Kasdin Mitchell is a litigation partner with Kirkland & Ellis LLP LLP practicing in the firm’s Dallas, TX and Washington, DC offices. Rex Manning is a litigation associate with Kirkland & Ellis LLP practicing in the firm’s Houston, TX office.
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All eyes are on the Federal Energy Regulatory Commission when it comes to natural-gas projects and greenhouse-gas emissions. Earlier this year, the Commission issued a policy statement on greenhouse gasses (“Interim Policy Statement on Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews”) that would have upended how the Commission reviews proposals for new natural-gas projects. But the statement was met with significant resistance. Two Commissioners dissented, and energy companies and several states filed more than a dozen rehearing petitions.
The Commission ultimately backtracked. It reverted the statement into a “draft” and opened a period for public comments.
Now those comments are in, and the results are mixed. Some commenters support the statement, others don’t, and still others support the Commission’s actions but do not think it went far enough.
While the interested parties are waiting, there can be little question that both sides are preparing for the Commission’s next move. Whether the Commission issues a final statement along the lines of the original, backtracks, or takes a different approach altogether, at least some groups of commentators will be left unhappy, and all signs point to litigation.
This Working Paper describes the work of the Commission in this space, what its policy statement would have tried to accomplish, and what legal challenges could arise once the Commission makes its next move.
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