New Jersey Conservation Foundation, et al. v. FERC: Appeals court voids US agency's approval of mid-Atlantic gas project. (Reuters)

Federal Energy Regulatory Commission approval of pipeline reversed for failure to consider greenhouse gas concerns and lack demonstrated market for the natural gas in question. Read the Court of Appeals decision here:  https://ferc.gov/media/new-jersey-conservation-foundation-et-al-v-ferc-2

A wise administrative law expert, the late USDOL Chief Administrative Law Judge Nahum Litt, my mentor, was from 1970-1977 an Administrative Law Judge with the Federal Power Commission (which was renamed in 1977 the Federal Energy Regulatory Commission).  Reading about this landmark natural gas pipeline case, I would love to have known Judge Litt's reaction to this Court of Appeals decision, overturning an "arbitrary and capricious  FERC decision as a result of FERC's flawed failure to consider greenhouse gas emissions adequately. 

It is wrong to "defer" to putative agency "expertise" above other evidence.  Yes, my friends, I never liked "Chevron deference" from the first day in Memphis, circa 1984-1985, when we read the case in Administrative Law (whose pro-government features led several of us to call it "Bad Law.")  The Chevron case was often used to rule against workers when federal agencies disdained protecting them.  From Reuters:

Appeals court voids US agency's approval of mid-Atlantic gas project

By Jonathan Stempel

July 30, 20242:57 PM EDTUpdated 6 hours ago

July 30 (Reuters) - A U.S. appeals court on Tuesday threw out a federal regulator's "arbitrary and capricious" approval of a new $1 billion natural gas project running through five mid-Atlantic states and intended to serve 3 million customers.

Agreeing with six environmental groups and eight U.S. states, the D.C. Circuit Court of Appeals said the Federal Energy Regulatory Commission did not properly address objections to the Regional Energy Access Expansion Project planned by Transcontinental Gas Pipe Line, a unit of Williams Cos (WMB.N)

Circuit Judge J. Michelle Childs wrote for a three-judge panel, whose members were judicially appointed by Democratic presidents, that FERC should have better assessed the risk of significant greenhouse gas emissions, and how the Williams unit might reduce them.

She also said FERC did not properly consider the public interest, citing its failure to adequately review New Jersey laws designed to advance the state's clean energy goals, and whether the state needed more capacity.Circuit Judge J. Michelle Childs wrote for a three-judge panel, whose members were judicially appointed by Democratic presidents, that FERC should have better assessed the risk of significant greenhouse gas emissions, and how the Williams unit might reduce them.

She also said FERC did not properly consider the public interest, citing its failure to adequately review New Jersey laws designed to advance the state's clean energy goals, and whether the state needed more capacity.

Childs pointed to two studies that said current capacity would suffice beyond 2030.

About three-quarters of gas from the proposed project would go to New Jersey customers, with the rest going to Delaware, Maryland, New York and Pennsylvania. The appeals court returned the matter to FERC for "appropriate action."

FERC declined to comment.

Williams said the court erred, but the Tulsa, Oklahoma-based company will address its concerns.

n opposing FERC, the eight states led by New Jersey and Washington cited their "critical interest" in reducing greenhouse gas pollution and enforcing their clean energy laws.

Circuit Judges Cornelia Pillard and Brad Garcia were also on the appeals court panel. Pillard is an appointee of former President Barack Obama. Childs and Garcia were appointed by President Joe Biden.

The case is New Jersey Conservation Foundation et al v FERC, D.C. Circuit Court of Appeals, No. 23-1064.

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Reporting by Jonathan Stempel in New York Editing by Marguerita Choy and Nick Zieminski