On June 14, 2024, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied Food & Water Watch’s environmental challenges to the FERC’s order granting a certificate of public convenience and necessity (“CPCN”) to Tennessee Gas Pipeline Company (“Tennessee Gas”) for its East 300 Upgrade Project (“Project”).

The Project added three compressor stations on Tennessee Gas’ Line 300 in Pennsylvania and New Jersey to allow Tennessee Gas to expand deliveries to Westchester County, New York.  In its Environmental Impact Statement (“EIS”) for the Project, FERC declined to address upstream environmental effects – including greenhouse gas (“GHG”) emissions – from drilling for the gas.  FERC then issued an order granting a CPCN for the Project, which incorporated and elaborated on the EIS (“Certificate Order”).  However, the Commission declined to characterize downstream emissions as significant or insignificant and again declined to address upstream emissions from drilling.  On rehearing, FERC again declined to address upstream environmental effects (“Rehearing Order”).  Food & Water Watch subsequently petitioned the D.C. Circuit for review of FERC’s Certificate Order and Rehearing Order on the basis that FERC failed, under the National Environmental Policy Act (“NEPA”), to adequately consider the environmental impacts of the Project.

Food & Water Watch raised three NEPA challenges to FERC’s analysis of environmental effects.  First, Food & Water Watch claimed that FERC erred by refusing to assess upstream environmental effects caused by extracting natural gas.  However, the D.C. Circuit was unpersuaded.  To the contrary, the D.C. Circuit found that FERC reasonably concluded that there was too much uncertainty regarding the number and location of additional upstream wells and therefore FERC did not need to address such effects in the EIS because they were not reasonably foreseeable.  Second, Food & Water Watch objected to FERC’s discussion of ozone pollution that might be caused by downstream burning of the gas, arguing that FERC arbitrarily failed to quantify how much ozone would be produced as a result of such downstream burning of gas.  The D.C. Circuit disagreed, finding that FERC reasonably explained its decision to not estimate ozone pollution.  Third, Food & Water Watch objected to FERC’s discussion of downstream GHG emissions, claiming that FERC should have labeled the increased emissions and ensuing costs as either significant or insignificant.  The D.C. Circuit disagreed finding that FERC went “well beyond” the requirements of discussing GHG emissions by quantifying downstream GHG emissions and comparing those emissions to national and state totals.  With respect to Food & Water Watch’s claim that GHG emissions should have been labeled as significant or insignificant, the D.C. Circuit held that NEPA contains no such mandate.  The D.C. Circuit found that NEPA does not require an agency to classify every environmental impact as significant or insignificant but instead only require a discussion of their significance. The D.C. Circuit’s decision, issued in Case No. 22-1214, can be accessed here.