Dive Brief:
- Federal regulators' decision to restrict the consideration of climate impacts in pipeline reviews is facing multiple challenges, including a petition for review filed by an environmental nonprofit in the U.S. Court of Appeals for the D.C. Circuit.
- In May, the Federal Energy Regulatory Commission issued a 3-2 decision to restrict the consideration of climate change impacts in its environmental assessments for new natural gas pipeline projects.
- Environmental and historic preservation group Ostego 2000 filed its petition with the federal appellate court on Monday; New York Attorney General Barbara Underwood last week sent a letter to FERC saying the decision is "procedurally and substantively wrong" and called on the commission to disavow it.
Dive Insight:
FERC's controversial decision will face a legal challenge, with Ostego 2000 pointing to a previous decision by the court. In June 2016, Sierra Club sued FERC for failing to consider a range of greenhouse gas impacts of the Southeast Market Pipelines Project, known as Sabal Trail.
Ultimately, the D.C. Circuit decided last year that FERC must consider GHG impacts in its pipeline reviews.
“There is no doubt that FERC has the ability and the duty to consider climate impacts before approving pipeline projects," Nicole Dillingham, board president of Ostego 2000, said in a statement. "Its refusal to do so, and assertion that this policy will be applied in all pending and future pipeline reviews, is factually and legally flawed. This action must be reversed.”
New York AG Underwood made a similar argument.
FERC violated the Administrative Procedure Act when it "improperly grafted a major policy change onto its fact-based resolution of a rehearing petition brought by just one party, thus minimizing the opportunity for affected parties to challenge — or even comment upon — the change," she wrote in her letter to the commission.
The decision "appears designed to avoid judicial review of the FERC majority’s decision," she concluded.
The split on the commission has grown more apparent since the May decision to restrict consideration of climate impacts. Commissioner Cheryl LaFleur last month said she will consider the broad climate impacts of new natural gas infrastructure when voting on whether to approve new projects.
FERC's May decision was a 3-2 vote along party lines, meaning LaFleur's dissent would be unlikely to change commission decisions. That will soon change, at least temporarily, when Commissioner Robert Powelson steps down next month, giving Democrats the ability to deadlock FERC decisions until his replacement is confirmed.
