’s case that calculation yielded an offense level of 30, for which the Guidelines recommend 97 to 121 months of incarceration.

The district court, however, was not bound by that range. It sentenced Brown to 144 months of incarceration and 240 months of supervised release. But Brown appealed and we vacated that sentence, finding that the judge had neglected procedures that courts must follow to justify an above-Guidelines sentence. On remand, the district court imposed the same sentence, this time with a more detailed explanation, and Brown again appealed.

We have authority to review Brown’s sentence under 28 U.S.C. § 1291, and do so in two steps. We first ask if the district court committed “significant procedural error,” such as by “failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). At this step, we review legal conclusions dé novo and factual findings for clear error. United States v. Jones, 744 F.3d 1362, 1366 (D.C. Cir. 2014).

Next we review the “overall ... reasonableness” of the district court’s chosen sentence in light of several statutorily specified factors, United States v. Warren, 700 F.3d 528, 531 (D.C. Cir. 2012) (quoting United States v. Locke, 664 F.3d 353, 356 n.3 (D.C. Cir. 2011)); see also 18 U.S.C. § 3553(a), but only for abuse of discretion, United States v. Russell, 600 F.3d 631, 633 (D.C. Cir. 2010).

II

A judge imposing an above-Guidelines sentence must offer in court, and in writing, a “specific reason” why the defendant’s case calls for a more severe sentence than other cases falling within the same Guidelines categories. United States v. Brown, 808 F.3d 865, 866 (D.C. Cir. 2015) (quoting 18 U.S.C. § 3553(c)(2)). The judge’s explanation must draw on spe cific facts about the defendant’s history or conduct; the demands of deterrence, public safety, rehabilitation, or restitution for victims that are particular to that case; or some other factor listed in section 3553(a) of the federal sentencing statute. See id. at 871; 18 U.S.C. § 3553(a)(l)-(7).

An earlier panel of this court found that the district court had offered no specific facts at the original sentencing to distinguish Brown’s case from others falling into the same Guidelines categories. For instance, the district court noted that Brown had “actually] abuse[d]” children over a “period of time,” but the applicable Guidelines categories already accounted for Brown’s acts of “sexual abuse or exploitation” and his “pattern of abuse” (a term denoting multiple instances). Brown, 808 F.3d at 872. The district court also opined that the “combination of behaviors to which Brown pled is ‘not conduct we normally get around here.’ ” Id. (quoting sentencing transcript). Yet the legal issue was how Brown’s conduct compared to offenses falling under the same Guidelines categories, not offenses committed in the same district. Id. On the whole, we found, the sentencing court had “mere[ly] recit[ed]” the 3553(a) factors “without application” to Brown’s case. And that alone is never enough to assure us of “reasoned decision-making.” Id. at 872 (quoting United States v. Akhigbe, 642 F.3d 1078, 1086 (D.C. Cir. 2011)). We thus vacated Brown’s original sentence on the ground that the district court had offered no “specific reason,” based on the 3553(a) factors, for finding Brown’s case more egregious than other cases “accounted for in the properly calculated Guidelines range.” Id. at 871.

On remand, the district court imposed the same sentence, but this time it met its procedural duty to offer specific reasons. In general, a court may impose an above-Guidelines sentence on a particular defendant “based on [aggravating] factors already taken into account by” the Guidelines calculation for that defendant, so long as the court can explain how the Guidelines “do not fully” capture the egregiousness of that defendant’s conduct. United States v. Ransom, 756 F.3d 770, 775 (D.C. Cir. 2014) (quoting United States v. Richart, 662 F.3d 1037, 1052 (8th Cir. 2011)) (emphasis added). That is, the court must cite details that are more informative and more damning (within the framework established by section 3553(a)) than the generic terms of the applicable Guidelines categories.

Our earlier opinion in Brown’s case offered suggestions of what sorts of details might suffice to distinguish his conduct from other conduct falling under the same Guidelines categories. In particular, we acknowledged that—as the government had argued before us—the district court may have imposed an above-Guidelines sentence to “compensate for the ‘benefits’ ” that Brown reaped from the promise of state authorities not to prosecute him in Virginia, where some of his crimes had occurred. Brown, 808 F.3d at 874. We simply noted that this possible ground for Brown’s tougher sentence could not cure the procedural defects in the district court’s ruling because the district court did not mention this feature of Brown’s case in connection with the 3553(a) factors or in the court’s written Statement of Reasons. Id. Nor did the trial judge explain that “he was imposing an above-Guidelines sentence because of’ this aspect of Brown’s case. Id. (emphasis added).

