# A Lawsuit Could Force FERC to Consider Climate Impacts of New Oil and Gas Projects

An episode of [Drilled](https://invisiblenetwork.ai/podcast/1439735906), 9 May 2020, 17 min.

Audio: https://podtrac.com/pts/redirect.mp3/tracking.swap.fm/track/SxlTEPDY7xDg35RXkASs/pdrl.fm/3e5572/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/9a7ab5ee-ce11-48ff-a544-b3ec00ea9b1e/180253a7-2341-446f-903d-b3ec00f40ca1/audio.mp3?utm_source=Podcast&in_playlist=7f82f371-6316-4ea6-a108-b3ec00ea9b2d

A lawsuit filed against the Federal Energy Regulatory Commission (FERC) over a small Massachusetts project could have nationwide implications. The lawsuit aims to force FERC to evaluate the overall emissions and climate change impact of any new energy project—something the courts ordered the agency to do yers ago and has particular relevance right now as FERC has been rapidly approving new energy infrastructure. Adam Carlesco, lead attorney for the plantiffs, walks us through the case. See omnystudio.com/listener for privacy information.

## Transcript

[0:15] Speaker 1: For about a month now, we've been tracking the rollbacks
[0:19] Speaker 1: of various environmental regulations and at the same time the
[0:22] Speaker 1: fast tracking of permits for new oil and gas projects.
[0:27] Speaker 1: What we've seen doing this reporting is that there's this
[0:30] Speaker 1: sort of two part lever happening. You've got the EPA
[0:34] Speaker 1: working on rollbacks at the same time that the Federal
[0:36] Speaker 1: Energy Regulatory Commission otherwise known as FERK, is working on
[0:41] Speaker 1: rubber stamping any oil and gas project that crosses its desk.
[0:45] Speaker 1: FERK is an almost impossible institution to write about or
[0:51] Speaker 1: even think about, and that's kind of by design. It's
[0:54] Speaker 1: incredibly complex and basically sort of a black box. Even
[0:58] Speaker 1: when they do public their reasoning behind different decisions, it's
[1:03] Speaker 1: so hard to parse that it's almost impossible to understand.
[1:07] Speaker 1: And that's from someone who reads energy policy stuff all
[1:11] Speaker 1: the time. I can only imagine what a layperson would
[1:14] Speaker 1: do with the FERK website. Those kinds of things are
[1:18] Speaker 1: what a new lawsuit against FERK is trying to undo.
[1:22] Speaker 1: The lawsuit was filed in the DC District Court by
[1:26] Speaker 1: Food and Water Watch and Berkshire Environmental Action against the
[1:32] Speaker 1: Federal Energy Regulatory Commission, and it charges that the national
[1:36] Speaker 1: body that regulates new gas infrastructure projects is failing to
[1:40] Speaker 1: consider the climate impacts of the pipelines and related infrastructure
[1:44] Speaker 1: that it's tasked with reviewing. Now this is important because
[1:48] Speaker 1: a few years ago, legislation was passed that requires FERK
[1:53] Speaker 1: to consider climate change impacts of the projects that it's
[1:57] Speaker 1: approving or not, except FURK hasn't really done that. They've
[2:01] Speaker 1: restricted emissions reviews to just looking at the construction phase
[2:06] Speaker 1: of a project, which is absurd when you're thinking about
[2:09] Speaker 1: oil and gas projects. Their justification is that they couldn't
[2:13] Speaker 1: possibly know what the future climate impacts will be of
[2:16] Speaker 1: any given project, which again just seems silly. The suit
[2:20] Speaker 1: is not against FERK for its process in general. It
[2:24] Speaker 1: focuses on a specific project in Massachusetts called the two
[2:28] Speaker 1: sixty one Upgrade project. It basically is a two mile
[2:32] Speaker 1: pipeline and a new compressor unit near Springfield, Massachusetts. There's
[2:37] Speaker 1: been a fair bit of back and forth about this
[2:39] Speaker 1: project in the local area, and ultimately FURK denied various
[2:42] Speaker 1: requests to stop the project. It did not do so unanimously.
