In a split opinion, the D.C. Circuit Court of Appeals found that the environmental impact statement (EIS) prepared by the Federal Energy Regulatory Commission (FERC) for the Southeast Market Pipelines Project did not contain enough information on the greenhouse gas emissions that would result from combustion of the gas that the project would carry. When completed, the project—which comprises three interstate natural-gas pipelines in the southeastern United States—would be able to carry one billion cubic feet of natural gas per day. The D.C. Circuit concluded that “at a minimum, FERC should have estimated the amount of power-plant carbon emissions that the pipelines will make possible” because it was reasonably foreseeable that the transported gas would be burned in Florida power plants. The court distinguished its conclusion in earlier cases that FERC had no legal authority to consider the environmental effects of natural gas that would be exported from the liquefied natural gas (LNG) facilities it authorized. The D.C. Circuit said that while FERC was forbidden from relying on the environmental effects of gas exports as a justification for denying an upgrade license for an LNG facility, FERC’s authority over pipelines permitted FERC to deny a pipeline certificate on the ground that it would be too harmful to the environment. The D.C. Circuit also was not persuaded by FERC’s “practical objection” regarding the impossibility of knowing “exactly what quantity of greenhouse gases will be emitted as a result of this project being approved.” The court said FERC should have either made a quantitative estimate of downstream greenhouse gas emissions or “explained more specifically” why it could not do so. The court also indicated that the fact that downstream emissions might be offset by reductions elsewhere (from the retirement of coal-fired plants, for example) did not excuse FERC from making emissions estimates. In response to petitioner Sierra Club’s argument that FERC should use the Social Cost of Carbon to convert emissions estimates to concrete harms, the D.C. Circuit directed FERC to explain in the EIS whether it would adopt the position it took in the EIS for an LNG terminal that the Social Cost of Carbon was not useful for purposes of environmental review under the National Environmental Policy Act. In addition to its holdings regarding FERC’s greenhouse gas emissions analysis, the D.C. Circuit also determined as a threshold matter that the petitioners had standing to challenge all three segments of the pipeline project, not just the segment alleged to have caused an injury-in-fact and upheld other aspects of FERC’s environmental review. Judge Janice Rogers Brown dissented on the issue of downstream emissions, writing that in her view such emissions did not need to be considered because FERC did not control whether the greenhouse gas emissions would occur.

Challenge to FERC approvals for natural gas pipeline from Alabama to Florida.


Sierra Club v. Federal Energy Regulatory Commission

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D.C. Circuit Said FERC Needed to Provide More Information on Pipelines’ Downstream Greenhouse Gas Emissions—Or Explain Why It Couldn’t

Filed

United States of America

District of Columbia

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D.C. Circuit Said FERC Needed to Provide More Information on Pipelines’ Downstream Greenhouse Gas Emissions—Or Explain Why It Couldn’t

Policy instrument

Risk

Impacted group

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance