Washington — Endangered Species Act authorizations were again a point of attack for those battling major natural gas projects, as environmental groups filed new petitions challenging LNG projects in Brownsville, Texas.
Receive daily email alerts, subscriber notes & personalize your experience.Register Now
One lawsuit, filed in the 5th US Circuit Court of Appeals, challenges the biological opinions and incidental take statements that the US Fish and Wildlife Service issued for the Annova LNG project in relation to impacts on the ocelot, an endangered species of wildcat. Similar litigation has been filed challenging the neighboring Rio Grande LNG project in the same court.
The action comes as environmental groups have successfully challenged ESA documents for the Atlantic Coast Pipeline and the Mountain Valley Pipelines further east, stalling work on the major pipeline projects intended to move Appalachian Basin gas to mid-Atlantic and Southeast markets.
The Sierra Club and Defenders of Wildlife argue that if built the LNG facilities in Brownville would eliminate key habitat and cut off the ocelot population in the Laguna Atascosa National Wildlife Refuge from ocelots in Mexico. They also argue ocelots would be put at risk of being struck and killed by traffic.
The two projects, along with the Texas LNG project, are planned along the Brownsville Ship Channel, and part of a wave of US Gulf Coast LNG projects that cleared the Federal Energy Regulatory Commission review process in 2019. FERC November 21 approved the 6 million mt/year Exelon-backed Annova LNG project (CP16-480); Texas LNG Brownsville (CP16-116), authorized for 4 million mt/year and expected to include 2 million mt/year in the first phase; and NextDecade's Rio Grande LNG (CP16-454), which entails a terminal with up to six liquefaction trains, with a total design capacity of 27 million mt/year.
The three projects faced robust and organized opposition, raising environmental and economic objections throughout the FERC review. Sierra Club, along with a coalition of other groups, also filed challenges related to FERC certifications and US Army Corps of Engineers Clean Water Act Section 404 permits.
While FERC certificate orders for natural gas projects have mostly survived challenges in federal appeals courts over the last several years, endangered species or water crossing authorizations issued by other federal agencies have proven more vulnerable.
In the Annova LNG biological opinion, the FWS found that the Annova LNG project was unlikely to jeopardize the continued existence of the ocelot or the jaguarundi, another federally listed wildcat. "There is no critical habitat listed for these species within the action area, therefore none will be affected," the FWS opinion said. A similar conclusion was included in ESA documents that environmental groups are challenging for Rio Grande.
"From our point of view, the ocelot is so critically endangered," with only about 60 left in the US, including 12 in the Laguna Atascosa National Wildlife Refuge that neighbors the LNG facilities, said Sierra Club Managing Attorney Eric Huber in an interview. "Twelve is incredibly low, and the genetic pool is so dire that they can't accept another loss for the species in the US," he argued. He faulted the FWS reviews for allowing the two facilities to take at least one more cat, on top of the 14 or more allowed from other federal actions in the area since about 2012. He contended the biological opinions fail to justify findings that the facilities would not jeopardize the continued existence of the species. ESA documents on Texas LNG were still outstanding, Huber said.
Annova LNG emphasized Tuesday its commitment to voluntarily support long-term ocelot and jaguarundi conservation "as part of our commitment to being the most sustainable LNG provider in the US." In collaboration with FWS and other environmental groups, Annova said it has "contributed to the perpetual conservation of over 1,000 acres of ocelot habitat," including an area near the Laguna Atascosa refuge known to be used by ocelots, along with commitments to preserve another 250 acres of habitat in the South Texas Ocelot Coastal Corridor. Moreover, it highlighted changes to the facility layout to enable a continuous wildlife corridor and pointed to camera studies conducted over a year that it says failed to capture images of ocelot or jaguarundi on the site or in targeted habitat areas within a 15-mile radius around the site.
NextDecade said it does not comment on pending litigation.
Legal resistance to the projects comes as US developers also face commercial headwinds. Of the three Brownsville projects, NextDecade's Rio Grande is the only one to announce a firm offtake deal, and the one it has with Shell is insufficient for it to sanction the first phase of its project.