Will the Courts Shut Off Energy Supplies?

Numerous posts here have reported on efforts by climate lawyers to stop use of fossil fuels (FF) to prevent imaginary global warming. The failure of rising CO2 to cause warming in the atmosphere is confirmed yet again by a detailed study of the last 40 years of satellite measurements. My synopsis with links is Atmospheric Observations Contradict Global Warming Theory.

Despite no apparent global warming, climatists (alarmists/activists) are determined that fossil fuels be “left in the ground.” Actually, everyone knows it is not illegal to sell and use fossil fuel products. Of course there are attempts to change that, the current example being the kids lawsuit, destined eventually to go before the US Supreme Court. See Kid’s Climate Lawsuit Update Nov. 5.

Even before that long-shot case started in 2015, climate lawyers have been busy applying another strategy. Since it is legal (still) to sell and use FF, the idea is to prevent the transport of such energy by pipelines, thereby blocking sale and usage and eventually making extraction and production of FF uneconomic. Hence, numerous legal actions have been mounted to prevent or shut down gas and/or oil pipelines.

An insight into their thinking is provided by the recent Montana District judge stopping the Keystone pipeline project that was expressly approved by President Trump. The District Court Order is published at Sierra Club website, since they are a major employer of climate lawyers. (SEIS means the final Supplemental Environmental Impact Statement; ROD means Record of Decision by the Department authority (State Dept. In this case)). The order (here) is written by Judge Brian Morris, excerpts in italics with my bolds.

2. The Department’s Conclusions on Climate Change

The 2014 SEIS determined that the pipeline would not affect significantly oil extraction in Canada. As a result of this determination, the 2014 SEIS reasoned that the emissions associated with transporting 830,000 bpd of tar sands crude oil (Keystone’s capacity), would occur regardless of the pipeline’s existence. To reach this conclusion, the 2014 SEIS analyzed numerous factors, including the price of oil, transportation costs, and supply and demand for oil.

The Court must limit its review to determining whether the 2014 SEIS took a “hard look” at the effects of Keystone on oil markets. The Department met this “hard look” requirement in its market analysis and its conclusion that Keystone would not impact the rate of tar sands extraction. The Department provided sufficient analysis that went beyond mere assumptions of the rate of oil sands extraction rates in 2014. The Court finds no error in the Department’s 2014 analysis of the rate of tar sands extraction and its impact on climate change.

The Department denied the permit in its 2015 ROD. The Department relied heavily on the United States’s role in climate leadership.

[My Comment: That 2014 Keystone project SEIS statement proved embarrassing to then-President Obama, who was gearing up for the 2015 do-or-die Paris Accord conference. He directed State Dept. to reconsider, and they did in the 2015 ROD.]

The Department issued a new ROD in 2017. The new ROD noted that “there have been numerous developments related to global action to address climate change, including announcements by many countries of their plans to do so” since the 2015 ROD. Moreover, the new ROD suggested that “a decision to approve [the] proposed Project would support U.S. priorities relating to energy security, economic development, and infrastructure.” The Department argues that this about-face constitutes a mere policy shift, and that on its own, cannot be found arbitrary and capricious.

The Department possesses the authority to give more weight to energy security in 2017 than it had in 2015. Kake and State Farm make clear, however, that “even when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.” The Department did not merely make a policy shift in its stance on the United States’s role on climate change. It simultaneously ignored the 2015 ROD’s Section 6.3 titled “Climate Change-Related Foreign Policy Considerations.” Section 6.3 of the 2015 ROD determined that the United States’s climate change leadership provided a significant basis for denying the permit. The Department acknowledged science supporting a need to keep global temperature below two degrees Celsius above pre-industrial levels Id. at 1182-83. The Department further recognized the scientific evidence that human activity represents a dominant cause of climate change. The Department cited transboundary impacts including storm surges and intense droughts. And finally, the Department accepted the United States’s impact as the world’s largest economy and second-largest greenhouse gas emitter.

[My comment: Note that President’s Obama’s personal desire to be a global leader on climate change is referred to as a “factual finding” and President Trump’s alternate policy is called “capricious.” President Obama’s personal beliefs then serve to justify introducing a bunch of UN-IPCC assertions to override US sovereignty.]

The 2017 ROD initially tracked the 2015 ROD nearly word-for-word. The 2017 ROD, without explanation or acknowledgment, omitted entirely a parallel section discussing “Climate Change-Related Foreign Policy Considerations.” The 2017 ROD ignores the 2015 ROD’s conclusion that 2015 represented a critical time for action on climate change. The 2017 ROD avoids this conclusion with a single paragraph. The 2017 ROD simply states that since 2015, there have been “numerous developments related to global action to address climate change, including announcements by many countries of their plans to do so.”

