FERC Takes Steps to Ensure Service Continuity on the Southeast Markets Pipeline Project

by Reed Smith

Reed Smith

The Federal Energy Regulatory Commission (FERC) has recently taken important steps to permit the Southeast Market Pipelines Project (Project) to continue to provide service without interruption following last summer’s decision by the D.C. Circuit to vacate FERC’s orders authorizing the Project’s construction and operation. FERC issued an updated Environmental Impact Statement on February 5, 2018, concluding that while the Project will lead to increased greenhouse gas (GHG) emissions, the Project will not have a significant effect on the environment. On February 6, 2018, FERC asked the D.C. Circuit to delay issuing the mandate of its earlier order for 45 days to provide FERC adequate time to issue an order on remand. The filing of the motion is likely to delay the court’s issuance of the mandate while the court considers the merits of the motion.

The Project is made up of three separate, but inter-related interstate natural gas pipeline projects: the Transcontinental Gas Pipe Line Company Hillabee project, the Sabal Trail Transmission LLC project, and the Florida Southeast Connection LLC project. The Project consists of approximately 685 miles of pipeline and appurtenant facilities and is designed to deliver natural gas to Florida. In large part, the natural gas will be used to generate electricity for Florida consumers. FERC issued orders granting certificates of public convenience and necessity authorizing the Project sponsors to construct and operate the Project facilities in 2016. The Sierra Club, among other parties, sought judicial review of FERC’s orders certificating the Project.

While judicial review was pending, certain portions of the Project were constructed and placed into service. Other portions are due to be placed into service in the near future.

On August 22, 2017, a divided D.C. Circuit panel issued an order finding that FERC’s orders granting certificates of public convenience and necessity for the Project failed to adequately consider the indirect effects of downstream GHG emissions that may result from the Project’s operation under the National Environmental Policy Act (NEPA).1 As a result, the court vacated FERC’s certificate orders and remanded the proceeding to FERC for further environmental analysis. The Sierra Club opinion states that the court will not issue the mandate in that docket until seven days following court action on any petitions for rehearing or rehearing en banc. On January 31, 2018, the D.C. Circuit denied rehearing and rehearing en banc; therefore, the court could have issued the mandate on February 7, 2018. If the mandate had been issued, the Project sponsors would no longer have been able to continue construction of the pipeline or to provide service over those portions of the Project that have already been constructed and placed in service.

This ruling adds to a growing body of case law requiring that federal agencies must meaningfully consider GHG emission impacts of their policy decisions, even in the absence of executive branch emphasis on the issue.2 It is becoming increasingly clear that courts are requiring thorough and robust consideration of climate impacts under NEPA.

In compliance with the remand order, FERC issued a revised Final Environmental Impact Statement for the Project on February 5, 2018 (the Revised FEIS). While the Revised FEIS was supposed to address the indirect effects of downstream GHG emissions that may result from the Project’s operation, the Revised FEIS admits that FERC staff “cannot identify a suitable method to attribute discrete environmental effects to the quantified downstream emissions.”3 However, the Revised FEIS addresses a number of GHG issues. For example, the Revised FEIS notes that a number of coal- and oil-fired generation units in Florida are due to be retired, and those units will be replaced, in large part, by gas-fired and solar facilities. The Project will increase the deliverability of gas to Florida by 1.1 bcf. The Revised FEIS estimates that GHG emissions in Florida will increase by between 3.6 and 9.9 percent due to the Project. The Revised FEIS states that, if the Project is not constructed, Florida may still experience increased GHG emissions because of the need for increased generation resources in the state. Thus, the Revised FEIS concludes that the Project will not have a significant effect on the environment. It remains to be seen whether this Revised FEIS is enough to satisfy the court’s concern regarding lack of analysis of indirect effects of downstream GHG emissions that may result from the Project’s operation.

On February 6, 2018, FERC submitted its motion seeking a 45-day stay in the issuance of the mandate in Sierra Club. FERC’s motion states that it plans to issue an order on remand within 45 days and that a failure to stay issuance of the mandate will “cease the operation of needed natural gas pipelines, potentially endangering the supply of electricity to Florida residents.”4 The motion indicates that the Sierra Club opposes the request for a stay. The Sierra Club has up to 10 days to file an answer to the motion, and in the meantime, it seems likely that the D.C. Circuit will delay issuing the mandate pending consideration of the motion on the merits.

  1. Sierra Club, et al. v. FERC, 867 F.3d 1357 (D.C. Cir. 2017)
  2. On September 15, 2017, the Tenth Circuit held that the U.S. Bureau of Land Management (BLM) failed to properly analyze GHG emissions when approving lease extensions for four Wyoming coal mines. Reversing a lower court ruling that upheld the leases, a three-judge circuit panel said that BLM failed to justify its conclusions that extending the leases would not have an effect on the country’s overall coal consumption. WildEarth Guardians et al. v. Bureau of Land Management, Case No. 15-8109 (10th Cir. 2017).
  3. FEIS at p. 9.
  4. Motion at p. 2.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reed Smith | Attorney Advertising

Written by:

Reed Smith

Reed Smith on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.