Catskill Mountainkeeper, Inc. v. Federal Energy Regulatory Commission

The Second Circuit Court of Appeals granted the Federal Energy Regulatory Commission’s (FERC’s) motion to dismiss as moot petitions for review challenging the now-defunct Constitution Pipeline, which would have carried natural gas between Pennsylvania and New York. The developer canceled the project in 2020, and FERC’s authorization for the pipeline lapsed in December 2020. The lawsuits that the Second Circuit found to be moot challenged FERC’s certificate of public convenience and necessity for the project and also FERC’s later determination that New York waived its water quality certification authority under Section 401 of the Clean Water Act.

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In their reply brief, four environmental groups argued that FERC should have considered the impacts of increased gas production because the pipeline would be the “legally relevant cause” of such upstream impacts and impacts were reasonably foreseeable. The groups also reiterated their arguments that FERC’s evaluation of greenhouse gas emissions did not comply with NEPA.

FERC and proponents of the Constitution Pipeline Project filed briefs defending FERC’s environmental review of the project, which includes a 124-mile natural gas pipeline between Pennsylvania and New York and associated facilities. The briefs also defended FERC’s compliance with the Natural Gas Act and the Clean Water Act. FERC argued that the National Environmental Policy Act (NEPA) did not require it to consider potential impacts from increases in natural gas production and that it had “reasonably analyzed” the pipeline project’s greenhouse gas emissions. FERC said it had explained its exclusion from emissions calculations of alleged loss of carbon sinks, that it had not improperly rejected the significance of the project’s potential emissions based on a comparison to total U.S. greenhouse gas emissions, and that it was not required to assess the project’s incremental contribution to climate change. FERC also said that it had not impermissibly segmented its review of the Constitution Pipeline Project from consideration of the impacts of other pipeline proposals. Three intervening parties—the pipeline project’s developer, the owner and operator of an existing pipeline system to which the Constitution Pipeline would connect, and the Natural Gas Supply Association—also filed briefs defending FERC’s authorizations of the pipeline, including FERC’s consideration of greenhouse gas and climate change impacts.

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The Second Circuit Court of Appeals denied a request to stay construction activity associated with the development of the Constitution Pipeline Project, a natural gas transmission line that would travel through Pennsylvania and New York. The stay was sought by Clean Air Council and Sierra Club, two of the five petitioners that have asked the Second Circuit to review orders of the Federal Energy Regulatory Commission (FERC) approving the project and authorizing it to proceed. In their memorandum of law supporting the request for the stay, the petitioners contended that FERC violated the National Environmental Policy Act by failing to consider the project’s indirect impacts, and particularly impacts of natural gas development induced by the project. They also contended, among other arguments, that FERC’s analysis of cumulative impacts did not capture harms from additional greenhouse gas emissions and that FERC’s approval of the project violated the Clean Water Act.

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