Description: Challenge to FERC approval of project involving construction and replacement of natural gas compression facilities in West Virginia, Kentucky, and Tennessee.
Birckhead v. Federal Energy Regulatory Commission
Filing Date Type File Action Taken Summary 07/19/2019 Petition for Rehearing Download Petition for rehearing and rehearing en banc filed. Petitioners Sought Rehearing of D.C. Circuit Decision Upholding FERC Review for Natural Gas Compression Facility. Petitioners filed a petition for rehearing and rehearing en banc of the D.C. Circuit Court of Appeals decision that rejected their challenge to the environmental review for a natural gas compression facility despite expressing concerns regarding the Federal Energy Regulatory Commission’s (FERC’s) efforts to fully consider the project’s indirect greenhouse gas impacts. The petitioners argued that the D.C. Circuit’s decision directly contradicted its 2017 holding in the Sabal Trail Pipeline case, which involved “nearly identical facts.” The petitioners also contended that the case involved “a question of exceptional importance with far reaching consequences.” They further argued that the D.C. Circuit’s conclusion that it lacked jurisdiction to consider the petitioners’ argument because they had not preserved the argument before FERC was “unfounded” because FERC’s denial that the project had any indirect impacts left the petitioners without an opportunity to develop the record on indirect impacts on rehearing. 06/04/2019 Opinion Download Petition for review denied. D.C. Circuit Upheld FERC Approval of Pipeline Project Despite Finding Possible Shortfalls in Analysis of Upstream and Downstream Greenhouse Gas Impacts. The D.C. Circuit Court of Appeals rejected a challenge to the Federal Energy Regulatory Commission’s (FERC’s) environmental review for a natural gas compression station in Tennessee despite the court’s “misgivings” regarding FERC’s “decidedly less-than-dogged efforts” to obtain the information it would need to determine that greenhouse gas emissions were a reasonably foreseeable indirect effect of the project. FERC had declined to consider the impacts of upstream gas production and downstream gas combustion in its National Environmental Policy Act (NEPA) review, concluding that such impacts did not qualify as indirect effects of the project. With respect to upstream emissions, the D.C. Circuit found that the petitioners had failed to rebut FERC’s conclusion that the record did not provide evidence to establish the necessary causal relationship between the project and upstream gas production. The court indicated that such evidence might include the number and location of any wells that would be drilled as a result of production demand created by the project. The court also said the petitioners failed to “meaningfully dispute” FERC’s assertion that it would be futile to ask applicants to provide such information. Regarding downstream emissions, the court rejected FERC’s position that downstream emissions were not reasonably foreseeable because gas associated with the project might displace higher-emission fuels or otherwise offset emissions. The court also rejected FERC’s contention that FERC could not be considered the “legally relevant cause” of downstream emissions because it lacked jurisdiction over any party other than the project applicant. The court concluded that FERC is a “legally relevant cause” of such effects because the Natural Gas Act directs FERC to consider “the public convenience and necessity” and therefore provides FERC with statutory authority to act on information about the direct and indirect environmental effects of projects it approves. The court also said it was “troubled” by FERC’s reliance on a lack of information about the destination and end use of gas to justify its decision not to consider the downstream impacts. The court wrote: “It should go without saying that NEPA also requires the Commission to at least attempt to obtain the information necessary to fulfill its statutory responsibilities.” In this case, however, the petitioners had not raised the issue of FERC’s failure to develop the record in the proceedings before FERC. The court therefore concluded that it lacked jurisdiction to decide whether FERC had violated NEPA by failing to further develop the record. The court also rejected an argument that FERC had failed to adequately assess alternative sites for the project. 01/25/2019 Brief Download Brief filed by FERC. FERC Defended Decision Not to Consider Upstream and Downstream Greenhouse Gas Emissions in Environmental Review for Compressor Stations. The Federal Energy Regulatory Commission (FERC) filed its response brief in a proceedings challenging its environmental reviews of a project involving construction and replacement of natural gas compression facilities in West Virginia, Kentucky, and Tennessee. FERC argued that it had properly concluded that greenhouse gas emissions from upstream natural gas production activities and from downstream end use of gas were not indirect effects of the project that it was required to consider under the National Environmental Policy Act. FERC contended that the petitioners were incorrect that the D.C. Circuit’s 2017 decision in Sierra Club v. FERC established that such emissions must be considered as indirect effects of natural gas projects in all circumstances. FERC distinguished the 2017 case from this case because the 2017 case involved a pipeline that would connect to specific power plants. In this case, FERC argued that the compressor stations were not the legally relevant cause of upstream or downstream greenhouse gas emissions and that such emissions were not reasonably foreseeable. 11/26/2018 Brief Download Brief filed by petitioners. 08/08/2018 Petition for Review Download Petition for review filed.