In a case that touches Alabama, a federal court ruled this week that a government regulatory agency has to estimate the probable effect energy use has on climate change.
Environmentalists in Alabama and elsewhere are applauding this “surprising” victory. The 6th District Court of Appeals in Washington, D.C., ruled Monday that, when licensing natural gas pipelines, the Federal Energy Regulatory Commission did not fully consider the potential greenhouse gas effects of burning natural gas.
The court ordered a new environmental impact study of the Southeast Market Pipelines Project — a network that includes the new Sabal Trail pipeline. The 515-mile line carries fracked gas from a point near Alexander City through southwestern Georgia to central Florida, where it fuels generators for electricity there.
The Sabal Trail construction is complete and the pipeline is in full commercial operation, according to Andrea Grover, speaking for the Sabal Trail partners. While Grover would not comment on a potential appeal, she said, “We do not anticipate that the court’s decision will have an adverse effect on Sabal Trail’s operations.”
The project started service to Florida Power & Light on June 14. The line eventually will also serve Duke Energy when its natural gas power plant finishes construction.
In requiring pipeline companies to include the climate change assessment in their applications, the court drew a “bright, red line” that will challenge FERC to make changes in its licensing process, according to Greg Buppert, senior attorney for the Southern Environmental Law Center in Virginia, with offices in Birmingham.
Buppert said the Sabal Trail ruling at least is a break in a long history of courts rubberstamping FERC decisions. “This court has shown it’s willing to overturn a FERC decision,” he said. “I’m cautious about suggesting courts are going to look at pipelines more closely, but there has been a lot more public scrutiny of pipeline projects so maybe the courts are paying attention.”
Cahaba Riverkeeper Executive Director Myra Crawford said related waterkeeper organizations oppose all new pipelines. “Florida is already beset with critical environmental problems,” she said. “No state needs more potential pollution hazards.”
David Paule, executive director of the Atlanta-based environmental law firm Greenlaw, one of the litigants, noted, “It’s pretty groundbreaking. We’re very surprised but happy about the court’s decision, especially given the tone of environmental rhetoric coming from the current presidential administration. It sets the precedent that pipeline companies can’t bulldoze through the process and circumvent requirements.”
Precedent for Other Projects
The ruling doesn’t stop the Sabal Trail, but it sets a precedent for organizations fighting practices such as the use of eminent domain to take private property, Paule added. Greenlaw represented the Chattahoochie and Flint riverkeepers in the suit, which was led by the Sierra Club.
The 6th District Court of Appeals told FERC the environmental study “at a minimum, should have estimated the amount of power-plant carbon emissions that the pipelines will make possible.”
Sierra Club attorney Elly Benson said in a news release, “For too long, FERC has abandoned its responsibility to consider the public health and environmental impacts of its actions, including climate change. Today’s decision requires FERC to fulfill its duties to the public.”
Buppert, the environmental law attorney, bemoaned the FERC process that didn’t allow a court to hear a challenge until the project was already completed. “That’s a serious problem,” he said.
Utility Dive, which covers the pipeline and other industries, said analysis of the court’s decision is difficult due to recent contradictory rulings from other federal courts. It quoted Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law, that the ruling is in tension with the Trump Administration’s efforts to streamline pipeline approvals, making the government more legally vulnerable if it skirts any level of environmental review.
“Agencies will lose legal challenges when they don’t appropriately consider climate change impacts,” Revesz said. “Rather than speeding the process of infrastructure and energy development, the Trump administration is slowing it down.”