At resentencing, however, the district court justified Brown’s sentence partly by appeal to the promise not to prosecute Brown for crimes committed in Virginia. Brown responds that it was improper double-counting for the district court to increase his sentence based on this conduct, which had already been addressed with a 5-point Guidelines enhancement. But the district court didn’t simply rely on the fact that Brown had abused minors in Virginia. The court thought a second prosecution for Brown’s sexual offenses in a separate jurisdiction might well have led to a “much more severe” combined sentence than the enhancement would yield. J.A. 54. That was one respect in which the district court thought the Guidelines did not “fully account for” the egregiousness of Brown’s pattern of abuse.

The district court gave three other reasons for thinking the Guidelines didn’t capture the gravity of Brown’s offenses: that they “did not adequately reflect the seriousness and frequency of the sexual abuse, the young age of the victims, and the abuse of trust by someone who was supposed to be protecting his own daughters and granddaughters.” J.A. 54.

Indeed, Brown’s admission that his victims were as young as toddlers is more informative, and more damning, than the relevant Guidelines category, which tells us only that the victims were under 12 years old or prepubescent. The same goes for the district court’s lament that the victims were vulnerable to betrayal as a daughter and granddaughters, not just “minors,” as specified by the Guidelines; or that the abuse happened as often as Brown could perpetrate it over several years, and didn’t simply form a “pattern” in the Guidelines’ sense of two or more cases. See Application Note 1 to § 2G2.2. Thus, the district court gave several specific and legitimate grounds for exceeding the Guidelines.

So much for the procedural challenge. The other question is whether Brown’s sentence was substantively unreasonable, and thus an abuse of discretion. United States v. Gardellini, 545 F.3d 1089, 1098 (D.C. Cir. 2008). We review above-Guidelines sentences “under ‘the totality of the circumstances,’ giving ‘due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ ” Id. (quoting Gall, 522 U.S. at 51,118 S.Ct. 400).

Here Brown cites the case of a man sentenced to only 78 months for sexual abuse though his victims, too, were relatives. See United States v. Lucero, 747 F.3d 1242, 1244 (10th Cir. 2014). Decided by the Tenth Circuit, that case does not bind us. And even if it did, Lucero wouldn’t help Brown. The abuse in Lucero had occurred only twice. The Guidelines range was lower to begin with: 78 to 92 months, not 97 to 121 months. And the circuit court simply affirmed the man’s sentence, without saying that a stiffer punishment would have been irrational.

Weak analogies aside, Brown offers no serious argument that his sentence was an abuse of discretion, and we doubt he could. It is hardly unreasonable for a court to extend a 10-year sentence by two years plus a period of supervised release when a defendant has been spared another prosecution—and perhaps many more years of imprisonment—for sexual abuse he certainly committed. That is especially true where, as in this case, the abuse was so persistent, the victims so young, and the betrayal of trust so acute.

Ill

Finding no procedural defect or abuse of discretion, we affirm Brown’s sentence.

So ordered.


author: EDWARDS, Senior Circuit Judge:

text:
    Ramon CIERCO, In his personal capacity and derivatively on behalf of himself and all others similarly situated, et al., Appellants v. Steven T. MNUCHIN, in his official capacity as Secretary of the Treasury, et al., Appellees
    No. 16-5185
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 13, 2017
    Decided May 23, 2017

      Eric L. Lewis, Washington, DC, argued the cause for appellants. With him on the brief was A. Katherine Toomey.
    Sarah Carroll, Attorney, U.S. Department of Justice, argued the cause for ap-pellees. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, and H. Thomas Byron, III, Attorney.
    Before: ROGERS and SRINIYASAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
   EDWARDS, Senior Circuit Judge:

In 2015, the Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”) suspected that Banca Privada d’Andorra S.A. (“the Bank”) was being used to launder money. Pursuant to Section 311 of the USA PATRIOT Act, Fin-CEN issued a Notice of Finding and a Notice of Proposed Rulemaking (the “Notices”) proposing to cut off the Bank’s ties to the United States’ financial system. Without completing the rulemaking process that these Notices contemplated, Fin-CEN effectively achieved its goals when the Andorran Government seized the assets of the Bank and began a process to sell off those assets.

