Appalachian Voices v. Federal Energy Regulatory Commission

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In an unpublished judgment, the D.C. Circuit Court of Appeals denied petitions for review of FERC’s approval of the Mountain Valley natural gas pipeline, which would extend 300 miles from West Virginia to Virginia. The court found that FERC’s conclusion that there was a market need for the project was reasonable and supported by substantial evidence. The court rejected the contention that the climate change impacts of downstream combustion were not adequately considered. The court found it unnecessary to consider the petitioners’ argument that FERC had improperly concluded that the downstream emissions were not reasonably foreseeable impacts of the project because FERC had “provided an estimate of the upper bound of emissions resulting from end-use combustion” and given “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 [the National Environmental Policy Act (NEPA)] or the Natural Gas Act.” The D.C. Circuit noted that the petitioners neither proffered an alternative tool for assessing incremental climate impacts of downstream emissions nor countered all of FERC’s reasons for not using the Social Cost of Carbon tool. The court also rejected the petitioners’ other NEPA and Natural Gas Act arguments as well as Takings Clause, due process, and National Historic Preservation Act challenges.

Four trade groups filed an amicus brief that defended FERC’s determinations regarding the scope of the review of greenhouse gas emissions.

Interstate Natural Gas Association of America filed its own amicus brief that also defended the analysis of greenhouse gas emissions and climate change.

A divided Federal Energy Regulatory Commission (FERC) denied rehearing of its order authorizing construction and operation of the Mountain Valley Pipeline Project in West Virginia and Virginia and a related project that would connect to Pennsylvania. Among the arguments rejected by the majority of FERC commissioners were that FERC should have evaluated whether energy demands could be met with “non-transportation alternatives” such as energy conservation or renewable energy resources, that FERC failed to adequately analyze the climate change impacts of the end use of natural gas transported by the project, and that FERC’s consideration of climate change in the context of evaluating the public interest under Section 7 of the Natural Gas Act (NGA) was inadequate. The FERC majority said greenhouse gas emissions from the downstream use of natural gas did not fall within the definition of indirect impacts or cumulative impacts, and also concluded that the Social Cost of Carbon tool could not meaningfully inform decisions on natural gas transportation infrastructure projects under the NGA. FERC said it continued to believe the Social Cost of Carbon tool was “more appropriately used by regulators whose responsibilities are tied more directly to fossil fuel production or consumption.” Two commissioners wrote dissents, both of which were critical of FERC’s decisions to restrict its consideration of projects’ impacts on climate change.