Court of Appeals Must Undo Orders that Allowed the Unlawful Expansion of Methane Gas Infrastructure in Puerto Rico, Groups Argue

Today, the Court of Appeals for the D.C. Circuit heard oral arguments challenging the Federal Energy Regulatory Commission’s (FERC) unlawful authorization of a modification to a methane gas terminal in Puerto Rico’s San Juan Bay area, namely the construction of a pipeline that connects the terminal to two gas-fired turbines.

Earthjustice attorneys argued on behalf of community organizations in the archipelago that FERC had allowed New Fortress Energy, through its Puerto Rico subsidiary NFEnergía, to install and operate the pipeline without the legally required environmental and statutory review. The Commission was obligated to consider safety and human health risks before allowing the pipeline extension to go forward. Attorneys and partners underscored that the Court of Appeals for the D.C. Circuit should vacate and remand FERC’s order that allowed the facility operators to build the pipeline.

“Today, we explained to the D.C. Circuit that FERC has absolutely no authority to allow NFEnergía to go ahead with its plans to expand the methane gas terminal that is posing a grave risk to surrounding communities,” said Ben Chagnon, Earthjustice’s senior counsel for Strategic Legal Advocacy. “FERC knows it was not allowed to let the pipeline to go forward, and the court should reject FERC’s efforts to shield that unlawful order from judicial scrutiny.”

The Commission ignored the serious concerns raised by nearby Puerto Rican residents about the building of this pipeline. Both the National Environmental Policy Act (NEPA) and the Natural Gas Act (NGA) require meaningful, early engagement with impacted members of the public so they can engage in the proposal and respond to its potential impacts. That simply was not done. The environmental and public health impacts of the pipeline and the connected gas turbines deserve to be examined.

“For too long, the scientific and environmental justice communities have come together to remind our elected officials and federal agencies that fossil fuels in Puerto Rico are unnecessary. We have presented FERC with studies that underscore the safety and reliability of rooftop solar panels and battery storage, which would also propel Puerto Rico to reach 100% clean energy by 2050 as stated by law,” Laura Arroyo, senior attorney for Earthjustice, said. “However, by allowing the construction of this pipeline, FERC is forcing communities around the San Juan Bay area to endure an ongoing environmental injustice at the hands of fossil fuel companies like New Fortress Energy and its subsidiary. Not only is every household breathing dirty air but also faces the imminent danger of living near a ticking bomb.”

Raghu Murthy, deputy managing attorney for the Clean Energy Program at Earthjustice, said that “FERC’s actions exceeded the limits of federal laws, plain and simple.” He added that “FERC allowed the project to move forward without analyzing the environmental effects associated with the construction and operation of the pipeline or evaluating superior alternatives like rooftop solar and battery storage. This is a disservice to residents in the San Juan Bay area and Puerto Rico as a whole.”

New Fortress Energy’s methane gas terminal, and the new pipeline, lie approximately 450 meters from a community of 1,646 residents, 40% of whom live below the poverty line. Almost 25% of residents are above the age of 60, and another fifth are younger than 18. The Metropolitan Detention Center houses about 1,072 incarcerated individuals in a half-mile radius. NFEnergía is placing over 2,700 people in this already burdened community to new dangers.

Eighty percent of the goods distributed across the archipelago, including food, enter at the San Juan Harbor. An explosion at the terminal could devastate Puerto Rico’s infrastructure and cause a humanitarian catastrophe.

In the wake of the Commision’s failure to follow bedrock federal requirements, Earthjustice, on behalf of Puerto Rican community organizers, is asking the court to vacate and remand FERC’s orders and make clear that NFEnergía is not authorized to continue operating its pipeline.

“FERC’s actions stifled the voices of San Juan Bay’s community members,” Jenny Cassel, Earthjustice’s senior attorney for the clean energy program, said. “The Commission’s violations were serious and fundamental, and cannot be explained away. FERC must fully evaluate the environmental and health impacts of this pipeline and the highly polluting generators it fuels, and until it does, the operation of this pipeline in our clients’ overburdened community must be stopped.”

Additional quotes from our Puerto Rico-based clients:

“El Puente PR is in Washington, D.C. today to amplify the voices of the most affected communities due to the unlawful expansion of this terminal, which continues to operate without proper permits,” Gabriel Meléndez Cardona, El Puente Puerto Rico’s public policy program coordinator, said. “Our job here is to echo the demands of various groups and individuals that want greater oversight and transparency. Above all, we want their voices to be heard when deciding the future of NFEnergía’s operations, located approximately nearly 450 meters from their homes. Once again, NFEnergía attempts to circumvent FERC’s jurisdiction, this time with the endorsement of the Commission itself. Through its inaction — by deciding not to intervene in the terminal expansion and pipeline construction — it perpetuates the climate grievances and injustices of an already overburdened community.”

“Perpetuating and deepening dependence on fossil fuels is harmful to our archipelago, which is being impacted by climate change already. Our own public policy, designed in response to today’s climate emergency, sets the goal of achieving 100% renewable energy by 2050,” said Mónica Flores-Hernández, campaigns coordinator at El Puente Puerto Rico. “The increase of methane gas use drives us dangerously far from the future we aspire to. Multiple studies have demonstrated that transitioning to renewable, distributed energy without the need to use gas is clearly feasible. This industry not only jeopardizes renewable energy goals but also endangers the very lives and environment of surrounding communities that were not notified of the gas terminal construction and for whom there is no emergency plan.”