Metric sales

Ketanji Brown Jackson could affect fight against climate metric

Ketanji Brown Jackson’s nomination to the Supreme Court could affect the ongoing legal debate over how or even if the federal government should apply the social cost of carbon to its decision-making.

President Biden announced on Friday that he was nominating Jackson as the first black woman to serve as a High Court judge. If confirmed by the Senate, she will replace liberal Justice Stephen Breyer, who plans to retire after the current Supreme Court term.

Her appointment calls into question the outcome of ongoing cases Jackson heard while she served — for less than a year — as a judge on the United States Court of Appeals for the District of Columbia Circuit. . This includes a lawsuit to force energy regulators to use the social cost of carbon in their analysis of projects.

The metric puts a price on a ton of carbon emissions and is used by federal agencies to determine the societal benefits of stricter regulations. He has also been at the center of a fierce debate in federal courts over the government’s obligations to better address climate risks.

But with his nomination in hand, Jackson seems unlikely to comment on the matter, legal experts said.

“Traditionally, a judge doesn’t sit on cases or participate in decisions as long as they’re the nominee,” said Sean Marotta, partner at law firm Hogan Lovells.

In a situation like this where the panel has yet to make a decision, the two remaining judges could make a decision on their own, if they agree on the outcome. Otherwise, a third judge would be brought in to break the tie, Marotta said in an email.

“I am less clear about what will happen after her confirmation and as she waits at the end of June for Judge Breyer to retire,” he added.

One of the cases the court has yet to decide is a challenge brought by the Delaware Riverkeeper Network seeking to void the Federal Energy Regulatory Commission’s certificate for the 84-mile Adelphia Gateway pipeline project in Pennsylvania.

The environmental group argued that FERC should be required to use the social cost of carbon to assess whether the project has a significant environmental impact, prompting the commission to complete a more rigorous environmental impact statement.

During oral argument last fall, Jackson asked why FERC should estimate potential emissions upstream of pipeline construction when it cannot obtain data on impacts such as increased gas production. . FERC argued that it is not required to use the social cost of carbon in its analyses.

But Jackson also pushed the level of FERC’s analysis of potential emissions downstream from burning natural gas. Pointing to the 2018 DC circuit decision in the landmark Sabal Trail case, she noted that the court then concluded that the agency had not done enough to assess the climate risks of the Sabal Trail Pipeline or the broader Southeast Market Pipeline project.

As in that case, again FERC did not consider emissions downstream of the Adelphia Gateway pipeline.

“It looks like FERC is grounded to zero, we assume that has no impact. That can’t be true,” Jackson said of the Pennsylvania project (thread of energySeptember 27, 2021).

The other judges on the panel for the case are Judge Judith Rogers, a Clinton pick, and Senior Judge Laurence Silberman, a George W. Bush nominee.

Emissions, offshore leasing

The challenge to FERC’s climate analysis remains unresolved because a separate decision by another federal court had blocked the federal government’s application of the social cost of greenhouse gases, which also includes cost estimates. methane and nitrous oxide emissions.

The Biden administration had warned that the ruling by Judge James Cain of the U.S. District Court for the Western District of Louisiana would have far-reaching federal regulatory implications and lead to delays in federal oil and gas leasing (thread of energyFebruary 22).

The decision also conflicts with other Federal Court decisions that have required the federal government to more carefully consider cumulative and indirect climate impacts in decision-making.

Robert Percival, director of the environmental law program at the University of Maryland, also said he didn’t expect to see Jackson post more opinions as the Senate considers his nomination.

“I think this is good practice because it avoids any appearance that the decision might have been influenced by an attempt to curry favor in the confirmation process,” Percival said in an email.

He noted that after Justice Sonia Sotomayor was nominated to the Supreme Court, two other justices ruled on an American Electric Power Co. climate case in the 2nd United States Circuit Court of Appeals.

Likewise, then-DC Circuit Chief Judge Merrick Garland did not participate in the 2016 oral argument on the clean energy plan that was held before a full panel of active court judges. He had been nominated in March to the Supreme Court, although his nomination was ultimately blocked by Republican lawmakers.

The pipeline case isn’t Jackson’s only pending energy case.

The DC Circuit has yet to issue a decision on an offshore lease challenge.

Jackson, along with Obama-choice Judge Robert Wilkins and Trump-appointed Judge Gregory Katsas, had heard arguments in January on whether to end the environmental review underpinning two lease sales. in the Gulf of Mexico in 2018.

Judges appeared set to strike down the leases for failing to consider enforcing safety rules to prevent a catastrophic oil spill similar to the Deepwater Horizon disaster in 2010 (thread of energyJanuary 11).

In a hearing, Jackson asked why the Bureau of Ocean Energy Management didn’t need to look into the Trump administration’s plan to change an offshore lease regulation as it drafted a sales review leases under the National Environmental Policy Act.

“I’m concerned about the suggestion that the agency doesn’t have to consider it,” she said.

Liquefied natural gas

Jackson was able to flesh out his legal record on energy issues shortly before his recent Supreme Court nomination.

Just last week, Jackson joined a majority opinion written by Justice Neomi Rao, a Trump nominee. The court temporarily blocked a FERC order that prevented NTE Connecticut LLC from selling electricity from its new Connecticut natural gas-fired power plant to the New England grid.

Last month, Jackson was also part of the panel that gave the Department of Energy 90 days to explain why it was justified in tightening regulatory standards for commercial boilers in 2020. The court found that the agency must show ” clear and convincing evidence”. that stricter standards were needed (thread of energyJanuary 20).

Jackson almost had a chance to decide whether FERC wrongly licensed the pipeline for the Jordan Cove liquefied natural gas export terminal in Oregon, a decision that could have implications for the construction of future projects. ‘export.

Landowners challenging the LNG project had argued that the commission could not use eminent domain for a pipeline whose natural gas was only for export.

But the court never ruled on the merits of the case. In November, the DC Circuit ordered FERC to consider suspending the authorization of the Pacific Connector pipeline associated with the Jordan Cove LNG project (thread of energy, November 2, 2021). The following month, project developer Pembina officially announced to FERC that it was canceling the project.

It’s hard to find a clear pattern in Jackson’s environmental views, and she would bring an open mind to the Supreme Court, said Vermont Law School law professor Pat Parenteau.

“She seems to take each case on its facts and legal merit and apply the standard tools of administrative law and case law,” Parenteau said.

“I don’t get the sense that she’s leaning in any particular direction or that she has any strong opinions about the controversies that arise between energy policy and climate change,” he said.