States Chime in During D.C. Circuit Review of FERC Pipeline Permitting Policy

On December 3, 2018, several states filed an amicus brief urging the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) to vacate an order issued by FERC that announced a shift in policy limiting the Commission’s review of greenhouse gas impacts during pipeline permitting.

In 2016, FERC approved a proposed pipeline project in upstate New York that would increase capacity to flow Marcellus Shale gas into the northeastern markets, finding that the project would not significantly affect the environment. A request for rehearing was filed arguing, among other things, that FERC failed to evaluate the upstream and downstream impacts of the pipeline project as required by the National Environmental Policy Act (“NEPA”).

FERC denied that request for rehearing (see May 29, 2018 edition of the WER) and signaled that it would no longer evaluate or consider upstream and downstream greenhouse gas emissions caused by the natural gas infrastructure projects it reviews. Although FERC conceded that it had considered such effects for a short time, the order explained that doing so went beyond NEPA’s requirements because the upstream and downstream greenhouse emissions were too uncertain to warrant review. Petitioners appealed, claiming that FERC is refusing to undertake the very type of evaluation of project emissions that it has been ordered to do by the D.C. Circuit in Sierra Club v. FERC (see October 2, 2017 edition of the WER).

The attorneys general for several states lent their support to petitioners with an amicus brief. In the amicus brief, New York, Maryland, New Jersey, Oregon, Washington, Massachusetts and the District of Columbia (collectively, “amici States”) argue that FERC’s order has both substantive and procedural deficiencies that require it to be vacated. Substantively, the amici States contend that the project’s upstream and downstream greenhouse gas emissions are not too uncertain to warrant NEPA review, as FERC had argued, and that FERC should have requested more information from the applicants rather than determine there was insufficient evidence in the record. Procedurally, the amici States claim that FERC has abused its discretion to set new policy during an adjudication, because it will stymie public participation in a separate FERC proceeding underway that will address this issue.

This case has not yet been scheduled for oral argument. A copy of the amicus brief is available here.