Once again, this conclusory statement falls short of a factually based determination, let alone a reasoned explanation, for the course reversal. “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.”

Blaming FF Pipelines for Global Warming/Climate Change

The Trump administration will be considering the most effective response to the above latest judicial creativity.  Meanwhile, a look into the saga of the Sabal Trail pipeline shows how climate lawyers are beavering away to undermine and blockade FF energy infrastructure. Overview and current pipeline status is from RBN Energy Northeast Gas Pulled South By Florida Power Plants And Sabal Trail. Excerpts in italics with my bolds.

Florida’s electric utilities are turning to natural gas-fired power and renewables for all their incremental generation needs and as replacements for the older coal units they’ve been retiring. The state’s big bet on natural gas has been spurring the development of new pipelines. And, because of big shifts in where gas is being produced and where it’s flowing, the Sunshine State will soon be receiving an increasing share of its gas needs from the Marcellus region. Today, we discuss the slew of new gas-fired power plants that have come online, the additional plants planned, and gas flows on Sabal Trail, the first new gas mainline into the state in almost two decades.

Open image in new tab to enlarge.

With more than a year of Sabal Trail operational history in the books and Florida’s seasonal weather as hot and humid as modern man and woman can bear, we decided it was time for an update. As we said in Part 1 of this two-part series, Florida is a leading generator of electricity — second only to Texas, in fact — and in recent years its electric utilities have been particularly aggressive in their shift from coal (and nuclear) generation to gas. That spurred the development of the 1.1-Bcf/d Sabal Trail Pipeline, which runs more than 500 miles from an interconnect with Williams’s Transcontinental Gas Pipeline (Transco) in west-central Alabama to the Orlando-area gas hub (black dot in Figure 1). A related pipeline called Florida Southeast Connection delivers gas from that hub into South Florida. Sabal Trail — in service since May 2017 — increased to three the number of gas mainlines serving the state, the other two being the 3.1-Bcf/d Florida Gas Transmission and the 1.3-Bcf/d Gulfstream Natural Gas System.

Obstructing Sabal Trail

Climate lawyers have opposed and obstructed Sabal Trail pipeline for years, and their arguments are seen in the most recent ruling by FERC, the Federal Energy Regulatory Commission, August 10, 2018 Order Denying Rehearing. Excerpts in italics with my bolds.

Sierra Club claims that the Commission has entirely ignored downstream emissions. This is not true. The Commission fully considered GHG emissions in the Final SEIS by quantifying them and providing information that put the GHG emissions in context. In this case, having confirmed, following review of the Final SEIS, that the SMP Project remains an environmentally acceptable action, the Commission has no need to effectively re-open its balancing to determine whether the environmental consequences outweigh the previously-identified benefits. The fact that, explained above, the Final SEIS was unable to determine whether the quantified GHG emissions were significant, does not vitiate the fact that we analyzed them and concluded that the identified quantity of GHG emissions does not support a finding that the SMP Project is environmentally unacceptable.

Sierra Club further states that nothing in the NGA (National Gas Act) precludes consideration of downstream emissions. This is correct. We have never suggested to the contrary. Whether such consideration is required by law and whether such consideration compels an outcome of denial of pipeline infrastructure, is a different question. The Commission’s public interest balancing includes a wide-range of factors, but the “principal aim” of the NGA, as determined by Congress, is to “encourag[e] the orderly development of plentiful supplies of . . . natural gas at reasonable prices,” and “protect[] consumers against exploitation at the hands of natural gas companies.” As the Commission explained in the Remand Order, “the public interest that the Commission must protect always includes the interest of consumers in having access to an adequate supply of gas at a reasonable price.”

It is within the policy framework established by Congress in the NGA that the Commission determines whether a proposed project is “environmentally acceptable.” As we explain herein, that determination included consideration of downstream GHG emissions and their secondary effects. We acknowledge that there may be disagreement with the policy choice expressed in the NGA; however, the Remand Order correctly found that “it is for Congress or the Executive Branch to decide national policy on the use of natural gas and that the Commission’s job is to review applications before it on a case-by-case basis.”

57.Congress has not granted the Commission the responsibility to affirmatively establish federal climate policy. Accordingly, we believe the Commission’s proper role is to implement federal climate policies—as established by Congress and those Executive departments to which Congress has delegated the requisite authority—in discharging its duties under the NGA and other statutes the Commission administers, including the Federal Power Act (FPA). The D.C. Circuit has explained that, “[a]s a federal agency, FERC is a ‘creature of statute,’ having ‘no constitutional or common law existence or authority, but only those authorities conferred upon it by Congress.’”

