October 24, 2019
The courts are very clear. In its 2017 decision, Sierra Club v. FERC (Sabal Trail), the U.S. Court of Appeals for the D.C. Circuit stated that since downstream emissions are indirect effects of permitting, the commission must assess all reasonably foreseeable emissions and climate impacts resulting from its approval of expanded natural gas pipeline infrastructure. By refusing to review the effects of these emissions, FERC failed to adequately balance “the public benefits against the adverse effects” of natural gas pipelines — effectively putting a finger on the scale in favor of locking America into decades of fossil fuel dependence.
Despite this, FERC continues to turn a blind eye to the looming climate crisis. This disregard was on display in recent litigation, dismissed on procedural grounds by the D.C. Circuit, brought about because FERC, in an order on a single project, introduced a sweeping new policy that would no longer evaluate greenhouse gas emissions upstream (that is, methane emissions from increased fracking facilitated by expanded pipeline capacity) or downstream (the combustion of natural gas for electric generation) from pipeline projects.
That lawsuit explained that FERC violated several federal laws by shirking its responsibility to consider emissions facilitated by expanded pipeline capacity during its environmental review, and that the agency decreed that its entire environmental review policy has changed — an action in clear violation of the Administrative Procedure Act, which requires such significant policies to be changed through a transparent notice and comment rulemaking that includes public participation.