Food & Water Watch Gets A Justly Deserved Swatting at Appeals Court
Food & Water Watch is an all but communist NGO funded by other mega-wealthy NGOs. It is as sleazy as it comes among mainstream environmental groups. That’s why it was so heartening to read that the D.C. Circuit Court of Appeals, the most powerful court in the nation short of the Supreme Court, just swatted down this extremist group with some practical observations. Here’s what I’m talking about (emphasis added, citations deleted):
The Federal Energy Regulatory Commission issued a certificate allowing the Tennessee Gas Pipeline Company to build facilities to expand service on a natural-gas pipeline running from western Pennsylvania to the New York metropolitan area. The additional gas transported as a result will alleviate shortages in Westchester County, New York.
Petitioner Food & Water Watch contends that FERC, in approving the project, arbitrarily overlooked environmental issues. Food & Water Watch argues that the Commission’s Environmental Impact Statement impermissibly failed to quantify greenhouse-gas emissions from upstream drilling for the extra gas, to quantify ozone emissions from its downstream burning, and to categorize emissions impacts as either significant or insignificant. In addition, Food & Water Watch argues that FERC, in finding a need for the project, did not adequately consider New York State and New York City laws mandating reductions in carbon-dioxide emissions. We reject these contentions and deny the petitions for review.
The Natural Gas Act regulates the transportation and sale of natural gas in interstate commerce. Section 7 of the Act prohibits companies from transporting or selling natural gas in interstate commerce, or from constructing or extending any facilities for doing so, without a “certificate of public convenience and necessity.” In considering whether to issue a certificate, FERC must examine “all factors bearing on the public interest,” including environmental ones.
The National Environmental Policy Act requires federal agencies to prepare an Environmental Impact Statement (EIS) for all “major Federal actions significantly affecting the quality of the human environment.” Under regulations promulgated by the Council on Environmental Quality and adopted by FERC, an EIS must analyze both “direct” and “indirect” environmental effects of the proposed project. Indirect effects are “later in time or farther removed in distance” than direct effects, “but are still reasonably foreseeable.”
We have held that such indirect effects can include GHG emissions from upstream drilling for, or downstream burning of, the gas transported through a pipeline. And when such emissions are reasonably foreseeable, FERC must either give a “quantitative estimate” of the emissions or else explain why it cannot.
The NEPA regulations address how agencies should decide whether to prepare an EIS. Agencies may exclude from NEPA review categories of actions that normally have no “significant effect” on the environment. They may prepare an Environmental Assessment to decide whether a proposed action will have significant environmental effects and thus require an EIS. Or they may simply prepare an EIS. An EIS is a “detailed written statement” addressing significant environmental effects; whereas an Environmental Assessment is a “concise” document addressing only the threshold question whether there are such effects.
NEPA “does not mandate particular results.” It imposes “only procedural requirements,” which ensure that agencies consider “significant” environmental impacts and that the public is also aware of them. NEPA sometimes requires agencies to engage in “reasonable forecasting” based on “some educated assumptions.” But it does not require “forecasting that is not meaningfully possible.”
Tennessee Gas owns connected natural-gas pipelines running from Texas to New England. This case involves its Line 300, which runs from western Pennsylvania through New Jersey and into New York. In the project at issue, dubbed the East 300 Upgrade Project, Tennessee Gas sought to build or expand three compressor stations in Pennsylvania and New Jersey. These upgrades will enable the company to push an additional 115,000 dekatherms of natural gas per day through the pipeline and into Westchester County, New York.
Consolidated Edison Company of New York (ConEd), a utility operating in New York City and Westchester County, has entered into a 20-year agreement to buy firm transportation service for all this additional gas. ConEd plans to use the gas to alleviate shortages in Westchester County, where the demand for natural gas has increased substantially over the last decade.
As a result of the increased demand, ConEd has been unable to offer gas service to new customers, despite a state- law obligation to provide reliable service to all who seek it. It has also been forced to truck compressed natural gas into the county to meet peak winter demand. ConEd anticipates that the gas supplied by the project will solve these problems.
Tennessee Gas applied to FERC for a certificate of public convenience and necessity for the East 300 Upgrade Project. Initially, the Commission published an Environmental Assessment. But after receiving comments, it decided to prepare a full EIS, which devotes some 16 pages to addressing GHG emissions. The EIS estimated the downstream carbon-dioxide emissions that would occur when ConEd customers burn the gas in Westchester County. However, FERC concluded that the sources of this gas were unknown, so the EIS declined to address upstream environmental effects—including GHG emissions—from drilling for the gas.
