FERC Affirms Texas LNG Export Project on Remand and Rejects Attempts to Enlarge Diminished Scope of Environmental Review

Mark R. Haskell, Brett A. Snyder, and Camila Thorpe ●

The Federal Energy Regulatory Commission (“FERC” or the “Commission”) issued an Order[1] addressing the United States Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit”) second remand concerning Texas LNG Brownsville LLC’s (“Texas LNG”) proposed liquefied natural gas (“LNG”) terminal project (“Texas LNG Project”) on August 21, 2025. The Commission’s Order affirms its prior determination that the Texas LNG Project is not inconsistent with the public interest and grants Texas LNG a five-year extension of time, to November 22, 2029, to construct and make available for service the Texas LNG Project.

BACKGROUND

Proceedings Before FERC

The Texas LNG Project, authorized by the Commission on November 22, 2019, under section 3 of the Natural Gas Act (“NGA”), involves the construction and operation of an LNG export terminal, with a capacity of approximately four million metric tonnes per annum (“MTPA”). The Commission determined, based on the findings presented in the final Environmental Impact Statement (“EIS”), that construction and operation of the project, as described in the final EIS, would be an environmentally acceptable action.[2]

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[1]Texas LNG Brownsville LLC, 192 FERC ¶ 61,170 (2025).

[2] Authorization Order, 169 FERC ¶ 61,130 at P 86.

Climate Change Environmental Groups Challenge President’s Executive Orders to Expand Energy Development

Margaret Anne Hill, Frank L. Tamulonis III, Stephen C. Zumbrun, and Melissa A. Scacchitti ●

We previously reported that President Trump issued a series of executive actions to fulfill his pledge to advance the United States’ domestic energy economy. These executive actions, such as President Trump’s Executive Orders Unleashing American Energy, Declaring a National Energy Emergency, and Reinvigorating…[the] Coal Industry…., now face legal challenges from environmental groups, led by Our Children’s Trust, a nonprofit law firm that exclusively represents youth plaintiffs against state and federal governments.[1] Presently, Our Children’s Trust seeks to enjoin these orders from taking effect because of their potential impact on climate change in the youths’ future. This post will provide a brief overview of the litigation and its pending timeline.

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Supreme Court Scales Back the NEPA Roadblock to Infrastructure Projects

Margaret Anne Hill and Stephen C. Zumbrun ●

Overview

On May 29, 2025, the U.S. Supreme Court issued a significant decision clarifying the scope of environmental review required under the National Environmental Policy Act (“NEPA”) for major infrastructure projects. The Court recognized and reined in what infrastructure practitioners have long understood: NEPA strayed far beyond its “procedural” and “informational” roots to become an obstruction to infrastructure projects across the country.

As brief background, a project developer filed an application with the Surface Transportation Board (“STB”) for a proposed 88-mile railroad line in Utah. The STB, pursuant to its NEPA requirements, issued a 3,600-page environmental impact statement (“EIS”) analyzing the environmental effects of the project and ultimately approved the railroad line. Groups challenged the STB’s approval, and the D.C. Circuit vacated the STB’s decision, ordering the STB to analyze the potential “upstream” impacts of the proposed railroad, which included possible increased oil and gas drilling activities in Utah, and potential “downstream” impacts of the railroad, such as increased oil refining in Texas.

The Supreme Court reversed the D.C. Circuit Court’s prior decision, finding that the D.C. Circuit: (1) did not afford substantial deference to the STB required in NEPA cases, and (2) incorrectly ordered the STB to review the environmental effects of projects separate in time and place from the actual 88-mile railroad under consideration.

