A natural gas pipeline in the Southeast could be forced to shut down tomorrow, and it’s unclear if federal regulators will step in to save it.
The Federal Energy Regulatory Commission yesterday did half of what’s needed to keep the Sabal Trail pipeline in service: It completed a court-ordered analysis of greenhouse gas emissions. But the agency hasn’t yet taken the second critical step of issuing an order to reauthorize the project.
FERC spokeswoman Tamara Young-Allen said the order is still pending.
"I can’t speculate on when the Commission’s Order on Remand will issue," she said in an email yesterday.
The administrative tangle relates to a Sierra Club legal challenge that has dire implications for Sabal Trail and a related $4 billion network known as the Southeast Market Pipelines Project in Alabama, Georgia and Florida.
The U.S. Court of Appeals for the District of Columbia Circuit in August ordered FERC to take a closer look at certain climate impacts from the pipeline project under the National Environmental Policy Act.
The judges sealed the deal on that decision last week when they rejected government and industry requests for reconsideration, setting a seven-day countdown — which ends tomorrow — for a court mandate that will vacate the project’s permits until FERC completes the added climate review (Energywire, Feb. 1).
Pipeline backers Spectra Energy Partners LP, NextEra Energy Inc. and Duke Energy Corp. on Friday asked FERC to quickly finish its supplemental environmental impact statement (SEIS) and reauthorize the project (Energywire, Feb. 5).
Yesterday, the agency issued its final SEIS analyzing the greenhouse gas emissions associated with burning natural gas delivered by the Southeast pipelines.
FERC’s action confused many agency watchers. The completion of the SEIS sets the stage for the project’s reauthorization, but the commission didn’t actually issue an order doing that. It’s unclear if FERC will issue its decision today.
The absence of an order reissuing certificates for Sabal Trail may stem from Council on Environmental Quality regulations that generally require agencies to wait 30 days after the publication of a final NEPA document to issue a decision.
The CEQ regulations include an exception to the timing requirement for agency decisions that are subject to a "formal internal appeal" process that allows other agencies and the public "a real opportunity" to weigh in.
Does FERC’s built-in rehearing process qualify for that exception? Sabal Trail backers say yes; opponents say no. Nobody’s quite sure what FERC thinks.
In a filing yesterday, attorneys for the Sierra Club argued that the CEQ exception does not apply because FERC’s rehearing process can drag out almost indefinitely as the agency issues so-called tolling orders to repeatedly extend its deadline to respond to critics of a decision.
"FERC’s track record of issuing tolling orders and ultimately denying environmental petitioners’ rehearing requests shows that no such ‘real opportunity’ exists here," the group wrote. "Moreover, this exception should only apply where there is a stay of the decision pending administrative appeal, which is not the case with FERC decisions.
"Otherwise," the filings adds, "the exception would be at odds with NEPA regulations prohibiting the irretrievable commitment of resources during the NEPA process."
FERC mentioned the exception in yesterday’s SEIS and referenced the agency’s standard 30-day rehearing period. But it did not explicitly say whether the agency intends to invoke it — prompting uncertainty on both sides about whether to expect a final order today.
The Sierra Club is also pushing back on the developers’ alternative request that FERC issue temporary emergency certificates that allow the pipeline to avoid service interruptions.
Emergency permits would allow gas to continue flowing but would not allow work to continue on parts of the project that are still under construction.
"But issuing temporary certificates would allow the Applicants to do what the Court determined is unlawful: operate the pipeline before its impacts have been fully analyzed, as required by NEPA," the group’s filing says.
Sierra Club attorneys say emergency permits aren’t intended for situations in which a court order is halting pipeline operations. Plus, they argue that a shutdown would not cause an emergency, noting that in-service sections of the Southeast pipeline network have carried low volumes of gas in recent months, sometimes reaching zero.
Dissecting the new review
Experts are still digesting the substance of FERC’s newly finalized SEIS.
The document tallies greenhouse gas emissions anticipated from power plants that burn natural gas delivered by Sabal Trail and the related pipelines — a quantitative analysis FERC has already incorporated into most other pipeline reviews completed over the past year.
The review estimates that the project could increase Florida’s greenhouse gas emissions by 3.6 to 9.9 percent over 2015 data, with the higher number representing an "unlikely, upper bound scenario."
FERC declines to explore specific potential environmental effects from that increase, noting that it could not find a "suitable" scientific method for doing so.
Notably, the SEIS also declines to say whether such an increase in greenhouse gas emissions is significant at all.
"There are no widely accepted international, federal, or state definitions of what is considered a ‘significant’ emission rate for GHG emissions," it says. "Additionally, we have not identified any research that identifies a project level significance threshold of GHG emissions for climate change. Without some specific definition, or basis in physical science, it would be inappropriate to ascribe significance to a rate or volume of GHG emissions."
FERC’s analysis adds that a "no-action" alternative of not approving the pipeline wouldn’t zero out the anticipated emissions increase because gas shippers could find other ways to move their product.
The agency concludes that while the climate impacts are impossible to fully assess, its examination "with respect to the impacts for which staff could assess significance" shows that the project’s overall impacts would not be significant.
The SEIS also rejects critics’ calls to incorporate the social cost of carbon tool to assign a cost to the added emissions.
The document defends FERC’s longtime refusal to use the tool and says opposition to that approach raises "matters of Commission policy that are more appropriate for the Commission to consider and address in a Commission order, rather than for the final SEIS to respond and address."
Jason Schwartz, legal director for New York University’s Institute for Policy Integrity, slammed the analysis as an attempt to pass the buck on the issue.
"It’s a shame FERC continues to dismiss this readily available, easy-to-use, hugely informative metric," he said. "This SEIS still leaves the public and decisionmakers in the dark on the climate impacts of the project."
Pipeline opponents are expected to challenge the adequacy of the analysis.