After the Andorran Government took control of the Bank, Appellants—the majority shareholders of the Bank—filed suit in the District Court, claiming that Fin-CEN violated the Administrative Procedure Act (“APA”) in issuing the Notices. Appellants’ complaint sought two principal remedies: (1) an order requiring FinCEN to withdraw the Notices, and (2) a declaration that the Notices were unlawfully issued. While the ease was pending before the District Court, FinCEN, satisfied that the Bank no longer posed a money laundering concern, withdrew both Notices. The District Court then granted FinCEN’s motion to dismiss on the grounds that the case was moot. Appellants filed an appeal from that judgment. Subsequent to the District Court’s decision, the Andorran Government finalized the sale of the Bank’s assets to a private investment firm.

We agree with the District Court that this case should be dismissed, but for different reasons. When FinCEN withdrew the Notices, Appellants received full relief on their first claim. Therefore, we agree that Appellants’ first claim for relief is moot. Appellants’ second claim for relief— a declaration that the Notices were unlawful—is not moot, but they no longer have standing to press this claim.

When Appellants first filed their law suit, they had standing to challenge the legality of the Notices. However, once their claim for the withdrawal of the Notices became moot, Appellants had the burden to show that they still had standing to seek a declaratory order that the Notices were unlawful. They have not met this burden. Even assuming that Appellants have the requisite injury and causation to support standing, they have not shown that a judicial order will effectively redress their alleged injuries. We therefore dismiss the case because Appellants’ first claim is moot and they lack standing to pursue their second claim.

I. Background

A. Statutory Framework

Section 311 of the USA PATRIOT Act (“the Act”) authorizes the Secretary of the Treasury, upon a finding that a foreign financial institution is “of primary money laundering concern,” to impose “special measures” upon any domestic financial institution that does business with the foreign institution. 31 U.S.C. § 5318A(b). The Secretary has delegated his authority under Section 311 to FinCEN, a bureau of the Department of Treasury. 31 C.F.R. § 1010.810(a). The Act provides, inter alia, that:

In making a finding that reasonable grounds exist for concluding that a jurisdiction outside of the United States [or] 1 or more financial institutions operating outside of the United States ... is of primary money laundering concern so as to authorize the Secretary of the Treasury to take 1 or more of the special measures described in subsection (b), the Secretary shall consult with the Secretary of State and the Attorney General.

31 U.S.C. § 5318A(c)(l). The Act also states that “the Secretary shall consider [additional] information [determined] to be relevant,” including a number of “Jurisdictional” and “Institutional” factors listed in the statute. Id. § 5318A(c)(2)(A), (B).

If FinCEN determines that a foreign institution is of primary money laundering concern, Section 311 authorizes FinCEN to take one or more of five special measures. Four of these special measures— including recordkeeping and information disclosure requirements—may be imposed by FinCEN “by regulation, order, or otherwise as permitted by law.” Id. § 5318A(a)(2)(B). The fifth, and most severe, measure that FinCEN may take against a foreign institution is to prohibit the “opening or maintaining in the United States of a correspondent account or payable-through account by any domestic financial institution ... for or on behalf of [that] foreign banking institution.” Id. § 5318A(b)(5). “[I]mposing this measure has the effect of eliminating or curtailing a foreign banking institution’s access to the U.S. financial system and to transactions involving the U.S. dollar.” FBME Bank Ltd. v. Lew, 125 F.Supp.3d 109, 115 (D.D.C. 2015). As such, the fifth special measure “can be a ‘death sentence’ for smaller foreign banks who depend on access to U.S. dollar clearing through correspondent accounts.” Steven Mark Levy, Federal Money Laundering Regulation: Banking, Corporate and Securities Compliance § 30.03(E) (2d ed. Supp. 2017).

Unlike the other four special measures, the fifth measure may only be imposed “by regulation.” 31 U.S.C. § 5318A(a)(2)(C). The APA requires FinCEN to publish a “notice of proposed rule making ... in the Federal Register,” allowing interested parties an opportunity to comment. 5 U.S.C. § 553(b)-(c). FinCEN must then publish a final rule to give effect to the special measure. See, e.g., 31 C.F.R. § 1010.659 (imposing the fifth special measure against North Korean financial institutions).

