July 31, 2023
CP22-461-000
I agree with the Commission’s decision to grant Transcontinental Gas Pipe Line Company, LLC (Transco) an authorization under section 7(c) of the Natural Gas Act (NGA)[1] to construct and operate the Southside Reliability Enhancement Project in Mecklenburg and Pittsylvania Counties, Virginia, and Davidson County, North Carolina. The need for the project is amply demonstrated by the long-term precedent agreement with Piedmont Natural Gas Company, Inc. for 100% of the project’s firm transportation service.
I am, however, compelled to dissent in part. This order suffers a number of crippling infirmities: it intentionally disregards a recent Congressional enactment, it violates the Administrative Procedure Act (APA), is inconsistent with Supreme Court precedent regarding the implementation of the National Environmental Policy Act (NEPA), and it unjustifiably abandons recent Commission practice in our treatment of the social cost of greenhouse gases (GHGs).
My Colleagues Intentionally Disregard the Builder Act
Congress recently passed the Fiscal Responsibility Act of 2023, which included the Builder Act,[2] thereby amending NEPA for the first time since its enactment in 1970. Several of the amendments directly implicate this proceeding’s final Environmental Impact Statement (EIS). Among the Builder Act’s other modifications, it requires agencies to include the following in NEPA documents:
(i) reasonably foreseeable environmental effects of the proposed agency action;
(ii) any reasonably foreseeable adverse environmental effects which cannot be avoided should the proposal be implemented;
(iii) a reasonable range of alternatives to the proposed agency action, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are technically and economically feasible, and meet the purpose and need of the proposal;
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and
(v) any irreversible and irretrievable commitments of Federal resources which would be involved in the proposed agency action should it be implemented.[3]
My colleagues, however, declined to acknowledge this enactment or even quote the statute, i.e., NEPA. Regardless of how the Commission ultimately chooses to implement the Builder Act, the simple fact is this: the law has changed, Congress has made its decision, and we must comply with it even if my colleagues do not like it. We cannot skirt our obligation to follow the law by pretending it does not exist.
This Order Violates the APA
The Commission is obligated under the APA to engage in reasoned decision making. It is black letter law that reasoned decision making requires responding to the substance raised in litigants’ submissions. This order disregards the full scope of the comments from the Environmental Protection Agency (EPA) and ignores record evidence that estimating downstream GHG emissions based on a full burn calculation cannot accurately determine reasonably foreseeable GHG emissions.
On April 3, 2023, the EPA filed comments asserting that the Commission’s disclosure of GHG emissions was incomplete because the Commission did not estimate the upstream emissions, arguing that the Commission “can create a general conservative estimate based on national averages for similar projects utilizing the Inventory of U.S. Greenhouse Gas Emissions and Sinks (GHG Inventory) and EPA’s GHG Reporting Program,” stating that “[i]t would be appropriate for the project to include, for reference, the total project upstream GHG emissions,” and also asserting that doing the foregoing “would be consistent with the Council on Environmental Quality’s [(CEQ)] current position as expressed in the preamble to their January 9, 2023, notice of interim guidance ‘Consideration of Greenhouse Gas Emissions and Climate Change.’”[4]
The Commission’s order makes no mention of the argument that the Commission should calculate upstream GHG emissions because it would be consistent with CEQ’s Interim Guidance.[5] Instead, the order baldly recites the fact that the comments were filed and summarizes the subject matter: that the Commission “received comments on the final EIS from the EPA regarding upstream GHG emissions”[6] and that “EPA assert[s] that upstream emissions are reasonably foreseeable, and that the Commission should include upstream emissions in its social cost of GHGs calculations.”[7] The Commission then correctly “find[s] that the upstream emissions are not reasonably foreseeable effects of the proposed project.”[8] There is no mention, however, of the CEQ Interim Guidance anywhere in the order. Why would my colleagues refuse to even acknowledge EPA’s argument that we should calculate upstream GHG emissions in order to be consistent with CEQ’s Interim Guidance? Perhaps because my colleagues are reluctant to declare that we are declining to implement CEQ’s non-binding guidance. We are required under the APA to respond even when, as here, it is unlikely that a sister agency would pursue a petition for review.[9] Since the order declines to do so, I will provide the necessary response. As CEQ acknowledges, the “guidance does not change or substitute for any law, regulation, or other legally binding requirement, and is not legally enforceable.”[10] The Commission did not apply the CEQ Interim Guidance. The Commission is not required to do so because it is non-binding and we have repeatedly explained why upstream GHG emissions are not reasonably foreseeable. Furthermore upstream production and gathering are outside the Commission’s jurisdiction and there are recent legislative enactments that now supersede CEQ’s Interim Guidance.[11]
