With its recent decision to uphold federal approval for the Mountain Valley pipeline, an appellate court checked off one key climate-related challenge on its docket this year.
At least five other pipeline certificate lawsuits remain before the U.S. Court of Appeals for the District of Columbia Circuit. Any one of the cases could be pivotal for the legal debate over pipelines and climate change.
Each dispute was born from the Federal Energy Regulatory Commission’s issuance of a permit for a natural gas project in the Northeast and Mid-Atlantic regions. Each lawsuit involves specific questions around FERC’s assessment of climate impacts from projects under its purview.
After hearing arguments in January, a three-judge panel for the D.C. Circuit on Feb. 19 tossed all complaints against FERC’s authorization for the 300-mile Mountain Valley pipeline through West Virginia and Virginia.
The lawsuit included an argument that FERC violated the National Environmental Policy Act by not adequately considering greenhouse gases generated by burning fuel transported by the project (Energywire, Feb. 20).
"We need not consider that argument, however, because even if petitioners are correct, FERC provided an estimate of the upper bound of emissions resulting from end-use combustion, and it gave several reasons why it believed petitioners’ preferred metric, the Social Cost of Carbon tool, is not an appropriate measure of project-level climate change impacts and their significance under NEPA or the Natural Gas Act," the judges wrote.
"That is all that is required for NEPA purposes."
The lawsuit covered a wide range of issues beyond climate. Appalachian Voices, the Chesapeake Climate Action Network, the Sierra Club and other groups also fought FERC’s determination of market need, exercise of eminent domain and consideration of cultural impacts, among other issues.
But the court’s finding on FERC’s emissions analysis sets the stage for climate questions in a long list of certificate challenges before the D.C. Circuit this year. One case — concerning the Constitution pipeline in New York — is currently in front of the 2nd U.S. Circuit Court of Appeals.
Further complicating the debate, FERC last year used its certification process to announce a drastic change in its consideration and disclosure of upstream and downstream climate impacts from the projects it authorizes.
That shift has raised concerns — even within the commission itself — about whether the change comports with a watershed 2017 D.C. Circuit climate ruling.
Here’s a look at the climate questions in front of the D.C. Circuit this year.
Atlantic Sunrise
Case argued: Dec. 7, 2018.
During oral argument last year, opponents of the Atlantic Sunrise pipeline through Pennsylvania asked the court to require more robust analysis of climate impacts.
They pointed to a 2017 ruling in Sierra Club v. FERC, in which the D.C. Circuit found FERC should have taken a closer look at emissions from power plants that would wind up burning natural gas carried by the Sabal Trail pipeline. If the commission cannot provide that analysis, the court found, it must offer an adequate explanation as to why.
FERC counsel noted during argument that the agency’s climate analysis for Atlantic Sunrise tracked with requirements laid out in the Sabal Trail case.
Chief Judge Merrick Garland, a Clinton appointee, questioned what it would take for pipeline challengers to be satisfied with a FERC climate analysis that ultimately supports a project approval.
"We think that the [greenhouse gas] component of this appeal may fail and a decision could be issued by the court in the first half of 2019," ClearView Energy Partners LLC Managing Director Christi Tezak wrote in a Feb. 15 research note.
New Market
Argument date scheduled: April 11.
FERC and its courtroom opponents have spent the past two months mapping out a landmark climate challenge.
Argument is currently scheduled for April 11.
This lawsuit stems from FERC’s refusal to reconsider the commission’s authorization of a set of infrastructure upgrades in upstate New York. FERC used the procedural document to announce a controversial change in its approach to climate reviews.
FERC argued that its previous efforts to measure the climate impact of fuel production and consumption triggered by its projects were "generic" and "inherently" speculative and announced a narrower approach going forward.
Democratic Commissioners Cheryl LaFleur and Richard Glick dissented on the climate issue. They argued that FERC’s approach was not consistent with the D.C. Circuit’s finding in the Sabal Trail case.
Broad Run
Argument date scheduled: April 5.
The D.C. Circuit will also hear argument this spring on a separate FERC order in which LaFleur calculated her own estimate of upstream and downstream greenhouse gas emissions to highlight her disagreement with FERC’s climate policy shift.
The lawsuit centers on the Broad Run infrastructure expansion project through Tennessee, Kentucky and West Virginia.
Atlantic Coast
Argument date: TBD.
In its Feb. 19 ruling, the D.C. Circuit dismissed arguments against FERC’s climate approach on the basis that the arguments weren’t fully addressed in challengers’ opening brief.
A lawsuit over FERC’s authorization of the neighboring Atlantic Coast project may provide an opening for the court to revisit some of those concerns.
But climate issues may be the least of the hurdles currently facing development of the 600-mile pipeline that runs from West Virginia to North Carolina.
Dominion Energy Inc. and other Atlantic Coast partners halted construction in December after the 4th U.S. Circuit Court of Appeals scrapped a key Fish and Wildlife Service review for the pipeline. The Richmond, Va., court has since sent back several federal approvals, including permission for an Appalachian Trail crossing that could soon prompt a Supreme Court appeal.
The 4th Circuit last year dismissed as premature a challenge of FERC’s Atlantic Coast approval.
A consolidated lawsuit now sits before the D.C. Circuit.
PennEast
Argument date: TBD.
A forthcoming challenge of the PennEast pipeline through Pennsylvania and New Jersey may open the door for the D.C. Circuit to weigh the merits of the social cost of carbon.
In the Mountain Valley judgment, the court accepted FERC’s rejection of the social cost of carbon — a frequently used tool to assess the economic impact of emissions — because petitioners failed to detail their arguments in the opening brief and to suggest an alternative approach.
"FERC’s reasons for rejecting the Social Cost of Carbon are inconsistent with its own description of the tool’s purpose and use, with the consensus of experts, with the practice of other federal agencies, and with FERC’s choices to monetize other effects," the Institute for Policy Integrity wrote in a brief supporting the D.C. Circuit’s consideration of the PennEast challenge.
FERC’s disclosure of emissions from projects is meaningless if those estimates are not put in context, the institute argued. The commission has meanwhile analyzed the economic impact of expected project benefits, they say.
The case has not yet been scheduled for argument.
