Looking (at Climate Impacts) Before Leaping (to Expand a Pipeline)

In two weeks, the D.C. Circuit will hear oral argument on a controversial natural gas pipeline project which is supposed to add 36 miles of new pipeline, as well as infrastructure, in Pennsylvania, New Jersey, and Maryland. The project proponent, Transcontinental Gas Pipe Line Company, or “Transco,” claimed in its application to the Federal Energy Regulatory Commission (FERC) that the project would promote reliability and diversify energy infrastructure, but states and several environmental groups have opposed the project, saying that it is unnecessary and that it threatens significant environmental and climate harms.

FERC approved this project, known as the Regional Energy Access Expansion (Regional Access), in January 2023.

Here is a rundown of the arguments before the court.

Petitioners (environmental groups and an affected landowner) argued in a joint brief that FERC ignored findings by New Jersey state agencies and independent sources showing that there is no public need for the project. They also argued that FERC’s environmental review accepted Transco’s narrow and self-serving explanation of the project’s need, and that instead, FERC should have considered non-gas alternatives, including the no-action alternative to the project. Petitioners explained that FERC essentially rubber stamped the project and failed to consider upstream emissions, climate impacts, and downstream criteria pollution.

The New Jersey Division of Rate Counsel filed a brief supporting the challenge, as an intervenor. Rate Counsel argued that New Jersey has enough gas capacity to meet the state’s current and future demands, based on the independent study commissioned by the New Jersey Board of Public Utilities. Rate Counsel also argued that the project runs counter to New Jersey’s laws to reduce gas use and greenhouse gas emissions.

A coalition of eight attorneys general, led by New Jersey AG Matthew J. Platkin and Washington AG Robert W. Ferguson, also came in on the side of petitioners in the challenge. The AGs filed an amicus curiae brief, where they argued that FERC misconstrued and ignored New Jersey laws and overlooked the project’s adverse impacts on consumers and on the climate.

FERC responded to the challenge by arguing that it reasonably found that Transco’s market study was more persuasive than the study commissioned by the New Jersey Board of Public Utilities. FERC argued that Transco’s study—which aligned with traditional local distribution company planning practices and FERC’s typical market analyses—showed that the project was needed, would improve reliability in the region, and would provide cost savings to consumers. FERC also argued that its environmental review complied with the National Environmental Policy Act (NEPA) and that there weren’t any reasonably foreseeable impacts from upstream greenhouse gas emissions because the project is supposed to add incremental capacity, not spur gas production. FERC explained that it had considered information about greenhouse gas emissions from the project, but was unable to assess the significance of these emissions’ effect on climate change because it does not have a methodology to do so.

Transco filed an intervenor brief supporting FERC. Transco argued that FERC complied with the statutory requirements when assessing need as well as the project’s environmental impact.

There has been a growing body of case law in the D.C. Circuit where the court has criticized FERC for leaving questions about climate and other environmental impacts unanswered. Here, Commissioner Allison Clements faulted FERC for doing just that in her concurrence to the Commission’s approval of this project. Commissioner Clements also noted that states like New Jersey have become more involved in FERC proceedings as they adopt laws and policies to cut climate emissions, and as they realize that FERC’s actions will put their state climate goals at risk. Indeed, the outcome of this case is likely to highlight the significant interplay between state climate goals and federal permitting of fossil gas infrastructure.

Another interesting fact about this case is that petitioners have asked the D.C. Circuit to vacate and remand FERC’s certificate order, rather than solely remand with instructions to remedy the identified errors. Transco argued that, should petitioners succeed, the court should remand without vacatur because vacatur would cause severe disruptions, as portions of the project are already in use, and FERC could remedy any gaps in its analysis and discussion. We covered the unusual remedy of vacatur in a pipeline case and some of the arguments before FERC and the controversy around FERC’s decision to allow the project to proceed in previous blog posts.

The petitions in this case are consolidated in New Jersey Conservation Foundation, et al v. FERC, D.C. Circuit Case No. 23-1064. The judges scheduled to hear the case are Judges Pillard, Childs, and Garcia (Judge Pillard was nominated by President Obama, and President Biden appointed Judges Childs and Garcia). You can listen to the argument live on March 15.