The Federal Energy Regulatory Commission dodged a judicial bullet this week. But the tone of the decision from the U.S. Court of Appeals for the D.C. Circuit in a natural gas pipeline case suggests that the commission may not be able to justify its controversial refusal to consider upstream and downstream greenhouse gas emissions in gas pipeline cases.
A three-judge panel Tuesday unanimously rejected a challenge to a 2016 FERC decision to approve a Tennessee Gas Pipeline Co. project to move gas from the Middle Atlantic to southeastern markets. The project included building gas compression stations in Kentucky, Tennessee, and West Virginia.
A Nashville group, Concerned Citizens for a Safe Environment, challenged the FERC decision on several grounds, including the commission’s considered policy of throwing up its administrative hands in dismay when facing greenhouse gas emissions, saying they didn’t have the data and didn’t know how to evaluate them. The final 2018 FERC decision, on a rehearing request, drew a biting concurrence from Commissioner Cheryl LaFleur and a partial dissent from Commissioner Richard Glick.
The court made clear that it was not happy with the way the commission treats the greenhouse environmental issue as somehow beyond its ability to analyze, and its continued practice of ignoring or misreading previous appeals court rulings. Addressing FERC’s argument that it lacked sufficient information to address upstream emissions, the court cited LaFleur’s comment that “one reason the commission lacks the specificity of information to determine causation and reasonable foreseeability is because we have not asked applicants to provide this sort of detail.”
The court said, “As an initial matter, the commission is wrong to suggest that downstream emissions are not reasonably foreseeable simply because the gas transported by the project may displace existing natural gas supplies or high-emitting fuels. Indeed, that position is a total non-sequitur: as we explained in Sierra Club, if downstream greenhouse-gas emissions otherwise qualify as an indirect effect, the mere possibility that a project’s overall emissions calculation will be favorable because of an ‘offset…elsewhere’ does not ‘excuse.’”
But the court stepped away from rejecting FERC’s certificate for the Tennessee Pipeline project, arguing that the opponents of the project “failed to raise” the issue of FERC’s failure to seek the environmental data, meaning that the court lacks jurisdiction as to whether the commission acted arbitrarily or capriciously. This win for FERC, wrote the court, came “despite our misgivings regarding the commission’s decidedly less-than-dogged efforts to obtain the information it says it would need to determine that downstream greenhouse-gas emissions qualify as a reasonably foreseeable indirect effect….”
Glick told S&P Global that the ruling “unambiguously affirms FERC’s obligation under NEPA and the [Natural Gas Act] to consider the reasonably foreseeable upstream and downstream GHG emissions caused by an interstate natural gas pipeline.”
“Although the court denies the petition on procedural grounds, the opinion puts to bed any suggestion that NEPA and the NGA do not permit FERC to seriously consider the GHG emissions caused by a pipeline,” Glick said.
The online legal blog Law360 headlined its account, “DC Circ. Puts FERC On Notice To Bulk Up Climate Reviews.” Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School, tweeted, “Pipeline opponents need to press FERC to obtain relevant information in pipeline proceedings. Then FERC must stop feigning ignorance on downstream and upstream emissions.”
Joining the decision where Chief Judge Merrick Garland and judges David Tatel and Robert Wilkins. Garland and Tatel are Clinton appointees and Wilkins an Obama appointee.
— Kennedy Maize