Federal Pipeline Ruling a Big Deal… Or Maybe Not

Construction of the Sabal Trail Pipeline, part of the Southeast Markets Pipeline Project, in Florida. Photo credit: Orlando Sentinel.

Environmentalists notched a win yesterday when the U.S. Court of Appeals in the District of Columbia issued a ruling finding that the Federal Energy Regulatory Commission (FERC) had failed to properly take into account the impact of greenhouse gas emissions on climate change when approving the Southeast Markets Pipeline Project more than a year ago.

“Today, the D.C. Circuit rejected FERC’s excuses for refusing to fully consider the effects of this dirty and dangerous pipeline,” said Staff Attorney Elly Benson with the Sierra Club, the plaintiff, in a prepared statement. “Even though this pipeline is intended to deliver fracked gas to Florida power plants, FERC maintained that it could ignore the greenhouse gas pollution from burning the gas. … Today’s decision requires FERC to fulfill its duties to the public, rather than merely serve as a rubber stamp for corporate polluters’ attempts to construct dangerous and unnecessary fracked gas pipelines.”

Could this spell Doomsville for the Atlantic Coast Pipeline and Mountain Valley Pipeline here in Virginia?

Probably not. I asked for a response from Kate Addleson, director of the Sierra Club Virginia Chapter. She was tied up in meetings today so she couldn’t talk, but she forwarded me the national Sierra Club press release. That document did not speculate whether the D.C. federal court ruling would apply to other pipeline projects.

Also, Dominion Energy, managing partner of the ACP, has reviewed the ruling and concluded that it does not apply. “We … don’t believe it will have any impact on the ACP,” said spokesman Aaron Ruby. When reviewing the Southeast Markets Pipeline Project, FERC did not ask what the pipeline complex meant for greenhouse gas emissions. But in the 18 months since approving that project, federal regulators have become more attuned to climate-change impact, and FERC did examine the issue in the environmental impact statement it wrote for the ACP.

“Based on its analysis, FERC concluded that the ACP would not significantly contribute to climate change and could potentially offset some regional greenhouse gas emissions since much of the gas will be used to replace higher-emitting coal plants,” Ruby said.

While acknowledging that gas-fired plants generate less carbon dioxide per unit of energy than coal, environmentalists contend that gas-fired plants provide no net improvement when one considers the full life-cycle of gas production. Life-cycle analysis counts natural gas leaks from the production, collection and transportation of gas burned in the gas-fired power plants. Methane, a main component of natural gas, has a far greater greenhouse effect than carbon dioxide.

However, FERC rejected life-cycle analysis. Federal law, said the ACP environmental impact statement, “does not .. require us to engage in speculative analyses or provide information that will not meaningful inform the decision-making process. Even if we were to find a sufficient connected relationship between the proposed project and upstream development or downstream end-use, it would still be difficult to meaningfully consider these impacts, primarily because emission estimates would be largely influenced by assumptions rather than direct parameters about the project.”

Federal rule-making moves much slower than environmentalist thinking. When the Obama administration acted to decarbonize the U.S. economy in order to ward off climate change, official government policy allowed a large role for both natural gas and nuclear power. Many environmental organizations now disapprove of both energy sources, preferring renewable power like wind and solar instead. In the past half year, the Trump administration has positioned itself as a champion of fossil fuels. The D.C. Court of Appeals ruling may represent the legal high water mark for environmentalists for the foreseeable future.

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15 responses to “Federal Pipeline Ruling a Big Deal… Or Maybe Not”

  1. Steve Haner Avatar
    Steve Haner

    You didn’t link to the actual opinion, but the Sierra Club news release did. A 2-1 ruling in their favor on one point, with several other points raised by the environmentalists rejected. Not quite the slam dunk touted in the press release, as the matter is remanded to FERC and an amendment to the EIS might solve the problem. For all we know the EIS submitted by the Virginia pipeline developers did address the points involved. And of course there DC Circuit Court of Appeals is can also be appealed.

