Mar 162021

Fifth Circuit Rejects Challenge to Texas LNG Project

Samuel B. Boxerman and Jack Raffetto
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On March 10, 2021, the U.S. Court of Appeals for the Fifth Circuit rejected a challenge to an opinion by the Fish and Wildlife Service (FWS) allowing a South Texas liquified natural gas (LNG) pipeline project to proceed. Sierra Club, et al. v. U.S. Department of Interior, et al. involved a proposed LNG pipeline that would pass through Cameron, Willacy, Kenedy, and Kleburg counties in south Texas. Those counties are home to two endangered species — the ocelot and the jaguarundi. Working with the Federal Energy Regulatory Commission and FWS, project proponents proposed acquiring more land for the cats’ habitat and made changes to the pipeline’s proposed path. After FWS issued an opinion and incidental taking statement that the project would not jeopardize the cats’ continued existence, several environmental interest groups petitioned for review. The Fifth Circuit denied the petition. The court first pointed to the highly deferential nature of its review of the agency’s action, then concluded that FWS had not acted arbitrarily or capriciously, as FWS had considered everything the Endangered Species Act required it to consider and explained its reasoning.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Jack Raffetto

Washington, D.C.

jraffetto@sidley.com

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