Appalachian Voices v. Federal Energy Regulatory Commission

In an unpublished judgment, the D.C. Circuit Court of Appeals denied petitions for review of FERC’s approval of the Mountain Valley natural gas pipeline, which would extend 300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.

The Federal Energy Regulatory Commission (FERC) filed a brief in the D.C. Circuit defending its review of the Mountain Valley Pipeline, a natural gas pipeline extending from West Virginia to Virginia. FERC argued that its consideration of downstream greenhouse gas emissions was reasonable. In particular, FERC contended that end-use greenhouse gas impacts were not an indirect impact of the project; that it was reasonable to determine that FERC could not assess the significance of downstream emissions; that it was reasonable to decline to use the social cost of carbon tool; that FERC reasonably declined not to consider downstream emissions in its public interest analysis under the Natural Gas Act; and that FERC relied on record evidence to support its determination that a no-action alternative would not decrease natural gas consumption or greenhouse gas emissions. FERC also defended other aspects of its decision-making from claims under the National Historic Preservation Act, the Natural Gas Act, Section 4(f) of the Department of Transportation Act, and the takings and due process clauses of the Constitution.

On September 4, the petitioners filed a joint opening brief. Their arguments include that the Federal Energy Regulatory Commission (FERC) failed to adequately analyze downstream greenhouse gas effects in its review of the project pursuant to the National Environmental Policy Act (NEPA) and that FERC’s refusal to weigh such impacts in its public interest determination violated the Natural Gas Act. The brief said FERC had estimated the downstream greenhouse gas emissions associated with burning 2.0 billion cubic feet of gas per day but had incorrectly concluded that downstream effects were outside the scope of its NEPA analysis and had refused to use the social cost of carbon to evaluate the downstream impacts.

On August 30, 2018, the D.C. Circuit Court of Appeals denied motions to stay work on the Mountain Valley Pipeline, a gas pipeline extending 303.5 miles from West Virginia to Virginia. The D.C. Circuit said the petitioners had not satisfied the stringent requirements for a stay pending court review.

On January 26, 2018, FERC filed a motion to dismiss the petitions for lack of jurisdiction. FERC argued that the challenged order was not final and that the petitions were "incurably premature" because requests for rehearing, including requests filed by the petitioners, remained pending.

Environmental groups filed lawsuits in the D.C. Circuit Court of Appeals challenging the Federal Energy Regulatory Commission’s (FERC’s) order authorizing the Mountain Valley Pipeline, a 303.5-mile gas pipeline extending from West Virginia to Virginia. On January 8, 2018, the environmental groups filed a separate proceeding pursuant to the All Writs Act seeking a writ staying FERC’s order until FERC ruled on the merits of a pending request for rehearing. The groups said FERC had developed “a troubling pattern of preventing parties … from appealing FERC’s orders until much (if not all) of a pipeline is complete, thereby depriving petitioners of effective means of protecting their property and environmental interests and effectively depriving courts of their jurisdiction to review FERC orders.” The groups also filed motions for stays pending the D.C. Circuit’s review of FERC’s actions. The groups contended that they had demonstrated a high likelihood of success on the merits of their claims that FERC did not have sufficient evidence of market demand to support a finding of public convenience and necessity pursuant to the Natural Gas Act and had violated NEPA by, among other things, failing to adequately consider the pipeline’s climate impacts.