Commissioner James Danly Statement
January 20, 2023
Docket No. CP21-44-001
I commend to the reader’s attention my statement for the underlying certificate order.[1] I write separately to place emphasis on two aspects of today’s issuance.
The Commission states that because it is “conducting a generic proceeding to determine whether and how the Commission will conduct significance determinations for [greenhouse gas (GHG)] emissions going forward, the Commission is not characterizing these emissions as significant or insignificant.”[2] I continue to urge my colleagues to repudiate the misguided “eyeball” test established in Northern[3] and to acknowledge that the now-draft Interim GHG Policy Statement was wrong.[4] Such a course of action is necessary because we are not empowered to declare our own threshold for the quantity of GHG emissions we would consider significant when determining whether a project is required by the public convenience and necessity.[5] While such an acknowledgement has yet to make an appearance in the Commission’s orders, the Commission’s actions in this proceeding, and other recent Natural Gas Act section 7[6] proceedings,[7] speak volumes. The Commission neither applied its “eyeball” test nor some other Commission-declared threshold. The Commission makes no finding regarding the significance of the GHG emissions. Why? Because we have no means to do so.
Moreover, the Social Cost of GHG’s remains of no use to the Commission. While we disclose the numbers, such disclosure is done merely “for informational purposes.”[8] We do “not rely on[] the results of the social cost of GHG methodology.”[9] We could not, of course, “rely on” such a disclosure, in any event, because “there are currently no criteria to identify what monetized values are significant for NEPA purposes, and we are currently unable to identify any such appropriate criteria.”[10]
For these reasons, I respectfully concur.
[1] LA Storage, LLC, 180 FERC ¶ 61,188 (2022) (Danly, Comm’r, concurring in the judgment).
[2] LA Storage, LLC, 182 FERC ¶ 61,026, at P 9 (2023) (emphasis added).
[3] N. Nat. Gas Co., 174 FERC ¶ 61,189 (2021) (Northern). In Northern, a majority of my colleagues established what has been referred to (by some) as the “eyeball” test. See Catherine Morehouse, Glick, Danly spar over gas pipeline reviews as FERC considers project’s climate impacts for first time, Util. Dive (Mar. 19, 2021), https://www.utilitydive.com/news/glick-danly-spar-over-gas-pipeline-reviews-as-ferc-considers-projects-cli/597016/ (“‘We essentially used the eyeball test,’ [Chairman Glick] said, adding that based on that analysis, ‘it didn’t seem significant in terms of the impact of those emissions on climate change.’”).
[4] See Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Reviews, 178 FERC ¶ 61,108, at P 79 (2022) (“To determine the appropriate level of [National Environmental Policy Act (NEPA)] review, the Commission is establishing a significance threshold of 100,000 metric tons or more per year of CO2e.”) (Interim GHG Policy Statement). The Interim GHG Policy Statement was converted to a draft on March 24, 2022. See Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,197, at P 2 (2022) (converting the two policy statements issued on February 18, 2022, Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,107 (2022) and Interim GHG Policy Statement, 178 FERC ¶ 61,108, to “draft” policy statements).
[5] See W. Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (“Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’”) (citation omitted).
[6] 15 U.S.C. § 717f.
[7] See, e.g., Gas Transmission Nw. LLC, 181 FERC ¶ 61,234, at P 32 (2022) (“The Commission explained it is not characterizing these emissions as significant or insignificant because it is currently considering in a generic proceeding issues that include whether and how to assess the significance of GHG emissions.”) (citation omitted).
[8] LA Storage, LLC, 182 FERC ¶ 61,026 at P 11 (citation omitted).
[9] Id.
[10] Id. PP 11, 14.