On May 9, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) dismissed Otsego 2000 Inc.’s (“Otsego”) petition to set aside a FERC order granting a certificate to Dominion Energy Transmission Inc. (“Dominion”) to construct and operate its New Market Project (“Project”). Specifically, the D.C. Circuit found that Otsego failed to demonstrate standing to petition the court and that Otsego’s expenditure of resources for litigation was insufficient to demonstrate standing.
On April 28, 2016, FERC approved Dominion’s Project to construct and operate the Project (“Certificate Order”). On May 18, 2018, FERC denied Otsego’s request for rehearing of the Certificate Order, which argued that FERC was required by the National Environmental Policy Act (“NEPA”) to evaluate the upstream and downstream greenhouse gas emissions resulting from the Project, because FERC found it is not required to analyze the upstream and downstream impacts of a proposed pipeline project unless those impacts are considered the cumulative or indirect effects under NEPA (see May 29, 2018 edition of the WER). FERC found no evidence that potential indirect impacts of increased greenhouse gas emissions associated with the production or consumption of natural gas were causally related to FERC’s approval of the Project.
At the D.C. Circuit, Otsego argued that FERC was required, pursuant to NEPA, to evaluate upstream and downstream greenhouse gas emissions in the Project’s environmental review. Otsego also claimed FERC improperly announced a new policy without notice and an opportunity for public comment. Otsego specifically noted that FERC improperly announced in its rehearing order that it would no longer go beyond NEPA’s requirements to provide information regarding the environmental effects of upstream natural gas production and downstream combustion unless it determines such impacts qualify as direct or indirect effects of a project.
The D.C. Circuit dismissed Otsego’s petition because it found Otsego failed to demonstrate standing to petition the court. The D.C. Circuit noted that Otsego acknowledged at oral argument that it is not a membership organization, and that it does not suggest it has associational standing. Accordingly, the D.C. Circuit stated that Otesgo’s standing turned on whether it had organizational standing. The D.C. Circuit found that Otsego did not have organizational standing because its affidavits did not identify any injury other than the organization’s time and money expenditures related to this litigation. The court further noted that its “precedent makes clear that an organization’s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury.” Moreover, although Otsego suggested at oral argument that it suffered an “information[al] injury,” the D.C. Circuit found that Otsego did not allege informational injury in its standing affidavits or briefs, and thus the D.C. Circuit did not consider that argument. Because the D.C. Circuit concluded that Otsego lacked standing, the D.C. Circuit did not reach the merits of Otsego’s claims.
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