Environmental Defense Fund v. Federal Energy Regulatory Commission

On September 7, 2021, the D.C. Circuit Court of Appeals denied respondent-intervenors’ petitions for panel rehearing and rehearing en banc of the court’s June 2021 decision vacating Federal Energy Regulatory Commission orders authorizing a natural gas pipeline in the St. Louis area.

The D.C. Circuit vacated Federal Energy Regulatory Commission (FERC) orders authorizing a natural gas pipeline in the St. Louis area. The court concluded that FERC acted arbitrarily and capriciously because FERC “declined to engage with” Environmental Defense Fund’s arguments and underlying evidence regarding self-dealing by the applicant and the affiliate with which the applicant entered into a “precedent agreement” for pipeline capacity. The D.C. Circuit further found that in determining that the pipeline was required by public convenience and necessity, FERC engaged in only a “cursory balancing” of public benefits and adverse impacts and that this balancing was therefore arbitrary and capricious. The D.C. Circuit did not address arguments regarding the adequacy of FERC’s environmental review of the project, including FERC’s treatment of climate change, because the court found that the individual petitioner who asserted National Environmental Policy Act claims did not have standing. The court said the petitioner’s “alleged aesthetic injuries reflect nothing more than generalized grievances,” that her allegations regarding traffic hazards did not meet her causation burden, and that alleged construction-related injuries were not redressable because construction was complete. An analysis of the case by Sabin Center Senior Fellow Jennifer Danis is available on the <a href="http://blogs.law.columbia.edu/climatechange/2020/06/05/jennifer-danis-joins-the-sabin-center-as-new-senior-fellow/">Climate Law Blog</a>.