United States: Environmental Groups Challenge Pipeline Approval Based On FERC's Alleged Failure To Adequately Consider Climate Change Impacts

On September 21, 2016, three environmental groups filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit, challenging the Federal Energy Regulatory Commission's ("FERC") approval of the Southeast Market Pipelines Project ("Project"). Sierra Club v. Fed. Energy Regulatory Comm'n, No. 16-1329. The Project consists of three separate but interconnected natural gas transmission pipeline projects to be constructed in Alabama, Georgia, and Florida to serve the growing incremental demand for natural gas in the southeast United States.

The petitioners filed their preliminary statement of issues on October 24, 2016. Among other things, the petitioners intend to argue that FERC violated the National Environmental Policy Act by failing to analyze the climate impacts of the Project, including the effects of greenhouse gas emissions. Sierra Club previously issued a press release contending that the greenhouse gas methane will be released during gas extraction and transmission activities, and that the power plants served by the Project will emit greenhouse gases and foreclose alternative cleaner energy options such as wind and solar. Contemporaneous with filing the statement of issues, the petitioners moved to stay FERC's approval of the project and to expedite review by the D.C. Circuit on an emergency basis. The petitioners asserted that, absent such relief, the Project would be constructed and placed into service before the D.C. Circuit could decide the petitioners' claims.

The D.C. Circuit recently granted unopposed motions to intervene filed by companies that received FERC approval for each of the three separate portions of the Project and two electric utilities operating in Florida that will be served by the Project. A nonprofit coalition of utilities also recently filed a motion to participate as amicus curiae in support of FERC. FERC and the intervenors have filed responses opposing the request for stay and expedited review, emphasizing the need for natural gas from the Project to service consumers. The petitioners' reply is due on November 10, 2016. We will continue to monitor the case for significant developments.

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