Recent Court Decisions Require Assessment of Greenhouse Emissions from Power Plants

This article is available as a podcast episode on ALL4’s Air Quality Insider

President Trump’s March 28, 2017 Presidential Executive Order on Promoting Energy Independence and Economic Growth (Order) directed U.S. EPA to suspend, revise, or rescind various Obama-era regulations intended to regulate greenhouse gas (GHG) emissions from power plants, including, but not limited to, the Clean Power Plan.  The March 28, 2017 Order also revoked and rescinded numerous Obama-era energy and climate-related Presidential and Regulatory Actions, including, but not limited to, the August 5, 2016 “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects on Climate Change in National Environmental Policy Act (NEPA) Reviews.”  However, two recent court rulings have found that Federal agencies could still have an obligation, despite the March 28, 2017 Order, to evaluate the role of GHG emissions in fossil fuel-related construction projects.

On August 14, 2017 the U.S. District Court for the District of Montana (in Montana Environmental Information Center (MEIC) v. U.S. Office of Surface Mining) blocked approval of a coal mine expansion project after finding that the GHG effects of the coal’s transport and use was not adequately considered by the U.S. Department of the Interior in an environmental review for the project.  Similarly, on August 22, 2017 the U.S. Court of Appeals for the District of Columbia Circuit ruled (in Sierra Club et al. v. FERC, case number 16-1329) that the Federal Energy Regulatory Commission (FERC) should have analyzed downstream GHG emission impacts due to combustion of natural gas at power plants before approving the Environmental Impact Statement (EIS) for a natural gas pipeline project in the Southeastern United States.  These rulings remind me a bit of the historic court decisions that required consideration of the social cost of carbon (SCC) as part of NEPA reviews.  But with social cost of carbon guidance no longer being representative of government policy, the courts appear to be taking a different route.  Time will tell whether these two recent court cases will broaden the future role that Federal agencies play regarding climate change, but it is certainly interesting to speculate, and at a minimum I suspect we will see future challenges by environmental groups based upon these two recent rulings.  For questions regarding either these recent court decisions and/or GHG emissions at your facility, feel free to give me a call at 610.933.5246 x132 (or email muhler@all4inc.com).