The Federal Energy Regulatory Commission (FERC) is devoting an increasing amount of attention and staff resources to its consideration of EJ impacts of proposed interstate natural gas pipeline and liquified natural gas terminal projects. FERC has taken to heart a 2021 Biden Administration directive that federal agencies develop “programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts” (Executive Order No. 14,008, 86 Fed. Reg. 7619 (Feb. 1, 2021.). FERC has established a senior agency position, the Senior Counsel for Environmental Justice and Equity, focused on EJ in FERC’s decision-making. The Commission’s staff is now intently focused on EJ issues, and is demanding additional information regarding impacts of pipeline and LNG terminal construction and expansion proposals on EJ communities through follow-up data requests in essentially all pending proceedings.

Last year, the U.S. Court of Appeals for the District of Columbia Circuit took FERC to task for the Environmental Justice analysis it had performed for three LNG terminal projects in Brownsville, TX, questioning the reason why FERC limited the geographic scope of its EJ analysis (Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321 (2021)). FERC is still considering the proper scope of its EJ analysis of those projects on remand (Rio Grande LNG, LLC, Docket No. CP16-454, and Texas LNG Brownsville LLC, Docket No. CP16-1216.). These proceedings should ultimately provide useful guidance on FERC’s view as to how to establish the scope of its EJ analyses.

Recently, FERC staff has found in a final Environmental Impact Statement (EIS) for the Commonwealth LNG Project (Docket No. CP19-502) that, given visual impacts on an Environmental Justice community and overall cumulative impacts in the project area, “impacts on environmental justice communities would be disproportionately high and adverse” and significant. This may be the first time FERC staff has identified project impacts on an EJ community to be both significant and disproportionately high and adverse, even after the mitigation measures proposed by the applicant are taken into account. The EIS will now be considered by FERC in determining whether to grant Commonwealth LNG’s application for authorization to site, construct and operate its proposed LNG export terminal. FERC’s actions in this proceeding will be worth watching for insights as to how its EJ analyses will address projects located in areas that already host multiple energy facilities that are seeking initial FERC authorization or approval to expand.