Senator Ted Cruz, a name synonymous with conservative values and fierce advocacy for Texas, has been a United States Senator since 2013. Known for his unwavering stance on energy independence and limited government intervention, Senator Cruz has always been a vocal supporter of his home state’s booming energy sector. His deep ties to Texas and his relentless efforts to champion the interests of its residents have made him a formidable figure in a legal saga that is now unfolding in the heart of Washington, D.C. We are honored to represent Senator Cruz—as well as Representative Dan Crenshaw and a bipartisan coalition of13 additional members of Congress— as friends of the court in the case of City of Port Isabel v. Federal Energy Regulatory Commission. The matter pits the Federal Energy Regulatory Commission (FERC), which approved the construction of important liquified natural gas facilities in South Texas, against aggressive anti-energy interests.
The controversy stems from a recent D.C. Circuit Court panel ruling overturning FERC’s approval of a liquefied natural gas (LNG) project in South Texas. The panel based its ruling on the National Environmental Policy Act (NEPA), a law that is supposed to just require federal regulators to consider and explain the environmental impact of their decisions. While NEPA ensures environmental considerations are considered, it doesn’t dictate specific outcomes—it is wholly procedural in nature. But this is where the tension arises.
At the core of the debate is the Natural Gas Act (NGA), a law passed by Congress to encourage the development of LNG facilities, deeming them beneficial to the public. Under the NGA, Congress said that building and operating LNG facilities is in the public interest, so FERC should presume that it must approve those projects. Here, FERC did just that: it considered and explained potential environmental impacts and then approved the LNG project. But the panel decided that FERC used the wrong form of paperwork, and rather than allow the approval while simultaneously making FERC add the extra work, the panel set aside the whole project, potentially delaying the project by at least 4.5 years.
The companies that would handle the project have asked the panel (that is, the 3 appellate judges who decided the case) to reconsider, and has alternatively asked the full Circuit Court to step in and correct this error. It not only violates Congress’s statutes, but it also breaks with the Court’s own precedent.
Senator Cruz, Representative Crenshaw and the bipartisan coalition of 13 additional Congress members have weighed in to help convince the panel or the full Court to correct the errors in the decision.
For Senator Cruz, this case is personal. As Ranking Member on the U.S. Senate’s Committee on Commerce, Science, & Transportation and the Judiciary Committee’s Subcommittee on the Constitution, he has a vested interest in ensuring that federal courts correctly interpret and apply the NGA and the other laws that Congress enacts. He believes that the panel’s decision not only disrespects the legislative branch, but also threatens the economic vitality of energy-rich states like Texas. The potential financial fallout from this judicial overreach could be severe, undermining years of investment and planning in the energy sector.
Enter Mountain States Legal Foundation’s (MSLF) support with an amicus brief, explaining that the panel’s decision exemplifies judicial overreach and undermines Congress’s authority to determine the public interest in energy matters. By taking up this case, MSLF challenges the misapplication of NEPA, and supports responsible domestic energy development, which is crucial for economic growth and national security. Our brief seeks to ensure that NEPA isn’t abused to thwart Congressional intent— it is merely a procedural tool for informed decision-making, not a substantive mandate that can override clear legislative directives.
The brief aims to reinforce the proper balance of power between Congress and the courts in energy policy. First, we ask the panel to fix its own errors, or for the full Court to step in to correct the panel’s decision, which would likely restore FERC’s original approval of the LNG project. But beyond this, we aim to affirm Congress’s authority in determining the public interest for energy projects, establishing a clear precedent that courts should defer to legislative intent. We also intend to clarify that NEPA should not be misused to override Congress’s explicit policy preferences, particularly in the energy sector where the public interest has already been defined. Last, we seek to limit full vacatur as a remedy in NEPA cases, especially when it could disrupt vital projects undergoing extensive review and approval processes all in the name of a little extra paperwork.
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What’s at Stake?
The panel’s decision could unsettle long-approved permitting processes nationwide, creating regulatory uncertainty and chilling investment in critical infrastructure. The immediate impact of freezing a prominent South Texas project, years in the making, is a stark example of the potential consequences. Senator Cruz and the additional members of Congress on the brief are fighting to protect the region’s economic interests and uphold the proper power balance between the legislative and judicial branches in national energy policy.
But this case isn’t just about Texas or Senator Cruz. It has broad implications for all Americans. The outcome will help determine who decides the public interest in energy matters: Congress or the courts. The decision could significantly impact domestic economic growth, particularly in energy-rich states, affecting job creation and local economies. Moreover, it has implications for America’s energy independence and reliance on foreign energy sources. If the panel’s decision stands, courts likely would continue to mistakenly put other interests over the public interest. This could affect energy prices, availability, and national security considerations related to energy independence.
Case Update
On March 18, 2025, the D.C. Circuit issued a new opinion, delivering a major victory for the development of domestic energy, the checks and balances in the Constitution, and the fight against ever-expanding weaponization of NEPA. In this new ruling, the court completely reversed important aspects of its initial stance, ensuring that this critical project can move forward.
This is an outstanding outcome—one that safeguards thousands of jobs, secures crucial economic growth for Brownsville and Cameron County, and allows the $18.4 billion Rio Grande project to advance, supplying 6% of the world’s LNG needs at a critical time. Additionally, the decision removes the uncertainty created by the previous ruling, providing much-needed clarity for the industry.