D.C. Circuit Court Hears Environmental Challenge to Feds' Approval of Cove Point Gas Export Facility in Maryland

Environmental groups faced off with the Federal Energy Regulatory Commission (FERC) before the D.C. Circuit Court of Appeals today, arguing that the agency illegally overlooked significant pollution and human safety risks in approving a massive liquefied natural gas (LNG) export terminal along the Chesapeake Bay in southern Maryland.

The $3.8 billion Cove Point facility was approved in October 2014 and is currently under construction by Cove Point LNG, LP, a subsidiary of Dominion Resources. It would be the first LNG export terminal on the East Coast and, the groups argue, would play a major role in expanding harmful fracking operations across the Mid-Atlantic region.

Earthjustice filed the lawsuit (Case No. 15-1127) in May 2015 on behalf of the Chesapeake Climate Action Network, Patuxent Riverkeeper, and the Sierra Club, after FERC ended nearly seven months of delay and officially denied the groups' request for a rehearing. The case is part of a steady line of lawsuits challenging FERC for facilitating a massive expansion of gas export infrastructure and pipelines without fully accounting for the public and environmental harms.

"FERC once again shirked its duty under federal environmental law, and the result could be a disaster for both the climate and communities scarred by fracking wells and pipelines," said Deborah Goldberg, managing attorney at Earthjustice, who presented oral arguments to the court today. "We are asking the court to require that FERC go back to the drawing board and fully evaluate the many ways in which this project will degrade the environment."

Specifically, the petitioners are asking the federal court to require FERC to prepare a more rigorous Environmental Impact Statement, and to order Dominion to halt construction in the meantime.

The groups contend that FERC circumvented the National Environmental Policy Act by failing to credibly consider the significant new amounts of air, water, and climate pollution that would be triggered by expanded fracking and fracked-gas infrastructure "upstream" of the Cove Point facility. Dominion is permitted to export nearly one billion cubic feet of gas per day. Analysis indicates that, accounting for emissions triggered across the lifecycle of fracking, piping, liquefying, shipping and burning the gas, the Cove Point terminal could cause more greenhouse gas pollution than all eight of Maryland's coal-fired power plants combined.

"It defies logic and the law for FERC to claim that it can't determine whether exporting massive new amounts of gas will involve new fracking, or new emissions of heat-trapping methane," said Anne Havemann, general counsel at the Chesapeake Climate Action Network. "Based on a shoddy environmental review, FERC has already subjected residents of Calvert County to irreparable harm. We look to the court to step in before an ounce of gas is exported, causing even more harm to our climate and worsening record heat, storms, sea-level rise, and flooding."

"The stated purpose of this and other export terminals is to provide a market for increased gas production," said Nathan Matthews, staff attorney at Sierra Club, who is litigating Sierra Club's challenges to other LNG export approvals. "Exports plainly mean more drilling, more fracking, and more climate-disrupting pollution, but FERC has consistently refused to consider any of these impacts."

The groups' legal petition further cites FERC's failure to adequately address the safety threats to nearby residents in Lusby, Maryland--where the liquefaction plant would be built in closer proximity to residences than any other facility previously approved by FERC. Additionally, the groups contend that FERC did not thoroughly consider how foreign tanker ships discharging dirty ballast water will harm the water quality of the Chesapeake Bay or how an increase in tanker traffic could threaten the critically endangered North Atlantic Right Whale.

Lawyers for Dominion and the American Petroleum Institute joined FERC in court today to defend the agency's limited environmental review.

The D.C. Circuit has previously heard challenges by Sierra Club and Galveston Baykeeper to FERC's approval of LNG export facilities at Sabine Pass, Louisiana, and Freeport, Texas, but has yet to rule in those cases. Sierra Club has also challenged FERC's approval of the Corpus Christi, Texas, LNG export facility. That case is fully briefed, but has not yet been set for oral argument.

FOR MORE INFORMATION:

• View the petitioners' joint brief in the case: https://chesapeakeclimate.org/wp/wp-content/uploads/2016/04/Environmental-petitioners-Cove-Point-final-brief-2016-2-24.pdf
• View the petitioners' joint reply brief to FERC: https://chesapeakeclimate.org/wp/wp-content/uploads/2016/04/Environmental-petitioners-Cove-Point-final-reply-brief-2016-2-24.pdf
• View the groups' petition filed on May 7, 2015: https://chesapeakeclimate.org/wp/wp-content/uploads/2015/05/Cove-Point-Petition-for-Review-as-Filed-2015-05-07.pdf