How We’re Challenging a New York Gas Expansion in Federal Court

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Climate and Energy

PHOTO CC-BY RYAN MCKNIGHT / SOURCE
by Adam Carlesco

In the Northeast, a gas infrastructure project threatens the backyards of thousands, promising more emissions and pollution. The proposed project from Tennessee Gas would expand gas compressor facilities, one in Pennsylvania and one in New Jersey. The project also includes a new facility in New Jersey less than a quarter-mile from a reservoir that supplies water to 3.5 million residents. 

Tennessee Gas’s project would grow fracked gas supplies sent through the East 300 pipeline to the New York City metro area. And the Federal Regulatory Commission (FERC) has given the project the go-ahead. But we know that FERC has not done their due diligence. 

This month, we filed a petition with the U.S. Court of Appeals in D.C., challenging FERC’s approval.

FERC Refuses to Account For Pipeline Projects’ Indirect Effects

To break ground, pipeline projects require “certificates of public convenience and necessity” from FERC. To issue these, FERC must analyze the project’s environmental impacts, including so-called “indirect” impacts. These include climate emissions from gas extraction and the local air pollution from burning gas in homes and businesses. 

Food & Water Watch recently defeated FERC in court after it failed to consider the indirect effects of pipeline infrastructure it approves. But the Commission has continued to ignore clearly foreseeable indirect effects with its East 300 approval.

Providing more gas supplies through the lifetime of the proposed East 300 additions would require more drilling and fracking wells. The commission must know this. It has the data to consider everything from well production averages, gas volumes, infrastructure lifespan and relevant shale plays. But FERC has decided to ignore these glaring issues and approve this project with little critical oversight. 

Not only will the project increase drilling; it will cause air pollution at the end of the pipeline. For example, degraded methane leaks throughout distribution networks. End-users combust it when they turn on their stoves or their gas heaters. This methane leads to ozone pollution and its many public health threats, like worsening respiratory problems. 

This is especially dangerous for New York’s Westchester County, which gets gas from the East 300 line. For decades, Westchester’s air quality has not met Clean Air Act standards because of elevated levels of ozone.

However, FERC has only reviewed air pollution in a small area around each compressor station. It ignored most of the air pollution that the project will cause, especially downstream emissions. By approving such a large gas capacity expansion, FERC will degrade Westchester County’s local air quality. 

FERC Ignores State Climate Law And Local Gas Hookup Bans

Under the Natural Gas Act, FERC must consider “all factors bearing on the public interest” to decide approval for a new gas project. This includes any information that may undermine the developer’s claim that users need greater gas capacity.

Despite this, FERC has ignored New York State’s Climate Leadership and Community Protection Act and its bold decarbonization requirements. These include mandates for economy-wide emissions reductions of 40% by 2030 and 85% by 2050. These are not mere suggestions, as FERC alleges.

A New York court has recently recognized that the CLCPA’s emissions requirements are binding. The court upheld the denial of air permits for the proposed Danskammer fracked gas power plant. It maintained that the plant’s prospective emissions would make it “inconsistent with or would interfere with the attainment of the [CLCPA’s] Statewide GHG emission limit for 2030.” 

The CLCPA is already reshaping the energy landscape of New York. But FERC has buried its head in the sand with regards to the state’s clean energy transition.

Additionally, New York City’s electricity and gas is served by utility ConEd, which gets its gas from the East 300 line. But New York City recently banned new gas hookups within the city. The ban will significantly reduce gas demand in ConEd’s distribution network, of which NYC makes up the lion’s share

State legislators in Albany and Governor Hochul are moving toward following New York City. They’re now considering a statewide prohibition on gas hookups for new construction. As New York City moves towards its 2050 net-zero emissions target, it will drastically reduce its gas consumption. In light of these rapid changes to New York’s energy landscape, the need for this project’s proposed expanded capacity is dubious at best. 

FERC has approved a project that will likely become unprofitable during or soon after it’s complete. But ConEd’s ratepayers would be on the hook to cover the project’s costs. FERC insists that these glaring issues aren’t part of the “factors bearing on the public interest” that it must consider. But FERC is wrong, and we’re taking them to court for it. 

You Can Help Us Fight Fracking And FERC

If the East 300 project goes forward, gas utilities will continue to profit off expanding fossil fuel pollution. It will bring more community-devastating pollution and climate-wrecking emissions. 

