EarthReports, Inc. (dba Patuxent Riverkeeper) v. Federal Energy Regulatory Commission

The D.C. Circuit Court of Appeals upheld the Federal Energy Regulatory Commission’s (FERC’s) environmental review for the conversion of the Cove Point liquefied natural gas (LNG) facility in Maryland from an import terminal to a facility that could both import and export LNG. Citing its June 28 decision in Sierra Club v. FERC, No. 14-1275, which concerned FERC authorizations for an LNG export terminal in Texas, the D.C. Circuit reiterated that FERC was not required to consider the indirect effects, including climate impacts, of increased natural gas exports through facilities authorized by FERC. The D.C. Circuit said that the Department of Energy alone had legal authority to authorize increased export of LNG and that FERC’s actions therefore were not the “legally relevant cause” for such effects. The D.C. Circuit said that while its earlier decision and a companion decision regarding a Louisiana LNG facility did not address emissions from the transport and consumption of exported gas, FERC authorizations were also not the cause of such effects. The D.C. Circuit noted that petitioners remained free to raise these issues in a challenge to the DOE’s authorization for the export of LNG from the Cove Point facility. (In June, a petitioner in this case, Sierra Club, filed a petition for review of DOE’s export authorization (Sierra Club v. Department of Energy, No. 16-1186 (D.C. Cir.).) The D.C. Circuit also found that the petitioners had not supported their argument that FERC’s failure to use the federal social cost of carbon in its analysis of environmental impacts was unreasonable.

The D.C. Circuit declined to place an emergency stay on the Federal Energy Regulatory Commission’s approval of the Dominion Cove Point liquefied natural gas (LNG) facilities in Maryland, or to expedite briefing. The court said that the petitioners had not satisfied the stringent requirements for a stay pending court review or articulated strongly compelling reasons for expediting briefing.

The D.C. Circuit declined to place an emergency stay on the Federal Energy Regulatory Commission’s approval of the Dominion Cove Point liquefied natural gas (LNG) facilities in Maryland, or to expedite briefing. The court said that the petitioners had not satisfied the stringent requirements for a stay pending court review or articulated strongly compelling reasons for expediting briefing.

On May 6, 2015, environmental groups filed a petition for review in the D.C. Circuit Court of Appeals.

On May 4, 2015, FERC denied the requests for rehearing. In denying the rehearing requests, FERC concluded, among other things, that it was not required to consider the impacts of production activities in the Marcellus Shale region because they were not sufficiently causally related to constitute indirect effects of the Cove Point project. FERC also affirmed its finding “that impacts from additional shale gas development supported by LNG export projects are not reasonably foreseeable.” FERC also stood by its consideration of the project’s direct greenhouse gas emissions and said that it was not required to consider air emissions and climate change impacts of such emissions from the transportation and ultimate consumption of gas exported from the Cove Point project. FERC rejected the contention that it had not adequately considered potential climate change