In practice, however, FinCEN often achieves the intended effects of the fifth special measure before it completes the rulemaking process. The Government Accountability Office has explained that,

once a proposed rule is issued, almost all U.S. financial institutions immediately implement it voluntarily, stopping financial transactions with designated financial institutions or jurisdictions.... U.S. banks often treat proposed Section 311 rules as final and generally cut off all financial interactions with the targeted institution.... U.S. banks may be taking this action because the proposed rule is associated with a finding of primary-money laundering concern and, in many instances, Treasury issued a finding together with a notice of proposed rule-making. Because it makes good business sense to protect banks from risks to their reputation and possible government penalties, banks may discontinue business with other banks labeled a primary money laundering concern to reduce their reputational risk.

U.S. Gov’t Accountability Office, GAO-08-1058, USA PATRIOT ACT: Better Interagency Coordination and Implementing Guidance for Section 311 Could Improve U.S. Anti-money Laundering Efforts 21 (2008), Joint Appendix (“JA”) 236. A notice proposing to impose the fifth special measure often has effects overseas, as well, as illustrated by the fact that “several foreign governments have strengthened their laws and regulations in response to proposed rules.” Id. at 22, JA 237.

When FinCEN is able to achieve the objective of imposing the fifth special measure without completing rulemaking, the agency typically withdraws the notice of proposed rulemaking. See, e.g., Withdrawal of the Proposed Rulemaking Against Lebanese Canadian Bank SAL, 80 Fed. Reg. 60,575 (Oct. 7, 2015).

B. Procedural History

Appellants Ramon and Higini Cierco were the majority shareholders in Banca Privada d’Andorra S.A., a private bank in the country of Andorra that held less than two billion euro in assets in 2015. See Cierco v. Lew, 190 F.Supp.3d 16, 18 (D.D.C. 2016) (describing the ownership structure of the Bank); Notice of Finding That Banca Privada d’Andorra Is a Financial Institution of Primary Money Laundering Concern, 80 Fed. Reg. 13,464, 13,-464 (Mar. 6, 2015) (“Notice of Finding”) (reporting that the Bank held “1.79 billion euro in assets”).

In March 2015, FinCEN issued its Notice of Finding alleging that the Bank had “facilitated financial transactions on behalf of Third-Party Money Launderers ... providing services for individuals and organizations involved in organized crime, corruption, smuggling, and fraud.” Notice of Finding, 80 Fed. Reg. at 13,464. Fin-CEN claimed that the Bank “fail[ed] to conduct adequate due diligence on customer accounts” and provided “high-risk services to shell companies”—features that made the Bank “highly attractive and well known to [Third-Party Money Launderers].” Id. at 13,465.

The same day that FinCEN published the Notice of Finding, it also published a Notice of Proposed Rulemaking to impose the fifth special measure. Imposition of Special Measure Against Banca Privada d’Andorra as a Financial Institution of Primary Money Laundering Concern (“NPRM”), 80 Fed. Reg. 13,304 (Mar. 13, 2015). The NPRM stated that the fifth special measure was necessary to address the primary money laundering concern and that it would not impose “an undue regulatory burden” because “only four U.S. covered financial institutions maintain an account for [the Bank].” Id. at 13,305.

One day after FinCEN announced that it was preparing to take action against the Bank, the Andorran Government declared that it would seize control of the Bank. See Press Release, Instituí Nacional Andorra de Finances (Mar. 11, 2015), JA 286. In April 2015, the Andorran Government appointed a new administrator for the Bank. See Press Release, Agency for the Restructuring of Financial Entities (“AREB”), AREB Assumes the Tutelage of BPA (Apr. 27, 2015),' JA 288. Then, a few months later, the Andorran Government created a new bank (“Vail Banc”), to which it transferred the lawful assets of Banca Privada d’Andorra, in preparation to sell off those assets. See Press Release, AREB, The Board of the AREB Creates the New Bank Named Vail Banc (July 22, 2015), JA 290. The Andorran Government stated that Vail Banc would be a “bridge institution.” Press Release, AREB, The AREB Will Create a “Good Bank” With Legitimate Assets and Liabilities Segregated From BPA (June 15, 2015), JA 294. This meant that, as it operated Vail Banc, the Government would “strict[ly] review” the assets of Banca Privada d’Andorra to determine which assets were lawful and which were tainted by money laundering. See id.

