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Six States Want FERC to Reconsider Course Shift on Environmental Reviews

FERC should set aside plans to limit climate reviews when considering natural gas pipeline project applications, according to a court filing by six states and the District of Columbia (DC).

The Federal Energy Regulatory Commission's split decision in May to deny a request for rehearing of its previous decision to issue a certificate of public convenience and necessity for Dominion Transmission Inc.'s New Market project should be remanded to FERC with instructions "to conduct an appropriate environmental review of the project," according to the brief  [No. 18-1188].

The FERC vote was 3-2, with the majority declaring that it would continue to take into account proposed pipelines' potential greenhouse gas (GHG) emissions, but not their impacts on natural gas production and consumption [CP14-497].

However, according to the filing in the U.S. Court of Appeals for the District of Columbia Circuit by the attorneys general of New York, Maryland, New Jersey, Oregon, Washington, Massachusetts and the District of Columbia, "FERC used an order on rehearing in an individual adjudicatory proceeding to announce a new policy to curtail its NEPA [National Environmental Policy Act] evaluation of greenhouse gas emissions from the vast majority of natural gas infrastructure projects under its jurisdiction.

"FERC's order on rehearing is inconsistent with its duty under NEPA to evaluate the 'reasonably foreseeable' environmental impacts of such projects and appears designed to stymie pubic input on how FERC should account for the dire consequences of climate change when deciding whether to approve such projects."

NEPA requires federal agencies to consider indirect impacts of projects. Since a 2017 decision by the DC circuit appeals court found that downstream GHG emissions from burning natural gas are indirect impacts, FERC has taken that requirement a step further, the majority said in the Dominion order issued in May.

In recent cases, FERC had provided "the public with information regarding the potential impacts associated with unconventional natural gas production and downstream combustion of natural gas, even where such production and downstream use was not reasonably foreseeable nor causally related to the proposals at issue." But that practice was coming to an end, FERC’s three Republican commissioners said.

The two Democrats on the Commission -- Cheryl LaFleur and Richard Glick -- voted against the order. LaFleur supported the original authorization of the New Market Project and both she and Glick said they might have voted for the order denying rehearing if not for the policy shift attached to it. A project's upstream and downstream natural gas production and consumption are indirect impacts that should be considered when reviewing applications, they said.

In July, the environmental group Otsego 2000 challenged the order, arguing that FERC "arbitrarily and capriciously" ignored its obligations under NEPA in deciding the fate of the New Market project. According to Otsego 2000, the court's 2017 ruling "left no ground for the Commission to shirk its obligations under NEPA, and yet that is precisely what the Commission majority has done..." The environmental group, joined by landowners John and Maryann Valentine, asked the court to set aside FERC's decision in May and its 2016 approval of the project, and to compel Commission to comply with the court's 2017 decision.

 

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