Dive Brief:
- The Federal Energy Regulatory Commission on Tuesday asked a federal court to hold off issuing a formal version of a ruling that could interrupt construction of a $3.5 billion pipeline project.
- FERC asked the U.S. Court of Appeals for the District of Columbia Circuit to delay for 45 days issuing a formal mandate on a recent decision that invalidated the agency's carbon accounting for the Southeast Market Pipelines Project. The court is expected to issue its mandate Wednesday, which would put the project on hold.
- FERC says the delay would allow it to issue a new order granting construction certificates for the pipelines, and that electric reliability could be threatened if they are put on hold. Duke Energy filed at FERC asking it to issue that order soon, while environmentalists pushed the agency to halt the project.
Dive Insight:
FERC's Tuesday request at the D.C. Circuit comes after a series of legal moves that threaten to halt construction of the Southeast Market project and its 515-mile Sabal Trail Pipeline.
In August, the D.C. Circuit rejected FERC's approach to assessing the climate impacts of the pipelines, writing it should have given a "quantitative estimate" of the greenhouse gas effects, or explain better why it cannot.
The court affirmed that decision last Wednesday, refusing to review the ruling and directing FERC to update its environmental analysis of the pipeline to include climate impacts. That decision would invalidate construction permits FERC issued for the pipelines once the D.C. Circuit issues its formal mandate, expected Feb. 7, a week from the ruling.
FERC on Monday issued its final supplemental environmental impact statement (SEIS) on the pipeline, arguing it cannot judge whether the climate impacts of the project will be significant or not. That move would allow FERC to re-issue the construction certificates, and the pipeline owners pushed for that "order on remand" in a Feb. 2 filing.
FERC, however, said it "can't speculate" when that order will come, and on Tuesday asked the D.C. Circuit for 45 more days to finalize it.
"The Commission intends, within 45 days, to issue an order on remand regarding the pipeline projects, in compliance with the Court’s mandate," FERC wrote. "The Commission therefore requests that the mandate be stayed for this short period."
If the D.C. Circuit denies the request, FERC warns it could threaten reliable electricity service to Florida, where the Sabal Trail pipeline would end.
"Immediate vacatur would revoke the certificates of public convenience and necessity for the projects at issue – pipelines that are currently providing natural gas to power plants in Florida," FERC wrote. "Without such certificates, the pipelines would have to cease operating, at least temporarily."
Such a decision, FERC argues, would be at "odds with the Court’s affirmance of the Commission’s finding that there is a demonstrated need for these pipeline projects."
A delay in the order on remand could give environmental interests more time to formulate their response to the new SEIS. The Sierra Club on Monday called on FERC to wait at least 30 days after publishing the environmental analysis to issue any new certificates. It and other groups have already filed with FERC asking it to reject the request for an order on remand, and will likely file a separate lawsuit to challenge the SEIS's conclusion that climate impacts of the pipelines cannot be determined.
"We know where the gas is going, and we know the current and future proposed power plants that it could feed," said Kelly Martin, director of the Sierra Club's Beyond Dirty Fuels campaign. "It is pretty standard to be able to account for the climate impacts from a power plant."