We’re fighting East 300, but the fight goes further. We can secure a better, more sustainable future for New York with a fast transition off fossil fuels. New Yorkers can contact state their representatives to tell them that the state must follow the City’s example and prohibit new gas hookups. And you can support us in our fight with FERC, along with all of our work, by becoming a member of Food & Water Watch today. 

Help us fight for a greener future in New York and beyond.

After The Supreme Court Blocks Federal Climate Action, States Step Up

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Climate and Energy

by Adam Carlesco

In July 2022, the Supreme Court landed a heavy blow against climate action in its decision on West Virginia v. EPA, which significantly restricted the Environmental Protection Agency’s authority to regulate greenhouse gas pollution under the Clean Air Act. 

The Court’s majority invoked a relatively novel legal theory, declaring that EPA ran afoul of the so-called “major questions doctrine.” Under this new doctrine, the majority held that agencies can’t adopt regulations with “major” implications for the national economy unless Congress has explicitly granted the agency that authority. 

Under the Clean Air Act, the EPA has the power to pursue a “best system of emissions reduction.” But the Court held that this doesn’t include a broad system of shifting power generation to non-polluting sources (in other words, renewables). Under the ruling, EPA can only require pollution-reducing technology on individual fossil fuel power plants.

This decision, written by the conservative wing of the Court, will significantly limit how EPA approaches the ever-deepening climate crisis. This could hamstring the agency (and other agencies) in future regulatory endeavors. 

West Virginia v. EPA will curb federal climate action. But states with strong climate laws — such as New York, California and Maryland — have become national vanguards confronting this environmental crisis.  

New York’s Climate Legislation Lights A Path Forward

The Supreme Court’s radical conservatives now stand in the way of strong national emissions regulation. But opportunities and successes have risen at the state level. Climate leaders like New York have passed legislation mandating significant emissions reductions in the coming years. 

For instance, the New York Climate Leadership and Community Protection Act (CLCPA) requires the state to reduce economy-wide emissions by 85% below 1990 levels by 2050. It also requires the state to produce 100% zero-emissions electricity by 2040. Both measures have 2030 goals to make sure the emissions reductions happen fast. 

These reductions aren’t mere suggestions, as industry alleges. They are binding legislative requirements that all branches of state government must uphold and enforce. (Food & Water Watch has sued the Federal Energy Regulatory Commission for failing to consider this law when reviewing gas infrastructure expansions in the state.) 

New York is still drafting its climate action plan. But state courts have already confirmed that the CLCPA’s emissions reduction requirements are binding law. 

Recently, a New York court upheld the Department of Environmental Conservation’s denial of air permits for the Danskammer fracked gas power plant. The court held that if approved, the plant’s emissions would “constitute a substantial and direct source of new GHG emissions in the state.” An approval would thus be “inconsistent with or would interfere with the attainment of the Statewide GHG emission limit for 2030.” 

The state court ruled that, even if the climate action plan is still a work in progress, the CLCPA itself required emissions reductions. The law still empowered state agencies to deny permits for projects that would interfere with the law’s emissions reduction mandates. 

The CLCPA shows how states can move forward on climate action when federal regulators and legislators have failed.

States Can Move Fast On Climate Change

Several states have risen to the occasion to fight climate change with legislation. With such legislation, they can start decarbonizing their energy systems — and their entire economies. 

For example, New York City has banned hookups for fracked gas in new construction. The ban will drastically reduce reliance on fossil fuels while improving local air quality. Washington, D.C. passed a similar policy in efforts to reach carbon neutrality.

In New York, a statewide ban on new gas hookups is now moving through the state legislature with support from Governor Hochul. We’re working to ensure it will pass soon.  Meanwhile, Maryland’s first draft of its Climate Solutions Now Act included similar measures. We’re also working to win that bill’s passage in the next legislative session. 

This is just the beginning of the state-led energy transition spreading across the country. With the federal government limited by an ideologically regressive Supreme Court, states are working on the frontline for climate action. 

We will be demanding even more progress from states over the coming years. We’ll be holding elected officials accountable to their constituents. That means calling on them to lead the charge in combating climate change and transitioning to a clean energy future.

You Can Help Us Push For Progress

Federal elected officials and regulatory agencies often have close ties to powerful corporations. But elected officials and agencies at the state and local levels are more likely to listen to community action and organizing. 

Now is the time to call on your state and local elected officials to fight for bold, uncompromising climate action in your community. We can tell our local lawmakers to pass climate legislation today.

Start with New York: Tell Your Rep To Ban Fracked Gas In New Construction Now!