100 F.4th 207
D.C. Cir.2024Background
- FERC issued a certificate of public convenience and necessity for the Evangeline Pass Expansion Project, involving expanded pipelines and facilities to increase natural gas flow in the Southeast U.S.
- Environmental groups, led by Sierra Club, challenged the certification under the National Environmental Policy Act (NEPA), focusing on alleged deficiencies in FERC's environmental analysis.
- The projects challenged as "connected actions" involve gas export and related infrastructure tied to a downstream LNG terminal, but not directly overlapping in function or timing.
- Alabama Municipal Distributors Group, a municipal customer, sought future rate credits, arguing the project's profits to Southern Natural Gas Company were excessive.
- The court consolidated multiple petitions for review of FERC’s orders and reviewed whether FERC’s decision-making was arbitrary, capricious, or contrary to law under the Administrative Procedure Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FERC’s EIS omitted required “connected actions” | FERC failed to include four related projects as required | Projects are independent in utility and timing | FERC’s exclusion of other projects was reasonable |
| Whether FERC was required to analyze environmental effects of exports | FERC needed to consider environmental impact after gas was exported | FERC has no legal authority over exported gas | FERC not required to analyze exported gas impacts |
| Use of the social cost of carbon metric in GHG analysis | FERC was required to apply this analytical tool | Tool is under litigation, not ready for use | FERC reasonably declined to adopt the metric |
| Entitlement to rate credits for Alabama Municipal | Alabama Municipal should get a share of project profits | Credit appropriate only if it bears risk/cost | Denial of credits reasonable; no windfall due |
Key Cases Cited
- Sierra Club v. FERC, 827 F.3d 36 (D.C. Cir. 2016) (DOE, not FERC, has authority over gas exports; FERC not required to analyze export impacts)
- City of Boston Delegation v. FERC, 897 F.3d 241 (D.C. Cir. 2018) (standard for "connected actions" in NEPA context)
- Florida Gas Transmission Co. v. FERC, 604 F.3d 636 (D.C. Cir. 2010) (APA standard for review of FERC's decisions)