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Birckhead v. FERC

United States Court of Appeals for the District of Columbia Circuit

April 11, 2019, Argued; June 4, 2019, Decided

No. 18-1218

Opinion

 [*514]  Opinion for the Court filed Per Curiam.

Per Curiam: Residents and business owners have petitioned for review of the Federal Energy Regulatory Commission's decision to authorize the construction and operation of a new natural gas compression facility in Davidson County, Tennessee. They argue that the Commission violated the National Environmental Policy Act (NEPA) by failing to adequately assess alternatives and by failing to consider the environmental effects of increased gas production and consumption related to the project. For the reasons set forth below, we deny the petition.

In early 2015, Tennessee Gas Pipeline [**2]  Co. applied for a certificate of public convenience and necessity for the Broad Run Expansion Project. Designed to enhance the company's capacity to transport pressurized natural gas through the interstate pipeline network to markets in the southeastern United States, the Project called for construction of several gas compression facilities in Kentucky, Tennessee, and West Virginia. The most controversial of these facilities—at least as far as petitioners are concerned—was Compressor Station 563, which Tennessee Gas proposed to build near petitioners' Nashville homes and businesses.

The Commission completed an Environmental Assessment of the Project in March 2016 and issued a certificate order later that year. Shortly thereafter, petitioners—collectively referred to here as "Concerned Citizens" because of their affiliation with local advocacy group Concerned Citizens for a Safe Environment—sought rehearing, arguing that the Commission [*515]  violated NEPA in two ways: by inadequately evaluating alternatives to the Project and by failing to address reasonably foreseeable indirect environmental effects resulting from increased gas production "upstream" from the compressor station and increased [**3]  gas combustion "downstream" from the facility.

The Commission denied the request for rehearing in June 2018, see Tennessee Gas Pipeline Co., 163 FERC ¶ 61,190 (2018) ("Rehearing Order"), and Concerned Citizens timely petitioned for review, raising the same two challenges.

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925 F.3d 510 *; 2019 U.S. App. LEXIS 16757 **; 49 ELR 20097

LORI BIRCKHEAD, ET AL., PETITIONERS v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT, TENNESSEE GAS PIPELINE COMPANY, LLC, INTERVENOR

Subsequent History: Rehearing denied by Birckhead v. Ferc, 2019 U.S. App. LEXIS 24262 (D.C. Cir., Aug. 14, 2019)

Rehearing, en banc, denied by Birckhead v. Ferc, 2019 U.S. App. LEXIS 24258 (D.C. Cir., Aug. 14, 2019)

Prior History:  [**1] On Petition for Review of Orders of the Federal Energy Regulatory Commission.

Tenn. Gas Pipeline Co., L.L.C., 156 F.E.R.C. P61157, 2016 FERC LEXIS 1509 (F.E.R.C., Sept. 6, 2016)

CORE TERMS

emissions, downstream, certificate, pipeline, reasonably foreseeable, indirect effect, Environmental, transport, gas production, proposed site, quotation, Station, marks, greenhouse-gas, Compressor, capricious, site, environmental effect, pipeline project, natural gas, combustion, upstream, factors, impacts, environmental impact, Petitioners', qualify, shipper, causal

Administrative Law, Judicial Review, Standards of Review, Arbitrary & Capricious Standard of Review, Environmental Law, Natural Resources & Public Lands, National Environmental Policy Act, Energy & Utilities Law, Administrative Proceedings, Standards of Review, Assessment & Information Access, Environmental Assessments, US Federal Energy Regulatory Commission, Hearings & Orders, Judicial Review, Regulators, Authorities & Powers, Pipelines & Transportation, Pipelines, Natural Gas Transportation, Natural Gas Industry, Natural Gas Act, Certificates of Need, Pipelines, Construction Standards