[2:47] Speaker 1: There is one commissioner, Richard Glick, who pointed out that quote,
[2:51] Speaker 1: claiming that a project has no significant environmental impacts, while
[2:55] Speaker 1: at the same time refusing to assess the significance of
[2:58] Speaker 1: the project's impact on the most important environmental issue of
[3:01] Speaker 1: our time is not reasoned decision making. If Food and
[3:06] Speaker 1: Water Watch and the Berkshire Environmental Action Team win this case,
[3:11] Speaker 1: it could have major implications for the way that FURK
[3:14] Speaker 1: permits oil and gas projects across the country. I asked
[3:18] Speaker 1: Adam Carlesco, the attorney leading this case, to come on
[3:22] Speaker 1: and explain a bit more about it and what it
[3:24] Speaker 1: could mean. We'll have that conversation for you in a
[3:27] Speaker 1: minute after a word from this episode's sponsor. I'm Ami
[3:31] Speaker 1: Westervelt and this is drilled. Okay, So, Adam, what's the
[4:00] Speaker 1: backdrop of this CASEK is supposed to consider the climate
[4:03] Speaker 1: impacts of energy projects that it's permitting, right, So how
[4:07] Speaker 1: did that come about and how have they been able
[4:09] Speaker 1: to avoid doing that so far?
[4:12] Speaker 2: Yeah? This was a Sierra Club versus Firk twenty seventeen
[4:15] Speaker 2: decided case before the DC's circuit. It dealt with a
[4:18] Speaker 2: subal trail at a pipeline that was going through the southeast.
[4:22] Speaker 2: It was meant to feed a series of natural gas
[4:25] Speaker 2: powered power plants, and when FERK went to go issued
[4:28] Speaker 2: with certificate order for this project proceed they had essentially
[4:33] Speaker 2: dismissed all climate considerations emissions downstream of the pipeline, and
[4:37] Speaker 2: they had looked to really just include what kind of
[4:40] Speaker 2: emissions would come out of construction of these pipeline systems
[4:43] Speaker 2: and the compressor stations. So this was challenged in court
[4:47] Speaker 2: by Sierra Club. The DC's circuit came back and said
[4:49] Speaker 2: that FERK really could not disregard this sort of information.
[4:53] Speaker 2: It was something that was required under the National Environmental
[4:57] Speaker 2: Policy Act, or NEPA, and that when reviewing emissions under NIPA,
[5:04] Speaker 2: they needed to include reasonably foreseeable indirect effects, which would
[5:09] Speaker 2: be in the case of a pipeline which is designed
[5:11] Speaker 2: to be a conduit to convey gas for combustion, typically
[5:14] Speaker 2: the foreseeable event of that being combusted, especially if you
[5:17] Speaker 2: knew that this was going to two power plants. And
[5:19] Speaker 2: so the court handed back for this decision and said
[5:22] Speaker 2: you need to assess emissions downstream or adequately explain why
[5:26] Speaker 2: you cannot. And then FERK proceeded to move forward with
[5:30] Speaker 2: a policy after this decision that essentially disregarded that entire
[5:34] Speaker 2: case and what it had required of them by doing
[5:39] Speaker 2: more linguistic gymnastics, essentially to say that climate impacts are
[5:43] Speaker 2: innately unforeseeable. It's impossible for us to tell what's going
[5:48] Speaker 2: to be happening with much of gas moving through pipelines.
[5:51] Speaker 2: We're not getting any information within our app permit application
[5:54] Speaker 2: process from the pipeline developers who are trying, you know,
[5:57] Speaker 2: who would have the information as to where this gas
[5:59] Speaker 2: is coming from and where it's going to. They said
[6:02] Speaker 2: that they did not have this information, it could not
[6:04] Speaker 2: make reasonable projections. This was refuted in a case that
[6:07] Speaker 2: was then decided last year. I believe it was in November.
[6:10] Speaker 2: In the case was Lori Burkehead v. FIR, and the
[6:12] Speaker 2: court kind of danced around making a definitive answer because
[6:15] Speaker 2: the plaintiffs didn't directly address this issue, but within some
[6:19] Speaker 2: of the discussions of the court, they essentially came to
[6:23] Speaker 2: the conclusion that it was reasonably easy for FIRK to
[6:26] Speaker 2: ask pipeline applicants to give information as to where they're
[6:31] Speaker 2: getting this gas from. What would be the upstream effects?
