Antis pinned their hopes that they could get the U.S. Circuit Court of Appeals for the District of Columbia to overturn a Federal Energy Regulatory Commission (FERC) approval for Dominion to build a couple of compressor stations in upstate New York, thereby forcing FERC to consider mythical man-made global warming in ALL pipeline decisions. The case had the makings of being a “landmark” case. Yesterday antis lost their landmark case when the court ruled the party bringing the lawsuit, Otsego 2000, didn’t have standing to bring the lawsuit in the first place.
In June 2014, Dominion Energy filed an application with FERC to beef up flows along its pipeline in upstate NY by building two new compressor stations–one in Madison County, NY, and one in Chemung County, NY (see Dominion Asks FERC for New Compressors in Upstate NY, WV). The New Market Project, as it’s called, would cost Dominion $159 million and provide 112,000 dekatherms per day (Dth/d) of extra natural gas capacity along ~200 miles of existing Dominion pipeline across upstate NY. The pipeline runs through the Elmira, Ithaca, Syracuse and Albany areas.
However, a radical anti-fossil fuel group (rich snobs) from Cooperstown, NY, in Otsego County, sued FERC in federal court to try and stop the project by using the argument global warming wasn’t factored into the decision-making process (see Otsego2000 Snobs Appeal FERC Approval of New Market Pipe Project). Here’s the kicker: neither of the proposed compressor stations is located in Otsego County!
We wrote the following last December:
Otsego2000 is a not-for-profit organization founded in 1981 “to protect the environmental, agricultural, scenic, cultural and historic resources of the Otsego Lake region and northern Otsego County.” As near as we can tell, the New Market Project doesn’t impact Otsego County at all. Yet Otsego2000 is fighting the project, with no legal standing to do so. (1)
Guess what the DC Circuit Court ruled yesterday? Otsego 2000 doesn’t have legal standing to file the lawsuit in the first place. (Toot toot….that’s us tooting our own horn.)
In fairness, the court didn’t debate or consider the substance of the lawsuit, which is whether or not FERC should be forced to consider mythical man-made global warming when it makes its decisions to approve (or not) a new pipeline project like the New Market Project. Which is a bit scary. However, we’ll take this victory and enjoy it.
From S&P Global Platts:
A federal court dismissed a widely supported challenge to the US Federal Energy Regulatory Commission’s decision to limit its analysis of greenhouse gas emissions tied to natural gas infrastructure projects.
The court did not address the merits of the challenge, but found the challenger failed to demonstrate legal standing.
Related legal debate over FERC’s GHG considerations could still be tackled in other pending cases before the court.
In the Thursday judgment, the US Court of Appeals for the District of Columbia Circuit dismissed a petition for review of a May 2018 FERC order over the lack of standing of the core petitioner, New York environmental and historic conservation group Otsego 2000.
The group’s petition had been backed by several states and other parties unhappy with FERC’s move, which they said tightened the scope of the commission’s climate impact analysis for pipelines and LNG terminals under the National Environmental Policy Act. Republican members of the commission and gas industry observers had said the policy was a return to the agency’s traditional approach.
The DC Circuit said Otsego 2000’s standing depended on whether it had “organizational standing,” and the court found that it did not. “Otsego’s affidavits do not identify any injury other than the organization’s expenditure of time and money related to this litigation,” the DC Circuit said, pointing to precedent in a 2015 ruling in another case.
Under Article III of the US Constitution, designed to limit the power of federal courts, the courts may only make a decision on a lawsuit if the petitioner has standing, which is a sufficient connection to a case to justify participation.
Otsego 2000 took its case to the DC Circuit after FERC turned down the group’s request that the commission reconsider a 2016 approval of Dominion Energy’s 112,000 Dt/d New Market pipeline expansion project in New York. In the May 2018 order rejecting the request for rehearing, the FERC majority said the commission will limit its reviews of the potential environmental effects of gas infrastructure projects, including GHGs, to impacts that can be linked directly to the projects, except in limited circumstances. It would not consider impacts in gas production zones or market areas that are harder to track. For a short time, it argued FERC went what beyond was legally required and offered information that was generic and inherently speculative, providing upper bound or worst-case scenario estimates.
In December 2018, the attorneys general for six states — New York, Maryland, Massachusetts, New Jersey, Oregon and Washington — and the District of Columbia joined Otsego 2000’s challenge in the DC Circuit. They told the court that, as a dissenting FERC commissioner had said, climate change is an “existential threat” to the states and their citizens. They wrote that FERC had used an order on rehearing in an individual pipeline case to announce “a new policy to curtail its [National Environmental Policy Act] evaluation of greenhouse gas emissions from the vast majority of natural gas infrastructure projects under its jurisdiction.”
In oral argument in April, DC Circuit judges appeared to be interested in why FERC had not tried to get more information from the pipeline developer and its customers on the end use of natural gas and GHGs. But they also questioned Otsego 2000’s standing (U.S. Appeals Court for the DC Circuit docket 18-1188).
ClearView Energy Partners, in a research note, said the court “may still render judgment on the commission’s narrower approach to GHGs in a different case argued the same day (Lori Birckhead, et al. v. FERC) challenging the certificate for Tennessee Gas’ Broad Run expansion.” It might grant that appeal based on upstream emissions, rather than downstream emissions, it said.
FERC’s win in the Otsego case “would not preclude another party from challenging the approach in future cases,” although it could make it harder, according to ClearView. (2)
The left-leaning E&E News publication Energywire spun the news this way:
An appellate court today tossed a lawsuit targeting a federal plan to significantly narrow climate analyses for natural gas infrastructure.
During oral arguments last month, judges for the U.S. Court of Appeals for the District of Columbia Circuit seemed skeptical of the Federal Energy Regulatory Commission’s defense of its drastic climate policy shift (Energywire, April 12).
But the case failed on the question of whether the plaintiff in the case, the small New York environmental nonprofit Otsego 2000, had standing to bring the challenge.
“Otsego’s affidavits do not identify any injury other than the organization’s expenditure of time and money related to this litigation,” the court wrote in a short order today.
The lawsuit was born from FERC’s refusal last year to rehear a challenge to Dominion Energy Transmission Inc.’s New Market Project, a set of gas infrastructure upgrades in upstate New York.
FERC’s Republican majority used the procedural document to announce a seismic shift in its approach to analyzing and disclosing upstream and downstream greenhouse gas emissions from the projects the agency authorizes.
Democratic Commissioners Cheryl LaFleur and Richard Glick penned pointed dissents, and Glick made a rare appearance at oral arguments in the case.
During the hearing, the judges — Clinton appointees Merrick Garland and David Tatel and Obama pick Robert Wilkins — asked counsel for Otsego 2000 to defend the group’s standing.
Legal experts who attended arguments noted FERC’s placement of its policy change inside proceedings for a low-profile project was likely a strategic move. (3)
(1) Marcellus Drilling News (Dec 6, 2018) – NY, Other Lib States Try to Block Dominion New Market Pipe Project
(2) S&P Global Platts (May 9, 2019) – FERC climate policy on gas projects stands after court drops case based on standing
(3) E&E News – Energywire (May 9, 2019) – Landmark FERC pipeline challenge fails
Copy of the court’s brushoff to Otsego 2000, issued yesterday:
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