The D.C. Circuit Again Requires FERC to Consider the Environmental Impacts of Downstream Use of Gas: How Big a Deal Is It?

Last week, the District of Columbia Court of Appeals again rejected a FERC NEPA review for failure to assess the climate impacts resulting from the downstream use of natural gas supplied by a gas pipeline upgrade project approved by FERC.  The Court found that FERC was too quick to conclude that those downstream impacts could not reasonably be evaluated.

How big a deal is this?  I for one would not be trumpeting this decision as another nail in the coffin of natural gas.  I do think, though, that the decision provides some important practice tips, both for FERC and for citizens’ groups looking to appeal FERC decisions.

Here are my principle takeaways:

  • This is not the end of FERC approvals of natural gas infrastructure.  The Court remanded to FERC without vacating its decision.  The Court found that:

after adequately accounting for foreseeable downstream greenhouse-gas emissions, the Commission could arrive at the same finding of no significant impact.

  • The Court may not be happy with FERC, but it is still strictly enforcing standing requirements.  Importantly, the Court made clear that one citizen plaintiff should not rely on arguments made by another citizen plaintiff – because if that other plaintiff is found not to have standing, those arguments basically just go away.
  • The Court rejected the petitioners’ arguments regarding FERC’s failure to consider the upstream impacts of the project.  The Court did indicate a willingness to consider those issues in the right case.  However, in another practice tip, the Court declined to consider petitioners’ argument regarding upstream impacts, because they had “failed to identify any particular flaws in the Commission’s approach to upstream impacts.”  Citizens groups – remember to plead your claims with specificity.

The bottom line?  In the right case, if pled properly, the Court is going to ensure that FERC adequately assess the climate impacts of gas pipelines.  Nonetheless, FERC can assess those impacts in ways that will satisfy the Court and still issue licenses for such pipelines.

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