From CCAN’s General Counsel: Update on Cove Point Legal Fight

While groups on the ground in Calvert County continue to stand up to Dominion’s massive liquefied natural gas (LNG) export terminal along the Chesapeake Bay, the fight is simultaneously moving forward in federal court.

On behalf of CCAN, Patuxent Riverkeeper, and Sierra Club, and their members who will be harmed by Dominion’s project, Earthjustice asked the United States Court of Appeals for the District of Columbia Circuit on May 7th, 2015 to review the Federal Energy Regulatory Commission’s (FERC) decision to approve Dominion’s LNG export project without a valid environmental review. Our lawsuit centers on FERC’s unlawfully narrow environmental review of Dominion’s massive project to convert its virtually idle LNG import facility into a hub for LNG exports. That review—criticized in over 150,000 citizen comments—omitted credible analysis of the project’s lifecycle global warming pollution, along with all the pollution associated with driving demand for upstream fracking and fracked gas infrastructure; its impact on water quality in the Chesapeake Bay and risk to the critically endangered North Atlantic Right Whale; and potentially catastrophic explosion and fire threat to hundreds of nearby residents.

Our legal fight to stop the $3.8 billion export facility began within FERC itself. CCAN members joined thousands of others in submitting comments to FERC on Dominion’s application and the agency’s environmental review of the project. After conducting the minimum review allowed under the National Environmental Policy Act (NEPA), FERC approved the proposal on September 29th, 2014. Concerned that the agency had not fully considered the many ways that Dominion’s LNG export project will impact the environment and threaten community health and safety, CCAN and its partners, with the help of Earthjustice, asked FERC to review its decision. FERC sat on our request for months—a process known as “tolling”—even as it approved order after order allowing Dominion to begin construction. After seven months, FERC finally denied our request. Once we completed FERC’s internal review process (or “exhausted our administrative remedies,” in legal jargon), we were finally able to challenge the agency’s decision in federal court.

Tragically, FERC’s foot-dragging allowed Dominion’s bulldozers to start construction before residents were able to appeal to the federal court. Citing the fact that Dominion’s construction activities have already begun to irrevocably damage the landscape and quality of life in Calvert County, Maryland, CCAN, Patuxent Riverkeeper, and Sierra Club asked the D.C. Circuit in June to halt all construction while our case was pending. Injunctions are difficult to obtain, and the court ultimately denied our request, but that decision has no bearing on the merits of our case.

Environmental groups are not the only ones who are challenging FERC’s decisions regarding Cove Point. Before Dominion proposed to expand and convert the terminal, Cove Point was a mostly dormant import facility. Energy companies, including BP, Statoil, and Shell had contracts to import natural gas to the terminal. Dominion granted Statoil the opportunity to relinquish its import capacity, but did not grant BP or any other importer the same opportunity. Signaling that the import market is uncertain, BP has asked the DC Circuit to review this denial, and BP’s case has been consolidated with ours.

We do not yet have a briefing schedule for the consolidated cases, but hope it will allow for argument in the court’s spring term. FERC has failed its important duty under NEPA to analyze and disclose the environmental consequences of allowing Dominion to build and run a facility that can export up to nearly 1 billion cubic feet of natural gas per day. FERC must stop cutting corners when it comes to our fragile climate and environment. Our lawsuit is a step towards pushing FERC in the right direction.