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Unleashing American Energy: Trump Administration’s Latest Executive Orders

Margaret Anne Hill, Frank L. Tamulonis III, Melissa A. Scacchitti, and Stephen C. Zumbrun ●

New Executive Orders and Proclamation

On April 8, 2025, President Donald J. Trump issued three significant executive orders (“EOs”) and a fourth proclamation consistent with his pledge to “Unleash American Energy.” These Presidential actions, titled (1) Strengthening the Reliability and Security of the U.S. Electric Grid, (2) Protecting American Energy from State Overreach, (3) Reinvigorating America’s Beautiful Clean Coal Industry, and (4) Regulatory Relief for Certain Stationary Sources to Promote American Energy, seek to promote domestic oil, gas, and coal energy production. Each of these actions is discussed below.

Strengthening the Reliability and Security of the U.S. Electric Grid, EO 14262

This EO directs the Secretary of Energy to streamline emergency processes and to develop a uniform methodology for analyzing reserve margins across all regions of the bulk power system. The stated needs for the EO include aging infrastructure, increased need for electricity, and demand for energy use by datacenters.

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PFAS Bans Go into Effect; Manufacturers Attempt to Push Back on Regulations

Michael C. Lupton, Frank A. Dante, and Kevin R. Doherty ●


Many states have enacted or plan to enact new regulations regarding the manufacturing of products containing per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” because they do not easily break down in the environment and human body. For example, on January 1, 2025, both New York[1] and California[2] banned the sale of any new, not previously used, apparel and certain other products containing added PFAS, while Minnesota[3] banned broad categories of products containing PFAS. More specifically, the Minnesota statute, titled Amara’s Law, prohibits the sale or distribution of the following products if the product contains intentionally added PFAS: (1) carpets or rugs; (2) cleaning products; (3) cookware; (4) cosmetics; (5) dental floss; (6) fabric treatments; (7) juvenile products; (8) menstruation products; (9) textile furnishings; (10) ski wax; and (11) upholstered furniture. The law makes no exceptions for products in these categories, provides no extensions, even if no PFAS alternatives are available, and allows expansion to include additional products if the products contain intentionally added PFAS that are likely to harm Minnesota’s environment and natural resources. Violations of the statute can result in fines, civil penalties, or criminal prosecution. Other states have similar bans set to take effect over the next several years.[4]

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PFAS and Consumer Class Actions: The New Wave of PFAS Litigation

Frank A. Dante, Margaret Anne Hill, and Melissa A. Scacchitti ●

With a new year has come a new wave of litigation involving PFAS (per- and poly-fluoroalkyl substances), also known as “forever chemicals.” While PFAS litigation up to this point has often involved either claims of personal injury or those concerning damage to natural resources and municipal water systems, an increasing trend of class actions is emerging implicating consumer protection laws. Recently, several large companies in the United States dealing in consumer goods have found themselves the targets of class action suits brought by plaintiffs asserting claims of consumer fraud involving PFAS.[1] The allegations asserted in these suits have a common thread in that the plaintiffs are arguing that the presence of PFAS in certain of the companies’ products was never disclosed to the consumer. The plaintiffs are, therefore, seeking to prohibit these companies from allegedly making misleading advertisements or selling these products without proper disclosures in the future.

“Forever Chemicals” Everywhere

These cases result from an increased awareness of PFAS, their wide range of uses and presence in daily life, and their alleged association with negative health and environmental effects. However, it is the widespread use of PFAS that could lead to a significant increase in consumer protection claims, as PFAS can be found in everything from clothing to furniture, pizza boxes and food wrappers, our cellphones, pots and pans, mattress pads, household dust, and even in every drop of rain.

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New Jersey Appellate Division Makes Clear Experts Must Demonstrate a Scientifically Recognized Methodology

Jane Thomas

Recently, the New Jersey Appellate Division, in Dorrell v. Woodruff Energy, Inc.,[1] vacated a 2018 judgment against Chevron U.S.A., Inc. (“Chevron”) that had found Chevron liable for gasoline contamination. More specifically, the Appellate Division found that plaintiff’s expert was not qualified to determine that the subject property was contaminated with gasoline because his methodology was flawed and wholly unsupported by any scientific resource.

