Docket Nos. CP19-502-000, CP19-502-001
I concur with the decision to authorize the Commonwealth LNG Project because it is consistent with our precedents on issuing conditional authorizations under the Natural Gas Act.[1] This project shows why we should reconsider our approach.[2]
Commonwealth’s proposed LNG terminal would be located on the shoreline of the Calcasieu Ship Channel, less than one mile from the Gulf of Mexico.[3] The terminal would occupy approximately 105 acres, of which 89 are wetlands that would be permanently lost.[4] There are also two waterbodies on the site that would be permanently impacted.[5] The project’s marine facilities will occupy another 47 acres of open water.[6] Commonwealth will excavate and dredge approximately 1.73 million cubic yards of sediment from the Calcasieu Ship Channel to create an LNG tanker berthing area; it will dredge another 152,000 yards every two years for maintenance. Considering these facts, Commonwealth’s proposal could be fairly characterized as a water-based project. Yet, the agencies responsible for issuing critical water-related permits have not yet acted.[7] Their future decisions could well result in changes to the project or to planned environmental mitigation measures. As we issue the order today, neither the Commission nor the public we serve can predict, let alone evaluate, what those changes might mean for the environment or for the health and welfare of the environmental justice and other communities affected by the project.
I am troubled that there will be no opportunity for public comment on these moving pieces, at least as part of the Commission’s approval process. The Commission should consider whether to provide a formal opportunity for public comment on final environmental impact statements to assure we have input on changes made after the draft environmental impact statement was issued.[8] This is not necessarily a question of what is legally required of the Commission as the lead agency under the National Environmental Policy Act (though to be sure some intervenors and commenters contend we have fallen short of our legal obligations, demonstrating the increased legal risk project authorizations face from the rush to act without full consideration of material information). Even more fundamentally, it is a policy question of how best to protect the public interest, which is our charge under the Natural Gas Act. Keeping impacted members of the public fully informed is the first step. Genuinely listening to them is the vital next step.
Finally, and perhaps most important, we must continue our efforts to inform affected environmental justice communities about proposed projects, as well as potential changes to those projects and planned mitigation measures. We then must directly and actively solicit their input on potential mitigation measures. As I heard during the Commission’s listening sessions leading to the development of our Office of Public Participation and in subsequent meetings with environmental justice community representatives, we need more direct and sustained engagement to assure these communities are fully informed and have a meaningful opportunity to explain on the record what specific mitigation measures are needed. Today’s conditional authorization cannot assure that a meaningful opportunity was provided to environmental justice communities in this instance. The Commission’s dedicated staff have helped us to improve our performance in this regard, but we must do more.[9]
For these reasons, I respectfully concur.
[1] See, e.g., Broadwater Energy LLC, 124 FERC ¶ 61,225 (2008); Crown Landing LLC, 117 FERC ¶ 61,209 (2006). Courts have found the practice of issuing conditional authorizations lawful. See, e.g., Del. Riverkeeper Network v. FERC, 857 F.3d 388, 399 (2017). However, just because courts have allowed this approach does not mean it is good policy.
[2] I have questioned the wisdom of conditional authorizations in other contexts. E.g., PennEast Pipeline Co., LLC, 174 FERC ¶ 61,056 (2021) (Glick, Chair, and Clements, Comm’r, concurring).
[3] Final Environmental Impact Statement for the Commonwealth LNG Project, Docket Nos. CP19-502-000 and CP19-502-001 (Sept. 2022) at p. 2-1 (FEIS)
[4] Id. at pp. 2-9, 4-83.
[5] Id. at p. 4-74.
[6] Id. at p. 2-7.
[7] For example, the Army Corps of Engineers has not yet issued critical Clean Water Act section 404 and Rivers and Harbors Act section 10 permits for the project. Moreover, the Louisiana Department of Natural Resources has not issued a coastal use permit, which will serve as its consistency determination under the federal Coastal Zone Management Act.
[8] As reflected in paragraph 34 of the Commission’s order, the location for placement of dredged material changed from the time of the draft EIS to the final EIS. On October 26, 2022, the National Marine Fisheries Service (NMFS) submitted extensive comments to the Commission, which raised concerns with the new plan for the dredged material. The Commission’s order says these concerns will be addressed sometime in the future by the Army Corps of Engineers and possibly the Fish and Wildlife Service. The public has had no opportunity to comment on the issues the NMFS has raised, nor can it possibly know at this stage how the agencies will resolve these concerns.
[9] For example, we should require project sponsors to submit plans for engaging with the affected public, including environmental justice communities, on the essential elements of emergency response plans for LNG facilities. I am heartened that this order at least encourages Commonwealth to do so voluntarily. I hope the company will set a strong example for the LNG industry in its engagement with environmental justice communities.