BROWNSVILLE, Texas - A bipartisan group of U.S. Senators and Representatives have filed an amicus brief in support of a rehearing in the D.C. Circuit Court for the City of Port Isabel, et al. v. Federal Energy Regulatory Commission(FREC) lawsuit.
The lawsuit impacts the permits for Rio Grande LNG and Texas LNG to build liquefied natural gas export terminals at the Port of Brownsville and the Rio Bravo Pipeline that takes natural gas to the port.
An amicus curiae is a legal term that means "friend of the court". It refers to a person or organization that is not a party to a case, but has a strong interest in the matter and wants to influence the court's decision. They do this by submitting a written document, called an amicus brief, that provides additional information or perspective about the case.
Six U.S. senators jointly filed the amicus brief. They are John Barrasso of Wyoming, Bill Cassidy of Louisiana, John Cornyn of Texas, Ted Cruz of Texas, John Kennedy of Louisiana, and Dan Sullivan of Alaska. All are Republicans.
Nine U.S. Representatives joined the six senators in filing the amicus brief. They are Brian Babin, Michael C. Burgess, Dan Crenshaw, Henry Cuellar, Vicente Gonzalez, Wesley Hunt, August Pfluger, and Randy K. Weber, all of Texas, and Steve Scalise of Louisiana. All are Republicans except Cuellar and Gonzalez, who are Democrats. Scalise is House Majority Leader.
In their amicus brief the members of Congress say they have “a strong interest” in ensuring that federal courts correctly interpret and apply the Natural Gas Act.
“Congress passed the Act to encourage the development of natural gas resources and infrastructure, considering such development to be in the public interest,” their brief states.
“Congress accordingly imposed strong—and sometimes irrebuttable—presumptions in favor of approving certain natural gas infrastructure applications.”
But, the members of Congress say, the the D.C. Circuit Court “supplanted Congress’s strong statement of the public interest with other goals and vacated FERC’s approvals of the LNG facilities at issue here.”
The members of Congress continue:
“The panel opinion is incorrect and will have devastating effects: freezing a distinctly important and job-creating South Texas project years in the making, unsettling long-standing FERC project-approval norms across the country, and weakening America’s national security by making it less likely that the United States will continue to supply natural gas to the Nation’s friends and allies while increasing our Nation’s dependence on non-domestic energy sources.”
The members of Congress are asking for rehearing either by the panel or en banc “to correct the panel’s error.”
Here is a summary of their argument:
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. As relevant to this case, Congress has decided that building liquified natural gas (LNG) facilities is in the public interest. And while Congress established a procedure for federal regulators to consider and explain the environmental effects of building LNG facilities, those procedural requirements do not empower interest groups to place their own desired outcomes above Congress’s dictated public interest.
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. 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? Under our Constitution, Congress gets to decide and codify the public interest. Congress has made pellucidly clear that developing and approving natural gas projects is a matter of utmost importance to the economic development and national security of the United States.
This Court has previously issued precedent saying the same, but the panel deviated from the Court’s decisions. To keep uniformity of the Court’s decisions on this question of exceptional importance, the panel should rehear the case or the full Court should review the decision.
