Congratulations Sierra Club, Flint Riverkeeper, Chattahoochee Riverkeeper, and witnesses, who just won their case against FERC about Sabal Trail! Florida landowner Robin Koon is called out by name in the court’s decision to vacate FERC’s order that approved Sabal Trail. Thanks to him and everyone else who for years have demanded to hold regulatory agencies accountable.

Still from WWALS video of Robin Koon speaking in Tallahassee, 23 January 2017

The actual decision is:

The petition for review in No. 16-1329 is granted. The orders under review are vacated and remanded to FERC for the preparation of an environmental impact statement that is consistent with this opinion. The petition for review in No. 16-1387 is denied.

So ordered.

I am not an attorney, but if I’m reading that right, the court just vacated FERC’s February 2016 Order that approved the Sabal Trail pipeline. Of course, FERC or Sabal Trail or Duke or FPL or Enbridge or all of the above will appeal. Maybe somebody can order a stay of gas through the pipeline while that’s going on.

Update 2017-08-29: Fourth news roundup: From pipelines to renewable energy and efficiency –Sierra Club 2017-08-29

Update 2017-08-24: Third news roundup: This is wind in our sails and could be the end of Sabal Trail –Suwannee Riverkeeper in VDT 2017-08-24

Update 2017-08-23: and more news stories: Pipeliners spooked by Sierra Club Major Landmark Victory; could shut down Sabal Trail —industry press.

Update 2017-08-22: More news stories:

• Sierra Club Florida PR, also sent as Sierra Club national PR:

  “Today, the D.C. Circuit rejected FERC’s excuses for refusing to fully consider the effects of this dirty and dangerous pipeline,” said Sierra Club Staff Attorney Elly Benson. “Even though this pipeline is intended to deliver fracked gas to Florida power plants, FERC maintained that it could ignore the greenhouse gas pollution from burning the gas. For too long, FERC has abandoned its responsibility to consider the public health and environmental impacts of its actions, including climate change. Today’s decision requires FERC to fulfill its duties to the public, rather than merely serve as a rubber stamp for corporate polluters’ attempts to construct dangerous and unnecessary fracked gas pipelines.”

  And this reference to the Mercaptan leaks at Sabal Trail’s Dunnellon Compressor Station site:

  “Floridians, unlike FERC, have been far too aware of the dangers of this fracked gas project since its inception, and that’s why so many of us have spoken out against it,” said Sierra Club Florida Director Frank Jackalone. “That fear was manifested when this project began leaking into our communities the other week, and it’s why a thorough review of this pipeline will show that it must be — and should have been — rejected.”

• Miami Herald via AP, 22 August 2017, Appeals court: Energy officials missed in pipeline review, from the Sierra Club PR.
• Kristina Torres, The Atlanta Journal-Constitution, 22 August 2017, 2:03 p.m, Court orders new environmental review for Sabal Trail Pipeline, from the Sierra Club PR.
• Jessica Lipscomb, Miami New Times, 22 August 2017, D.C. Judges Say Feds Screwed Up Review of Florida’s Sabal Trail Pipeline,

  Earlier this summer, natural gas began flowing through a new, 515-mile pipeline from Alabama to Florida, quashing the hopes of thousands of environmentalists and activists who had fought it. Then, within weeks, the Sabal Trail Pipeline began leaking a smelly odorant in North Florida.

  On Tuesday, those same activists won a huge victory when a Washington, D.C. appellate court panel sided with the Sierra Club, saying the federal agency that reviewed the project had made a huge error. In the narrow 2-1 decision, U.S. Circuit Judge Thomas B. Griffith wrote that the Federal Energy Regulatory Commission (FERC) should have considered the impact of the pipeline’s added greenhouse gas emissions….

  Though the ruling is a big win for the Sierra Club, the practical impact of the court decision is still unclear. Sabal Trail spokeswoman Andrea Grover tells New Times that pipeline owners are still reviewing the ruling, adding that “the court’s decision will not affect… operations at this time.”

