Judge Slams FERC’s Climate Review

Ellen M. Gilmer, E&E News reporter
Published: Tuesday, April 18, 2017

Photo by Bilfinger SE, courtesy of Flickr.

A panel of judges grilled the Federal Energy Regulatory Commission today on its approach to studying climate impacts from natural gas pipelines.

The case before the U.S. Court of Appeals for the District of Columbia Circuit centered on a project in the Southeast, but Judge Judith Rogers spent much of today’s oral arguments airing broader concerns about FERC’s typical treatment of downstream greenhouse gas emissions.

“FERC just doesn’t have to do its duty because it thinks someone else will,” she said, responding to the agency’s argument that many downstream impacts fall under the jurisdiction of other agencies.

The Sierra Club and other environmental groups filed the lawsuit last year, challenging FERC’s decision to issue certificates for the Southeast Market Pipelines Project, which includes the Florida Southeast, Hillabee Expansion and Sabal Trail projects.

The groups say FERC violated the National Environmental Policy Act by failing to adequately consider downstream climate impacts and the effects on environmental justice for communities along the project’s route.

Sierra Club attorney Elly Benson argued today that FERC had tools available to conduct the downstream greenhouse gas analysis — and was prodded by U.S. EPA to use them — but ultimately opted for a less-detailed approach.

“There’s no reason to not engage in reasonable forecasting,” she told the panel, which included Rogers, a Clinton appointee, and Judges Janice Rogers Brown and Thomas Griffith, both George W. Bush appointees.

FERC attorney Ross Fulton pushed back, noting that the agency conducted a more general downstream analysis that concluded 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.

“And the commission found that it could rely upon the plants being subject to federal and state air permitting processes for pertinent emissions and mitigation requirements and that these permitting bodies are best positioned to receive relevant air quality information,” FERC told the court in a brief earlier this year.

Moreover, he said, the agency determined that the linkage between the pipelines and the power plants was not direct enough to merit closer FERC review, as the commission has no control over how the natural gas is used.

Brown seemed receptive to that argument, but Rogers jumped on it, noting that contracts with end-users have already been signed. “When would FERC ever have enough information and enough certainty” to look more closely at downstream greenhouse gas emissions, she asked.

She also rejected the notion that the case was analogous to other D.C. Circuit decisions that held FERC had no obligation to conduct in-depth downstream analyses because other agencies held the keys to final approval. In last year’s EarthReports Inc. v. FERC, for example, the D.C. Circuit ruled that FERC was not required to consider indirect effects of increased liquefied natural gas exports from a FERC-licensed facility because the Department of Energy alone has authority to increase exports. In today’s case, Rogers said, FERC has final authority over the Southeast projects.

Griffith also appeared skeptical of FERC’s position, asking Fulton and counsel for industry intervenors why they were so resistant to the idea of attempting to quantify downstream emissions.

“It wouldn’t have been hard to do, right, with all that information available?” he asked Fulton.

Fulton responded that “it would not have been hard to do, but it would have been hard to do in a meaningfully informative way,” because it is difficult to estimate how much of the project’s natural gas would be used to replace coal in power plants.

The environmental groups are asking the court to vacate the certificates and remand to FERC.

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