Washington Gas Light Company v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2010 Decided April 27, 2010
No. 09-1100
WASHINGTON GAS LIGHT COMPANY,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION ,
RESPONDENT
DOMINION T RANSMISSION , I NC., DOMINION C OVE POINT LNG,
LP, STATOIL NATURAL G AS , LLC, SHELL NA LNG LLC, BP
ENERGY C OMPANY, AND COLUMBIA GAS TRANSMISSION ,
LLC,
I NTERVENORS
On Petition for Review of Orders
of the Federal Energy Regulatory Commission
Adam S. Caldwell argued the cause for petitioner. With
him on the briefs were Barbara S. Jost, Lisa B. Zycherman,
Beverly J. Burke, Bernice K. McIntyre, and Rose T. Lennon.
Judith A. Albert argued the cause for respondent. With
her on the brief were Thomas R. Sheets, General Counsel, and
Robert H. Solomon, Solicitor.

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Christopher T. Handman argued the cause for intervenors
Dominion Transmission, Inc., et al. With him on the brief
were J. Patrick Nevins, Georgia B. Carter, Janna R. Chesno,
Charles H. Shoneman, Kirstin E. Gibbs, David L. Wochner,
William A. Williams, and Frederic J. George.
Before: SENTELLE , Chief Judge, and GARLAND and
KAVANAUGH , Circuit Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH .
KAVANAUGH , Circuit Judge: Dominion Cove Point
operates a large facility adjacent to the Chesapeake Bay in
Maryland, where it receives imported liquefied natural gas by
ship from foreign countries. Dominion Transmission is an
interstate gas transmission and storage company that transmits
natural gas from facilities such as Dominion Cove Point to
local distributors. Washington Gas Light Company is a local
natural gas distributor that provides service to residential and
commercial customers in and around Washington, D.C.
In 2005, Dominion Cove Point and Dominion
Transmission sought to launch a construction project (known
as “the Expansion”) that would allow them to import greater
quantities of liquefied natural gas and distribute it in gaseous
form. Under § 3 and § 7 of the Natural Gas Act, the proposed
Expansion required approval from the Federal Energy
Regulatory Commission. See 15 U.S.C. §§ 717b(a),
717f(c)(1)(A). Section 3 provides that FERC “shall” approve
an application to import natural gas “unless, after opportunity
for hearing, it finds that the proposed . . . importation will not
be consistent with the public interest.” Id. § 717b(a). Section
7 states that FERC “shall” approve a natural gas construction

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project like the Expansion so long as it “is or will be required
by the present or future public convenience and necessity.”
Id. § 717f(e).
In 2006, FERC approved the proposed project.
Washington Gas then sued in this Court, arguing that FERC’s
approval was not in the public interest and thus unlawful.
Washington Gas claimed that higher volumes of regasified
liquefied natural gas would pass through its piping system as
a result of the Expansion, which in turn would pose an
increased risk of unsafe natural gas leakage. (Regasified
liquefied natural gas is natural gas that is liquefied to facilitate
transportation and storage and then returned to gaseous form
for distribution.)
This Court concluded that FERC had not adequately
explained its analysis of the safety concerns associated with
the Expansion. See Washington Gas Light Co. v. FERC, 532
F.3d 928 (D.C. Cir. 2008). After reviewing FERC’s approval
of the Expansion under the § 3 and § 7 criteria, we stated that
“FERC failed to carry out its obligation of ensuring the
Expansion can go forward consistent with the public interest.”
Id. at 933. In reaching that conclusion, we recognized that
allowing more regasified liquefied natural gas to flow through
Washington Gas’s piping system could result in an increased
risk of unsafe natural gas leakage. Id. at 931. Our remand
order left FERC with a narrow task: to “more fully address
whether the Expansion can go forward without causing unsafe
leakage.” Id. at 933.
On remand, FERC explained that the Expansion could
not be said to cause any unsafe leakage if the amount of
regasified liquefied natural gas that could be delivered post-
Expansion was identical to the amount that could be delivered

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pre-Expansion. FERC found that the relevant pre-Expansion
contracts authorized the delivery of 530,000 Dekatherms per
day of regasified liquefied natural gas. And FERC then
limited the relevant post-Expansion regasified liquefied
natural gas delivery levels to that same amount of 530,000
Dekatherms per day. By doing so, FERC ensured that the
Expansion could not be said to increase the risk of unsafe
natural gas leakage; after all, the same amount of regasified
liquefied natural gas could have been delivered even if the
Expansion had never occurred.
By imposing a post-Expansion limit that matches the pre-
Expansion limit, FERC has satisfactorily ensured that the
Expansion will not result in an increased risk of unsafe natural
gas leakage. We have considered Washington Gas’s other
arguments and find them without merit. FERC has satisfied
our remand order, and we deny Washington Gas Light
Company’s petition for review.
So ordered.

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