FERC then issued a certificate of public convenience and necessity, which incorporated and elaborated on the EIS. The Commission declined to characterize downstream emissions “as significant or insignificant. And it again declined to address upstream emissions from drilling for the gas.
FERC then denied rehearing. For a third time, it declined to address upstream environmental effects. Addressing downstream ozone, the Commission estimated the volume of ozone precursor chemicals caused by burning the gas from the project. However, it declined to estimate how much additional ozone their emission would ultimately cause.
Food & Water Watch petitioned for review of the certificate and rehearing orders, and we consolidated the petitions…
Food & Water Watch still thinks FERC did not say enough. It contends that the Commission needed to label the increased emissions and ensuing costs as either significant or insignificant. But NEPA contains no such mandate. It merely requires an EIS if a “major” federal action “significantly” affects the environment.
A finding of no significant impact is thus essential if an agency chooses not to prepare an EIS, but is immaterial where the agency simply prepares the EIS. Nor do NEPA regulations require an agency to classify every environmental impact as significant or insignificant. They require only a “discussion” of the “significance” of environmental impacts. And our precedent simply restates that requirement.
A “discussion” is a “consideration of a question in open” form. Here, FERC amply discussed the “significance” of GHG emissions—by estimating the amount of increased emissions, comparing them to national and statewide totals, setting forth downstream harms in qualitative terms, and even giving monetary, present-value estimates of the harms.
Food & Water Watch cites no legal consequence that would follow from attaching a label of “significant” or “insignificant” to these various emissions and costs. And neither policymakers nor citizens, after perusing FERC’s qualitative and quantitative discussion of the various emissions and costs, would have learned much more had FERC attached either label.
We recognize that, in the recent past, FERC had chosen to label a project’s carbon emissions as either “significant” or “insignificant” based on a threshold of 100,000 metric tons of greenhouse gases per year. But FERC never asserted that it was legally compelled to attach the label.
To the contrary, the Commission later withdrew the policy statement pending further study about what level or kind of threshold might warrant such a classification. Food & Water Watch hints that the withdrawal was arbitrary. But the withdrawal showed FERC’s awareness that it was pulling back, and a desire for further study is a reasonable basis for doing so. FERC’s change in course was therefore not arbitrary…
Food & Water Watch argues that FERC placed too much weight on the contract between Tennessee Gas and ConEd as evidence of market demand. But we repeatedly have held that such contracts—especially between unaffiliated entities—are “good evidence” of such demand.
In any event, FERC here relied on much more than just the contract. As it explained, there was a natural-gas shortage in Westchester County, which was forcing ConEd to refuse service to certain new customers and to bring in compressed gas by truck during peak winter demand. hat evidence was more than enough to support a finding of need.
Food & Water Watch objects that a recently enacted New York statute cuts against the finding of need. The New York State Climate Leadership and Community Protection Act requires carbon emissions from the state to be reduced to 60 percent of 1990 levels by 2030 and to 15 percent of 1990 levels by 2050. And it creates a council to plan how the state will achieve those reductions.
FERC reasonably explained why the statute did not undercut its finding of need. To begin with, the statute doesnot prescribe any particular way of achieving the required reductions. Nor does it “ban ConEd from providing natural gas to meet end-use demand.” To the contrary New York State law still requires ConEd to provide natural-gas service to all who seek it. And the project remains “fully subscribed,” meaning that ConEd has agreed to buy all the gas that the project will make available. Given all of this, FERC reasonably declined to reject the upgrade project based on the Climate Leadership Act.
Food & Water Watch raises a similar argument based on a recent New York City ordinance that it characterizes as prohibiting nearly all use of natural gas in newly constructed or renovated buildings. We may not consider this argument, which was not properly preserved before FERC. The Natural Gas Act prohibits us from considering any “objection” that was not “urged before” FERC in a petition for rehearing. And FERC regulations require parties seeking rehearing to “include a separate section entitled ‘Statement of Issues,’ listing each issue in a separately enumerated paragraph.”
Moreover, they provide that failure to do so means that the issue “will be deemed waived.” In its petition for rehearing, Food & Water Watch briefly mentioned the New York City ordinance, but it did not separately identify the ordinance in its Statement of Issues. And where statutes bar us from addressing issues not raised before an agency, a party must do so consistent with valid agency rules. Food & Water Watch does not challenge the validity of FERC’s preservation rule, so its failure to comply with it bars our review here.
For these reasons, we deny the petitions for review.
It’s a beautiful thing!
#ConEd #NewYork #FoodAndWaterWatch #Westchester #NaturalGas #Pipeline #DCCourtAppeals #FERC