On October 7, 2015, after the Government of Andorra had transferred the Bank’s assets to Vail Banc and while it was reviewing those assets in preparation for sale, Appellants filed suit in the District Court. They claimed that FinCEN’s issuance of the Notices was arbitrary and capricious, in violation of the APA, because FinCEN did not consider relevant evidence, relied on inaccurate evidence, and imposed a disproportionate penalty. See Complaint at 35-38, Ciereo v. Lew, No. 15-cv-1641 (D.D.C. Oct. 7, 2015), ECF No. 1, JA 45-48. Appellants also claimed that FinCEN violated their Due Process rights and exceeded the scope of its delegated authority. See id. at 38-42, JA 48-52. Finally, although Appellants’ complaint sought a number of remedies, their two principal claims for relief were: (1) an order requiring FinCEN to withdraw the Notices, and (2) a declaration that the Notices were unlawfully issued. Id. at 43, JA 53. These two claims for relief frame the issues that are before the court on this appeal.

On January 25, 2016, FinCEN filed a motion to dismiss, claiming, inter alia, that Appellants lacked standing because the Andorran Government’s seizure of the Bank’s assets could not be redressed by the District Court. See Memorandum in Support of the Motion to Dismiss 9-12, Cierco v. Lew, No. 15-cv-1641 (D.D.C. Jan. 25, 2016), ECF No. 29-1.

On March 4, 2016, FinCEN announced that it was withdrawing both its Notice of Finding and Notice of Proposed Rulemak-ing, citing “[significant developments” ensuring that the Bank “is no longer operating as a financial institution that poses a money laundering threat to the U.S. financial system.” Withdrawal of Notice of Proposed Rulemaking Regarding Banca Privada d’Andorra, 81 Fed. Reg. 11,496, 11,497 (Mar. 4, 2016) (“Notice of Withdrawal”); see also Withdrawal of Finding Regarding Banca Privada d’Andorra, 81 Fed. Reg. 11,648 (Mar. 4, 2016) (withdrawal of Notice of Finding). Those developments included the Andorran Government’s “control of [the Bank],” “the creation of the bridge bank,” and the planned sale of that bank. Notice of Withdrawal, 81 Fed. Reg. at 11,497. FinCEN filed a notice of this withdrawal with the District Court on February 19, 2016, arguing that the case “should also be dismissed as moot.” Ciereo, 190 F.Supp.3d at 21. The District Court ordered supplemental briefing on the question of mootness. Id. at 22.

While the parties were filing their supplemental briefs, the Andorran Government selected J.C. Flowers & Company, a United States-based investment firm, as the acquirer of Vail Banc. See Br. for Appellees at 14; see also Press Release, AREB, AREB Selects US Investment Firm J.C. Flowers & Co. as Buyer of Vail Banc (Apr. 21, 2016), http://areb.ad/images/ areb/comunieats/21042016_AREB_ENG. pdf.

Then, on May 18, 2016, the District Court granted FinCEN’s supplemental motion to dismiss. Cierco, 190 F.Supp.3d 16. The District Court found that the case was moot, and that neither the doctrine of “voluntary cessation” nor the doctrine of “capable-of-repetition-yet-evading review” barred such a finding. Id. at 23-28. On July 14, 2016, after the issuance of the District Court’s decision, the Andorran Government finalized the sale of Vail Banc to J.C. Flowers. Press Release, AREB, AREB Transfers Vail Banc to US Investment Firm J.C. Flowers & Co. (July 14, 2016), http://areb.ad/images/areb/ comunicats/14072016_AREB_ENG.pdf. Appellants now appeal the District Court’s decision.

II. Analysis

A. Standard of Review

We review de novo the District Court’s grant of FinCEN’s motion to dismiss. See Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 566 F.3d 219, 221 (D.C. Cir. 2009).

B. Summary of the Analysis

We agree with the District Court’s ultimate decision to dismiss this case. However, we do not agree that the disposition of Appellants’ claims can rest solely on mootness.

The case is undoubtedly moot with respect to Appellants’ first claim for relief— a request that FinCEN withdraw the Notices. At oral argument, Appellants’ agreed that their request for relief on their first claim has been fully satisfied. Oral Arg. at 7:15-7:45, 14:00-14:15. Therefore, there is no live dispute left on this claim.

Appellants’ second claim for relief—a request for a declaration that the Notices were unlawful—is not moot, however. Nonetheless, as we explain below, Appellants no longer have standing to pursue this claim.

