Environmentalists are mounting a charge against the agency that permits natural gas infrastructure in an attempt to mitigate the damages caused by fracking and burning fossil fuels.
A panel of judges for the D.C. Circuit Court heard arguments Tuesday over whether the Federal Energy Regulatory Commission (FERC) properly considered the total environmental impacts of Dominion Resources’ Cove Point natural gas liquefaction and export terminal, under construction now in Southern Maryland, or whether its analysis was too narrow.
“They have to analyze the impacts of the project as a whole,” Earthjustice attorney Deborah Goldberg told ThinkProgress after the hearing.
Earthjustice is representing the plaintiffs — which include the Sierra Club, the Chesapeake Climate Action Network, and a local river protection group — who argue that regulators failed to consider how the export terminal plays a role in the greater environmental degradation caused by the entire natural gas supply chain. The facility will have a liquefaction component, where natural gas is condensed and turned into liquid for shipping. It will add this and export capabilities to a terminal previously used only for LNG imports.
According to analysis conducted by Earthjustice, the export terminal will cause up to 3,000 additional fracking wells to be drilled in the Marcellus Shale, in western Pennsylvania. Dominion is permitted to export close to a billion cubic feet of natural gas a day. During both upstream processes, such as fracking and transportation to the facility, and downstream processes, such as shipping and combustion, the plaintiffs estimate the terminal will trigger the emissions of more greenhouse gases than all of Maryland’s eight coal-fired plants combined.
Natural gas is 80 percent methane, a potent greenhouse gas that traps heat 86 times more effectively than carbon dioxide over a 20-year period. Natural gas releases slightly less than half as much emissions as coal when burned, but leaking during extraction and storage significantly diminish the climate benefits that natural gas advocates tout.
“In the end, it all does boil down to: Does this project cause impacts upstream and downstream,” Goldberg said. “It’s FERC’s burden to show that it doesn’t, and it simply refused to look.”
FERC and Dominion argued that FERC made the appropriate analysis required by the National Environmental Protection Act (NEPA). They also said that the Department of Energy (DOE) had done its own environmental review and also concluded that the project was not “causally” related to other impacts.
This has been a long fight, and if this court gets it wrong — again — we will come back to fight another day
“This facility did not cause anything to happen in the Marcellus Shale,” the lawyer for Dominion Cove Point told the court. FERC did not respond to a request for comment Wednesday morning.
A lawyer for the American Petroleum Institute, an oil and gas trade association and an intervenor in the case, also argued that the facility will not cause additional fracking. “The arrow of causation is exactly in the opposite direction,” Ben Norris told the court.
Goldberg was not optimistic that the Circuit Court will agree that the NEPA wasn’t satisfied, because of DOE’s findings.
“Unfortunately, the court seems to be very confused about that distinction, so it’s not really clear to me whether they will figure that out,” Goldberg said. “They keep getting hung up on the idea that DOE makes a determination on the public interest for export, and FERC makes a determination with respect to the liquefaction facility.”
“They didn’t get the idea that the NEPA analysis has to include both and that FERC is the lead agency on that. It has to, under the law, cover all of the impacts, and it didn’t,” Goldberg continued. “This has been a long fight, and if this court gets it wrong — again — we will come back to fight another day.”
Last spring, the court denied an emergency stay that would have halted construction on the facility.
Tuesday’s hearing was on just one of four challenges to FERC’s environmental review process that the D.C. Circuit Court, which handles suits against the federal government, is considering this year. The Sierra Club is involved in cases challenging export facilities in Corpus Christi, Galveston, and Sabine Pass, all along the Gulf Coast of Texas.
Lawyers close to the case said it is possible that the Court will rule on all the terminal permits concurrently.
“It is FERC policy not to comment on matters pending here at FERC and/or before the federal appeals courts,” a spokesperson for FERC told ThinkProgress in an email Wednesday.
A previous version of this story erroneously shortened the name of the D.C. Circuit Court of Appeals to the District Court on second reference. It is not a district court; it is an appellate court. It is located in the District of Columbia.