[6:33] Speaker 2: Would this be incentivizing broader drilling that's going on within
[6:37] Speaker 2: the Marcella shale for a pipeline like the Atlantic Coast
[6:40] Speaker 2: Pipeline and the Mountain Valley Pipeline. Would this be going
[6:43] Speaker 2: to a power plant, with this be going to distribution
[6:45] Speaker 2: centers for combusting in homes? Would this be going to
[6:49] Speaker 2: know an ethane cracker so that you can make plastics
[6:52] Speaker 2: with it. These are the sorts of things that would
[6:53] Speaker 2: be reasonably foreseeable and direct effects. However, Firk has kind
[6:57] Speaker 2: of disregarded all of that and in a blanket policy
[7:02] Speaker 2: that says that because we somehow dodge around this question
[7:07] Speaker 2: and say that any and all emissions downstream and upstream
[7:10] Speaker 2: are completely unforeseeable, we don't know how any of these
[7:13] Speaker 2: projects will impact broader climate issues. We just can essentially
[7:17] Speaker 2: mark this zero and say that we don't even have
[7:20] Speaker 2: to address this elephant in the room. And by doing so,
[7:23] Speaker 2: they put their finger on the scale in favor of
[7:26] Speaker 2: project development, by having essentially the largest environmental issue of
[7:30] Speaker 2: our generation be completely disregarded when they're doing environmental review
[7:34] Speaker 2: of these projects, So they're not getting a good reasoned
[7:38] Speaker 2: agency decision making out of this process and not really
[7:41] Speaker 2: giving a reasonable information to concerning public, or even to
[7:46] Speaker 2: getting that information before regulators, the commission itself to make
[7:50] Speaker 2: reason decisions.
[7:51] Speaker 1: Okay, and then what are the particulars of this case
[7:54] Speaker 1: that you've.
[7:55] Speaker 2: Brought so this particular lawsuit. Those are the relatively small
[7:59] Speaker 2: project outside of Springfield, Massachusetts, in the town of Agawam.
[8:02] Speaker 2: It's about two miles of additional pipeline, a thicker pipeline,
[8:07] Speaker 2: and they are installing an upgrade to a compressor station
[8:11] Speaker 2: unit that already has two smaller compressor units in it,
[8:15] Speaker 2: taking those out, decommissioning them, and putting in one large
[8:18] Speaker 2: mega compressor unit that is roughly double the capacity of
[8:22] Speaker 2: the previous compressor station. And so we're challenging the approval
[8:26] Speaker 2: of this. Aside from the climate considerations, we have members
[8:30] Speaker 2: that live within the community. One of our declarence lives
[8:34] Speaker 2: five hundred feet from this compressor station unit, and before
[8:37] Speaker 2: they did the upgrades to put in the compressor units
[8:39] Speaker 2: that they're now decommissioning, she had lived there since nineteen
[8:43] Speaker 2: seventy nine had never had an issue with this. Occasionally,
[8:46] Speaker 2: small scale compressors would run during the winter to get
[8:49] Speaker 2: gas further into the state, but now with the broader
[8:53] Speaker 2: expansion of gas power throughout much of the northeast. She's
[8:58] Speaker 2: seeing this come on regularly getting blowed down events that
[9:01] Speaker 2: are blowing a mix of methane and natural gas and
[9:03] Speaker 2: other sorts of fossil fuel emissions into the ambient atmosphere.
[9:07] Speaker 2: Being five hundred feet away, it's getting into her house.
