In March 2022, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Food & Water Watch in Food & Water Watch and Berkshire Environmental Action Team v. Federal Energy Regulatory Commission (FERC), agreeing that FERC had failed to adequately consider downstream greenhouse gas (GHG) emissions — the pollution from burning gas at its end point — when it approved a fossil gas infrastructure expansion near Springfield, Massachusetts. The Court found that the Commission improperly refused to analyze the increase in GHG emissions from downstream combustion resulting from the expansion, which was designed to move more gas into a local distribution network.

Victory in that case forced FERC, the nation’s primary regulator of fossil gas, to more meaningfully consider the downstream GHG impacts of fossil fuel infrastructure development. As a result, FERC has begun analyzing downstream GHG emissions in some of its orders, while also considering more drastic changes in draft gas certification and GHG emissions policies. However, FERC continues to ignore upstream GHG emissions from increased fracking, as well as other downstream impacts, like localized air pollution. Moreover, FERC completely refuses to determine whether the climate impacts of projects are significant and fails to take into account state emissions reduction requirements when determining if a project is needed.

In August 2022, FWW filed another lawsuit responding to these continued shortcomings. The lawsuit, Food & Water Watch v. Federal Energy Regulatory Commission, challenged the May 2022 approval of the “East 300 Upgrade Project,” which consisted of major expansions of two compressor stations and the construction of a new compressor station in Pennsylvania and New Jersey, all designed to supply more fracked gas to the New York City metro area.

Our goals were twofold: 1) make FERC factor in the full scope of climate, environmental, and community impacts of its fossil gas infrastructure permitting decisions, as required by law; and 2) require FERC to consider state and local climate law requirements when determining whether a fossil gas project is even needed. FERC may only approve projects that serve the public interest and dirty fossil fuel projects that harm the climate and ignore clean energy transitions already underway do not meet this standard.

Unfortunately, the D.C. Circuit Court of Appeals allowed FERC to continue the status quo in this case, rather than meaningfully consider the East 300 Upgrade Project’s upstream GHG emissions and downstream air pollution, the significance of the project’s impacts on climate change, and the relevance of New York State’s groundbreaking climate legislation. While we’re disappointed by the D.C. Circuit’s decision, we remain committed to fighting fossil fuel infrastructure, including the massive and unnecessary Regional Energy Access Expansion. 

The outcome we need is clear: FERC must, at a minimum, recognize the true scope and extent of these projects’ consequences on the climate, the environment, and communities. Especially in the face of the climate crisis, FERC can no longer ignore the widespread impacts of continued fossil fuel reliance.