Developing DC Circuit Party Line Split May Impact Future FERC Pipeline Projects

Originally published for customers September 15, 2023

FERC and the DC Circuit have been tussling over how FERC should address the need for a project — and the extent to which climate change should be weighted. Two recent cases decided by the DC Circuit provide valuable insight into future resolution.


 

What’s the issue?

Beginning with the Sabal Trail decision in 2017, FERC and the DC Circuit have been tussling over how FERC should address the need for a project and the extent to which climate change should be balanced against that need. Two recent cases decided by the DC Circuit that are not about pipeline projects may be critical in shaping how this tussle is resolved.

Why does it matter?

The final solution concerning how these competing factors are to be balanced could ultimately determine whether any future pipeline projects can gain approval from FERC.

What’s our view?

Two recent decisions, one involving the Alaska LNG project, and another involving the approval of a new rail line in the Uinta Basin in Utah, shows that there may be a split developing along party lines at the DC Circuit. This split among different panels may need to ultimately be resolved by the full DC Circuit. In the meantime, some aspects of the rail case may make it more difficult for FERC to approve projects in the manner it is currently using under acting Chairman Phillips.

 

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