Court rules FERC pipeline approval failed to weigh emissions

By Amanda Reilly | 08/22/2017 12:53 PM EDT

Federal regulators did not adequately consider greenhouse gas emissions when approving a natural gas pipeline project in the Southeast, a federal court today ruled.

Judges vacated the Federal Energy Regulatory Commission’s approval of the Southeast Market Pipelines Project for failure to adequately consider the project's greenhouse gas emissions.

Judges vacated the Federal Energy Regulatory Commission’s approval of the Southeast Market Pipelines Project for failure to adequately consider the project's greenhouse gas emissions. Bilfinger SE/Flickr

Federal regulators did not adequately consider greenhouse gas emissions when approving a natural gas pipeline project in the Southeast, a federal court today ruled.

The U.S. Court of Appeals for the District of Columbia Circuit found that the Federal Energy Regulatory Commission failed to either quantify greenhouse gas emissions linked to the project or sufficiently explain why it could not.

"FERC’s environmental impact statement did not contain enough information on the greenhouse-gas emissions that will result from burning the gas that the pipelines will carry," Judge Thomas Griffith, a George W. Bush appointee, wrote in the 2-1 opinion for the court.


The court sent the project approval back to FERC for the agency to prepare an environmental impact statement consistent with the opinion. Judge Judith Rogers, a Clinton appointee, joined the opinion. Judge Janice Rogers Brown, another Bush appointee, dissented.

The decision is the latest in a series of suits brought by the Sierra Club in the D.C. Circuit challenging the federal government’s approval of natural gas projects based on climate change grounds.

The lawsuit at issue challenged FERC’s decision to approve the construction and operation of the Southeast Market Pipelines Project, which includes the Florida Southeast, Hillabee Expansion and Sabal Trail projects.

Together, the three pipelines under construction in Alabama, Georgia and Florida are meant to serve the Sunshine State’s growing demand for natural gas. At the heart of the project is the Sabal Trail pipeline, which is expected to extend 500 miles from eastern Alabama to Florida south of Orlando.

FERC issued a final EIS for the project in December 2015 and certificates approving the construction of the project segments in February 2016. Construction began in August of last year.

The Sierra Club and other environmentalists sued FERC over the project, challenging both the certificates and the agency’s decision to deny petitions for rehearing. The greens argued that FERC violated the National Environmental Policy Act by failing to analyze the project’s climate change impacts and its effects on environmental justice communities.

At oral arguments in April, the Sierra Club argued that FERC had tools available to conduct a downstream greenhouse gas analysis but opted for a less-detailed approach in its EIS.

For its part, FERC argued that the agency conducted a more general downstream analysis and concluded that the project would not significantly contribute to cumulative greenhouse gas impacts because power plants receiving natural gas from the pipelines were switching from coal, which emits more carbon dioxide (Greenwire, April 18).

In a last-minute bid to kill the Sierra Club’s lawsuit, the agency on Thursday argued that the D.C. Circuit’s decision last week upholding a liquefied natural gas export terminal boosted its position.

In that suit, the D.C. Circuit found that the Department of Energy adequately explained why certain impacts were not reasonably foreseeable and properly found that the effect of LNG exports on global greenhouse gas emissions was too speculative (Greenwire, Aug. 15).

But in today’s opinion, Griffith agreed with the greens, faulting FERC for failing to look closely at the "reasonably foreseeable" greenhouse gas emissions that will come from burning natural gas carried by the pipelines.

"It’s not just the journey, though, it’s also the destination," Griffith wrote. "All the natural gas that will travel through these pipelines will be going somewhere: specifically, to power plants in Florida. … These power plants will burn the gas, generating both electricity and carbon dioxide."

At a minimum, Griffith wrote, FERC should have estimated the "amount of power-plant carbon emissions that the pipelines will make possible." Or the agency should have "explained more specifically" why it could not undertake such an analysis, the judge said.

Without doing so, it’s "difficult to see how FERC could engage in ‘informed decision making,’" Griffith wrote.

The judge differentiated the lawsuit from a suite of Sierra Club challenges last year to FERC’s approval of LNG terminals, cases that raised similar issues as the DOE lawsuit decided last week.

In those cases, the D.C. Circuit rejected the Sierra Club’s arguments that FERC should have better studied greenhouse gas emissions. Those cases are different, Griffith said, because FERC was acting under a "narrow delegation" from the Energy Department and had no legal authority to consider the environmental impacts of LNG exports.

In other words, he said, DOE had oversight over the project approvals and FERC itself was forbidden from relying on the effects of gas exports as a justification for denying a license.

"Here, FERC is not so limited," he wrote. "Congress broadly instructed the agency to consider ‘the public convenience and necessity’ when evaluating applications to construct and operate interstate pipelines."

While it sided with the Sierra Club on the greenhouse gas claims, the court rejected greens’ environmental justice arguments, finding that FERC adequately discussed "the intensity, extent and duration" of the pipelines’ effects. The D.C. Circuit also rejected claims by landowners objecting to the seizure of their property for the pipeline routes.

‘All about the journey’

Brown, who’s retiring from the court at the end of August, issued a forceful dissent to the conclusions on greenhouse gas emissions.

FERC was "reasonable" when it found "no causal relationship between approval of the proposed pipelines and the downstream greenhouse emissions," Brown wrote.

"The court blithely asserts it is ‘not just the journey,’ it is ‘also the destination,’" Brown wrote. "In fact, NEPA is a procedural statute that is all about the journey. It compels agencies to consider all environmental effects likely to result from a project under review, but it ‘does not dictate particular decisional outcomes.’"

Brown offered a different reading of the LNG terminal cases that the court rejected last year on the grounds that FERC had no control over DOE’s approval of the export projects.

She wrote that the D.C. Circuit likewise should have rejected the Sierra Club’s arguments because FERC had no control over whether new power plants would come into operation thanks to the construction of the new pipelines.

State agencies, not FERC, control whether new greenhouse-gas-emitting power plants are built, Brown wrote.

The opinion "completely omits any discussion of the role Florida’s state agencies play in the construction and expansion of power plants within the state," she said.

The court failed to explain, she added, "why NEPA operates more expansively when applied to pipelines compared to export terminals."

Click here to read the court’s opinion and Brown’s dissent.