    Everybody I talk to thinks the ACP is coming. It would have been approved by the Obama era FERC, and clearly will be more favorably reviewed now. As someone happy to wave bye bye to coal fired generation, I still view natural gas generation as preferable to that. As we move more toward solar and wind, that should come because it is economically attractive, not because the other options have been abolished. Unless we want to wreck the economy, of course….

    1. Here is the actual opinion you reference: https://www.sierraclub.org/sites/www.sierraclub.org/files/blog/FINAL%20ORDER%208-22-17.pdf

      I agree the FERC can cure the legal deficiency the Court identified in FERC’s Florida pipeline order fairly expeditiously; and we don’t know if its ACP order even suffers from that deficiency.

      1. Rowinguy1 Avatar

        The dissent is quite interesting, too. It makes me think that the developer might well ask for an en banc review by the DC Circuit.

        However it may be easier and cheaper just to get a more thorough review from FERC now that it has a quorum again.

  2. Reed Fawell 3rd Avatar
    Reed Fawell 3rd

    “As we move more toward solar and wind, that should come because it is economically attractive, not because the other options have been abolished. Unless we want to wreck the economy, of course….”

    I agree wholeheartedly with that statement but would add that I believe (and hope) the environmental degradation hurdle is far higher than is commonly believed. Here I speak to the grossly inefficient use of land to generate wind and solar now, as well as the adverse issues that are attendant to that use today.

    Also I suspect the technologies regarding storage might require far more development than is now claimed by proponents. In any case, obviously, reliable steady energy must not be compromised.

  3. LarrytheG Avatar

    hmmm… if it’s in the DC Court of Appeals, doesn’t that mean it already went through the 4th circuit in Virginia?


    I’d be curious how the multiple applications are considered separately and not in conjunction with each other…

    so… perhaps Trump is going to do the same thing with this that he did with the Keystone?

    I would expect to see the Feds under Trump to pull back from EIS in general… but the courts work off of the law as written until or unless altered.

    1. No, the DC Circuit is co-equal with (not over) the other federal Circuits including the 4th. The DC Circuit doesn’t have a geographic area but reviews appeals from federal administrative agencies (FERC, EPA, FDA, USDA, etc. etc.), except in a few instances. This administrative focus is its “specialty.”

    2. “I’d be curious how the multiple applications are considered separately and not in conjunction with each other…” — Well, the FERC decision on the ACP was just issued. And as far as I know no appeal has been taken from it yet, let alone an appeal that has been hanging around long enough to be briefed and argued before the DC Circuit. This Florida decision, however, was from early 2016 and all those preliminaries have already occurred.

      In any event, even if the court recognized the similarities, appellate courts rarely consolidate separate cases for review on their own. They will review a particular case on ITS facts, and then let the parties to the next case argue when their turn comes that their situation is the same — or, that their situation may look the same but it’s really different and here’s why.

  4. LarrytheG Avatar

    re: ” moving towards solar/wind”…

    well. if your’re REALLY interested in total impacts. – you HAVE to take into account – all the land savaged by the mining of coal – as well as all the land that can never be used for anything else if a Nuke Plant and spent fuel is on it.

    But I agree with the battery technology…issue.. solar and wind cannot work without gas… some day in the future .. maybe.. but right now if you want to use solar/wind – you need gas to pick up the difference between peak load and baseload when wind/solar can’t fulfill it.

    the fundamental issue is – how will you power the night?

    the answer to that question has to be a real answer – it cannot be “some day we’ll have batteries”. What do we do right now?

    but again – I’ll take solar on the landscape any day over the removal of mountaintops … or the billions and billions that will have to be spent for Yucca Mountain or equivalent.