[9:10] Speaker 2: She's had headaches, she's had to go to the hospital
[9:12] Speaker 2: for these issues. This compressor station is also about two
[9:16] Speaker 2: thousand feet from six Flags in New England, and it's
[9:20] Speaker 2: to the west of it, so downwind of where this
[9:23] Speaker 2: compressor's unit is. We don't feel that FERK has really
[9:26] Speaker 2: adequately assessed many of the issues that are coming before
[9:29] Speaker 2: the Commission that needs to be included when they make
[9:32] Speaker 2: the assessment that this is in the public necessity And
[9:36] Speaker 2: I think the certificate is called the Certificate Order of
[9:39] Speaker 2: Public Convenience and Necessity. So the reth tomic and consideration
[9:43] Speaker 2: is to the environmental impacts of their harms weighed against
[9:46] Speaker 2: how much the society and the broader community requires this
[9:51] Speaker 2: sort of infrastructure. And in making this conclusion, they've disregarded
[9:55] Speaker 2: letters from the Massachusetts Attorney General's office saying that you're
[9:59] Speaker 2: promptly just regarding plans that could promote renewable energy. You're
[10:03] Speaker 2: not including considerations of electric power compressor units rather than
[10:07] Speaker 2: just sticking to a gas power compressure unit. They didn't
[10:10] Speaker 2: do a full assessment of this project because they'd rather
[10:13] Speaker 2: rubber stamp. Many of these things that come from before
[10:15] Speaker 2: them on behalf of pipeline companies Kindrim Morgan, these large,
[10:20] Speaker 2: kind of vertically integrated companies, oftentimes they wish to see
[10:24] Speaker 2: these projects kind of moved through. I think in past
[10:27] Speaker 2: several years there's really only been one project before FIRK
[10:30] Speaker 2: that's been rejected as it pertains to natural gas. So
[10:34] Speaker 2: the rates of approval for FURK are incredibly high, and
[10:37] Speaker 2: that's why they have a reputation of being a rubber stamp.
[10:40] Speaker 2: So there are a number of issues pertaining to this
[10:42] Speaker 2: particular compressor station. And it doesn't help that it's going
[10:47] Speaker 2: to be constructed within Springfield, Massachusetts, which the American Allergy
[10:52] Speaker 2: and Asthma Foundation found to be the number one worst
[10:56] Speaker 2: city in the country for asthmatics due to a mix
[10:58] Speaker 2: of air pollutant, pollen, hospital visits, and asthmatic fatalities. So
[11:04] Speaker 2: you're getting worse air quality in an already vulnerable air shit,
[11:08] Speaker 2: you know.
[11:08] Speaker 1: It's funny. When I first heard about this case, I
[11:10] Speaker 1: initially assumed it was about the Weymouth compressor, because that's
[11:14] Speaker 1: another one that seems to be being built to transport
[11:17] Speaker 1: gas for which there are no customers. And there's all
[11:19] Speaker 1: these weird issues where they haven't really thought through where
[11:22] Speaker 1: the pipeline is coming from, where it's going, sort of
[11:25] Speaker 1: a pipeline and nowhere situation.
[11:27] Speaker 2: And that brings us to a broader issue that has
[11:30] Speaker 2: been going on with FIRK generally, and it's something that
[11:34] Speaker 2: was actually raised in a letter within the FERK docket
[11:36] Speaker 2: from both Senators of Massachusetts, Marky and Warren. They said
[11:40] Speaker 2: that there was a metering station that was associated with
[11:43] Speaker 2: this project that was considered under permit applications by the
[11:46] Speaker 2: State of Massachusetts that FURK considered to be a separate project,
[11:50] Speaker 2: and they subdivided these projects so that they could review
[11:53] Speaker 2: them individually say that because they're so individually small, they
[11:57] Speaker 2: don't rise to the threshold significant environmental impact, and so
[12:02] Speaker 2: they keep doing this by making particular projects as small
[12:05] Speaker 2: as possible, and then they don't review the broader infrastructure
[12:09] Speaker 2: built out within a city, within an area, within a region,
[12:12] Speaker 2: and so when they wind up approving compressor station pipeline
[12:16] Speaker 2: associated infrastructure after associated infrastructure. They never take a broader
[12:20] Speaker 2: look as to what that looks like in terms of
[12:22] Speaker 2: the growing and snaking pipeline system across this country, and
[12:27] Speaker 2: so they're causing death by a million cuts.
[12:30] Speaker 1: That's interesting because you know, we've been tracking new permits
[12:33] Speaker 1: and regulatory requests since the pandemic hit, and it seems
[12:37] Speaker 1: like FIRK has been really fast tracking oil and gas
[12:40] Speaker 1: permits lately.
