- The Federal Energy Regulatory Commission (FERC) on Monday issued the final environmental analysis for the Southeast Market Pipelines Project, potentially allowing construction and service to continue after a federal appeals court threatened to put it on hold last week.
- Last Wednesday, the U.S. Court of Appeals for the District of Columbia Circuit declined to review an August decision throwing out FERC's greenhouse gas accounting for the projects, which would put them on hold until a final supplemental environmental impact statement (SEIS) on carbon impacts was completed.
- The SEIS reiterates FERC's argument from its draft analysis that climate impacts of the pipeline cannot be determined. FERC can allow service to continue on the pipeline project with a separate order, but has not yet issued it.
FERC's final environmental impact statement for the Southeast Market projects reaches a similar conclusion to that of its draft SEIS, released in August.
In the draft, FERC acknowledged that the projects, including the 515-mile Sabal Trail pipeline, would have environmental impacts, but the agency argued it "could not find a suitable method to attribute discrete environmental effects to GHG emissions."
The final document goes further to calculate the expected natural gas consumption and resulting greenhouse gas emissions from the pipeline expansion, but argues that FERC has no standard to judge whether these impacts are significant or not.
"[W]e have not identified any research that identifies a project level significance threshold of GHG emissions for climate change," FERC wrote. "Without some specific definition, or basis in physical science, it would be inappropriate to ascribe significance to a rate or volume of GHG emissions."
Releasing the final SEIS could allow FERC to keep construction and service going on Sabal Trail and the project's other pipelines.
Under the D.C. Circuit's ruling, the project's construction certificates would have been invalid when the court issued its formal mandate on the decision, typically a week after it is announced. But because the ruling singled out the agency's earlier environmental analysis for scrutiny, issuing the final supplement to that analysis would allow the agency to reissue the certificates with a separate order. The pipeline owners asked for that "order on remand" in a filing late Friday.
FERC has not yet issued that separate order, however, and an agency spokesperson told Utility Dive they "can't speculate" if or when it will come.
Environmental interests hope it will be later, rather than sooner. Under typical rulemaking procedures, parties have 30 days to file an application for rehearing on an EIS. The Sierra Club, which brought the original suit against the projects, indicated it wants FERC to wait at least that long to reinstate construction.
"We think that they should wait 30 days after publishing [the SEIS] in the Federal Register before issuing any new certificates," said Kelly Martin, director of the group's Beyond Dirty Fuels campaign.
FERC, however, argues that this case represents an "exception" to the 30-day rule because it is "subject to a formal internal appeal process that allows other agencies or the public to make their views known."
"In such cases, the agency decision may be made at the same time the notice of the FEIS is published, allowing both periods to run concurrently," FERC wrote in the SEIS. "The Commission decision for this proposed action is subject to a 30-day rehearing period."
It remains to be seen how the arguments will hold up in court. In his ruling last week, D.C. Circuit Judge Thomas Griffith wrote that FERC should have given a "quantitative estimate" of the GHG emissions that would result from the pipelines.
FERC's final SEIS does that, but its expected range of impacts is so broad that it cannot say whether or not GHGs will rise or fall due compared to not building them.
"Because the No Action Alternative could result in lesser, equal, or greater GHG emissions than the [Southeast Market Pipelines] Project, we cannot use the quantified downstream GHG emissions from the SMP Project to meaningfully compare the two," FERC wrote.
Martin took issue with that part of the analysis.
"We know where the gas is going, and we know the current and future proposed power plants that it could feed," she said. "It is pretty standard to be able to account for the climate impacts from a power plant and it is essential that FERC is held accountable for making sure we are evaluating the lasting significance of the climate impacts of building fracked gas pipelines."
Environmental groups are expected to push for a rehearing and could file another court challenge if FERC reinstates construction certificates. Water quality advocates from Florida on Monday filed with the commission asking it to reject the pipeline companies' request for orders on remand. The Sierra Club made a similar filing Tuesday morning.
Greenhouse gas reporting is likely to factor in to FERC's upcoming review of pipeline approval policies, its first since 1999. Martin said that regardless of the outcome for Southeast Market, the Sierra Club will be there.
"We’ll certainly be involved in offering public comment and feedback about the way that FERC currently is looking at pipelines," she said.