More troubling than our refusal to acknowledge, let alone respond to, EPA’s comments is my colleagues’ insistence that all downstream emissions from local distribution companies (LDCs) are reasonably foreseeable, even when, as in this case, we are presented with seemingly unrebutted record evidence to the contrary. This is an obvious failure under the APA. An agency’s decision is
arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.[12]
The Commission “must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”[13] The Commission must also base its decisions on substantial record evidence. Substantial evidence means “more than a mere scintilla,” that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[14]
Today’s order finds that the downstream emissions from the Southside Reliability Enhancement Project, based upon a full burn calculation, are reasonably foreseeable[15] and notes that the final EIS calculated the downstream emissions based on a full burn of the project’s design capacity.[16] Buried in a footnote, and as a second disclosure in addition to the full burn calculation, the Commission states that “Transco urges the Commission to estimate the potential downstream GHG emissions using the projected utilization rate of 38.6%” and then provides a calculation based on 38.6% utilization of the downstream end-use, but notes that the Commission provides the estimate “for informational purposes.”[17] Nowhere in this discussion does the Commission explain why it finds that the full burn calculation is an accurate basis upon which to estimate reasonably foreseeable downstream emissions, even though it is in receipt of directly contradictory evidence. Specifically, in Transco’s application, it explained that “[b]ased on a 35-year projection for design day forecasting for Piedmont, the forecasted average annual capacity factor of gas consumed is approximately 38.6 percent (or an annual average of 61,748 Dth/d)” and Transco goes on to state that “[u]sing a ‘full burn’ scenario is a grossly inaccurate approach to measuring the downstream GHG impacts of a pipeline project.”[18] The Commission appears to be establishing a new policy, sub silentio, in which, for LDC shippers, the Commission will find, as a categorical matter, and even in the face of contrary record evidence, that a full burn calculation can be used to estimate reasonably foreseeable downstream emissions.[19] This is bad policy and it is also a violation of the APA.[20]
The Downstream Emissions are Not Reasonably Foreseeable Under NEPA
Not only is the failure to respond to the applicant’s arguments a violation of the APA, but the Commission is also factually incorrect when it finds that the downstream emissions are reasonably foreseeable. As in Food & Water Watch v. FERC,[21] this case involves adding capacity to provide incremental transportation service to a LDC shipper.[22] In Food & Water Watch, the court did conclude “that the end use of the transported gas is reasonably foreseeable”[23] but went on to state that “[o]n remand, the Commission remains free to consider whether there is a reasonable end-use distinction based on additional evidence, but it has not carried its burden before us at this stage,” and the court explained that it “remand[ed] to the agency to perform a supplemental environmental assessment in which it must either quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so.”[24] We have not yet acted on the Food & Water Watch remand and, even according to the court, the question remains open. This case has record evidence of the very type described by the court and there are explanations that the Commission can rely on to provide “a reasonable end-use distinction”[25] when the shippers are LDCs.[26]
It is impossible to find any LDC’s downstream GHG emissions reasonably foreseeable based on a full burn calculation. Suggestions to the contrary demonstrate a total misunderstanding of how LDCs work and ignores the basis upon which LDCs contract for capacity.[27] As the applicant argued, an estimate based on a 100% utilization rate (a “full burn” calculation), i.e., assuming that the maximum capacity is transported 365 days per year, 24 hours a day, and fully combusted downstream), necessarily overestimates downstream emissions. Residential and commercial demand for natural gas is highly dependent upon weather. No LDC expects contracted capacity to match actual utilization rates. Typically, LDCs do not contract for capacity to meet routine needs but instead, because of their legal obligation to serve their customers at all times, under all conditions, they instead contract to meet peak demand.[28] They also contract for peak demand as a hedge in order to avoid having to pay the spot market price in times of scarcity. Such planning is more prudent than having local authorities pinning the reliability of their systems on rain dances and hopes for a mild winter.[29]
The irony, of course, is that we need not get into any of the facts of this, or any other case, in order to decline to assess downstream emissions. In his separate statement, Commissioner Christie points to the limits of our jurisdiction over gathering and production as the basis upon which to find that upstream GHG emissions are not reasonably foreseeable, arguing that upstream activities are non-jurisdictional; therefore, we have no legal obligation to either estimate the upstream GHG emissions nor consider them.[30] Completely correct. But the same logic applies to downstream emissions. The Commission has no jurisdiction over the LDCs. Those are licensed and regulated by the states, and we should not consider the Commission to be the legal proximate cause of the emissions of the gas that their consumers may ultimately use.
