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Court Rejects FERC EIS, Orders Another for Trio of Southeast NatGas Pipelines

A divided federal appeals court sided with the Sierra Club on Tuesday, agreeing with an assertion that an environmental impact statement (EIS) by FERC over the proposed Southeast Market Pipelines (SMP) Project failed to adequately consider the impact of greenhouse gas (GHG) emissions.

Two judges on a three-judge panel with the U.S. Court of Appeals for the District of Columbia Circuit remanded the case back to the Federal Energy Regulatory Commission, and ordered the Commission to prepare a new EIS for the project. The appellate case is Sierra Club et al v. FERC [No. 16-1329].

"We conclude that the EIS for SMP should have either given a quantitative estimate of the downstream GHG emissions that will result from burning the natural gas that the pipelines will transport, or explained more specifically why it could not have done so," wrote Judges Thomas Griffith and Judith Rogers. "As we have noted, GHG emissions are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate.

"The EIS accordingly needed to include a discussion of the 'significance' of this indirect effect, as well as 'the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.'"

FERC issued favorable a final EIS for SMP, composed of the Sabal Trail Transmission LLC project, the Hillabee Expansion and Florida Southeast Connection projects, in December 2015. SMP would provide about 1.1 Bcf/d of gas to markets in Florida and the Southeast. The project calls for building 685.5 miles of pipeline and six new compressor stations, as well as modifying existing compressor stations in Alabama, Florida and Georgia. Sabal is a joint venture of Spectra Energy Partners LP, NextEra Energy Inc. and Duke Energy.

Court records show the three judges on the panel rejected the Sierra Club's argument that FERC failed to consider the project's impact to low-income and minority communities, or that the proposed Sabal Trail pipeline used an invalid methodology to calculate its service rates. The court also rejected assertions by landowners that FERC violated the Government in Sunshine Act, among other things.

Judge Janice Rogers Brown dissented on the GHG aspect of the ruling. "While the court concludes FERC's approval of the proposed pipelines will be the cause of GHG emissions because a significant portion of the natural gas transported through the pipeline will be burned at power plants, the truth is that FERC has no control over whether the power plants that will emit these GHG will come into existence or remain in operation.”

"Today, the D.C. Circuit rejected FERC's excuses for refusing to fully consider the effects of this dirty and dangerous pipeline," Sierra Club Staff Attorney Elly Benson said of the 515-mile Sabal Trail pipeline. "Even though this pipeline is intended to deliver fracked gas to Florida power plants, FERC maintained that it could ignore the GHG pollution from burning the gas.

"For too long, FERC has abandoned its responsibility to consider the public health and environmental impacts of its actions, including climate change. Today's decision requires FERC to fulfill its duties to the public, rather than merely serve as a rubber stamp for corporate polluters' attempts to construct dangerous and unnecessary fracked gas pipelines."

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