August 27, 2015 Articles

FERC and D.C. Circuit Reject Recent Challenges to Gas Pipeline Development

Gunpowder Riverkeeper shows that pipeline opponents continue to face both procedural and substantive hurdles that may be difficult to anticipate.

By Erica E. Youngstrom – August 27, 2015

Landowners and environmental groups are bringing increasingly sophisticated challenges to gas-pipeline projects and sometimes succeed in delaying development, but in recent cases they have ultimately lost on the merits. The latest setback for pipeline opponents came last month in Gunpowder Riverkeeper v. FERC, No. 14-1062, 2015 WL 4450952 (D.C. Cir. July 21, 2015), where the D.C. Circuit rejected an environmental group’s challenge to a Federal Energy Regulatory Commission (FERC) order approving a gas-pipeline-expansion project. Recent FERC orders have also consistently found that new projects will benefit the public despite environmental groups’ concerns.

Pipelines have responded to steady demand for expansion of gas infrastructure with proposals for numerous new and expanded projects. In particular, shippers require additional capacity to support conversions from coal to gas-fired generators, as well as to move LNG to export facilities. In deciding whether to authorize construction and operation of the projects under section 7 of the Natural Gas Act, 15 U.S.C. § 717f, FERC “balanc[es] the public benefits,” such as more reliable and efficient service, “against the potential adverse consequences” to determine whether the project will serve the public interest. Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227, at 61,745 (1999), clarified, 90 FERC ¶ 61,128, further clarified, 92 FERC ¶ 61,094 (2000). FERC also conducts an environmental assessment of each proposal under the National Environmental Policy Act (NEPA), examining the proposal’s potential impacts on numerous environmental resources. As part of the environmental assessment, FERC must take a “hard look” at each project’s potential impact and include “sufficient discussion of the relevant issues and opposing viewpoints,” meaning that in some cases it must undertake further study that may result in project delays to develop the necessary analysis. Myersville Citizens for a Rural Community, Inc. v. FERC, 783 F.3d 1301, 1324–25 (D.C. Cir. 2015) (citing Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006)). FERC employs a range of options, including imposing mitigation measures as a condition of approval, to address environmental concerns. FERC need not conduct further environmental analyses where it concludes that “there would be no significant [environmental] impact or [it has] planned measures to mitigate such impacts.”

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