  For Sierra Club representative Merrillee Malwitz-Jipson, though, the decision Tuesday is significant for the Florida, Georgia, and Alabama residents who live alongside the pipeline.

  “This type of outcome shows them that they do have a voice, that they do matter and people do matter,” she says. “Corporations think they can do whatever they want to people on the ground, but the reality is the citizens do matter and do count.”

  And it’s not as if Ms. Grover has never been wrong….

The only first news story I’ve seen about this is by Timothy Cama, The Hill, 22 August 2017 11:08 AM EDT, Court rejects pipeline project on climate concerns. It only names the Southeast Market Pipelines Project (SMPP), and never mentions Sabal Trail, which the court ruling refers to as the linchpin of SMPP. The Hill’s story says in part:

Judge Thomas Griffith, who was nominated to the court by President George W. Bush, wrote in the opinion. He was joined by Judge Judith Ann Wilson Rogers, one of President Bill Clinton’s nominees.

“As we have noted, greenhouse-gas emissions are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate,” Griffith said.

“Quantification would permit the agency to compare the emissions from this project to emissions from other projects, to total emissions from the state or the region, or to regional or national emissions-control goals. Without such comparisons, it is difficult to see how FERC could engage in ‘informed decision making’ with respect to the greenhouse-gas effects of this project, or how ‘informed public comment’ could be possible,” the court wrote, quoting previous cases regarding environmental reviews.

Judge Janice Rogers Brown, another Bush nominee, dissented from the ruling, arguing that FERC does not have the authority to take action to reduce the greenhouse gas impact of pipelines it approves, so it is not obligated to analyze some impacts.

The court’s decision overturns the project’s federal approval and returns the issue to FERC to complete the necessary greenhouse gas analysis.

Thanks to Circuit Judge Griffith for the opinon to Judge Rogers for concurring, and to Judge Brown for concurring in part, in U.S. DC Circuit Court of Appeals Case No. 16-1329, Sierra Club, Et al., Petitioners, v. Federal Energy Regulatory Commission, Respondent, Duke Energy Florida, LLC, et al., Intervenors. I’ve added the boldface emphasis in these quoted extracts.

GRIFFITH, Circuit Judge: Environmental groups and landowners have challenged the decision of the Federal Energy Regulatory Commission to approve the construction and operation of three new interstate natural-gas pipelines in the southeastern United States. Their primary argument is that the agency’s assessment of the environmental impact of the pipelines was inadequate. We agree that FERC’s environmental impact statement did not contain enough information on the greenhouse-gas emissions that will result from burning the gas that the pipelines will carry. In all other respects, we conclude that FERC acted properly. We thus grant Sierra Club’s petition for review and remand for preparation of a conforming environmental impact statement….

I

The Southeast Market Pipelines Project comprises three natural-gas pipelines now under construction in Alabama, Georgia, and Florida. The linchpin of the project is the Sabal Trail pipeline, which will wend its way from Tallapoosa County in eastern Alabama, across southwestern Georgia, and down to Osceola County, Florida, just south of Orlando: a journey of nearly five hundred miles. Sabal Trail will connect the other two portions of the project. The first—the Hillabee Expansion—will boost the capacity of an existing pipeline in Alabama, which will feed gas to Sabal Trail’s upstream end for transport to Florida. At the downstream end of Sabal Trail will be the Florida Southeast Connection, which will link to a power plant in Martin County, Florida, 120 miles away. Shorter spurs will join Sabal Trail to other proposed and existing power plants and pipeline networks. By its scheduled completion in 2021, the project will be able to carry over one billion cubic feet of natural gas per day.

The three segments of the project have different owners,¹ but they share a common purpose: to serve Florida’s growing demand for natural gas and the electric power that natural gas can generate….

