Judge Brad Garcia, nominated by President Biden to the court of appeals for the DC Circuit, ruled that the Federal Energy Regulatory Commission (FERC) failed to adequately assess the environmental impact of a proposed liquified natural gas (LNG) facility near the Gulf Coast in Louisiana. The decision was joined by Biden nominee Florence Pan and George HW Bush nominee Karen LeCraft Henderson and will send the matter back to FERC. The July 2024 decision was in Healthy Gulf v FERC.
What is the background of this case?
Energy corporation Commonwealth LNG LLC plans to build and operate LNG facilities in southwestern Louisiana near the Gulf Coast. Healthy Gulf and several other environmental groups have opposed the plans and argued their environmental impact could be very harmful.
After FERC approved the plan, the groups petitioned for its review in the DC Circuit. Their primary arguments were that FERC had inadequately explained its failure to “determine the environmental significance of the project’s greenhouse gas emissions.” They also maintained that FERC had “failed to adequately assess the cumulative impact of the project’s nitrogen dioxide emissions,” and to consider alternatives.
How did Judge Garcia, Pan and the DC Circuit Rule and Why is it Important?
Judge Garcia wrote a unanimous opinion, joined by Judge Pan and Judge Henderson, that partly granted the environmental groups’ petition and sent the case back to FERC for further work. Based on a careful review of the record, Judge Garcia found that the project would produce “3.2 million metric tons” of carbon dioxide equivalent, and that FERC had failed to determine whether those emissions would be significant to the environment. The court remanded the case to FERC so that, at the very least, it would determine whether this release would be significant based on methodology it had used in a previous case or explain why that methodology would not apply.
Judge Garcia also found an important FERC error concerning emissions of another potentially harmful pollutant-- nitrogen dioxide. FERC concluded that the incremental effects of the project’s added nitrogen dioxide emissions were not significant but failed to meet its statutory obligation to assess the cumulative effect of the project’s nitrogen dioxide emissions plus those of other projects in the vicinity. The court sent the case back to FERC with directions that it comply with this requirement. The court did find, however, that FERC had adequately assessed alternatives.
The decision of Judge Garcia and Judge Pan was obviously important to the environmental groups and others concerned with the risk of environmental harm from Commonwealth’s LNG project. The ruling also provides an important example in the DC Circuit, which hears most FERC cases, of environmental groups successfully challenging FERC decisions that may harm the environment. The decision also provides an important example of the significance of promptly confirming fair-minded judges to our federal courts.