Groundbreaking Climate Lawsuit Challenges Commission's Failure to Factor Greenhouse Gas Emissions in Fossil Fuel Approvals

A potentially historic lawsuit was filed in the D.C. Circuit Court today that could have enormous implications for the country's ability to reduce carbon emissions in line with international climate goals.

The lawsuit, Food & Water Watch and Berkshire Environmental Action Team v Federal Energy Regulatory Commission, charges that the national body that regulates new gas infrastructure projects is failing to consider the climate impacts of the pipelines and related infrastructure that it is tasked with reviewing.

FERC, which oversees all interstate gas projects, has been flouting court orders for almost three years, following a D.C. Circuit decision requiring them to meaningfully consider the 'downstream' greenhouse gas emissions of pipeline projects -- essentially the combustion activities associated with fossil gas facilitated by these pipelines.

Instead of including these reasonable considerations, FERC has maintained that all downstream emissions and climate impacts are inherently unforeseeable, and have thus asserted that the climate impacts of gas infrastructure are effectively zero.

The commission's current policy is to restrict emissions reviews to solely the construction phase of a given project, an absurd and dangerous evasion of legal precedent that essentially rubber stamps new fossil fuel projects at a time when we must be transitioning away from oil and gas to maintain a habitable climate.

"Winning this case could be a watershed moment for climate action," said Food & Water Watch attorney Adam Carlesco. "It would require the primary federal gas regulator for the globe's largest gas producing nation to finally consider the climate impacts of the fossil fuel infrastructure projects it reviews and seriously weigh those impacts when considering the necessity of those projects. This would be a welcome departure from the Commission's dangerous, politically charged, and unscientific status quo that places a thumb on the scales in favor of pipeline developers. It could also give vulnerable and impacted communities a potential legal avenue for challenging the approval of new sources of pollution."

The project at the center of the lawsuit is the "261 Upgrade Project," which consists of two miles of new pipeline and a new 11,000 horsepower compressor unit near Springfield, Massachusetts. FERC granted the project its certificate in December 2019. Shortly thereafter Food & Water Watch and the Berkshire Environmental Action Team (BEAT) filed for rehearing, which was denied in late February.

The commission did not approve the project unanimously. In his dissent, Commissioner Richard Glick pointed out that "claiming that a project has no significant environmental impacts while at the same time refusing to assess the significance of the project's impact on the most important environmental issue of our time is not reasoned decision-making."

In addition to FERC's failure to address climate impacts, the 'necessity' argument for this project is based on outdated precedent agreements with two companies, one of which has since withdrawn support for the project, while the other -- Columbia Gas -- was subsequently banned from operating in the state of Massachusetts after a deadly explosion in Lawrence and Andover in 2018. The company pleaded guilty to felony charges and paid $53 million, the largest criminal fine in history under the Natural Gas Act. The company's current operations in the state are in flux.

A positive outcome in the case would not only force FERC to consider climate impacts, but it would also prevent additional harm to resident already suffering from the existing gas infrastructure. "With an estimated emissions load of an additional 477,000 tons per year, the project is in clear violation of Massachusetts state mandate to reduce emissions, the Global Warming Solutions Act," said Jane Winn, executive director of the Berkshire Environmental Action Team. "Aside from these climate concerns, the neighboring city, Springfield, wedged between the compressor station site in Agawam and the location for the newly proposed TGP meter station in Longmeadow, has been deemed by The Allergy and Asthma Foundation of America as the 'Most Challenging Place to Live with Asthma.' Adding more emissions to a region already struggling with ozone pollution issues is an unsafe and unreasonable prospect."