The Commission has Departed from Recent Practice
As they did in Boardwalk Storage Co., LLC,[31] another order voted upon at this month’s open meeting, my colleagues backpedal here. Boardwalk includes calculations for the social cost of GHGs despite the fact that they are already recited in the staff environmental document.[32] As I explain in my concurrence to Boardwalk,[33] the inclusion of the calculations in the Commission’s order breaks with recent practice. In contrast to all three of my colleagues, I am firm in my view that the calculations should not be reiterated in Commission orders.
The abandonment of recent practice goes even further in this order. Here, the Commission omits language that has been included in the Commission’s orders since the April 20, 2023 Commission meeting, and which is actually included in the Boardwalk order. Specifically, the omitted language states: (1) that the disclosure of the social cost of GHG emissions is “for informational purposes”; (2) that for the social cost of GHGs, “there are no criteria to identify what monetized values are significant for NEPA purposes”; (3) that the Commission is not “aware of any . . . method,” including the social cost of GHGs, “that would enable the Commission to determine the significance of reasonably foreseeable GHG emissions”; and (4) that therefore, there are “no accepted tools or methods for the Commission to use to determine significance.”[34] My colleagues acknowledge that this language is missing from this order in their joint separate statement.[35] I disagree with the exclusion of this language. But even if that language had been included, I would have been compelled to dissent from that portion of the order because, while that passage would have limited the purposes to which the calculation of the social cost of GHGs would be put to use, it adopts the order’s finding that the downstream GHGs are reasonably foreseeable in the face of record evidence to the contrary and despite the Supreme Court’s holding in Public Citizen.[36] I fear new precedent is being set with the exclusion of the language addressing why the Commission can use neither the social cost of GHGs nor any other method to determine the significance of GHG emissions. We shall see what happens in future orders in light of my colleagues’ regrettable backpedaling here and in Boardwalk.
Conclusion
These certainly are interesting times. Commissioners’ positions on fundamental issues change from open meeting to open meeting like the “inconstant moon, [t]hat monthly changes in her circled orb.”[37] We have witnessed environmental documents including language that runs contrary to Commission orders.[38] We have seen the Commission ignore Congressional enactments. We now endure the Commission unwinding recent practice,[39] ignoring arguments that it does not want to address,[40] and selectively omitting language reflecting recent issuances.[41]
For these reasons, I respectfully dissent in part.
[1] 15 U.S.C. § 717f(c).
[2] See Fiscal Responsibility Act of 2023, Pub. L. No. 118-5, 137 Stat. 10, at § 321 (2023) (providing the “Builder Act”).
[3] 42 U.S.C. § 4332(c)(i).
[4] EPA April 3, 2023 Comments at 2 (citations omitted).
[5] See Nat’l Env’t Policy Act Guidance on Consideration of Greenhouse Gas Emissions & Climate Change, 88 Fed. Reg. 1196 (Jan. 9, 2023) (CEQ Interim Guidance).
[6] Transco. Gas Pipe Line Co., LLC, 184 FERC ¶ 61,066 at P 30 (citation omitted) (Transco).
[7] Id. P 54 (citation omitted).
[8] Id. P 56.
