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Victory — Court reverses FERC rubber stamp of unnecessary fossil fuel infrastructure
TRENTON, NJ — Today, a coalition of environmental organizations and an impacted landowner backed by eight state Attorneys General and the New Jersey Ratepayer Advocate won their challenge to the Federal Energy Regulatory Commission’s (FERC) approval of the Regional Energy Access Expansion (REAE) project, which would allow a massive and unneeded expansion of gas capacity into New Jersey.
In a victory for the petitioners, the court vacated FERC’s orders and remanded the case to the Commission for a more careful review.
The court unanimously agreed with the petitioners that FERC’s National Environmental Policy Act (NEPA) analysis was inadequate for failing to meaningfully evaluate the project’s enormous contributions to climate change. The court also agreed that FERC failed to comply with the Natural Gas Act when it concluded that there was a public need for the REAE project over New Jersey’s assertion that its ratepayers do not need additional gas capacity and that FERC failed to weigh the project’s climate harms in approving the expansion.
“This victory will help limit the powers of fossil fuel behemoths like Transco, who have armies of lawyers and connected lobbyists, to bypass states like New Jersey that want to continue the hard work of moving away from dirty oil and gas and meeting clean energy goals to protect public health. This decision will also give added protections to working families and local businesses, which are forced to bear the cost of these unnecessary fossil fuel projects,” said Ed Potosnak, Executive Director, New Jersey League of Conservation Voters (LCV). “Fossil fuel projects like REAE lock in higher emissions and dirty fuel infrastructure for decades at the precise moment when we must be moving full steam ahead with transitioning to clean, renewable energy. I applaud the court’s decision to stop this over-reach by FERC and a mammoth international fossil fuel company.”
“Today’s decision by the D.C. Circuit Court is a significant victory for the public, setting a clear precedent for demanding greater accountability and thoroughness in FERC’s decision-making. This ruling will help ensure that gas projects genuinely serve the public interest without imposing unnecessary costs on ratepayers. It also highlights the arbitrary nature of FERC’s authorizations of nearly any gas project before it, underscoring the need for more robust and meaningful assessments moving forward,” said Megan C. Gibson, the Niskanen Center’s Chief Counsel.
Gibson adds, “Among other things, the court recognized that FERC failed to adequately address critical market studies, ignored state laws requiring reductions in natural gas usage, relied on unsubstantiated claims, and ignored perverse financial incentives while relying on little more than precedent agreements. We commend the Court for this decision and urge FERC to take this opportunity to enhance its regulatory rigor and truly prioritize the needs of the public.”
“The ink has gone dry on FERC’s rubber stamp for gas projects,” said Moneen Nasmith, Senior Attorney at Earthjustice. “The court made it clear that FERC’s longstanding flawed rationale that private contracts for capacity demonstrate a public need for a gas project is no longer sound or compatible with our regional, national, and international climate goals. FERC must improve its decision making process for how it considers whether there is a genuine public need for more gas infrastructure projects and how it analyzes and weighs the climate impacts of proposed projects.”
“It has taken decades of litigation and advocacy by frontline community members, environmental organizations, and state agencies seeking to educate the courts about the inequities of the FERC pipeline review and approval process. Today, all that work has finally paid off. With this ruling, not only have we defeated the forward progress of the Transco REAE pipeline, but we have secured a decision that gives high priority to state climate change laws and the obligation on FERC to take responsibility for how its actions and decisions advance, or help ameliorate, the growing climate emergency. And I hope we have finally broken the chain of partnership and blind allegiance, regardless of the catastrophic consequences for our environment and communities, that FERC has so obviously given the pipeline companies,” said Maya van Rossum, the Delaware Riverkeeper and leader of the Delaware Riverkeeper Network, among the lead environmental petitioners in the case.
“It’s hard to overstate the significance of today’s decision. The Regional Energy Access Expansion pipeline was an unnecessary and harmful project that would lock us into decades of greenhouse gas emissions and hinder the efforts of New Jersey and the nation as a whole to transition away from fossil fuels. Today’s resounding victory means FERC can no longer ignore the climate impacts of fracked gas pipelines proposed on bare assertions of market need, and must exercise its authority in the interest of the public rather than advancing the pecuniary interests of the fracked gas industry,” said Kacy Manahan, Senior Attorney representing environmental petitioners Delaware Riverkeeper Network and Maya van Rossum, the Delaware Riverkeeper.
“This is an incredible victory for the people of New Jersey,” said Food & Water Watch New Jersey State Director Matt Smith. “For years, the fossil fuel industry has been able to build out gas capacity that was unnecessary, costly, and polluting to our climate and communities. To transition away from fossil fuels, we need to stop building new polluting infrastructure. This decision can help guide us in the right direction.”
“By reversing FERC’s problematic and unnecessary approval of the Regional Energy Access Expansion (REAE) pipeline project, today’s decision keeps New Jersey communities and environment healthy and safe rather than fan the flames of the fossil-fuel industry. If this project had been upheld, it would have directly undermined our state’s goal to reduce greenhouse gas emissions by 50% by 2030. This is a major victory for the climate, clean air, and water, and New Jersey residents on the ground who have organized and opposed this project for years,” said NJ Sierra Club Chapter Director Anjuli Ramos-Busot. “This decision also helps ensure that future proposals for unneeded and harmful pipeline projects are not given the greenlight without the proper vetting. We are living in a climate crisis; it is time to focus on real clean energy solutions, and the Sierra Club will continue to fight with our allies for a healthy and just future.”
“In a pivotal decision, the DC Circuit has found that FERC wrongly green-lighted yet another unneeded fossil fuel infrastructure project that would cost New Jersey consumers $1B in increased rates. New Jersey Conservation Foundation has been fighting to ensure that FERC considers public need — not solely private interests — for years, and the court just agreed that FERC hasn’t been doing its job,” said Alison Mitchell, co-executive director, New Jersey Conservation Foundation. “In so doing, the courts have recognized the central role of state regulators and consumer advocates that do the hard work in making sure their own gas and energy needs are met with cost- and climate-effective solutions.”
“Rate Counsel is very pleased with today’s ruling vacating Transco’s REAE gas project, planned for New Jersey. This decision is a victory for ratepayers. It overturns FERC’s initial approval of the costly and unnecessary pipeline project. The Court’s ruling highlights the need for FERC to consider state emission reduction legislation and the findings of the New Jersey Board of Public Utilities, which determined that new gas capacity is not necessary to meet consumer demand. This is a crucial step in ensuring that energy infrastructure decisions prioritize just and reasonable rates for consumers,” said New Jersey Division of Rate Counsel Director Brian Lipman.
The court found REAE’s potential effects on New Jersey’s energy landscape were not fully weighed against the project’s purported benefits. While New Jersey has binding requirements to dramatically reduce its green house gas emissions and have its gas utilities cut their consumption, FERC ignored that the REAE project would undermine New Jersey’s goal of reducing greenhouse gasses 50% by 2030 and actually lead to a 16% increase in the state’s total greenhouse gas output annually.
Earthjustice represents Food & Water Watch and the Sierra Club. Delaware Riverkeeper Network and Maya van Rossum, the Delaware Riverkeeper, were represented by in-house counsel. Earthjustice co-counseled with the Delaware Riverkeeper Network and the Niskanen Center, which represents New Jersey Conservation Foundation, New Jersey LCV, Aquashicola Pohopoco Watershed Conservancy, and affected landowner Catherine Folio.
