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FERC must redo climate analysis for Texas LNG projects - D.C. Circuit

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A flare burns excess natural gas in the Permian Basin in Loving County, Texas, U.S. November 23, 2019. Picture taken November 23, 2019. REUTERS/Angus Mordant

  • Authorizations to build Texas LNG export terminals, pipelines not vacated
  • FERC told failed analysis of projects' impacts on environmental justice communities
  • FERC chairman Glick says body has 'obligation' to analyze impacts of greenhouse gas emissions

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(Reuters) - A federal appeals court on Tuesday ruled that the Federal Energy Regulatory Commission (FERC) must further analyze the impacts of proposed liquefied natural gas marine terminals on climate change and low-income or minority communities in Cameron County, Texas.

In a victory for the community and environmental groups who appealed FERC's decision to approve the Texas and Rio Grande LNG terminals as well as related pipelines, a unanimous panel of the U.S. Circuit Court of Appeals for the D.C. Circuit ruled that FERC violated the National Environmental Policy Act (NEPA) with "deficient" environmental analyses. The panel did not, however, vacate the order.

"This decision clearly demonstrates that the Commission has the authority and obligation to meaningfully analyze and consider the impacts from (greenhouse gas) emissions and impacts to Environmental Justice communities," said FERC chairman Richard Glick, who had dissented on the projects' approval.

A Texas LNG spokesperson said the ruling was a reminder of the importance of environmental justice. K&L Gates represents the company.

Matt Schatzman, the chief executive of NextDecade Corp, which is developing Rio Grande LNG, said in statement that he was pleased the court "affirmed" the project's authorization.

Jeremy Marwell of Vinson & Elkins, who represents Rio Bravo Pipeline Company, said its parent, Enbridge, does not comment on pending litigation.

Jennifer Richards, a lawyer with Texas RioGrande Legal Aid representing co-plaintiff Vecinos para el Bienestar de la Comunidad Costera, a community group, said: "Before the Commission can say these projects are in the public interest, it needs to "evaluate environmental justice impacts."

The Texas and Rio Grande LNG projects plan to export natural gas from the Port of Brownsville to global markets.

The plaintiffs sued FERC last year over its separate authorizations to construct and operate the facilities.

They claim that FERC violated NEPA because it anchored its authorizations for the projects in botched environmental reviews of the projects' greenhouse gas emissions, saying the facilities would "have higher greenhouse gas emissions than nearly every other project FERC has reviewed."

Writing for the panel, U.S. Circuit Judge Robert Wilkins agreed that FERC "failed to respond to significant opposing viewpoints concerning the adequacy of its analyses of the projects' greenhouse gas emissions."

The judge said that it should have responded, when the groups sought rehearings of the orders, to their argument that federal regulations on NEPA's implementation require FERC to use "methods generally accepted in the scientific community," such as the social cost of carbon protocol, to gauge its contribution to climate change.

Wilkins also ruled FERC acted arbitrarily when it "offered no explanation" as to why it limited its environmental justice analysis to census blocks within only two miles of the project sites.

Cameron County is 89% Hispanic/Latino and 30% of its residents live below the poverty line, one of the complaints says.

Wilkins was joined by Chief U.S. Circuit Judge Srikanth Srinivasan and Senior U.S. Circuit Judge Douglas Ginsburg.

The case is Vecinos para el Bienestar de, et al v. FERC, U.S. Circuit Court of Appeals for the D.C. Circuit, Nos. 20-1093, 20-1094, 20-1045.

For Vecinos para el Bienestar, et al: Jennifer Richards of the Texas RioGrande Legal Aid.

For FERC: Scott Ray Ediger with FERC.

For intervenor Texas LNG Brownsville LLC: Barry Hartman of K&L Gates.

For intervenor Rio Grande LNG, LLC: John Longstreth of K&L Gates.

For intervenor Rio Bravo Pipeline Company, LLC: Jeremy Marwell of Vinson & Elkins.

Read more:

White House restores key climate measure calculating carbon's harm

U.S. energy regulator focuses on access to renewable power to reduce climate impact

U.S. energy regulator to create environmental justice position: chairman

Sebastien Malo reports on environmental, climate and energy litigation. Reach him at sebastien.malo@thomsonreuters.com

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