On August 30, the New York Department of Environmental Conservation (DEC) sent a letter to the Federal Energy Regulatory Commission [FERC] telling the federal agency it was not going to grant the necessary water quality certificate to allow the Millennium Pipeline Company to move forward with their Valley Lateral Pipeline (VLP) project. In the world of natural gas production, this is big news. Millennium and the company building the enormous Competitive Power Ventures (CPV) power plant in Orange County have been counting on that pipeline to carry natural gas from Pennsylvania to the plant to generate the electricity it intends to sell into the market.

The DEC based its decision on a ruling from the U.S. Court of Appeals for the DC Circuit, in a similar case on August 22, regarding the Southeast Market Pipelines Project. In that case, brought by the Sierra Club and others against a pipeline meant to carry gas to Florida, the plaintiffs argued that FERC had erred when it granted the project a Certificate of Public Necessity and Convenience. DEC outlined that finding in a letter to involved parties that said, “FERC failed to consider or quantify the indirect effects of downstream GHG [greenhouse gas emissions] in its environmental review of the project that will result in the burning of natural gas...” under the National Environmental Policy Act.

Put another way, DEC said FERC needs to consider the impacts of this and other projects to the climate and the future of the environment. Taken together with another federal court ruling that blocked the Constitution Pipeline in Pennsylvania and New York, at least two federal courts have agreed with the DEC that FERC is not doing enough analysis of emissions resulting from gas carried through the pipelines it approves. It’s not clear if these moves will stand; CPV president and CEO Gary Lambert said the decision was faulty because it was not based on water-quality issues, and the company is still projecting that the CPV Power Plant will go online next year, anyway, perhaps burning oil rather than natural gas. But the DEC challenges and the court decisions are important indicators of how FERC’s approval process may be forced to change in the immediate future.

Some pundits say that weighing the impacts on climate change of a particular project should not be a part of FERC’s mandate. Writing on the website www.utili tydive.com (tinyurl.com/ya9jkhv5), Travis Kavulla, the vice chairman of the Montana Public Service Commission, wrote: “The [Southeast Market Pipelines] ruling could cause problems for more than a dozen pipelines, since FERC has eschewed detailed downstream carbon-emissions analysis as a matter of routine. Better to leave that problem, so the thinking went, to air regulators like the Environmental Protection Agency (EPA) and local departments of environmental quality. Those regulators have a clearer authority to regulate emissions at the power plants that actually burn the gas, not merely the pipelines that brought it.”

He then goes onto say that if the rulings stand it will make FERC a less efficient agency, and that any estimates of the future amount of emissions of any specific pipeline projects are guesses at best and are essentially meaningless.

But in this political and environmental climate, the tendency is fading for regulatory agencies to just throw up their hands and say, “There’s nothing to be done about it; we need more fossil fuel infrastructure, and if a few more people develop headaches and rashes, well, that’s the price of progress.”

In the Court of Appeals ruling in the Southeast Market Pipelines case, the court clearly said that FERC may not ignore the environmental impacts of a pipeline project. The court wrote, “We conclude that the EIS [environmental impact statement] for the Southeast Market Pipelines Project should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so. “

It further said that “Quantification would permit the agency to compare the emissions from this project to emissions from other projects, to total emissions from the state or the region, or to regional or national emissions-control goals. Without such comparisons, it is difficult to see how FERC could engage in ‘informed decision making’ with respect to the greenhouse-gas effects of this project, or how ‘informed public comment’ could be possible.”

The Court of Appeals case was decided by a three-judge panel. Unless the decision is overturned by the full panel, or the U.S. Supreme Court, or the law regarding FERC rules is rewritten by Congress, then FERC has much more information to review before it can approve new pipelines. In the view of many environmental groups, the CVP power plant, the VLP and the proposed compressor station in Eldred are unnecessary to meet the energy needs of the region. This development gives them an important tool to battle projects that don’t really serve the public convenience and necessity, but instead really serve only the investors’  bottom lines.