[12:41] Speaker 2: They are, and it's grabbed the attention of not just
[12:45] Speaker 2: advocates like Food and Water Watch, but also the eyes
[12:48] Speaker 2: of the House Oversight Committee and their subcommittee on Civil Rights.
[12:53] Speaker 2: Jamie Raskin, who is my own representative down here in Maryland,
[12:57] Speaker 2: has led this a whole letter to FIRK on behalf
[13:01] Speaker 2: of a broader congressional delegation asking them to halt certificate
[13:05] Speaker 2: orders approving new infrastructure in the interim. And so they
[13:10] Speaker 2: promptly just regarded that saying that I think Chatterjee, the
[13:14] Speaker 2: chairman of FURK, gave some sort of platitude of how
[13:17] Speaker 2: we must serve our customers and do the best to
[13:20] Speaker 2: get projects going on, but they're not really considering what
[13:23] Speaker 2: is going on around them in the broader world, the
[13:25] Speaker 2: complete collapse of the energy industry, and they're still moving
[13:29] Speaker 2: forward like it's twenty eighteen.
[13:32] Speaker 1: It seems pretty nuts that these projects that won't even
[13:35] Speaker 1: be online for potentially years are somehow getting critical infrastructure
[13:40] Speaker 1: designations that are supposed to be for facilities that are
[13:44] Speaker 1: currently providing power.
[13:46] Speaker 2: Right.
[13:46] Speaker 1: We've even seen some plastic plants getting that designation. There's
[13:50] Speaker 1: a shell plant under construction in Pennsylvania that was deemed critical.
[13:55] Speaker 2: Yeah, And I think that comes to a broader issue
[13:57] Speaker 2: as to how I think the more RelA Department of
[14:01] Speaker 2: Energy has been dealing with cracker and plasticization units and
[14:05] Speaker 2: considering them to be somehow tied to the energy system
[14:09] Speaker 2: just because they use the waste stream that comes off
[14:12] Speaker 2: of the oil and gas industry to essentially monetize it
[14:16] Speaker 2: and turn it into plastics.
[14:17] Speaker 1: Okay, So what's next for this case?
[14:20] Speaker 2: So it has been docketed before the DC circuit. Procedural
[14:23] Speaker 2: motions are going to be due May twenty second, and
[14:25] Speaker 2: then dispositive motions are going to be due June eighth,
[14:29] Speaker 2: and then dispositive would be motions to dismiss any sort
[14:31] Speaker 2: of challenges on standing. Once that has passed and then
[14:34] Speaker 2: it goes to briefing is on the merit, then hopefully
[14:37] Speaker 2: we would get some sort of expedited decision coming forward.
[14:40] Speaker 2: Since this is a project under construction. Motion dismiss is
[14:42] Speaker 2: kind of a standard movement from a lot of government
[14:46] Speaker 2: agencies as it relates to environmental litigation. That said, spoken
[14:50] Speaker 2: with some folks looked at the declarance that we have,
[14:52] Speaker 2: I feel like our standing is strong. We have people
[14:54] Speaker 2: who have been directly impacted by this, they live within
[14:56] Speaker 2: the community, they've been involved in the Furk process from
[14:59] Speaker 2: day one. These are the things that unless FIRK really
[15:02] Speaker 2: feels like burning taxpayer money and time trying to burn
[15:06] Speaker 2: down a clock, it would not be in the best
[15:08] Speaker 2: interests of everyone involved to proceed with challenging on standing grounds.
[15:13] Speaker 2: So we're hopeful that just you know, keeps moving, we
[15:16] Speaker 2: get to the marriage quickly and you know, get a
[15:18] Speaker 2: decision that's favorable to us.
[15:20] Speaker 1: Okay, great, we'll keep an eye out for it.
[15:22] Speaker 2: Thanks Adam, Oh, thank you for the interest and thank
[15:25] Speaker 2: you for getting this out there. I think it's important
[15:27] Speaker 2: and I'm glad that you guys are offering this service
[15:30] Speaker 2: to get this news out.
[15:42] Speaker 1: It for this time. We'll be back soon with more
[15:45] Speaker 1: stories coming out of our ongoing reporting on climate and
[15:49] Speaker 1: environmental rollbacks and waivers amid the coronavirus pandemic. If you'd
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