Media Statements & Speeches
Commissioner Cheryl A. LaFleur
June 15, 2018
Docket Nos. CP16-10-000, CP16-13-000
Dissent on Mountain Valley Pipeline, LLC
“Today’s order denies rehearing of the order approving the Mountain Valley Pipeline Project/Equitrans Expansion Project (MVP). For the reasons set forth below, I respectfully dissent.
“I did not support the Commission’s original authorization of this project because I concluded the project as proposed was not in the public interest. 1 My decision was influenced by my consideration of the certificate application for the Atlantic Coast Pipeline Project (ACP) 2, which was decided the same day as MVP. After carefully balancing the aggregate environmental impacts resulting from the authorization of both these projects, against the economic need of the projects, I could not find either proposal, on balance, in the public interest. I am dissenting today on the rehearing order for three reasons: (1) I still do not find the MVP project is in the public interest; (2) I am concerned about the majority’s response to stakeholders who have tried to access documents relevant to this proceeding, including precedent agreements; and (3) I disagree with the treatment of climate impacts.
“As noted in my dissents on the certificate authorizations, MVP and ACP will be located in the same Appalachian region, with similarities in route and timing. The projects, when considered collectively, pose significant environmental impacts. Both pipelines cross hundreds of miles of karst terrain, thousands of waterbodies, and many agricultural, residential, and commercial areas. The impacts to landowners and communities are also significant, as evidenced by the numerous concerns raised by intervenors in this rehearing proceeding. For these reasons, I believe we should have given more consideration to a merged system/one-pipe alternative option that could result in less environmental disturbance and fewer landowner impacts. While the majority contends that there was not a credible one-pipe alternative included in the record, 3 I believe that the one-pipe options presented as alternatives provided reasonable approaches that warranted serious consideration, even if it would have delayed the issuance of the MVP and ACP authorizations.
“In circumstances of multiple projects proposed in the same region, with similar timing, I believe we should, in the future, consider a regional review for the development of natural gas infrastructure to assess both the need for pipeline capacity in the region, and the environmental impacts of multiple proposed pipelines on the region. I know that questions on this topic were included in the Commission’s NOI on the Certificate Policy Statement, 4 and I look forward to engaging with stakeholders on how a regional look at pipeline projects could support both our needs determination and our environmental review.
“In addition, I am concerned about the Commission’s processes for ensuring that all interested parties are able to review and comment on materials in the record that are essential to our pipeline determinations, including precedent agreements. While the Certificate Policy Statement sets forth a variety of factors that can be utilized to demonstrate economic need, in practice, the Commission’s need determination has focused narrowly on whether a pipeline demonstrates evidence of precedent agreements. Indeed, in this case, the Commission relied solely on the existence of precedent agreements to find that MVP is needed. 5
“I am unsatisfied by the majority’s response to stakeholders who unsuccessfully try to navigate the complex FERC regulations and process to obtain access to important documents, like precedent agreements and flow diagrams. Rehearing parties mistakenly chose the wrong CEII process to formally request access to those documents and thus did not have the opportunity to review and potentially articulate specific concerns that may be relevant on rehearing. 6 The majority explains that, if a party argues that certain potentially relevant documents are improperly withheld, the party must demonstrate how such documents “would have affected its rehearing request or otherwise altered the outcome here.” 7 The majority dismisses the due process claim that documents were improperly withheld, finding that “Mountain Valley publicly provided the identities of its shippers, as well as, details about the maximum daily quantities and contract terms for which they have subscribed.” 8 In my view, public statements by a pipeline applicant are insufficient to demonstrate need. If we are going to rely on precedent agreements to demonstrate need, the Commission must continue to evaluate the precedent agreements themselves, and ensure interested parties have the opportunity to review and comment on those agreements. We must also ensure landowners and communities know how to fully participate in our proceedings, access documents, and engage with the Commission.
“Finally, today’s order also addresses topics on which I have written on extensively in recent months – the consideration of downstream GHG emissions and the use of the Social Cost of Carbon to evaluate the impacts of those emissions. 9 With respect to GHG emissions, as I have stated repeatedly, the Commission should quantify and consider the downstream impacts of GHG emissions. 10 Today’s order quantified downstream GHG emissions but failed to sufficiently consider the impacts of those emissions. I believe we should endeavor to assess the significance of a given rate or volume of GHG emissions. For example, in a number of cases we looked at how the downstream GHG emissions associated with an individual project impacted the total state and national emission inventories. 11 And as I have said previously, I disagree with the Commission’s recently-announced change in policy limiting the review and disclosure of GHG emissions in our orders. 12 Particularly after the recent Sabal Trail decision, 13 I believe the right approach is to include and consider more information in our orders regarding the impacts of GHG emissions, rather than less.
