N.Y. group takes FERC climate issue to federal court

Source: Ellen M. Gilmer, E&E News reporter • Posted: Wednesday, July 18, 2018

The nonprofit Otsego 2000 filed suit in the U.S. Court of Appeals for the District of Columbia Circuit yesterday to challenge a May order from the Federal Energy Regulatory Commission that rejected the group’s concerns about a New York gas project and, more controversially, set tighter limits on when the agency tallies greenhouse gas emissions from proposed projects.

The specific issue in the new legal dispute: a set of now-complete New York compressor stations and upgrades known as the New Market project. The bigger picture: how FERC grapples with the indirect climate impacts of the infrastructure it approves.

Though the Dominion Energy Transmission Inc. gas project hadn’t attracted widespread attention outside the Empire State during its approval process, it caused a stir in May when FERC’s Republican majority denied Otsego 2000’s rehearing request for the project and used that order to announce a broad new policy of restricting its analysis of downstream climate impacts for some projects (E&E News PM, May 18).

FERC’s Democratic members, Richard Glick and Cheryl LaFleur, issued scathing dissents that accused the majority of ignoring a 2017 D.C. Circuit case related to the Southeast’s Sabal Trail gas pipeline that ordered FERC to tally downstream greenhouse gas emissions.

Environmentalists were outraged by the policy change and frustrated that FERC announced it in the New Market order, which could be challenged only by parties that already participated in that agency docket. Otsego 2000, a group focused on protecting the Otsego Lake region near Cooperstown, was initially unsure whether it could afford to litigate.

Yesterday’s filing lands the group and landowners John and Maryann Valentine in the D.C. Circuit. The lawsuit seizes on the disagreement among the commissioners about FERC’s obligations under the National Environmental Policy Act.

“The Court’s [Sabal Trail] ruling left no ground for the Commission to shirk its obligations under NEPA and yet, that is precisely what the Commission majority has done in these orders — over the vehement dissent of Commissioners LaFleur and Glick,” the filing says.

Carolyn Elefant, a Washington, D.C., attorney who frequently represents landowners in pipeline challenges, is representing the group. She said yesterday that the “straw that broke the camel’s back” for her clients was that the New Market order seemed contrary to the D.C. Circuit’s Sabal Trail decision from last summer.

The lawsuit is bolstered by a recent letter from New York Attorney General Barbara Underwood (D), who complained that FERC’s policy change via the order was “designed to frustrate judicial review.”

The debate over the scope of FERC’s review — whether it must consider the impacts of natural gas production and consumption — has been raging for years. FERC had been inching toward increased analysis of greenhouse gas emissions before the New Market order two months ago (Energywire, June 5).

The new lawsuit could have big implications for climate law: If it goes in FERC’s favor, the case could reinforce tighter limits on when the agency must analyze downstream climate impacts. If it goes in Otsego 2000’s favor, FERC could be required to routinely expand its analysis. The suit could also be dismissed on procedural grounds or decided narrowly with limited impacts on subsequent cases.