Dive Brief:
- The Biden Administration is fighting to uphold a pause on the permitting of new liquefied natural gas export facilities. A district court judge placed an injunction on the measure in July, and the administration filed its appeal on Monday.
- While a judge dismissed 11 of the 16 charges raised by the 15 states challenging the pause, the administration was prohibited from halting or pausing the approval process for other LNG exports until the case is either resolved or further orders are issued from the district court or a higher court, according to court documents.
- The temporary pause was announced by the administration in January, to allow the Department of Energy to update the underlying environmental and economic analyses for their authorizations.
Dive Insight:
The administration's pause was challenged by a coalition of states: Alabama, Alaska, Arkansas, Florida, Georgia, Kansas, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Texas, West Virginia and Wyoming.
The July 1 order dismissed claims that the export ban is contrary to the law, not authorized by statute, is unconstitutional and delays agency action. The court also dismissed the states’ claims that the ban violates the Administrative Procedure Act’s notice-and-comment requirements and multiple claims that the ban is arbitrary and capricious.
District Court Judge James Cain Jr. dismissed the 11 charges with prejudice, denying plaintiffs the opportunity to raise the same claims again.
Among the dismissed claims of arbitrary and capriciousness, included charges that the ban went against a prior agency decision; was unreasoned; is an “unexplained departure from longstanding policy;” fails to “consider important aspects of the problem” or alternatives within previous policy; and fails to consider reliance interests.
The remaining charges include claims the ban violates the Congressional Review Act; that President Biden’s proclamation and the actions of the Energy Department and its officials were beyond their authority; and that the ban is arbitrary and capricious because there are conflicting explanations and that the administration failed to conduct a cost-benefit analysis.
The Aug. 5 appeal will look to reinstate the LNG pause and dismiss the rest of the charges in their entirety. In addition to listing President Biden as a defendant in his capacity as president, Energy Department officials, including Secretary Jennifer Granholm, Deputy Secretary David Turk, Under Secretary Geri Richmond, Assistant Secretary Brad Crabtree and Office of Fossil Energy and Carbon Management Director Amy Sweeney are named as defendants.
Despite the pause in new export facilities, it is expected that U.S. LNG exports will continue to rise. The nation had an operating export capacity of 11.4 billion cubic feet per day, with 7.3 billion cubic feet per day of capacity under construction and 18.3 billion cubic feet per day of capacity fully permitted as of 2023, according to the Energy Information Administration. EIA estimated that the U.S. will have the capacity to export nearly 50 billion cubic feet per day of LNG by 2050.
