FERC Mandates New Supplemental Environmental Impact Statement to Align with Expected Court Litigation

December 5, 2024

Reading Time : 2 min

On November 27, 2024, the Federal Energy Regulatory Commission (FERC or Commission) issued Venture Global CP2 LNG, LLC,1 an order that sets aside, in part, the Commission’s prior authorization of the CP2 LNG Terminal and CP Express Pipeline Project (collectively, the CP2 Project) under sections 3 and 7 of the Natural Gas Act (NGA). In anticipation of future appellate challenges to its authorization of the CP2 Project, FERC ordered the initiation of a supplemental environmental impact statement (SEIS) process under the National Environmental Policy Act (NEPA) to assess the CP2 Project’s contribution to cumulative air impacts for nitrogen dioxide (NO2) and particulate matter less than 2.5 micrometers (PM2.5). Accordingly, FERC stated that it would not allow construction to commence on the CP2 Project’s proposed liquefied natural gas (LNG) export terminal and related feed gas pipeline until the SEIS process concluded and a subsequent order was issued. Concurrent with its Venture Global order, FERC issued a projected schedule for the NEPA process that does not conclude until July 24, 2025. Construction on the CP2 Project had been expected to be imminent, with the project sponsor seeking a partial authorization to proceed with construction only hours prior to Venture Global’s issuance.

FERC states that the primary motivation for initiating the new SEIS process is a remand order it received in July for a different LNG export terminal project in Healthy Gulf et al. v. FERC. In Healthy Gulf, the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) found FERC’s cumulative effects determination for air quality to be deficient as related to that underlying project’s NO2and PM2.5impacts. Because FERC’s initial approval for the CP2 Project had used a similar air quality analysis, it deemed its approval to be vulnerable to legal challenges. And, FERC determined that it could not perform a new analysis without reopening the NEPA process for public comment to align with a subsequent D.C. Circuit decision, City of Port Isabel v. FERC.

Venture Global is particularly noteworthy because it may be the first time FERC has proactively stalled construction of a major infrastructure project, and initiated an SEIS on its own accord, without being ordered to do so by a federal court. It is also at odds with FERC’s order of October 1, 2024, denying a stay of construction sought by CP2 Project opponents, and other infrastructure projects that continue to move forward with construction or operation while FERC runs a subsequent SEIS process. The decision suggests that a string of losses in the D.C. Circuit—in Healthy Gulf, Port Isabel and New Jersey Conservation Foundation v. FERC—had a deep impact on FERC’s leadership, and increased its resolve to avoid similar outcomes in future cases. Moreover, because the decision was bipartisan, with all Commissioners voting in favor (apart from Commission Chang, who did not participate), a reversal on rehearing is unlikely.


1 189 FERC ¶ 61,148 (2024).

Share This Insight

Previous Entries

Speaking Energy

May 22, 2025

On May 19, 2025, the Department of Energy (DOE) finalized its 2024 LNG Export Study: Energy, Economic and Environmental Assessment of U.S. LNG Exports
(the 2024 Study) through the release of a Response to Comments on the 2024 Study. The Response to Comments concludes that the 2024 Study, as
augmented through public comments submitted on or before March 20, 2025, supporting a finding that liquefied natural gas (LNG) exports serve the public
interest. With the comment process complete, DOE will move forward with final orders on pending applications to export LNG to non-free trade agreement
(non-FTA) countries.
...

Read More

Speaking Energy

May 20, 2025

On Thursday, May 15, the Senate Commerce, Science & Transportation Subcommittee on Surface Transportation, Freight, Pipelines and Safety held a hearing
titled, “Pipeline Safety Reauthorization: Ensuring the Safe and Efficient Movement of American Energy.” The hearing examined legislative priorities for
reauthorizing the Pipeline and Hazardous Materials Safety Administration (PHMSA).
...

Read More

Speaking Energy

April 15, 2025

On April 9, 2025, President Trump issued an executive order (EO)1 directing several federal agencies and subagencies that regulate energy, environmental,
and conservation matters,2 including the Federal Energy Regulatory Commission (FERC) and the Department of Energy (DOE), to establish conditional sunset
dates for “regulations governing energy production.” The stated objective of the EO is to require agencies to periodically reexamine their regulations to
ensure that they continue to serve the public good. For FERC, the order covers regulations promulgated under the Federal Power Act (FPA), the Natural Gas
Act (NGA) and the Powerplant and Industrial Fuel Use Act (FUA)3, as amended, while DOE must consider regulations promulgated under the Atomic Energy
Act (AEA), the National Appliance Energy Conservation Act, the Energy Policy Act of 1992 (EPAct 1992), the Energy Policy Act of 2005 (EPAct 2005) and the
Energy Independence and Security Act of 2007 (EISA), as amended (collectively the Covered Regulations).4 To the extent the DOE has been directed to pro...
...

Read More

Speaking Energy

April 10, 2025

On April 8, 2025, President Trump issued an Executive Order (EO) directing the Department of Energy (DOE) to take steps to expand the use of its emergency
authority under Federal Power Act (FPA) Section 202(c) to require the retention of generation resources deemed necessary to maintain resource adequacy
within at risk-regions of the bulk power system regulated by the Federal Energy Regulatory Commission (FERC).1 The EO appears to envision a more active
role for DOE in overseeing and supporting the resource adequacy of the grid that deviates from the historic use of Section 202(c) and touches on issues at
the intersection of state and federal authority over resource planning.
...

Read More

Speaking Energy

March 10, 2025

On March 5, 2025, the United States Department of Energy (DOE) approved Golden Pass LNG Terminal LLC’s (GPLNG) request to extend a deadline to begin
exporting liquefied natural gas (LNG) from its terminal facility currently under construction in Sabine Pass, Texas for 18 months, from September 30, 2025, to
March 31, 2027 (the Order). The Order amends GPLNG’s two existing long-term orders authorizing the export of domestically produced LNG to countries with
which the United States does and does not have free trade agreements (FTA).1  The Order does not amend the authorizations’ end date, which remains
December 31, 2050. Under section 3 of the Natural Gas Act (NGA), the DOE may authorize exports to non-FTA countries following completion of a “public
interest” review, whereas exports to FTA countries are deemed to be in the public interest and the DOE is directed to issue authorizations without
modification or delay.
...

Read More

Speaking Energy

March 4, 2025

Join projects & energy transition partner Shariff Barakat at Infocast’s Solar & Wind, where he will moderate the “Tax Equity Market Dynamics” panel....

Read More

Speaking Energy

February 13, 2025

Oil & gas companies continue to identify and capitalize on opportunities related to the deployment of new energy technologies, with their approaches broadly
maturing and coalescing around maximizing synergies, leveraging available subsidies and responding to regulatory drivers.
...

Read More

Speaking Energy

February 11, 2025

On January 30, 2025, the Federal Energy Regulatory Commission (FERC or the Commission) approved a Stipulation and Consent Agreement (Agreement)
between the Office of Enforcement (OE) and Stronghold Digital Mining Inc. (Stronghold) resolving an investigation into whether Stronghold had violated the
PJM Interconnection, L.L.C. (PJM) tariff and Commission regulations by limiting the quantity of energy made available to the market to serve a co-located
Bitcoin mining operation.1 This order appears to be the first instance of a public enforcement action involving co-located load and generation and comes at a
time when both FERC and market operators2 are scrutinizing the treatment of co-located load due to the rapid increase in demand associated with data
center development.
...

Read More

© 2025 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.