Federal regulators appeared to defy a 2017 court ruling when they decided not to take greenhouse gas emissions into account as part of their review of natural gas pipeline applications.
Last year, a federal court ruled that the Federal Energy Regulatory Commission (FERC) must fully consider the so-called downstream effects of a pipeline project’s greenhouse gases, particularly the effects of emissions from natural gas-fired power plants that contribute to climate change.
But in a 3-2 vote, FERC ruled Friday that federal laws do not require it to consider greenhouse gas emissions caused by the production or consumption of natural gas that would inevitably result from the approval of a pipeline project.
The policy change wasn’t announced in its own separate order. Instead, it was tucked inside an otherwise routine decision rejecting an appeal of its approval of a pipeline project in New York proposed by Dominion Energy.
Environmental groups and climate change activists have tried for years to get federal regulators to take greenhouse gas emissions into account when they review a natural gas pipeline application. Last year, the groups finally made headway when the U.S. Court of Appeals for the District of Columbia Circuit told FERC to consider the effects of the greenhouse gases caused by the use of natural gas by power plant operators.
In response to Friday’s decision, the Sierra Club, one of the groups that has been fighting to get FERC to take greenhouse gas emissions more seriously, hinted it may challenge the commission’s ruling in court.
“The people demanded FERC do its job, and FERC refused. Then, the courts ordered FERC to do its job, but instead, it just keeps trying to evade the court’s order and shirk its responsibilities,” Sierra Club Executive Director Michael Brune said Friday in a statement. “FERC has broken the public’s trust, and we are exploring our options in response to today’s vote.”
Natural gas-fired plants emit large amounts of carbon dioxide, although the emissions are 50 to 60 percent less than a typical new coal plant if the gas is used in a new, efficient natural gas power plant. The drilling and extraction of natural gas from wells, and its transportation in pipelines result in the leakage of methane, the primary component of natural gas that is much stronger than carbon dioxide at trapping heat.
Commissioners Richard Glick and Cheryl LaFleur, two Democratic members of the agency, issued strongly worded dissents against the majority’s decision to diminish the scope of the agency’s greenhouse gas reviews.
Each of the three members who voted to end the practice of measuring the climate impacts of building pipelines is Republican.
LaFleur argued in her dissent that FERC could not simply stop analyzing the climate impact of building pipelines at the end-use level. The “landscape changed in 2017,” according to LaFleur, when the U.S. Court of Appeals for the D.C. Circuit ruled that greenhouse gas emissions from the burning of natural gas were the result of the Sabal Trail pipeline in Georgia and Florida and two related pipeline projects that run from Alabama to Florida.
The U.S. Court of Appeals noted that the Sabal Trail project was intended to transport natural gas to Florida power plants, some of which already existed and others that were in the planning stages. Therefore, the combustion of the natural gas is not just “reasonably foreseeable,” it is the project’s entire purpose, the court said.
The Sabal Trail case was the first to successfully challenge FERC’s greenhouse gas emissions analysis.
“This decision clearly signaled that the Commission should be doing more as part of its environmental reviews,” LaFleur said Friday in her written dissent. “Today, however, the majority has changed the Commission’s approach for environmental reviews to do the exact opposite. Rather than taking a broader look at upstream and downstream impacts, the majority has decided as a matter of policy to remove, in most instances, any consideration of upstream or downstream impacts associated with a proposed project.”
In Friday’s decision, FERC argued that it cannot consider how a pipeline project would affect climate change when it does not receive enough information to assess how authorizing the new pipeline facilities will have on the production and consumption of natural gas.
In his dissent, Glitch said the principal reason the commission does not have adequate information is because it did not ask for it. The National Environmental Policy Act, the cornerstone of the U.S. environmental law, does not permit federal agencies like FERC to “so easily shirk their responsibilities to consider environmental consequences,” Glick said. Rather, the law requires that an agency “must use its best efforts to find out all that it reasonably can,” he said.
FERC has several opportunities throughout its review process of a pipeline application to request information from the pipeline developer about the source of the gas to be transported, as well as its ultimate end use. Without making such requests, FERC should not be able to fall back on the excuse that it lacks “meaningful information” to satisfy its obligations under federal laws to identify the reasonably foreseeable consequences of its actions, Glick said.
The decision also comes at a time when FERC is planning to review a nearly 20-year-old policy that guides how it decides whether to approve natural gas pipeline projects. Glick said he is particularly disappointed with the timing of the policy change, given that the broad review will include how greenhouse gas emissions are assessed.
Critics of FERC, who view the agency as a rubber stamp because of its history of approving almost every natural gas infrastructure application it receives, are hoping the policy review will lead to fewer pipelines getting permits. They believe that the existing network of natural gas pipelines is adequate to serve the nation’s natural gas needs.
— Rich Glick (@RichGlickFERC) May 18, 2018
In his dissent, Glick also expressed the importance of considering climate change when determining whether to build a natural gas pipeline.
“Climate change poses an existential threat to our security, economy, environment, and, ultimately, the health of individual citizens,” he wrote. “Unlike many of the challenges that our society faces, we know with certainty what causes climate change: It is the result of greenhouse gas emissions, including carbon dioxide and methane — which can be released in large quantities through the production and the consumption of natural gas.”
As an agency of the federal government, FERC must “comply with its statutory responsibility” to document and consider how its authorization of a natural gas pipeline facility will lead to the emission of greenhouse gases, contributing to climate change, he said.
For one reason or another, FERC has resisted calls from the public and the courts to consider climate change when considering whether to approve a natural gas pipeline project.
“FERC is like the child who would rather stuff everything under their bed than clean their room. Unfortunately, when it comes to climate change, out of sight is not out of mind,” Brune said.