Evans v. Federal Energy Regulatory Commission

The D.C. Circuit Court of Appeals granted the Federal Energy Regulatory Commission’s (FERC’s) unopposed motion to dismiss proceedings challenging the Jordan Cove LNG Terminal and Pacific Connector Pipeline in Oregon and remand the record to FERC. As requested by FERC, the court ordered FERC to vacate authorizations for the project, consistent with FERC’s December 16, 2021 order, which vacated the authorizations subject to leave of the D.C. Circuit after the project’s developers informed FERC that they had decided not to move forward with the project because they had been unable to obtain necessary state authorizations.

On November 1, 2021, the D.C. Circuit Court of Appeals remanded the record to FERC for consideration of whether to impose a stay of a pipeline certification authorization related to the Jordan Cove liquefied natural gas export terminal in Oregon. The D.C. Circuit took this step after the project’s developers represented during oral argument that they were “reassessing” the project. On December 1, 2021, the developers notified FERC that they had decided not to move forward with the project due to concern “regarding their ability to obtain the necessary state permits.” They asked FERC to vacate its authorizations.

FERC filed its merits brief, arguing that it had complied with the National Environmental Policy Act, including with respect to the analysis of greenhouse gas emissions. FERC also argued that the petitioners did not have standing and that the challenges were not ripe for review since it was not clear the project would proceed. FERC also argued that it appropriately found that the pipeline portion of the project would service the public convenience and necessity under Section 7 of the Natural Gas Act and that its conditional authorizations for the project were lawful.

The developers of the Jordan Cove Liquefied Natural Gas (LNG) Project moved to suspend merits briefing and hold cases challenging the Federal Energy Regulatory Commission’s (FERC) authorization of the project in abeyance. The developers argued that abeyance was warranted to allow the developers to assess the impact of recent regulatory decisions under the Clean Water Act and Coastal Zone Management Act that would prevent the project from commencing.

Environmental groups, tribes, and landowners filed petitions for review in the D.C. Circuit Court of Appeals challenging Federal Energy Regulatory Commission (FERC) orders authorizing the Jordan Cove liquefied natural gas (LNG) export terminal, associated facilities, and a natural gas pipeline system in Oregon. Issues raised before FERC included the projects’ impacts on greenhouse gas emissions and climate change, including whether FERC used outdated global warming potentials; whether FERC adequately considered indirect, cumulative, and connected greenhouse gas emissions; whether FERC appropriately assessed the significance of the projects’ emissions; whether FERC should have required measures to mitigate greenhouse gas emissions; and how FERC should consider the projects’ contribution to climate change in the Natural Gas Act public interest analysis. The projects’ developers filed their own petition challenging the FERC approvals.