IPR Submits Amicus Brief in D.C. Circuit Challenging FERC’s Decision to License the Cove Point LNG Export Facility

On November 20th, the Institute for Public Representation filed an amicus brief in the D.C. Circuit on behalf of seven environmental organizations in EarthReports, Inc. (DBA Patuxent Riverkeepers), Sierra Club, and Chesapeake Climate Action Network v. FERC, Dominion Cove Point LNG, LP, and American Petroleum Institute, Nos. 15-1127 & 15-1205. The brief supported the plaintiffs’ challenge to FERC’s decision to authorize liquid natural gas (LNG) exports from Dominion Energy’s Cove Point facility (Cove Point).

Cove Point, located in Calvert County, Maryland, was originally built as a storage and import facility for LNG. In 2013, Dominion filed an application with FERC for authorization to construct and operate an LNG export terminal at Cove Point, thus changing the project’s original purpose. FERC authorized the construction in 2014, after preparing only an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI) for the project. Plaintiffs challenged FERC ‘s decision to approve the conversion of Cove Point to an export facility without conducting a full analysis of the project’s environmental impacts, in violation of its National Environmental Policy Act (NEPA) obligations.

The amicus brief IPR wrote focused on the indirect environmental impacts of the Cove Point project that FERC’s EA failed to address. Specifically, our amicus brief argues that FERC’s EA was insufficient because it failed to consider the environmental impacts of natural gas development induced by the export facility, despite significant evidence of the connection between the project and the gas reserves in the Marcellus and Utica shale plays. The impacts from this increased development include damage to wildlife habitats, possible ground and surface water pollution, and degradation of air quality. The brief also argues that FERC failed to perform a valid cumulative impacts analysis when it unreasonably limited the geographic scope of the project’s impacts and inaccurately characterized the regulatory context in which cumulative impacts are expected to occur. Additionally, our brief argues that FERC failed to consider the intensity of the project’s impacts within the unique geographic context of the Chesapeake Bay and its watershed, as required by 40 CFR § 1508.27(b)(3).

Plaintiffs and amici contend that FERC’s approval of the Cove Point project without consideration of these impacts amounts to arbitrary and capricious behavior, and that, therefore, the agency’s authorization of the project should be vacated and remanded to FERC for compliance with NEPA. Georgetown Law students Christine Hottinger (L’15) and Jordan Liew (L’16), together with clinical teaching fellows/staff attorneys Justin Gundlach and Sarah Fox, researched and drafted the brief.

IPR student Jordan Liew helped draft this post.

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