The Court of Appeals for the District of Columbia Circuit recently ruled that the Federal Energy Regulatory Commission (FERC) did not properly analyze the potential climate impact from burning natural gas when approving the Southeast Market Pipelines Project last year. Specifically, the Court found that FERC did not adequately evaluate the greenhouse gas emissions from power plants to be served by the natural gas pipeline in the project’s Environmental Impact Statement (EIS), pursuant to the requirements set forth in the National Environmental Policy Act (NEPA). The Court’s decision overturns the project’s federal approval and returns the issue to FERC to complete the necessary greenhouse gas analysis (Sierra Club et al. v. FERC, August 22, 2017, page 35).
Judge Thomas Griffith wrote the decision for the three judge panel, stating that the EIS for the project “should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so,” and that “greenhouse-gas emissions are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate” (Sierra Club et al. v. FERC, August 22, 2017, page 24).
Judge Griffith was joined in the opinion by Judge Judith Ann Wilson Rogers. Judge Janice Rogers Brown dissented from the ruling, arguing that FERC does not have the authority to take action to reduce the greenhouse gas impact of pipelines it approves, and thus is not obligated to analyze some impacts, stating “[t]he truth is that FERC has no control over whether the power plants that will emit these greenhouse gases will come into existence or remain in operation” (Sierra Club et al. v. FERC, August 22, 2017, Dissent, page 3). Industry experts believe the opinion will likely be appealed, either for an en banc hearing of the D.C. Circuit Court, or to the Supreme Court.
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