Docket No. CP20-493-001
I concur with denying the request for rehearing from Food and Water Watch, which has filed a notice of appeal in the D.C. Circuit of our order issuing a certificate of public convenience and necessity (CPCN) last spring.[1]
I have previously written to explain my view that, while the Commission may lawfully estimate and consider the direct GHG emissions from a jurisdictional facility and consider reasonable measures to avoid or minimize those direct emissions (as it does with other direct environmental impacts), it has no authority to reject a certificate application based on those indirect emissions’ purported effect on global climate change.[2] Such a response to global climate change is a major public policy question to be decided by Congress, not by unelected agency administrators or judges.[3]
Food & Water Watch has asked us to revisit our issuance of a certificate based not only on the basis of estimated indirect downstream GHG impacts from end-use combustion, but also on the even more speculative basis of projected impacts of estimated ozone precursors expected to result from end-use combustion.[4] The order rightly points out the many layers of conjecture that any such exercise would require.[5] Most importantly, however, Congress has simply not conferred upon this agency the authority to regulate indirect downstream emissions resulting from end-use combustion, speculative ozone impacts from such downstream activities, and other activities not even under our jurisdiction, much less to do so on the basis of multiple layers of conjecture and assumption.[6]
I have previously noted the observation of then-D.C. Circuit Judge (now U.S. Supreme Court Justice) Ketanji Brown Jackson that “Judges are not policy-makers.”[7] To that quote I would add another, even more pointed, from Supreme Court Justice Elena Kagan: “Judges create legitimacy problems for themselves . . . when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences.”[8]
Indeed they do. While Justice Kagan did not specify which judges she was referring to, perhaps her use of the generic term “judges” encompassed not just her colleagues on the Supreme Court but also federal appellate courts such as the D. C. Circuit. No doubt judges on the D.C. Circuit have their own personal views on the appropriate policy responses to the global challenge of climate change, but the choice of which policy responses should be pursued by the United States is the exclusive province of the nation’s elected legislature, the Congress, not that of unelected administrative agencies or judges on federal appellate courts. As I have written previously, nothing in the Natural Gas Act gives this Commission the clear authority to reject a CPCN based on the purported impact of the project’s emissions on global climate change, or to condition a CPCN on an applicant’s obligation to attempt to mitigate indirect upstream or downstream emissions from activities outside this Commission’s jurisdiction.[9] If a federal appellate court were to insinuate that we had such power, much less order us to wield such purported authority, perhaps such judicial direction would be what Justice Kagan had in mind when she warned against judges imposing their own personal preferences as to public policy — in this case on the proper policy response to climate change —and, as Justice Kagan put it, “creating legitimacy problems for themselves.”[10]
For these reasons, I respectfully concur.
[1] Tenn. Gas Pipeline Co., L.L.C., 179 FERC ¶ 61,041 (2022) (East 300 Certificate Order).
[2] Certification of New Interstate Natural Gas Facilities, 178 FERC ¶ 61,107 (2022) (Christie, Comm’r, dissenting at P 23) (Christie Certificate Policy Dissent) (“Whether this Commission can reject a certificate based on a GHG analysis — a certificate that otherwise would be approved under the NGA — is undeniably a major question of public policy.”), https://www.ferc.gov/news-events/news/items-c-1-and-c-2-commissioner-christies-dissent-certificate-policy-and-interim; I issued the same dissent in Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews, 178 FERC ¶ 61,108 (2022). See also West Virginia v. EPA, 142 S. Ct. 2587 (2022).
[3] “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” West Virginia v. EPA, 142 S. Ct. at 2616; see also Christie Certificate Policy Dissent, 178 FERC ¶ 61,107 at P 63 (“[I]f democracy means anything at all, it means that the people have an inherent right to choose the legislators to whom the people grant the power to decide the major questions of public policy that impact how the people live their daily lives. . . . That is the basic constitutional framework of the United States and it is the same for any liberal democracy worth the name.”).
[4] Food & Water Watch Rehearing Request at 8-13.
[5] Order at PP 29 - 32.
[6] This is one of those circumstances under which “Congress could not have intended to delegate such a sweeping and consequential authority in so cryptic a fashion.” West Va. v. EPA, 142 S. Ct. at 2613 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). I risk repeating myself, but just to be crystal clear: neither the recitation of available information about ozone precursors nor any other language in today’s order should be misinterpreted as suggesting that the Commission has the authority to regulate indirect downstream impacts resulting from non-jurisdictional activity. Congress has not given this Commission such authority.
[7] Tenn. Gas Pipeline Co., L.L.C., 178 FERC ¶ 61,199 (2022) (Christie, Comm’r, concurring at P 2) (Christie Evangeline Pass Concurrence), https://www.ferc.gov/news-events/news/items-c-2-c-3-and-c-4-commissioner-christies-concurrence-columbia-gulf (quoting Molly Christian, “‘Judges are not policymakers,’ Supreme Court nominee Brown Jackson says,” S&P Global Market Intelligence, Mar. 24, 2022). I issued the same concurrence in Columbia Gulf Transmission, LLC, 178 FERC ¶ 61,198 (2022) and Iroquois Gas Transmission Sys., L.P., 178 FERC ¶ 61,200 (2022).
[8] Mark Sherman, Justice Kagan Cautions Supreme Court Can Forfeit Legitimacy, Associated Press, Sept. 12, 2022 (emphasis added) (downloaded from https://apnews.com/article/us-supreme-court-elena-kagan-government-and-politics-55227b14975d1c6266eab8712c0dd482) (Justice Kagan Cautions).
[9] See Christie Evangeline Pass Concurrence, 178 FERC ¶ 61,199 at PP 3-4) (global climate change is a major question for Congress alone); Christie Certificate Policy Dissent, 178 FERC ¶ 61,107 at P 60 (as an agency with limited powers, “the Commission may not impose conditions on a certificate to mitigate upstream or downstream GHG emissions arising from non-jurisdictional activity.”).
[10] Justice Kagan Cautions, supra, n.8.