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This post is about a pipeline project we’ve written quite a bit about over the past few years–Dominion Energy’s New Market project that ever-so-modestly expands an existing pipeline in Upstate New York. But at its heart, the issue is much deeper. Anti-fossil fuel radicals are challenging this project, in court, as a way to force the government to consider man-made global warming when approving such projects.

Last July a small group of rich snobs from Cooperstown, NY calling themselves Otsego2000 sued the Federal Energy Regulatory Commission (FERC) in federal court to try and stop Dominion Energy’s New Market Project–which is now largely done (see Otsego2000 Snobs Appeal FERC Approval of New Market Pipe Project).

The false premise of Otsego2000’s lawsuit is that FERC did not consider mythical man-made global warming when it decided to approve the New Market Project. Unfortunately, NY’s wildly left/radical Attorney General’s office has entered the case by filing a “friend of the court” brief in December, along with the wildly left/radical AGs in Maryland, New Jersey, Oregon, Washington State, Massachusetts and the District of Columbia (see NY, Other Lib States Try to Block Dominion New Market Pipe Project).

But wait…the pipeline doesn’t run through any of those other states (other than NY), and has zero impact on those other states. Doesn’t matter. The point is they want to redefine how FERC does its job by warping and twisting our laws. This case conveniently provides them with a way to do just that.

FERC responded last Friday to the lawsuit, which sits before the U.S. Court of Appeals for the District of Columbia Circuit. In their response, FERC points out the global warming emperor has no clothes. Trying to calculate the impact on so-called climate change from this one pipeline is “virtually unknowable” according to FERC’s response. Let’s hope the justices agree. If they don’t, all future pipeline projects are in peril. Big Green would use a ruling that FERC must calculate climate change impacts as a tactic to slow and stop most new projects. A hideous prospect.

Federal energy regulators last week defended a controversial policy shift on the government’s climate analysis obligation in natural gas pipeline reviews.

The National Environmental Policy Act (NEPA) does not require the Federal Energy Regulatory Commission to study upstream and downstream greenhouse gas emissions associated with the natural gas projects the agency authorizes, government lawyers wrote in a Friday filing with the U.S. Court of Appeals for the District of Columbia Circuit.

Because gas infrastructure demand follows gas production, “it is unknown — and virtually unknowable — whether the gas to be transported on the Project will come from new or existing production,” federal counsel wrote in the brief.

“Absent that basic information, it is nearly impossible to assess whether there will be any additional production activities in connection with the gas to be transported on the Project,” FERC attorneys argued. “As a result, any greenhouse gas emissions from any additional, incremental production activities are not reasonably foreseeable.”

FERC’s brief is a response to a lawsuit filed by the nonprofit group Otsego 2000 contesting the agency’s decision last year to scale back its consideration of climate impacts in natural gas project approvals (E&E News PM, May 18, 2018).

Six states and the District of Columbia last month called on the D.C. Circuit to scrap the policy shift, which was announced in a procedural document denying a request to rehear FERC’s authorization of Dominion Energy Transmission Inc.’s New Market Project in New York.

FERC’s Democratic commissioners, Richard Glick and Cheryl LaFleur, supported the denial but disagreed with the inclusion of the policy change.

Both cited the D.C. Circuit’s 2017 ruling in Sierra Club v. FERC, which ordered the agency to more closely examine downstream greenhouse gas emissions from the Southeast Market Pipelines Project, which includes the Sabal Trail pipeline.

“This decision clearly signaled that the Commission should be doing more as part of its environmental reviews,” LaFleur wrote in her dissent.

After the D.C. Circuit sent the Sabal Trail review back to FERC, the agency wrote that it could not find a “widely accepted standard” for determining the significance of greenhouse gas emissions, rejecting tools like the social cost of carbon and state emissions inventories.

“The Commission’s only tool to address any concerns it may have regarding downstream greenhouse gas emissions would be to decline to authorize the pipeline project,” FERC attorneys wrote Friday.

The agency noted that Sierra Club and other opponents did not sue after the Sabal Trail case was remanded.

FERC attorney Beth Pacella made a similar argument last month before a panel of D.C. Circuit judges (Energywire, Dec. 10, 2018).

The absence of a challenge does not imply agreement, Elizabeth Benson, an attorney representing the Allegheny Defense Project, responded at the time.

“Of course, in any particular case, parties are free to seek judicial review of the Commission’s determination as to whether or not upstream and downstream activities are project-related effects for purposes of NEPA,” FERC wrote in its reply last week.

Final briefs in the case are due March 8.*

*E&E News – Energywire (Jan 28, 2019) – Climate impacts are ‘virtually unknowable’ — FERC

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