C.Appellants’ First Claim for Relief is Moot

As noted above, Appellants have conceded that they received all of the relief that they requested on the first claim for relief in their complaint. FinCEN “re-scindfed] the [Notice of Finding] and set[ ] aside the [Notice of Proposed Rulemak-ing].” Complaint at 43, JA 53. These actions by FinCEN completely vitiated the Notices.

“Because the exercise of judicial power under Article III depends upon the existence of a case or controversy, a federal court may not render advisory opinions or decide questions that do not affect the rights of parties properly before it.” Edwards, Elliott, & Levy, Federal Standards of Review 134 (2d ed. 2013) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per cu-riam)). If a case is moot, the court must dismiss it for lack of jurisdiction.

There are two principal exceptions to mootness. The first pertains to situations in which “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration,” yet there is a “demonstrated probability that the same controversy will recur involving the same complaining party.” Murphy v. Hunt, 455 U.S. 478, 482 [102 S.Ct. 1181, 71 L.Ed.2d 353] (1982) (per curiam).
The second principal exception involves a party’s “voluntary cessation” of the challenged activity. As a general rule, a defendant’s “voluntary cessation of allegedly illegal conduct does not deprive [a court] of power to hear and determine the case.” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 [99 S.Ct. 1379, 59 L.Ed.2d 642] (1979). Voluntary cessation will only moot a case if “there is no reasonable expectation ... that the alleged violation will recur” and “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. The defendant carries the burden of demonstrating “that there is no reasonable expectation that the wrong will be repeated,” and “[t]he burden is a heavy one.” United States v. W. T. Grant Co., 345 U.S. 629, 633 [73 S.Ct. 894, 97 L.Ed. 1303] (1953).

Id. at 135. Neither exception applies here.

The capable of repetition, yet evading review exception to' mootness applies only “where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Davis v. FEC, 554 U.S. 724, 735, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (citation and internal quotation marks omitted). Appellants make no claim that these conditions exist here.

The voluntary cessation exception also does not apply here. The Government has assured the court that the disputed Notices have been completely withdrawn. Br. for Appellees at 18, 28. Appellants do not contest this. Indeed, Appellants have never even suggested that there is any likelihood that FinCEN will reissue the withdrawn Notices. See Cierco, 190 F.Supp.3d at 24 (recognizing “Plaintiffs’ own failure to argue that the government will impose the fifth special measure on [the Bank] in the future”). Nor could they plausibly advance such a claim. After the Bank was seized by the Andorran Government and its assets were transferred to Vail Banc, FinCEN concluded that the Bank “is no longer operating as a financial institution that poses a money laundering threat to the U.S. financial system.” Notice of Withdrawal, 81 Fed. Reg. at 11,497. Given these circumstances, and the subsequent finalization of the sale of Vail Banc to J.C. Flowers, Appellants cannot now show that they are likely to suffer the same injury in the future.

Therefore, on the record before us, it is quite clear that Appellants’ first claim— that the Notices be withdrawn—is moot.

D. The Framework for Analyzing Appellants’ Standing

As the Court explained in Lujan v. Defenders of Wildlife,

the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly ... traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations, internal quotation marks, and brackets omitted).

“Standing can be raised at any point in a case proceeding and, as a jurisdictional matter, may be raised, sua sponte, by the court.” Steffan v. Perry, 41 F.3d 677, 697 n.20 (D.C. Cir. 1994) (en banc). Indeed, we have a “special obligation to ‘satisfy [ourselves] ... of [our] own jurisdiction.’ ” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). Where a party’s “Ar-tide III standing is undear,” we “must resolve the doubt, sua sponte if need be.” Lee’s Summit v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000) (emphasis added).

“[A] plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). As explained above, Appellants requested two principal forms of relief in their complaint. Their first claim—that the Notices be withdrawn—is moot. So the matter of standing with respect to this claim is of no moment. Appellants’ second claim—their request for a declaration that the Notices were illegal— is not moot. Given these circumstances, we must consider whether Appellants still have standing to raise it. The Court’s decision in Lyons establishes the framework for our analysis.

