American Oil and Gas Reporter - December 2024 - 70

Lawmakers Push Court For Rehearing
WASHINGTON-A bipartisan coalition
of lawmakers has filed an amicus
brief on the side of companies pursuing
construction projects in a federal lawsuit
over the fate of the Rio Grande LNG and
Texas LNG terminals in Cameron County
Tx. as well as the Rio Bravo Pipeline
that seeks to connect with them.
The brief calls for a rehearing in the
U.S. Court of Appeals for the District of
Columbia Circuit for the City of Port
Isabel v. Federal Energy Regulatory Commission
decision. In August, the court
said FERC should have included a supplemental
environmental impact statement
for new construction on the LNG projects
(AOGR, Sept. 2024, pg. 14).
The brief, which was filed on Oct.
28, was signed by senators John Barrasso,
R-Wy.; Bill Cassidy, R-La.; John
Cornyn, R-Tx.; Ted Cruz, R-Tx.; John
Kennedy, R-La.; and Dan Sullivan, RAk.;
and representatives Brian Babin,
R-Tx.; Michael Burgess, R-Tx.; Dan
Crenshaw, R-Tx.; Henry Cuellar, DTx.;
Vicente Gonzalez, D-Tx.; Wesley
Hunt, R-Tx.; August Pfluger, R-Tx. and
Randy Weber, R-Tx.
In The Public Interest
The brief opens by asserting that the
D.C. Circuit panel has diverged from its
previous jurisprudence on a critically important
matter in way that undermines
Congress' determination through the Natural
Gas Act that constructing LNG terminals
is in the public interest.
" The panel's error is especially egregious
because the panel used the flimsiest
'environmental whims to undermine the
public interest in building LNG facilities;
and the panel chose the wrong remedy-
vacatur-to fix the regulators' supposed
mistake, " the document asserts. " Both
the decision and its use of vacatur are inconsistent
with federal law and this court's
decisions. Together, they amount to a
devastating wrong answer to an exceptionally
important question: who gets to
decide the public interest? Under our
constitution, Congress gets to decide and
codify the public interest. "
Although courts possess negative authority
to disregard Congress' illegal
acts, the brief summarizes, the judicial
branch revise acts of the legislative
branch. The language of the NGA is exYo
Y
our
Co
America
ca'
onnection to
's
Professionals
plicit, the document observes: " And for
LNG exports to countries with which
the United States has a free-trade agreement,
the presumption is conclusive-
such exports 'shall be deemed to be
consistent with the public interest' and
applications 'shall be granted without
modification or delay.'
" It is not the court's job to make the
public-interest determination for FERC
by deciding that environmental whimsy
is more important than building LNG facilities, "
it adds.
Although the D.C. Circuit's August
decision is based on National Environmental
Policy Act requirements, NEPA
demands processes, not outcomes, the
brief declares, adding that the ruling also
places other interests above the public
interest.
" Most critically, the panel barely mentioned
the NGA's presumption in favor
of exporting LNG, much less tried to
reconcile that statutory mandate with its
use of NEPA to vacate FERC's approval, "
the brief assesses. " By largely omitting
mention of Congress's distinctly strong
interest in approving LNG applications,
the panel mistakenly allowed its inflated
view of the NEPA's procedural requirements
to take preeminence over core,
substantive policy decisions made by
Congress. "
s Oil & Gas
Wrong Remedy
Not only did the D.C. Circuit panel
reach a flawed decision, the amicus brief
asserts, it also chose the wrong way to
rectify the matter by vacating the commission's
approval of the Rio Grande
LNG project. " This action halts the project
while FERC supplements its EIS, " the
brief says. " According to the federal government's
own data, those statements
take 4.5 years on average.
" Moreover, this new precedent threatens
existing projects by opening the
door for interest groups to replace congressionally
mandated public interest
with their own policy goals, " it continues.
" Not only does the panel's holding set
back these properly approved projects
by several more years, but it also threatens
their ability to compete in a challenging
international market and chills
investment in future projects, with corresponding
risks for the nation's security
and economy. "
According to the brief, the ruling
transforms the test for vacatur in a way
that guarantees many projects will face
a similar risk if courts assert procedural
70 THE AMERICAN OIL & GAS REPORTER
T x Onsho dti
Don Hart, Editor
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American Oil and Gas Reporter - December 2024

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