The United States Court of Appeals for the DC Circuit ruled on Tuesday that federal regulators had not gone far enough in considering environmental justice and climate impacts in their approval of two gas infrastructure projects .
The notice, which deferred the Federal Energy Regulatory Commission’s 2019 approval of two liquefied natural gas (LNG) export terminals and associated pipeline facilities, is the latest court ruling in line with the president’s position of the FERC, Richard Glick, that the commission should go further in the analysis gas projects it assesses that they are contributing to the climate crisis or causing damage to local communities.
According to the companies behind the projects, including Texas LNG and Rio Grande LNG, the move is unlikely to end the commercial development of the facilities, but rather serve as a “reminder” to ensure that these companies keep factors such as environmental justice and climate change in listen.
Critics have long accused FERC of “stamping” plans, a criticism Glick often agrees with. In his dissent on the commission’s 2019 approval of the Rio Grande and Texas LNG projects, he argued that FERC was not authorized under federal law to “shoulder” the impacts of these projects and that their assessment at the time was inadequate.
Tuesday’s decision “clearly demonstrates that the Commission has the power and the obligation to analyze and meaningfully consider the impacts of GHG emissions and the impacts on environmental justice communities,” Glick said in a statement. “Moreover, failure to do so puts the decisions of the Commission – and the investments made on the basis of those decisions – in legal jeopardy.”
In the environmental analysis of the commission’s projects, it found that it could not determine what the impacts of the facilities would be on the climate crisis, because there is no universal methodology to calculate these impacts. But the petitioners argued that FERC could use the social cost of carbon or some other generally accepted measure to make this assessment. Ultimately, the court agreed that the commission could have done more in 2019 to make this assessment.
“This tribunal says that you really have to try to assess the impacts based on any information available in the real world or based on academic or other research,” said John Moore, dDirector of the Sustainable FERC project at the Natural Resources Defense Council. “Before you say you can’t do it, you have to try a lot harder. “
The DC Circuit decision returns the decision to FERC for reconsideration and will not necessarily prevent the completion of projects. The tribunal ruled that the commission’s analyzes of the projects’ contribution to the climate crisis and their impacts on environmental justice communities were “deficient” under the National Environmental Policy Act, natural gas and the law on administrative procedure, but does not cancel the ordinances. . Ultimately, the court says the commission “is likely to remedy the shortcomings” of its previous ruling on the projects when it reconsiders them in pre-trial detention.
“The DC Circuit opinion recalls that environmental justice, energy transition and climate change are among our most important generational issues,” a Texas LNG spokesperson said in an email, adding that the company ” has taken huge steps to ensure the project is a market leader on these issues. “
“We are delighted that the Court has confirmed the validity of the FERC authorization for our Rio Grande LNG project and we look forward to FERC’s response to the Court’s requests,” said Matt Schatzman, Chief Executive Officer from NextDecade in a press release.
Tuesday’s ruling is the latest in a series of court rulings concluding that FERC is not sufficiently thorough in assessing the impacts of gas projects. A landmark 2017 DC Circuit decision ordered FERC to assess the downstream impacts of greenhouse gas emissions from pipeline projects, a decision Glick often cited when she argued the commission should pursue a more rigorous assessment of the environmental impact of gas projects. Another recent DC Circuit ruling rescinded the commission’s approval of a pipeline in St. Louis, Missouri, in a rare move against an operational project, questioning whether the project will still be able to deliver gas.
Meanwhile, FERC is revising its 1999 pipeline certification policy which dictates how the commission reviews projects. Glick and Commissioner Allison Clements largely agree that the commission should be more robust in analyzing the impacts of the project, but with the imminent departure of the fifth commissioner from FERC, it is unclear how this process will play out. .