Delaware Riverkeeper Network v. Federal Energy Regulatory Commission

The D.C. Circuit Court of Appeals denied a petition for review challenging the Federal Energy Regulatory Commission’s (FERC’s) approval of the Adelphia Gateway Project, which involved acquisition of an existing pipeline system in Pennsylvania and Delaware and construction of short lateral pipeline segments and facilities to operate the pipeline. The court rejected contentions that FERC’s analysis of environmental impacts was deficient, including arguments related to the evaluation of the project’s impacts on greenhouse gas emissions and climate change. First, the court found that the petitioners had not identified evidence that would undermine FERC’s conclusion that upstream effects such as new natural gas wells to meet the pipeline’s increased capacity were not reasonably foreseeable. Second, the court found that FERC’s “reasoning was sound” when it concluded that downstream greenhouse gas emissions were not reasonably foreseeable because FERC could not identify the end users. The court cited its precedent that rejected the contention that downstream combustion emissions are reasonably foreseeable impacts of pipeline projects as a categorical matter. Third, the court found that the petitioners had failed to raise before FERC their argument that National Environmental Policy Act (NEPA) regulations required use of the Social Cost of Carbon. The court also rejected other arguments under NEPA, as well as claims regarding the market need for the project and regarding preemption of state and local action.