Cruz’s brief calls on the U.S. Court of Appeals for the D.C. Circuit to rehear City of Port Isabel v. Federal Energy Regulatory Commission (FERC), in which the court ruled in August to nix permits for two major liquefied natural gas (LNG) export facilities in Texas. The filing argued that Congress, and not the appellate court’s panel, should decide whether or not new LNG export facilities are in the public interest, and that the court opted to vacate the key permits on “flimsiest ‘environmental’ whims.”
“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,” Cruz’s brief stated.
Ted Cruz Amicus Brief – LNG by Nick Pope
The U.S. Court of Appeals for the D.C. Circuit sided with environmental organizations in August by vacating key approvals that FERC already issued, specifically finding that FERC did not adequately assess the “environmental justice” impacts of the facilities in question, among other missteps.
The August decision leaves the two major Texas LNG export projects — Rio Grande LNG and Texas LNG — in the lurch pending further litigation. The court’s decision to vacate the approvals instead of remanding them back to FERC for further work was the “wrong remedy” for the situation given the procedural errors in question, Cruz argued in the filing.
“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,” the filing stated. “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?”
Cruz led the brief, and Republican Sens. John Barrasso of Wyoming, Bill Cassidy of Louisiana, John Cornyn of Texas, John Kennedy of Louisiana and Dan Sullivan of Alaska joined him in the filing.
“I’m proud to lead this bipartisan, bicameral effort. My number one priority in the U.S. Senate is jobs. There are 7,000 jobs and billions in investment in the Rio Grande Valley at stake,” Cruz said in a statement shared with the Daily Caller News Foundation. “This decision and the current environmental process threaten the economic and energy security of Texas and America, and would cede America’s energy dominance to adversaries and rivals such as Russia, which advance their own interests through gas exports. The D.C. Circuit should rehear and reverse this erroneous decision.”
Numerous lawmakers from the House also attached their names to the brief, including Republican Reps. Dan Crenshaw of Texas, Brian Babin of Texas, Michael Burgess of Texas, Steve Scalise of Louisiana, Wesley Hunt of Texas, August Pfluger of Texas and Randy Weber of Texas, as well as Democratic Reps. Henry Cuellar and Vicente Gonzalez of Texas.
“Texas has the resources to supply the world with clean, affordable LNG. Unprecedented decisions that inject massive uncertainty into future investments aren’t just short-sighted—they’re morally indefensible,” Crenshaw said in a statement. “We cannot afford to hand the global energy market to adversaries like Russia, who produce dirtier, high-emission fuels.”
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