  5. Reed, you speak to the “inefficient use of land” for solar and wind power. You raise an interesting question in my mind. I’ve been watching the construction of a 20 MW solar facility near Dunnsville, VA on some 174 acres and looking at the amount of grading and structures involved. Yes, it’s a lot of land; and yes, all those panels will have a visual “impact.” Driving by on US 17, I would prefer to see a field of soybeans there. That particularl land, however, has been long abandoned for agricultural purposes and grown up in useless scrub brush. Moreover, the solar panels will sit on a framework built on posts in the ground which can be pulled up if the plant is decommissioned; there is no structure being built “on” the ground, like a concrete pad, other than the footing for a small control complex. In other words, this solar-plant use of old farm land can be reversed at little cost if the economics change. So my question is: is it better to let the owners and the market decide how to use this land based on economic “best use” — for solar generation or growing crops — or should the County or State forbid one of these options based mainly on its visual impact?

    1. LarrytheG Avatar

      The “visual impact” deal is interesting when it fails to recognize the “visual impact” that coal mining has… because it’s “out of sight and out of mind” and it does illustrate a bit of “blind eye” … “thinking”…

      And, it might be hard for folks who live in heavily urbanized areas to also ‘see’ how much unused land there is but the fact is that there are thousands and thousands and thousands of acres of land that is not used.. and will never be used productively even in urbanized areas.

      There is even “used” land than can and should be covered .. take large parking lots that generate serious storm water runoff pollution… that COULD be covered with solar panels.. Storm ponds themselves could have solar covers..

      As Acbar related , abandoned farms – look around just outside of most urbanized areas and there are hundred, thousands of former farms that will never be farms again and if folks visual senses are imperiled then surround those panels with Leland Cypress or similar.. just as we current do with other “eyesores” like landfills and quarries, etc..

      If you travel to where coal is or was mined – there are literally millions of acres of cleared land that could easily be covered with solar …

      there are millions of acres of closed landfills with liners.. that if covered -with solar would actually enhance the permanent protection of the landfill by keeping or diverting rainwater from even soaking into the landfill to start with.

      And finally there are millions of miles of road rights of ways that we currently pay millions of dollar to mow… hundreds of miles of soundwalls that could be used… etc.

      there is no “waste” of land with solar.. there is, instead, opportunity to bring “wasted” land back into productive use.. and at the same time reduce the need to burn fossil fuels and generate pollution.

      The day will come , sooner than later when we WILL learn how to “store” solar-generated power and from that point on- our need to burn coal or even gas will dramatically reduce.. and it may well be the point where we can actually have meaningful impact on global warming while SAVING MONEY instead of apocalyptical visions of trillions spent in response to GW.

      The point is – we’ll never get there at all if we start out opposed to it … for lack of “vision”.

    2. Reed Fawell 3rd Avatar
      Reed Fawell 3rd

      Acbar –

      I hope to get to the opportunity to slip in a comment edgewise on your insightful observation immediately above but the Bacon Rebellion circuits currently appear overloaded with furious word flurries on other matters. Meanwhile, hang in there, Acbar.

      Cheers. Reed

    3. LarrytheG Avatar

      re: ” So my question is: is it better to let the owners and the market decide how to use this land based on economic “best use” — for solar generation or growing crops — or should the County or State forbid one of these options based mainly on its visual impact?”

      Of course it is… you can shield solar fairly easy anyhow.. If you want to see REAL angst – do a powerline …or even a cell tower.. a tank-farm for fuels.. a propane tank farm…. on and on… why pick on solar?

      1. Reed Fawell 3rd Avatar
        Reed Fawell 3rd

        You are like the guy at the cocktail party who follows one around, throwing up on them every time they can manage to get close. Cut out your crap.

        1. Tsk, tsk, Reed, no profanity, please. Not even mild profanity.

  6. TooManyTaxes Avatar

    This could be a temporary win. I fully agree federal agencies need to consider all factors required by statute or rule, as well as all material facts. Apparently FERC failed to do this. Ergo, it’s order was reversed. That’s the right thing to do.

    But on remand, an agency can consider more facts, make findings of fact and conclusions of law. They may or may not justify the same result as the Agency came to earlier.

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