In Lyons, the plaintiff sought damages, an injunction, and declaratory relief after police officers injured him in a chokehold. 461 U.S. at 97-98, 103 S.Ct. 1660. During the course of the litigation, the Los Ange-les Police Department implemented a six-month moratorium on the use of choke-holds, and Los Angeles then suggested that the case may be moot. Id. at 100-01, 103 S.Ct. 1660. The Court acknowledged that, although the plaintiff “still ha[d] a claim for damages against [Los Angeles] that appearfed] to meet all Art. Ill requirements,” he no longer had standing to pursue his request for injunctive relief because of the “speculative nature of his claim that he will again experience injury.” Id. at 109, 103 S.Ct. 1660. “[T]he issue here is not whether [the damages] claim has become moot but whether Lyons meets the preconditions for asserting an injunctive claim in a federal forum.” Id.

Lyons points the way to understanding that when one of a plaintiffs requests for relief is no longer live—either because that relief is granted, the parties have settled, or the claim has otherwise become moot— a natural issue that arises is whether the plaintiff has standing to pursue related, remaining requests for relief. Lyons followed the approach taken by the Court in DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), and Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), and the principles that evolved have been followed by the courts ever since.

The Court’s decision in Summers v. Earth Island Institute, 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009), is another good example. Plaintiffs in that ease filed suit against the United States Forest Service for failing to apply notice-and-comment procedures when it approved the “Burnt Ridge Project.” Id. at 491, 129 S.Ct. 1142. Plaintiffs also challenged the underlying Forest Service regulations. Id. During the course of litigation, the parties “settled their dispute” regarding the Burnt Ridge Project specifically, but plaintiffs continued to press their challenge to the underlying regulations. Id. at 491-92, 129 S.Ct. 1142. The Court, citing Lyons, found that plaintiffs lacked standing to. bring their remaining requested relief:

We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests.

Id. at 494, 129 S.Ct. 1142. After holding that plaintiffs’ first request for relief was moot, the Court analyzed plaintiffs’ standing to continue litigating their remaining request. As suggested in Lyons, the central framework was clear: when plaintiffs settled one of their requests for relief, the natural question became whether they had standing to press for the additional remedies that had been sought in the complaint.

Our own case law is perfectly consistent with this line of cases. See, e.g., Maydak v. United States, 630 F.3d 166 (D.C. Cir. 2010) (holding that prisoners lacked standing to continue challenging an Inmate Trust Fund after they were released from custody); Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86 (D.C. Cir. 1986) (holding that plaintiffs had standing to continue pressing their facial challenge to government guidelines even after being awarded a fee waiver in connection with their request under the Freedom of Information Act because they were frequent FOIA re-questers who would be affected by the guidelines in the future and the challenge was ripe for judicial review).

As the Court made clear in Summers, when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but that portion of the action is rendered moot, the plaintiff does not retain standing to challenge the regulation that was the basis for that action apart from any concrete application that threatens imminent harm to his interests. 555 U.S. at 494, 129 S.Ct. 1142. We must now determine whether Appellants still have standing to seek a declaration that the disputed Notices were unlawful even though the Notices have been withdrawn.

E. Appellants Lack Standing to Pursue Their Second Claim for Relief

Appellants’ second claim for relief seeks a “decision holding that the [Notices] were issued unlawfully.” Br. of Appellants at 21. Even if we assume that Appellants have cognizable injuries and can show causation to support standing, they have not demonstrated that it is “likely, as opposed to merely speculative, that the[ir] injuries] will be redressed by a favorable decision” from this court. Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citation and internal quotation marks omitted).

In assessing Appellants’ standing, although we “accept the[ir] well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in [their] favor,” we do not “accept inferences that.are unsupported by the facts set out in the complaint.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)). We hold that Appellants lack standing because the redress that they seek is far too speculative to support their invocation of federal court jurisdiction.

In their brief to this court, Appellants attempt to explain how a decision from this court holding that the two Notices were unlawful would redress their injuries:

[T]here is a substantial likelihood that a decision finding that FinCEN improperly labeled [the Bank] as of “primary money laundering concern” would materially impact the position of Andorran authorities as to the proper course to be followed with respect to the sale of [the Bank’s] assets, what should be done with the corporate structure and any assets that remain, and how the Ciercos, as [the Bank’s] owners, should now be treated in the process.

Br. of Appellants at 30. This explanation suffers from both factual and legal infirmities.

