Judge Michele Childs, nominated by President Biden to the DC Circuit Court of Appeals, wrote a unanimous opinion, also joined by Biden Judge Brad Garcia, which vacated a Federal Energy Regulatory Commission (FERC) order that approved a natural gas pipeline without fully evaluating its environmental consequences. The court sent the matter back to FERC for reconsideration. The July 2024 decision was in New Jersey Conservation Foundation v FERC.
What is the background of this case?
The Transcontinental Gas Pipeline Co LLC applied to FERC for permission to build and operate a natural gas pipeline under New York, New Jersey, and several other states. FERC approved the project. Both the EPA and environmental groups objected, contending that the agency’s required environmental impact statement failed to properly evaluate projected greenhouse gas emissions of the project and possible alternatives. This was despite the fact that FERC’s own estimates anticipated “enormous” greenhouse gas emissions.
Objectors also contended that FERC failed to adequately consider evidence suggesting a lack of market need for the project. FERC refused to reconsider its decision so the case went to the DC Circuit.
How did Judge Childs, Garcia and the DC Circuit Rule and Why is it Important?
Judge Childs wrote a unanimous decision, joined by Judge Garcia, that vacated the FERC order and sent the matter back to the agency for reconsideration. She wrote that FERC was “arbitrary and capricious” for failing to make a specific determination about the project’s anticipated greenhouse gas emissions, in light of “its own stated precedent that it could do so” and failing to explain why it did not. She also explained that the agency had improperly failed to discuss or evaluate possible mitigation strategies.
Judge Childs also found that FERC had “acted arbitrarily” in determining there was a “market need” for the project. She wrote that the agency had failed to explain “why it entirely discredited the findings of two market studies showing that current capacity is sufficient” for New Jersey demands “beyond 2030.”
The decision by Judge Childs and Garcia was obviously important to environmental groups and others in New Jersey who opposed the proposed pipeline. It is also significant because it provides a good example of how courts should analyze such claims in FERC and other cases. The ruling also provides an example of the importance of promptly confirming fair-minded judges to our federal courts.