Breaking: D.C. Circuit Sabal Trail - Parties File to Avoid Vacating the Certificate

If you have followed our analysis of the appeal of the Sabal Trail decision to the District of Columbia Court of Appeals (D.C. Circuit), you will not be surprised to hear that both the Federal Energy Regulatory Commission (FERC) and the project proponents filed a request for a rehearing by the panel or by court as a whole. The purpose of the rehearing request is to correct what both parties view as a procedural error in the court's order. We continue to believe the rehearing request will be granted and the procedural error corrected by end of the year, without impacting operations. More broadly, FERC confirmed that, unlike in this case, it has been conducting downstream greenhouse gas emissions estimates, the scope of which will likely be the subject of future litigation. As we have indicated, the need to revisit the greenhouse gas analysis for pending projects may be delaying FERC's resolution of the backlog that occurred due to the lack of a quorum.

The D.C. Circuit's decision in the appeal of the FERC certificate for Sabal Trail and the related projects that make up the Southeast Market Pipelines Project was surprising for two reasons. First, the court found that FERC's failure to assess downstream greenhouse gases failed to satisfy the requirements of the National Environmental Policy Act (NEPA). Second, while upholding FERC's orders against all other challenges, the court's order, once it became final, would have vacated the FERC certificates for the projects while FERC corrected its greenhouse gas analysis. We are only aware of one case that the D.C. Circuit has ever been remanded on a FERC infrastructure decision for environmental reasons (improper segmentation).

The rehearing requests filed on Friday, explained that the court's order, once it becomes final, would vacate the certificates granted to the projects while FERC undertook the process required by the order to correct its environmental analysis. As the parties pointed out to the court, the original decision failed to discuss the factors the court is supposed to assess to determine whether vacating the underlying FERC orders is appropriate. Both parties asserted that had the court undertaken the required analysis it would have found that vacating the underlying FERC certificates is not appropriate. As such, the court must grant a rehearing to address this procedural deficiency in the court's original decision.  

Both parties emphasized that NEPA does not dictate a certain outcome and that the revised environmental analysis is one that can be easily done and that FERC has already begun that process. However, both parties point out that FERC cannot issue a revised environmental report, which would be subject to a 90 day public comment period, before the court decision would lead to the underlying certificates being vacated. Because FERC is diligently pursuing the revised analysis, both parties urged the court to revise its order to simply remand the case without vacating the certificates. Doing so would allow the process to be completed expeditiously without putting at risk the Florida electric and gas markets.


It is possible that the panel of judges that issued the original order could simply modify the original decision as requested by FERC without entertaining any further hearings. But the environmental groups who originally brought the appeal will likely oppose FERC's request for a rehearing. In any event, the filing of the rehearing request will delay the original decision from becoming final until the rehearing request is either granted or denied.