Republican Texas Sen. Ted Cruz and other lawmakers filed a “friend of the court” brief on Monday urging a federal appeals court to rehear a case where the court vacated key permits for two major natural gas projects. [emphasis, links added]
Cruz’s brief calls on the U.S. Court of Appeals for the D.C. Circuit to rehear City of Port Isabel v. Federal Energy Regulatory Commission (FERC), in which the court ruled in August to nix permits for two major liquefied natural gas (LNG) export facilities in Texas.
The filing argued that Congress, and not the appellate court’s panel, should decide whether or not new LNG export facilities are in the public interest, and that the court opted to vacate the key permits on “flimsiest ‘environmental’ whims.”
“The panel broke from this Court’s prior decisions, and it did so on a question of exceptional importance. Congress — not the panel — has the important job of deciding the public interest and codifying it through legislation,” Cruz’s brief stated.
The U.S. Court of Appeals for the D.C. Circuit sided with environmental organizations in August by vacating key approvals that FERC already issued, specifically finding that FERC did not adequately assess the “environmental justice” impacts of the facilities in question, among other missteps.
The August decision leaves the two major Texas LNG export projects — Rio Grande LNG and Texas LNG — in the lurch pending further litigation.
The court’s decision to vacate the approvals instead of remanding them back to FERC for further work was the “wrong remedy” for the situation given the procedural errors in question, Cruz argued in the filing.
“The panel’s error is especially egregious because the panel used the flimsiest ‘environmental’ whims to undermine the public interest in building LNG facilities; and the panel chose the wrong remedy— vacatur—to fix the regulators’ supposed mistake,” the filing stated.
“Both the decision and its use of vacatur are inconsistent with federal law and this Court’s decisions. Together, they amount to a devastating, wrong answer to an exceptionally important question: who gets to decide the public interest?”
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