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As the federal agency charged with overseeing the interstate transportation of natural gas, the Federal Energy Regulatory Commission (FERC) has recently faced growing criticism over its approval of new pipelines. Critics have lambasted FERC for failing to adequately consider the climate change impacts of pipeline development, particularly the greenhouse gas emissions associated with “upstream” natural gas production and “downstream” use. The D.C. Circuit recently weighed in, holding that the National Environmental Policy Act (NEPA) requires consideration of downstream greenhouse gas emissions, at least in some circumstances. The precise scope of that requirement continues to be debated before FERC, in the courts, and among scholars. While recognizing the importance of that debate, this Article approaches the issue from a different perspective, contending that the Natural Gas Act (NGA) establishes an independent requirement for FERC to consider climate change impacts, including upstream or downstream greenhouse gas emissions. To support that contention, the Article offers an in-depth look at the history of Section 7 of the NGA, and its interpretation by the courts. It also provides a comprehensive analysis of how environmental factors are dealt with by FERC, showing that the Commission historically viewed downstream environmental impacts as a key factor to be considered under section 7 of the NGA, but now largely ignores them. That is not only poor policy, but also violates section 7. FERC must, therefore, change its current approach to evaluating pipeline projects. That change could have significant implications for the approval of future projects since, after accounting for environmental impacts, FERC may be unable to conclude that a project is required by the public convenience and necessity.


Environmental Law | Law