First, with regard to the assets transferred to the bridge bank, the window of time to “impact the position of Andorran authorities” has closed. On July 14, 2016, after having transferred the Bank’s assets to the Government-run bridge institution, the Andorran Government finalized the sale of the assets. Press Release, AREB, AREB Transfers Vail Banc to US Investment Firm J.C. Flowers & Co. (July 14, 2016), http://areb.ad/images/areb/ comunicats/14072016_AREB_ENG.pdf. Appellants do not dispute the facts proffered by Appellees to show that the Bank’s assets had been seized and sold. See Br. for Appellees at 10-12. The record thus indicates that the Bank’s assets have been out of the hands of the Andorran Government for nearly a year now, and Appellants fail to offer any path of events by which the Andorran Government could or would unwind the sale.

Second, Appellants may be correct that FinCEN’s Notices “indisputably prompted Andorra’s actions against [the Bank].” Br. of Appellants at 31. Even were that the case, however, it is far from clear that a declaration that FinCEN violated the APA in promulgating the Notices would cause Andorra to reverse course. Appellants offer only conjecture, but no evidence, suggesting that the Andorran Government would be influenced by such a declaration to undo the sale of Vail Banc to J.C. Flowers or to return any assets still held by the Government. Appellants are effectively asking this court to “accept inferences that are unsupported by the facts set out in the complaint.” Arpaio, 797 F.3d at 19 (citation and internal quotation marks omitted). Appellants have offered no evidence that the Andorran Government would reverse course as a result of the withdrawal of FinCEN’s Notices. And they have not shown that the sale actually could be undone even if the Andorran Government were so inclined.

Third, Appellants contend that, in rejecting their claim, the District Court erred in “considering] facts beyond the pleadings.” Br. for Appellants at 34. Appellants appear to be referring to the information about political developments in Andorra that took place after Appellants filed their complaint. In any event, their contention is misguided. We have made it clear that, “[i]n determining standing, we may consider materials outside of the complaint.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015). Indeed, Appellants apparently understand this because, during oral argument before this court, they asserted that the Andorran Government still holds “1.5 billion euros” of the Bank’s assets. Oral Arg. at 16:50-17:10. But the assertion was not supported by any evidence.

Finally, and most importantly, even as we view all of the relevant facts in the light most favorable to Appellants, we find that their arguments in support of redressability are much too speculative to support standing. We are particularly disinclined “to endorse standing theories that rest on speculation about the decisions of independent actors.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 133 S.Ct. 1138, 1150, 185 L.Ed.2d 264 (2013). It is well understood that standing is “substantially more difficult to establish” when it “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict.” Lujan, 504 U.S. at 562, 112 S.Ct. 2130 (quoting Allen v. Wright, 468 U.S. 737, 758, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); ASARCO Inc. v. Kadish, 490 U.S. 605, 615, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (opinion of Kennedy, J.)). In such cases, the plaintiff must offer “substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood, of redress.” Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d 1267, 1275 (D.C. Cir. 2007) (citation and internal quotation marks omitted). Appellants have offered no such evidence.

We have been particularly reluctant to find standing where the third party upon whose conduct redressability depends is a foreign sovereign. See, e.g., Dellums v. U.S. Nuclear Regulatory Comm’n, 863 F.2d 968, 976 (D.C. Cir. 1988) (noting that “[o]ur own decisions ... have declined to recognize standing when the effectiveness of the relief requested depends on the unforeseeable actions of a foreign nation”); Cardenas v. Smith, 733 F.2d 909, 914 (D.C. Cir. 1984) (holding that plaintiff lacked standing because “the relief in the present case could be obtained only through the consent of the Swiss government”).

As Appellants would have it, a judicial declaration that the Notices issued by FinCEN were unlawful would encourage the Andorran Government to unwind the seizure of the Bank’s assets and the subsequent sale of those assets to J.C. Flowers and to return any assets still held by the Government. Their claim thus “depends on the unforeseeable actions” of the Andorran Government, which is not enough to support redressability. Heliums, 863 F.2d at 976. Appellants offer no evidence that the Andorran Government would respond as they suggest. “When redress depends on the cooperation of a third party, it becomes the burden of the [appellant] to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.” US Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24-25 (D.C. Cir. 2000) (citation and internal quotation marks omitted). Appellants have not met this burden.

III. Conclusion

For the reasons stated in this opinion, we affirm the judgment of the District Court dismissing Appellants’ complaint. We have no jurisdiction to hear their claims.