104 F.4th 336
D.C. Cir.2024Background
- FERC issued a certificate to Tennessee Gas Pipeline Company to expand a natural gas pipeline serving the New York metropolitan area, aiming to alleviate shortages in Westchester County, NY.
- Tennessee Gas sought to expand three compressor stations, increasing natural gas throughput by 115,000 dekatherms per day, under a contract with Consolidated Edison (ConEd).
- Food & Water Watch challenged FERC's approval, arguing that the environmental review was insufficient, particularly regarding greenhouse gas (GHG) emissions and ozone pollution.
- FERC prepared both an Environmental Assessment and a more detailed Environmental Impact Statement (EIS) for the project, quantifying some but not all environmental impacts.
- The primary legal issues revolve around the adequacy of FERC’s NEPA review and whether it properly assessed the public convenience and necessity under the Natural Gas Act in light of state and local climate laws.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Upstream GHG Emissions | FERC should have quantified and discussed emissions from gas extraction (drilling new wells). | Upstream impacts not reasonably foreseeable due to uncertainty about source location/number of new wells. | FERC was reasonable; did not need to quantify or further investigate upstream impacts. |
| Downstream Ozone Impacts | FERC failed to estimate increases in ozone pollution from burning transported gas. | Estimating actual ozone output is too speculative; only precursor chemicals were estimated. | FERC's approach was reasonable given uncertainties; precedent allows estimation via precursors. |
| Downstream GHG Emissions and Significance | FERC should have labeled increased emissions as “significant” or “insignificant.” | NEPA does not require categorical labels, just discussion/comparison of impacts. | FERC adequately discussed and quantified GHG emissions; no requirement to label them. |
| Consideration of State/Local Climate Laws | FERC ignored New York laws aiming to reduce carbon emissions, affecting projected need. | Statutes don’t specify gas ban; NY law still requires service; contract fully subscribed. | FERC reasonably found project need and did not need to reject based on state law. |
Key Cases Cited
- Atl. Refin. Co. v. Pub. Serv. Comm’n, 360 U.S. 378 (1959) (FERC must examine all factors bearing on the public interest, including environmental ones, when issuing certificates)
- DOT v. Pub. Citizen, 541 U.S. 752 (2004) (NEPA imposes procedural, not substantive, requirements)
- Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983) (NEPA requires informed agency decisionmaking, not particular outcomes)
- Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (when GHG emissions are reasonably foreseeable, FERC must quantify or explain why it cannot)
- WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) (estimating ozone precursors can be a reasonable proxy for direct ozone impact analysis under NEPA)
- FCC v. Fox TV Stations, Inc., 556 U.S. 502 (2009) (agency can change policy if adequately explained)
- Minisink Residents for Env’t Pres. & Safety v. FERC, 762 F.3d 97 (D.C. Cir. 2014) (contracts are good evidence of market need)