At least that’s what the pipeline companies, Duke, FPL, and FERC say. The facts on the ground say otherwise about “these optimistic predictions”, as the court called them. And the court chose to rule on exactly those natural gas power plants, old and new.

B

It’s not just the journey, though, it’s also the destination. All the natural gas that will travel through these pipelines will be going somewhere: specifically, to power plants in Florida, some of which already exist, others of which are in the planning stages. Those power plants will burn the gas, generating both electricity and carbon dioxide. And once in the atmosphere, that carbon dioxide will add to the greenhouse effect, which the EIS describes as “the primary contributing factor” in global climate change. J.A. 915. The next question before us is whether, and to what extent, the EIS for this pipeline project needed to discuss these “downstream” effects of the pipelines and their cargo. We conclude that at a minimum, FERC should have estimated the amount of power-plant carbon emissions that the pipelines will make possible.

An agency conducting a NEPA review must consider not only the direct effects, but also the indirect environmental effects, of the project under consideration. See 40 C.F.R. § 1502.16(b). “Indirect effects” are those that “are caused by the [project] and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. § 1508.8(b). The phrase “reasonably foreseeable” is the key here. Effects are reasonably foreseeable if they are “sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision.” EarthReports, Inc. v. FERC, 828 F.3d 949, 955 (D.C. Cir. 2016) (citation omitted).

What are the “reasonably foreseeable” effects of authorizing a pipeline that will transport natural gas to Florida power plants? First, that gas will be burned in those power plants. This is not just “reasonably foreseeable,” it is the project’s entire purpose, as the pipeline developers themselves explain. See Intervenor Br. 4-5 (explaining that the project “will provide capacity to transport natural gas to the electric generating plants of two Florida utilities”). It is just as foreseeable, and FERC does not dispute, that burning natural gas will release into the atmosphere the sorts of carbon compounds that contribute to climate change.

Robin Koon and other landowners

Thanks to Robin Koon and the other landowners, whose membership helped give Sierra Club standing for “setting aside and remanding”.

Several individual Sierra Club members submitted such affidavits, explaining how the pipeline project would harm their “concrete aesthetic and recreational interests.” WildEarth, 738 F.3d at 305. For example, one member, Robin Koon, explained that the Sabal Trail pipeline will cross his property (on an easement taken by eminent domain), that construction noise will impair his enjoyment of his daily activities, and that trees shading his house will be permanently removed. Other Sierra Club members similarly averred that the pipeline project will affect their homes and daily lives. “Such credible claims of exposure to increased noise and its disruption of daily activities, backed up by specific factual representations in an affidavit or declaration, are sufficient to satisfy Article III’s injury-in-fact requirement.” Sierra Club, 827 F.3d at 44. And nobody disputes that the prevention of this sort of injury is germane to Sierra Club’s conservation-oriented purposes, or cites any reason why these individual members would need to join the petition in their own names.

Because they allege concrete injury from FERC’s order certifying the pipeline project, and because that certification was based on an allegedly inadequate environmental impact statement, these Sierra Club members, and therefore Sierra Club itself, have standing to object to any deficiency in the environmental impact statement.² See WildEarth Guardians, 738 F.3d at 306-08. The deficiency need not be directly tied to the members’ specific injuries. For example, Sierra Club may argue that FERC did not adequately consider the pipelines’ contribution to climate change. See id. The members’ injuries are caused by the allegedly unlawful Certificate Order, and would be redressed by vacatur of that order on the basis of any defect in the environmental impact statement. See id. at 308.³

² Though GBA Associates and Isaacs raise different arguments as to why the Certificate and Rehearing Orders are unlawful, the standing analysis does not differ for them, as they seek the same remedy and allege similar injuries to their property interests.