“With respect to assessing climate change, I cannot support the majority’s characterization of the Social Cost of Carbon. The Social Cost of Carbon is a scientifically-derived metric to translate tonnage of carbon dioxide or other GHGs to the cost of long-term climate harm. 14 The majority recites a number of technical and policy arguments to attack the usefulness of the Social Cost of Carbon, many of which I addressed in my dissent on the Sabal Trail Remand Order. 15 Without entirely rehashing those arguments, I reject the notion that the Social Cost of Carbon cannot meaningfully inform the Commission’s decision-making. The majority presents various excuses, including arguments about the application of a cost-benefit analysis in our pipeline review and lack of consensus regarding the appropriate discount rate. I continue to find these arguments unpersuasive. The Commission does not monetize the costs and benefits of a proposed pipeline project largely because, to date, we have not sought to develop the record with evidence that would that support this type of cost-benefit approach to our pipeline reviews. I believe we could better account for changes in GHG emissions resulting from the end use of the transported gas, and calculate a Social Cost of Carbon that accurately reflects the climate change impacts of a particular project. Additionally, the Commission could estimate the appropriate discount rate or to use more than one discount rate in our calculations or to provide a range of numbers for consideration.
“As I have said before, much of the majority’s criticism simply reflects the fact that consideration of climate change in our pipeline reviews is difficult. I agree that consideration of climate change is difficult. However, I do not believe that the difficulty of considering climate change relieve us of the obligation to consider climate change impacts as part of our environmental review.
“For all of these reasons, I respectfully dissent. ”
- 1 Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043 (2017) (LaFleur, Comm’r, dissenting).
- 2 Atlantic Coast Pipeline, LLC, 161 FERC ¶ 61,042 (2017) (LaFleur, Comm’r, dissenting).
- 3 Mountain Valley Pipeline, LLC, 163 FERC ¶ 61,197 at P 149 (2018) (Rehearing Order).
- 4 Certification of New Interstate Natural Gas Facilities, Notice of Inquiry, 163 FERC ¶ 61,042 (2018) (NOI on the Certificate Policy Statement).
- 5 I am not dissenting today specifically on the use of precedent agreements to determine need; I recognize that approach is consistent with existing Commission policy, to be reviewed as part of the NOI on the Certificate Policy Statement.
- 6 They requested access pursuant to the provisions of 18 C.F.R § 388.113(g)(5) (2017) instead of 18 C.F.R § 388.113(g)(4) (2017).
- 7 Rehearing Order, 163 FERC ¶ 61,197 at P 31.
- 8 Id.
- 9 See Florida Southeast Connection, LLC, 162 FERC ¶ 61,233 (2018) (LaFleur, Comm’r, dissenting in part) (Sabal Trail Remand Order); Dominion Transmission Inc., 163 FERC ¶ 61,128 (2018) (LaFleur, Comm’r, dissenting in part) (New Market); Florida Southeast Connection, LLC, 163 FERC ¶ 61,158 (2018) (LaFleur, Comm’r, concurring); and Tennessee Gas Pipeline Company, 163 FERC ¶ 61,190 (2018) (LaFleur, Comm’r, concurring).
- 10 I believe that it is reasonably foreseeable in the vast majority of cases that the gas being transported by a pipeline we authorize will be burned for electric generation or residential, commercial, or industrial end uses. In those circumstances, there is a reasonably close causal relationship between the Commission’s action to authorize a pipeline project that will transport gas and the downstream GHG emissions that result from burning the transported gas. See Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520, 549 (8th Cir. 2003) (Mid States). In Mid States, the Court concluded that the Surface Transportation Board erred by failing to consider the downstream impacts of the burning of transported coal. Even though the record lacked specificity regarding the extent to which the transported coal would be burned, the Court concluded the nature of the impact was clear.
- 11 Recent Commission orders include the full-burn calculation. E.g., Columbia Gas Transmission, LLC, 158 FERC ¶ 61,046, at P 120 (2017); Algonquin Gas Transmission, LLC, 158 FERC ¶ 61,061, at P 121 (2017); Rover Pipeline LLC, 158 FERC ¶ 61,109, at P 274 (2017); Tennessee Gas Pipeline Co., L.L.C., 158 FERC ¶ 61,110, at P 104 (2017); Nat'l Fuel Gas Supply Corp., 158 FERC ¶ 61,145, at P 189 (2017); Dominion Carolina Gas Transmission, LLC, 158 FERC ¶ 61,126, at P 81 (2017); Nexus Gas Transmission, LLC, 160 FERC ¶ 61,022, at P 173 (2017); Atlantic Coast Pipeline, LLC, 161 FERC ¶ 61,042, at P 298 (2017); Millennium Pipeline Co., L.L.C., 161 FERC ¶ 61,229, at P 164 (2017); Penneast Pipeline Co., LLC, 162 FERC ¶ 61,053, at P 208 (2018); Florida Southeast. Connection, LLC, 162 FERC ¶ 61,233, at P 22 (2018); and DTE Midstream Appalachia, LLC, 162 FERC ¶ 61,238, at P 56 (2018).
- 12 New Market, 163 FERC ¶ 61,128.
- 13 Sierra Club v. FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sabal Trail). In Sabal Trail, the Court concluded because the pipeline was delivering gas to an identified end use, four downstream power plants, the burning of gas at those power plants was an indirect impact to be quantified and considered as part of our NEPA responsibilities.
- 14 https://www/epa.gov/sites/production/files/2016-12/documents/social_cost_of_carbon_fact_sheet.pdf
- 15 162 FERC ¶ 61,233.
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