Summary
The D.C. Circuit partially grants petitions for panel rehearing in consolidated cases challenging the Federal Energy Regulatory Commission’s reauthorization of two LNG terminals and an associated pipeline in Texas. While acknowledging procedural defects in the Commission’s initial environmental reviews, the court reverses its prior decision to vacate the orders, opting instead to remand without vacatur to avoid disrupting complex, long-standing energy projects. The court declines to rule on the impact of recent Executive Orders altering environmental review requirements, leaving those questions for the Commission to address first on remand.
Topics
Practice areas
Questions Presented
- Whether the Commission's reauthorization orders should be vacated due to procedural defects
- Whether, on rehearing, the court should vacate the orders or remand without vacatur
Holdings
- The court remands the cases to the Commission without vacating the reauthorization orders.
- The Commission must issue a supplemental environmental impact statement and consider the carbon capture and sequestration proposal as either a connected action or a reasonable alternative.
Key quotations
“We said no, concluding that on these specific facts, the Commission was required “to issue a supplemental [environmental impact statement]” and to consider the “CCS proposal . . . as either a connected action or a project alternative.”” (at 1218)
“Vacatur would upend the schedule for their construction, undermine respondent‑intervenors’ ability to meet binding contractual commitments made in reliance on the Commission’s orders, stall respondent‑intervenors’ efforts to secure debt financing and finalize labor contracts, and potentially prevent them from supporting thousands of jobs in the local community.”
Factual background
FERC reauthorized two liquefied natural gas terminals and an associated pipeline in Texas. The Commission failed to issue supplemental environmental impact statements addressing updated environmental justice analysis, to treat a proposed carbon capture and sequestration system as a connected action or reasonable alternative, and to consider air quality data. The petitioners challenged these procedural omissions.
Procedural history
The D.C. Circuit panel previously vacated FERC's reauthorization orders for two LNG terminals and a pipeline, finding procedural defects. The petitioners sought rehearing, arguing vacatur was unwarranted. The court considered the rehearing and partially granted the petitions, remanding without vacatur.
Remand instructions
The Commission must conduct a supplemental environmental impact statement and consider the carbon capture and sequestration proposal as a connected action or reasonable alternative.