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LNG by Rail: The D.C. Circuit Vacates a DOT Rulemaking and Outlines a Path for Challenges Yet to Come

Mark R. Haskell ●

In Sierra Club v. United States Dep’t of Transportation[1],a panel of the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) vacated and remanded a final rule[2] issued by the Department of Transportation (“DOT”) permitting the transportation of liquefied natural gas (“LNG”) in approved rail cars. The final rule was subsequently stayed and never took effect.

DOT Rulemaking & the Sierra Club Decision

The rulemaking proceeding began with an executive order published on April 10, 2019. Then President Trump directed the Secretary of Transportation to propose a rule to permit LNG to be transported in approved rail cars within 100 days from the date of the executive order and to finalize the rule within thirteen months.[3]  DOT subsequently issued a proposed rule that would permit the transportation of LNG by rail in DOT-113 rail cars. The proposed rule proposed no limit on the number of cars to be used to transport LNG on a single train and imposed no mandatory speed limit. The proposed rule also included a preliminary environmental assessment finding that the proposed rule would have no significant environmental impact.[4]   

The proposed rule was challenged by environmental organizations, states, and the National Transportation Safety Board, all citing potentially grave risks related to potential explosions or fires related to transportation of LNG by rail and separately arguing that the proposed rule failed to mitigate those risks.[5] 

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Lead Contamination in Water: Flint Water Crisis Update

Deborah Greenspan and Fredric M. Brooks ●

The existence of lead pipes in municipal water systems and service lines connecting residential and commercial properties to water mains throughout the United States continues to generate litigation and regulatory action. The U.S. government reported in 2023 that more than 9.2 million American households connect to water through lead pipes and lead service lines.[1] The water crisis in Flint, Michigan, that arose a decade ago and gained national prominence involved water allegedly contaminated both by a change in water source and the presence of old lead service lines. That case, involving over 25,000 individual lawsuits as well as class actions, is approaching an important milestone as a partial settlement nears conclusion.

Background

The Flint water crisis began in April 2014 when the City of Flint switched its source of municipal water to the Flint River. For decades previously, Flint had received water from Lake Huron that was pre-treated by the Detroit Water and Sewerage Department.[2] Following the switch, residents soon reported that “there was something wrong with the way the water looked, tasted, and smelled, and that it was causing rashes.”[3] Tests showed the presence of bacterial contamination. In response, the City treated the water with additional chlorine, which was alleged to have exacerbated the corrosion in the old water lines and allegedly the “corrosion contaminated the water with hazardous levels of lead.”[4] Subsequently, it was alleged that lead monitoring showed results exceeding the Lead and Copper Rule’s action levels for lead, and that a published study showed a spike in the percentage of children in Flint with elevated blood lead levels.[5]

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SCOTUS Declines to Review California’s Clean Air Act Preemption Waiver—Current Implications and Expected Response from the Incoming Administration

Sedalia E. Jones-Kennelly ●

Update and Background

The U.S. Supreme Court, in Diamond Alternative Energy, LLC v. EPA, et al,[1] recently declined to review whether the Environmental Protection Agency (“EPA”) exceeded its authority by granting a preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate.[2]

Under the Clean Air Act (“CAA”), “emission standard” refers to the legal limit on the amount of a specific air pollutant that can be released from a source, like a vehicle or factory.[3] CAA Sections 209(b) and 209(e) permit the State of California to request a waiver or authorization from federal preemption of state-level regulatory programs for certain vehicle emissions.[4] The EPA must grant the CAA waiver before California’s rules may be enforced.[5]

Petitioners—a group of states led by Ohio and various fuel industry organizations led by American Fuel & Petrochemical Manufacturers—asked the Court to review the D.C. Circuit Court’s April 2024 decision siding with the EPA. The Circuit Court had found that some petitioners lacked standing to pursue these claims, while others failed on the merits, and upheld the Agency’s authority to grant California this waiver.

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