Commissioner James Danly Statement
June 15, 2023
Docket No. CP22-44-000
I concur with this order and I agree with granting Equitrans, L.P. a certificate of public convenience and necessity to construct and operate the Ohio Valley Connector Expansion Project.[1] I write separately to point out that paragraphs 49 through 74 are, for the most part, no more than surplusage.[2] That passage of the order consists, with a few exceptions,[3] of no more than a recitation of the information already contained in the final Environmental Impact Statement (final EIS), which this order already adopts.[4]
Why take the trouble to reiterate the material contained in the underlying National Environmental Policy Act (NEPA) document when the vast majority of it was neither being corrected, nor the subject of comment? This recitation does no actual work (i.e., nowhere does today’s order state that this information serves as a basis for our finding that the proposed project is required by the public convenience and necessity). But one has to ask: to what end ought it be repeated? It cannot be said this was required under NEPA[5] or the Natural Gas Act.[6] Could there be some other reason? Surely it is not for the convenience of the reader. If it were, we would have offered similar recitations for every single one of the other resources reviewed in the final EIS.
For these reasons, I respectfully concur.
[1] See Equitrans, L.P., 183 FERC ¶ 61,200 (2023).
[2] See id. PP 49-74.
[3] See, e.g., id. P 54 n.99 (“The Final EIS Table 4.8-1 does not appropriately identify Census Tract 0305, Block Group 4 as an environmental justice block group based on both a minority and low-income threshold. We have made this correction in Appendix B. Additionally, the final EIS incorrectly stated that four out of seven block groups near the project are environmental justice communities (Final EIS at 4-71) instead of the five block groups that were identified. In the final EIS, however, staff’s analysis correctly included all five block groups.”) (citing Final EIS at 4-55 – 4-70).
[4] See id. P 84 (“Based on our consideration of this information and the discussion above, we agree with the conclusions presented in the final EIS and find that the project, if implemented as described in the final EIS, is an environmentally acceptable action.”).
[5] See Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm’n, 45 F.4th 291, 299 (D.C. Cir. 2022) (“NEPA is a purely procedural statute that ‘does not mandate particular results, but simply prescribes the necessary process.’”) (citation omitted).
[6] See NAACP v. Fed. Power Comm’n, 425 U.S. 662, 669 (1976) (NAACP) (explaining that the inclusion of the term “public interest” in our statute is not “a broad license to promote the general public welfare”—instead, it “take[s] meaning from the purposes of the regulatory legislation”). The Supreme Court has instructed us in unambiguous terms that the purpose of the NGA is “to encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices.” Id. at 669-70 (citations omitted). I note that the Supreme Court has also recognized the Commission has authority to consider “other subsidiary purposes,” such as “conservation, environmental, and antitrust questions.” Id. at 670 & n.6 (citations omitted). But all subsidiary purposes are, necessarily, subordinate to the statute’s primary purpose.