On May 16, 2023, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued an opinion in Center for Biological Diversity v. Alaska Gasline Development Corporation, affirming FERC’s authorization for Alaska Gasline Development Corporation (“AGDC”) to construct and operate liquified natural gas (“LNG”) facilities in Alaska’s North Slope region (“Project”).
Due to regional infrastructure constraints limiting the amount of natural gas that can be liquefied, shipped, and brought to market, AGDC currently reinjects North Slope gas into the ground to support extraction in the area. As proposed, the Project would transport North Slope gas out of the region via a 42-inch diameter, 800-mile pipeline that will bisect Alaska from north to south. The Project would also include the construction of natural gas liquefaction facilities in the south of Alaska for transportation by tanker ship.
As required by the National Environmental Policy Act (“NEPA”), FERC prepared an Environmental Impact Statement (“EIS”) for the Project as part of FERC’s project review and approval process. In the EIS, FERC concluded that the Project would cause a range of environmental impacts; however, FERC found that these environmental impacts would be adequately mitigated by the imposition of 165 environmental conditions. As such, FERC authorized the Project as modified (“Authorization Order”). Environmental petitioners (“Petitioners”) sought rehearing of the Authorization Order, arguing that FERC had not adequately determined that the Project was in the public interest. FERC denied rehearing and the Petitioners sought review at the D.C. Circuit. As described below, the D.C. Circuit denied or dismissed each of Petitioners’ claims.
On review, Petitioners claimed that FERC failed to comply with NEPA by: (1) failing to consider alternatives to the Project; (2) refusing to employ the “social cost of carbon” metric to estimate the significance of the Project’s direct greenhouse gas (“GHG”) emissions; (3) refusing to consider the Project’s indirect GHG emissions; (4) failing to consider the impact of the Project on a particular species of whale; and (5) failing to adequately evaluate the Project’s impacts on wetlands. Petitioners also argued that FERC violated the Natural Gas Act, citing similar reasons. The D.C. Circuit rejected each of Petitioners’ arguments and held that FERC’s decision to authorize the Project was lawful and reasonable.
With respect to Petitioners’ claims concerning GHG emissions, the D.C. Circuit held that Petitioners’ proposal that FERC consider a social cost of carbon tool in its NEPA analysis was inadequate for lack of scientific consensus. The D.C. Circuit further held that requiring FERC to consider the indirect effects of GHGs goes beyond FERC’s delegated authority and that GHG effects were otherwise not reasonably foreseeable in the instant case because, at the time of its NEPA review, FERC could not identify the end users of the gas from the Project.
The Order, issued in Case No. 20-1379, can be found here.