A Full Trip Around the Sun, Yet EJ Remains Eclipsed at FERC
Exactly one year after the Federal Energy Regulatory Commission (FERC) held its March 29, 2023, Roundtable on Environmental Justice and Equity in Infrastructure Permitting, the D.C. Circuit issued a decision affirming FERC’s broad authority in pipeline matters. A strange coincidence, as gas pipelines were a key topic at last year’s Roundtable, where advocates asked that community engagement be accompanied by meaningful changes in processes and highlighted how agency practices present barriers to community engagement. Panelists also pressed for the vacant seat at FERC (there was only one at the time) to be filled by someone with a strong EJ commitment. Now, there are more vacancies on the Commission, and pushing for these reforms remains crucial.
The court’s March 29, 2024, decision in Sierra Club v. FERC held that “FERC enjoys broad discretion” when it considers requests by pipeline companies to extend their timeline to put a project into service. However, the D.C. Circuit has previously offered course corrections to FERC in pipeline cases, and FERC still faces legal vulnerability with its current approach. Al Huang, a panelist at the 2023 Roundtable, recently called on FERC to issue “comprehensive guidance … to aid both FERC and permit applicants, and increase the legal durability of the Commission’s decisions.”
Other panelists from the Roundtable issued statements on the one year anniversary that were critical of the Commission’s progress. John Beard of the Port Arthur Community Action Network said, “The lack of progress is unacceptable.” Dana Johnson of WE ACT for Environmental Justice observed that the Roundtable had seemingly become “a checked-box,” which she had cautioned FERC against in her remarks a year ago. Roishetta Sibley Ozane of The Vessel Project of Louisiana lamented that “FERC has continued to approve harmful projects and perpetuate procedural injustice.” Ms. Ozane commented on the recent Senate committee hearing of three FERC nominees that the failure to name environmental justice at the hearing and the approach to gas infrastructure painted “a bleak future.”
In a letter filed with FERC (also on the one year anniversary of the Roundtable), NRDC, WE ACT, the Center for Oil and Gas Organizing, and other organizations urged FERC to make good on its commitments to develop guidance documents to meaningfully incorporate EJ into its procedures and policies. The letter notes that FERC has been largely silent on the gas pipeline policy statement docket, where reforms have been pending in draft form for over two years. FERC initiated an inquiry into its approach to gas infrastructure in 2018, asking about possible updates to its 1999 policy statement. In 2021, FERC requested comment on the policy statement to specifically seek stakeholder perspectives on adverse health or environmental effects of FERC’s activities on EJ communities. FERC issued a new policy statement in 2022, but, a month later, designated it as a “draft” rather than a “final” document.
FERC has a lot on its plate across its areas of electric and gas responsibility, including transmission planning and cost allocation, pipeline certificates, and extreme weather. FERC must incorporate EJ and equity across all of its work. As Shalanda Baker told FERC at the 2023 Roundtable: “Imagine being in a community that has a transmission line running through it, but that community itself has irregular access to energy.” The Commission has asked many important questions in the Roundtable, its pipeline policy statement docket, and other proceedings, which stakeholders have meticulously answered, even when redundant. There is a lot happening at the Commission, but FERC could get on track to make these key reforms.