³ The same reasoning goes for Sierra Club’s argument that FERC used an arbitrary and capricious methodology in determining Sabal Trail’s initial rates. A finding that FERC failed to justify its approach to this issue would lead us to “hold unlawful and set aside” Sabal Trail’s certificate, see 5 U.S.C. § 706(2), which would in turn redress the Sierra Club members’ environmentally based injuries in fact. See Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 479 (D.C. Cir. 2009) (finding Article III standing on the grounds that an agency’s “irrationally based” permitting program threatened the arctic animals that the petitioners wanted to observe, and that “setting aside and remanding” the program would redress this threat).

Buried in a footnote, the court makes it clear that direct effects on its members give Sierra Club standing for the court to have power of “setting aside and remanding”.

Interestingly, this court ruling says nothing about how many members nor “substantial number”, unlike in WWALS vs. Sabal Trail & FDEP (October 2015) in which the Florida judge said four WWALS members was not a substantial number and denied standing.

Delaware Riverkeeper

Thanks to Delaware Riverkeeper whose previous case was cited by the court.

But at the same time, we are responsible for holding agencies to the standard the statute establishes. An EIS is deficient, and the agency action it undergirds is arbitrary and capricious, if the EIS does not contain “sufficient discussion of the relevant issues and opposing viewpoints,” Nevada, 457 F.3d at 93 (quoting Nat. Res. Def. Council v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988)), or if it does not demonstrate “reasoned decisionmaking,” Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014) (quoting Found. on Econ. Trends v. Heckler, 756 F.2d 143, 154 (D.C. Cir. 1985)). The overarching question is whether an EIS’s deficiencies are significant enough to undermine informed public comment and informed decisionmaking. See Nevada, 457 F.3d at 93. This is NEPA’s “rule of reason.” See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004). With those principles in mind, we direct our attention to the specific deficiencies the petitioners have alleged in the EIS for the Southeast Market Pipelines Project. As noted above, FERC prepared a single unified EIS for the project’s three pipelines, and no party has challenged that approach. Thus, for purposes of our NEPA analysis, we will consider the project as a whole.

Attorneys

Thanks to the attorneys:

Elizabeth F. Benson argued the cause for petitioners Sierra Club, et al. With her on the briefs was Eric Huber. Keri N. Powell entered an appearance.

Jonathan Perry Waters argued the cause and filed the brief for petitioners G.B.A. Associates, LLC, et al.

Federal Court did what FDEP could have

This is the case WWALS asked FERC to wait on before letting Sabal Trail go in service. WWALS also asked for FERC to revoke its own February 2, 2016 “Order issuing certificates and approving abandonment re Florida Southeast Connection, LLC, et al under CP14-554 et al.” Well, FERC didn’t, but the DC Distric Court has now vacated that Order!

This DC Circuit Court ruling comes only a week after the New York Circuit Court held for New York State against Williams Company’s so-called Constitution Pipeline. Which demonstrates that if FDEP had actually done its job and refused a permit to Sabal Trail, FERC may have never gotten to issue its February 2016 Order.

Williams Company’s Hillabee Expansion Project as part of SMPP goes down with Sabal Trail in this DC court ruling. Take that, Williams! Two in two weeks.

Sierra Club and Riverkeepers

And thanks to Sierra Club, especially Merrillee Malwitz-Jipson, who has opposed Sabal Trail longer than anyone except WWALS, first at OSFR and now at Sierra Club. Thanks to Flint Riverkeeper and Chattahoochee Riverkeeper for staying in there about environmental justice in Albany, Georgia, and elsewhere, even though the court gave FERC a pass on that. The court ruled for you anyway, about climate change!

Thanks to everyone and every group that has opposed this unnecessary, destructive, and hazardous fracked methane pipeline boondoggle. I am not going to attempt to name all of us, because there are so many.

You and we all won anyway!

Let the sun rise on Florida, the southeast, the country, and the world!

There is still more you can do to make FERC consider solar power instead of pipelines, or even to take eminent domain out of the Natural Gas Act, which would end these pipeline boondoggles once and for all.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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