Docket No. CP22-25-000
I concur with the result of today's Order, but dissent from its discussion regarding the Commission's inability to assess the significance of the impacts of greenhouse gas (GHG) emissions.[1] The majority’s insistence that there are no acceptable tools for determining the significance of GHG emissions remains unsupported and gains nothing through reflexive repetition in virtually every recent Commission order issued under sections 3 and 7 of the Natural Gas Act.
In my recent concurrence in Transco, I explained the history of the language in Paragraphs 23 and 24 of the Order,[2] which is known in the Commission’s esoteric parlance as the “Driftwood compromise.”[3] In Driftwood, the majority adopted unheralded new language declaring that there are no methods for assessing the significance of GHG emissions, and particularly criticizing the Social Cost of GHGs protocol.[4] I have dissented from this language in Driftwood and subsequent orders for two reasons: (1) it reflects a final Commission decision that it cannot determine the significance of GHG emissions, despite the fact the Commission has never responded to comments in the GHG Policy Statement docket[5] addressing methods for doing so; and (2) the language departs from previous Commission precedent without reasoned explanation, thereby violating the Administrative Procedure Act.[6] I dissent from Paragraphs 23 and 24 of this Order for the same reasons.
The majority insists on including the misguided Driftwood compromise language in orders irrespective of whether any intervenor or commentor has argued that the Commission must use the Social Cost of GHGs protocol to assess the significance of GHG emissions. No one raised that argument in this docket, making inclusion of the Driftwood language in the Order unnecessary. The majority omitted the language in Transco, apparently reflecting its understanding that there would be no adverse legal consequences. Predictably, leaving the language out allowed me to concur in Transco.[7] The effect of inserting the gratuitous language in the Order here is equally predictable.
As I have said before, I do not know whether the Social Cost of GHGs protocol or another tool can or should be used to determine significance. That is because the Commission has not seriously studied the answer to that question. Rather, the majority simply decided there is no acceptable method, with no explanation of why the Commission departed from the approach taken in earlier certificate orders.[8] I reiterate that the Commission should decide the important unresolved issues relating to our assessment of GHG emissions through careful deliberation in a generic proceeding with full transparency.
For these reasons, I respectfully dissent in part.
[1] Venture Glob. Calcasieu Pass, 184 FERC ¶ 61,185, at PP 23-24 (2023) (Order).
[2] See Transcon. Gas Pipe Line Co., 184 FERC ¶ 61,066 (2023) (Clements, Comm’r, concurring at PP 2-3) (Transco).
[3] See id. (Phillips, Chairman, and Christie, Comm’r, concurring at PP 1-2).
[4] See Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61, 63 (2023) (Driftwood).
[5] Docket No. PL21-3.
[6] See Driftwood, 183 FERC ¶ 61,049 (Clements, Comm’r, dissenting at PP 2-3 & n.161); see also Equitrans, L.P., 183 FERC ¶ 61,200 (2023) (Clements, Comm’r dissenting at PP 2-3); Commonwealth LNG, LLC, 183 FERC ¶ 61,173 (2023) (Clements, Comm'r, dissenting at PP 5-8); Rio Grande LNG, LLC and Rio Bravo Pipeline Co., LLC, 183 FERC ¶ 61,046 (2023) (Clements, Comm'r, dissenting at PP 14-15); Texas LNG Brownsville LLC, 183 FERC ¶ 61,047 (2023) (Clements, Comm'r, dissenting at PP 14-15).
[7] See Transco, 184 FERC ¶ 61,066 (Clements, Comm’r, concurring at P 5).
[8] Before its decision in Driftwood, the Commission had explained that it was not determining the significance of GHG emissions because the issue of how to do so was under consideration in the GHG Policy Statement docket. See, e.g., Transcon. Gas Pipe Line Co., 182 FERC ¶ 61,006, at P 73 & n.174 (2023); Columbia Gas Transmission, LLC, 182 FERC ¶ 61,171, at P 46 & n.93 (2023). To depart from prior precedent without explanation violates the Administrative Procedure Act. See, e.g., West Deptford Energy, LLC v. FERC, 766 F.3d 10, 17 (D.C. Cir. 2014) (“[T]he Commission cannot depart from [prior] rulings without providing a reasoned analysis. . . .”) (citations omitted).