EDF Urges D.C. Circuit to Strike Down Unlawful Approval of a Natural Gas Pipeline

(WASHINGTON, D.C.) Today, in a reply brief filed with the U.S. Court of Appeals for the D.C. Circuit, EDF rebutted the attempt by Federal Energy Regulatory Commission (FERC) to defend its approval of a 66-mile natural gas pipeline in Illinois and Missouri. EDF asked the Court to strike down FERC’s approval and to order the agency to fulfill its statutory obligation to protect the public interest and meaningfully consider the adverse impacts of new, costly infrastructure. 

The reply brief filed today by EDF states:

“Ignoring its independent obligations as the guardian of the public interest, FERC allowed a private business decision to override the wide-sweeping public interest ramifications—on the affiliates’ captive customers, the viability of neighboring pipelines, the degradation of the environment, and the persistent and invasive seizure of private property by eminent domain.”

Despite evidence showing a lack of need for the Project, FERC approved the Spire STL Pipeline based exclusively on an agreement for new capacity entered into between affiliated corporate entities, the pipeline developer, Spire STL, and its retail gas utility customer, Spire Missouri.  These transactions warrant additional scrutiny from regulators because they shift unnecessary risks and costs to customers. FERC’s failure to fulfill its statutory obligations has led to serious consequences, including asking customers to pay over $600 million in costs for unneeded infrastructure, degradation of the environment, and the invasive seizure of private property by eminent domain.

A diverse set of experts and organizations have filed amicus briefs in support of EDF. 

The American Antitrust Institute demonstrates the threat affiliate contracts pose, stating that “[b]ecause FERC failed to evaluate these basic economic realities and the accompanying market facts that illuminate their consequences, it failed to adequately assess need under the Natural Gas Act.”

Dr. Sue Tierney, a former regulator and utility expert, states that “Spire is what happens when the Commission fails its [Natural] Gas Act obligations, and threatens to become a new industry norm absent the Court’s enforcement of that law.”  

FERC issued its initial approval for the Spire STL project in August 2018. EDF sought rehearing of that decision, which FERC denied. FERC allowed Spire STL to complete construction and begin operating the pipeline despite serious legal concerns. EDF filed this legal challenge to FERC’s approval of the Spire STL project in January; EDF filed its initial brief in June.