A panel of judges grilled the Federal Energy Regulatory Commission today on
its approach to studying climate impacts from natural gas pipelines.

The case before the U.S. Court of Appeals for the District of Columbia
Circuit centered on a project in the Southeast, but Judge Judith Rogers
spent much of today’s oral arguments airing broader concerns about FERC’s
typical treatment of downstream greenhouse gas emissions.

“FERC just doesn’t have to do its duty because it thinks someone else
will,” she said, responding to the agency’s argument that many downstream
impacts fall under the jurisdiction of other agencies.

The Sierra Club and other environmental groups filed the lawsuit last year,
challenging FERC’s decision to issue certificates for the Southeast Market
Pipelines Project, which includes the Florida Southeast, Hillabee Expansion
and Sabal Trail projects.

The groups say FERC violated the National Environmental Policy Act by
failing to adequately consider downstream climate impacts and the effects
on environmental justice for communities along the project’s route.

Sierra Club attorney Elly Benson argued today that FERC had tools available
to conduct the downstream greenhouse gas analysis — and was prodded by U.S.
EPA to use them — but ultimately opted for a less-detailed approach.

“There’s no reason to not engage in reasonable forecasting,” she told the
panel, which included Rogers, a Clinton appointee, and Judges Janice Rogers
Brown and Thomas Griffith, both George W. Bush appointees.

FERC attorney Ross Fulton pushed back, noting that the agency conducted a
more general downstream analysis that concluded the project would not
significantly contribute to cumulative greenhouse gas impacts because power
plants receiving natural gas from the pipelines were switching from coal,
which emits more carbon dioxide.

“And the commission found that it could rely upon the plants being subject
to federal and state air permitting processes for pertinent emissions and
mitigation requirements and that these permitting bodies are best
positioned to receive relevant air quality information,” FERC told the
court in a brief earlier this year.

Moreover, he said, the agency determined that the linkage between the
pipelines and the power plants was not direct enough to merit closer FERC
review, as the commission has no control over how the natural gas is used.

Brown seemed receptive to that argument, but Rogers jumped on it, noting
that contracts with end-users have already been signed. “When would FERC
ever have enough information and enough certainty” to look more closely at
downstream greenhouse gas emissions, she asked.

She also rejected the notion that the case was analogous to other D.C.
Circuit decisions that held FERC had no obligation to conduct in-depth
analyses of indirect effects because other agencies held the keys to final
approval. In last year’s *EarthReports Inc. v. FERC*, for example, the D.C.
Circuit ruled that FERC was not required to consider indirect effects of
increased liquefied natural gas exports from a FERC-licensed facility
because the Department of Energy alone has authority to increase exports.
In today’s case, Rogers said, FERC has final authority over the Southeast
projects.

Griffith also appeared skeptical of FERC’s position, asking Fulton and
counsel for industry intervenors why they were so resistant to the idea of
attempting to quantify downstream emissions.

“It wouldn’t have been hard to do, right, with all that information
available?” he asked Fulton.

Fulton responded that “it would not have been hard to do, but it would have
been hard to do in a meaningfully informative way,” because it is difficult
to estimate how much of the project’s natural gas would be used to replace
coal in power plants.

The environmental groups are asking the court to vacate the certificates
and remand to FERC.