Whether Congress’s directive for the Commission “to encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices,” is outweighed by the need to address the problem of global climate change is “a question of deep ‘economic and political significance’ that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly.” The lack of such an express grant does not necessarily preclude the Commission from considering the impacts of climate change in its assessment of the public interest. But it does mean that the Commission may not flip the NGA on its head, by using it as a vehicle to regulate climate change—and the numerous upstream and downstream activities that contribute thereto—rather than the transportation and sale of natural gas in interstate commerce.

The rehearing requests filed by Sierra Club, G.B.A. Associates, and K. Gregory Issacs are hereby denied. (B) The request for stay filed by Sierra Club is dismissed as moot.

A more precise explanation of the issues in play is provided by a dissenting opinion written by Judge Brown at the DC Court of Appeals in 2017 regarding Sabal Trail pipeline.

Overview of the August 22, 2017 Ruling on Sabal Trail Florida Pipeline Project

Media Report: Activists won a huge victory when a Washington, D.C. appellate court panel sided with the Sierra Club, saying the federal agency that reviewed the project had made a huge error. In the narrow 2-1 decision, U.S. Circuit Judge Thomas B. Griffith wrote that the Federal Energy Regulatory Commission (FERC) should have considered the impact of the pipeline’s added greenhouse gas emissions.

BROWN, Circuit Judge, concurring in part and dissenting in part (in italics with my bolds)

I join today’s opinion on all issues save the Court’s decision to vacate and remand the pipeline certificates on the issue of downstream greenhouse emissions. Case law is clear: When an agency “‘has no ability to prevent a certain effect due to’ [its] ‘limited statutory authority over the relevant action[],’ then that action ‘cannot be considered a legally relevant cause’” of an indirect environmental effect under the National Environmental Policy Act (“NEPA”).

Here, FERC declined to engage in an in-depth examination of downstream greenhouse gas emissions because there is no causal relationship between approval of the proposed pipelines and the downstream greenhouse emissions; and, even if a causal relationship exists, any additional analysis would not meaningfully contribute to its decision making. Both determinations were reasonable and entitled to deference.

Regarding causation, the Court is correct that NEPA requires an environmental analysis to include indirect effects that are “reasonably foreseeable,” Freeport, 827 F.3d at 46, but it misunderstands what qualifies as reasonably foreseeable. The Court blithely asserts it is “not just the journey,” it is “also the destination.” Maj. Op. at 18. In fact, NEPA is a procedural statute that is all about the journey. It compels agencies to consider all environmental effects likely to result from the project under review, but it “does not dictate particular decisional outcomes.”

While the Court concludes FERC’s approval of the proposed pipelines will be the cause of greenhouse gas emissions because a significant portion of the natural gas transported through the pipeline will be burned at power plants, see Maj. Op. at 19, the truth is that FERC has no control over whether the power plants that will emit these greenhouse gases will come into existence or remain in operation.

Even if the Court is correct that the Commission has the power to deny pipeline certificates based on indirect environmental concerns, such a denial represents the limit of the Commission’s statutory power. Nothing would prevent the Florida Board from independently approving the construction or expansion of the power plants at issue. In fact, the record shows the Board has already approved some of these projects prior to the Commission reaching a decision on the proposed pipelines. JA 910–11. Moreover, there is also nothing preventing the Intervenors from pursuing an alternative method of delivery to account for the same amount of natural gas. Practical considerations point in the opposite direction. Both the Board and the Commission have concluded Florida has a need for additional natural gas, and nothing in today’s opinion takes issue with those holdings.

Thus, just as FERC in the DOE cases and the Federal Motor Carrier Safety Administration in Public Citizen did not have the legal power to prevent certain environmental effects, the Commission here has no authority to prevent the emission of greenhouse gases through newly-constructed or expanded power plants approved by the Board.


Climate lawyers funded by Sierra Club and other activists are attempting to load upon pipelines the guilt by association with fossil fuels. That their global warming fears are unfounded does not deter them. And they attempt to twist regulatory statutes to their purpose rather than what was congressional intent. As Judge Kavanaugh put it in a different DC Court of Appeals ruling: They are jamming a square peg (addressing climate change) in a round hole (eg.limiting ozone-destroying chemicals).


  1. Edward Hurst · November 12, 2018

    Well put together. Thank you very much!


    • Ron Clutz · November 12, 2018

      Thanks Edward. Glad the material was organized sensibly for you. People do need to realize what attacks are being made on society’s energy platform,


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