Guess we should have seen this one coming. Last week MDN told you that U.S. Circuit Court of Appeals for the District of Columbia rejected an appeal by the rich snobs from Cooperstown that call themselves Otsego 2000, challenging the Federal Energy Regulatory Commission’s (FERC) approval of Dominion Energy’s New Market Project to build two new compressor stations in Upstate NY (see Fed Court Rules Against NY Antis in “Landmark” Dominion Pipe Case). The snobs just won’t let it go–they hate being told “NO” by anyone…

In June 2014, Dominion Energy filed an application with FERC to beef up flows along its pipeline in upstate NY by building two new compressor stations–one in Madison County, NY, and one in Chemung County, NY (see Dominion Asks FERC for New Compressors in Upstate NY, WV). The New Market Project, as it’s called, cost Dominion $159 million to build and provides 112,000 dekatherms per day (Dth/d) of extra natural gas capacity along ~200 miles of existing Dominion pipeline across upstate NY. The pipeline runs through the Elmira, Ithaca, Syracuse and Albany areas.

Otsego 2000, a group of leftist radicals based in Otsego County, NY, sued FERC in federal court to try and stop the project by using the argument global warming wasn’t factored into the decision-making process (see Otsego2000 Snobs Appeal FERC Approval of New Market Pipe Project). Here’s the kicker: neither of the proposed compressor stations is located in Otsego County! We said at the time the group has no standing, no right to sue in the first place. And that’s exactly what the DC Circuit ruled in rejecting the case.

The court didn’t debate or consider the substance of the lawsuit, which is whether or not FERC should be forced to consider mythical man-made global warming when it makes its decisions to approve (or not) a new pipeline project like the New Market Project. Otsego 2000 claims FERC changed the standard they use, and so they are attempting to make FERC “change back.” We disagree with that assessment; we’re simply reporting to you their argument.

Since the court didn’t really take up the underlying substance, Otsego 2000 is saying “we’ll be back.” Maybe it won’t be to litigate the New Market Project case (maybe it will). Instead it may be to litigate the PennEast Pipeline. Or another pipeline. They’ve tossed out threats against multiple pipeline projects, none of which cross through Otsego County. Which shows that Big Green money is behind Otsego 2000. The veiled threat is there that they will make another run at trying to gut FERC’s ability to do its job by forcing them to calculate the impossible, the amount of fictional impact on global warming a project will have.

From the left-leaning E&E News publication Energywire:

Challengers of a drastic shift in pipeline regulators’ approach to climate analysis could take their case back to court.

A panel of judges for the U.S. Court of Appeals for the District of Columbia Circuit yesterday issued a two-page order finding that the New York nonprofit Otsego 2000 lacked standing to file its lawsuit against the Federal Energy Regulatory Commission (Energywire, May 9).

The judges did not address the merits of the case, which centered on FERC’s decision last year to limit analysis and disclosure of greenhouse gas emissions from projects the commission authorizes.

“We believe the decision is erroneous and the issue of standing should have been fully briefed,” Michael Sussman, counsel for Otsego 2000, told E&E News yesterday.

Even if the D.C. Circuit declines to revisit its decision, the issues at the heart of the challenge will continue to spread into future litigation, experts said yesterday.

The lawsuit stems from FERC’s final approval last year of Dominion Energy Transmission Inc.’s New Market Project, a relatively low-profile effort to upgrade natural gas infrastructure in the Empire State.

New Market gained notoriety in the energy world after FERC’s Republican majority used a procedural order to deem the commission’s analysis of upstream and downstream emissions “generic” and “inherently speculative” and halt the agency’s practice of tallying those impacts (E&E News PM, May 18, 2018).

Democratic Commissioners Cheryl LaFleur and Richard Glick vehemently opposed the change.

Glick last month co-authored an article in a legal journal in which he said FERC had “fallen short of its statutory obligations” on climate.

LaFleur used a subsequent order on the Broad Run infrastructure expansion to run the numbers on downstream greenhouse gas emissions — an attempt to demonstrate to her GOP colleagues how simple the process can be.

But even LaFleur’s back-of-the-envelope calculation wouldn’t be possible if the key data were not collected in an environmental review, said Gillian Giannetti, an attorney for the Natural Resources Defense Council.

“If this policy is taken to its logical end, that means that information won’t be available anymore,” she said.

The D.C. Circuit heard arguments in the Broad Run case the same day as the New Market challenge.

During arguments, the judges — all appointed to the court by Democratic presidents — appeared skeptical of FERC’s approach (Energywire, April 12).

The court could choose to address upstream emissions in Broad Run, which has not yet been decided, said analysts for ClearView Energy Partners LLC.

“Overall, we still think that the court does not favor FERC’s new ‘don’t ask, don’t evaluate’ approach to its GHG reviews, and its inability to consider Otsego’s appeal for lack of standing deprived the court of an opportunity to render an assessment at this time,” the firm said in a note yesterday.

A grant of the Broad Run appeal could pave the way for the upstream emissions question in a challenge of FERC’s certificate for the PennEast pipeline through Pennsylvania and New Jersey, ClearView predicted.

‘Everyone will be back in court’
The court’s decision, which came in an unpublished order, does not create binding precedent from the court on the substance of the policy, said Avi Zevin, an attorney for New York University School of Law’s Institute for Policy Integrity.

“This decision has a big effect on the individuals who are upset about the outcome of this particular project, but as a more general legal principle, it doesn’t foreclose challenges to the policy decision as to how FERC is going to do greenhouse gas analysis for future pipeline projects,” he said.

A different element of the multifaceted policy — the commission’s abandonment of the social cost of carbon tool to estimate the economic impact of emissions — is still ripe for review in the PennEast certificate challenge, he said.

“That’s still going to go forward,” Zevin said.

The Grow America’s Infrastructure Now Coalition yesterday celebrated the D.C. Circuit’s finding.

“Regulatory certainty is key for much-needed growth in midstream infrastructure,” Craig Stevens, a spokesman for the group, said in a statement.

“A rigorous, yet straightforward and streamlined permitting process encourages investment in our pipeline network while maintaining critical safety standards.”

While judges sitting on the D.C. Circuit panel asked Otsego 2000 to come to arguments prepared to defend its standing, FERC and Dominion, an intervenor in the case, did not raise the issue during briefing.

FERC’s venue of choice for unveiling its policy shift robbed the public and the judiciary of its opportunity to weigh in on the change, said NRDC’s Giannetti.

“This will happen again if FERC decides to go forward with this policy,” she said.

“Everyone will be back in court.”*

*E&E News – Energywire (May 10, 2019) – FERC critics gear up for round 2 in pipeline court battle