Yesterday the U.S. Court of Appeals for the D.C. Circuit, in Citizens Action Coalition of Indiana v. FERC, rejected Citizens Actions claim that FERC had to consider alternatives to state-approved natural gas turbines before approving a natural gas pipeline. The opinion, written by Judge Rao, explains why such a requirement would impose far broader environmental review obligations than can be justified, and may represent a trimming of the D.C. Circuit's unduly expansive approach to NEPA (an approach currently under review by the Supreme Court in Seven County Infrastructure Coalition v. Eagle County, Colorado).
Here's how Judge Rao summarizes the opinion:
As night follows day, an environmental challenge follows the approval of a natural gas pipeline. In this case, the State of Indiana approved a plan that would retire a coal-fired facility and replace it with wind and solar energy sources. To ensure grid reliability with the move to renewable energy, the plan also included two new natural gas turbines. The Federal Energy Regulatory Commission approved a natural gas pipeline to serve those turbines. The Citizens Action Coalition of Indiana petitions for review, alleging that FERC's environmental analysis and order were unreasonable and inconsistent with the National Environmental Policy Act and the Natural Gas Act.
Citizens Action alleges numerous errors, but its core claim is that FERC was required to analyze non-gas alternatives before approving the natural gas pipeline. We disagree. Congress gave FERC authority to promote the development of interstate natural gas pipelines, but it left the choice of energy generation to the States. The purpose of the pipeline was to support Indiana's energy plan, and FERC has no statutory authority to consider non-gas alternatives already rejected by the State. Because FERC acted lawfully and reasonably when conducting the environmental analysis and assessing the public convenience and necessity for the pipeline, we deny the petition for review.
