Judge Brad Garcia, who was nominated by President Biden to the US Court of Appeals for the DC Circuit, wrote a unanimous decision that vacated a Federal Energy Regulatory Commission (FERC) order that approved a liquefied natural gas (LNG) project in Texas because of environmental concerns that the agency did not adequately address. Biden judge Michelle Childs joined the ruling, as did Obama nominee Sri Srinivasan. The August 2024 decision was in City of Port Isabel v FERC..
What is the background of this case?
Several corporations proposed LNG projects in Texas that would include two LNG export terminals and an LNG pipeline. A nearby city and several environmental groups objected because of concerns about air pollution, impact on poor and minority communities, and other environmental issues. In an earlier decision, the DC Circuit sent an initial FERC decision approving the project back for reconsideration.
FERC then reauthorized the proposal despite continuing objections concerning its failure to properly analyze the projects’ environmental impact. The case went back to the DC Circuit.
How did Judges Garcia, Childs and the DC Circuit Rule and Why is it Important?
Judge Garcia found that FERC had failed in key aspects of its obligations to assess the environmental impact of the proposal. In light of the “nature and severity of the flaws” in FERC’s “second effort to properly assess” the project, all three judges agreed that FERC’s orders should be completely vacated and the case should go back to FERC for reconsideration.
Initially, Garcia wrote that FERC had “erroneously declined” to issue supplemental environmental impact statements concerning the “environmental justice” impacts of the proposals on poor and minority communities. He concluded that this failure was “arbitrary and capricious,” especially since FERC’s own analysis suggested that the “impact on environmental justice populations” would be “disproportionately high and adverse.”
Garcia also concluded that several aspects of FERC’s analysis concerning air pollution were arbitrary and capricious. This included its failure to consider air quality data from an area “closer to the projects” that showed possible emissions of “fine particulate matter” that exceeded air quality standards.
The decision by Judges Garcia and Childs is obviously important for the environmental groups and others concerned about the potential environmental harm that would be caused by these Texas projects, It also sets important precedent concerning review of FERC orders with potential environmental impact and when it is appropriate to vacate FERC orders completely. The ruling also serves as a reminder of the importance of promptly confirming fair-minded nominees to serve on our nation’s federal judiciary.