[9] See New England Power Generators Ass’n, Inc. v. FERC, 881 F.3d 202, 211 (D.C. Cir. 2018) (finding “that FERC did not engage in the reasoned decisionmaking required by the Administrative Procedure Act” because it “failed to respond to the substantial arguments put forward by Petitioners and failed to square its decision with its past precedent”).
[10] 88 Fed. Reg. at 1197 n.4.
[11] See Fiscal Responsibility Act of 2023, Pub. L. No. 118-5, 137 Stat 10, at § 321 (providing the “Builder Act”); see also 42 U.S.C. § 4332(c) (listing what should be included in “a detailed statement” “except where compliance would be inconsistent with other statutory requirements”).
[12] Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (emphasis added).
[13] Id. at 43 (quoting Burlington Truck Lines, Inc. v. U.S., 371 U.S. 156, 168 (1962)); see also id. at 56 (“failed to offer the rational connection between facts and judgment required to pass muster under the ‘arbitrary and capricious’ standard”).
[14] Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938).
[15] Transco, 184 FERC ¶ 61,066 at PP 52-53 (“For the Southside Reliability Enhancement Project, we find that the construction emissions direct operational emissions and downstream emissions are reasonably foreseeable . . . . With respect to downstream emissions, the final EIS calculated . . . a full-burn of the project’s design capacity . . . .”) (citations omitted).
[16] Id. P 53.
[17] Id. P 53 n.91.
[18] Transco Application, Resource Report No. 9, at 9-33 & n.12.
[19] Cf. Tenn. Gas Pipeline Co., L.L.C., 179 FERC ¶ 61,041, at PP 49-51 (2022) (“For the proposed project, we find that the construction emissions, direct operational emissions, and the emissions from the downstream combustion of the gas transported by the project are reasonably foreseeable emissions. With respect to downstream emissions, the record in this proceeding demonstrates that the natural gas to be transported by the project will be combusted by end-use customers. . . . With respect to downstream emissions, the EIS calculates a full-burn of the project's design capacity would result in 2.22 million metric tpy of CO2e. However, Tennessee urges the Commission to estimate the potential downstream GHG emissions using the ‘average utilization rate’ in the relevant market area on Tennessee’s system, Zone 5, which Tennessee states has a 77% utilization rate. We decline to accept Tennessee’s 77% average utilization rate without additional substantiation, especially in light of the contradictory 85% historical utilization rate provided in Tennessee’s application used to support its proposed commodity charge. Based on an assumed 85% utilization rate, the estimated GHG emissions related to the downstream use of the incremental capacity provided by the project is approximately 1,887,000 metric tpy.”).
[20] It is beyond cavil that an agency must explain its departure from prior precedent and “may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position.”) (emphasis in original) (citation omitted).
[21] 28 F.4th 277 (D.C. Cir. 2022) (Food & Water Watch).
[22] “Piedmont, a wholly owned subsidiary of Duke Energy Corporation, is a local distribution company that transports, distributes, and sells natural gas to consumers in North Carolina, South Carolina, and Tennessee.” Transco, 184 FERC ¶ 61,066 at P 5 n.6.
[23] 28 F.4th at 289.
[24] Id. (emphasis added).
[25] Id.
[26] The LDC at issue here and the discrete, known generators in Sierra Club v. FERC, are dissimilar enough that the Sabal Trail precedent cannot directly apply. 867 F.3d 1357 (D.C. Cir. 2017) (Sabal Trail). Additionally, as I have said before, Sabal Trail, which Food & Water Watch applies, is inconsistent with the Supreme Court’s holding in Public Citizen, 541 U.S. at 767 (“NEPA requires ‘a reasonably close causal relationship’ between the environmental effect and the alleged cause. The Court analogized this requirement to the ‘familiar doctrine of proximate cause from tort law.’”) (citation omitted); see id. at 770 (holding that “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect” and “under NEPA and the implementing CEQ regulations, the agency need not consider these effects in its [Environmental Assessment (EA)] when determining whether its action is a ‘major Federal action.’”). My views are not idiosyncratic. Both the partial dissenting statement in Sabal Trail and the Court of Appeals for the Eleventh Circuit agree. See 867 F.3d at 1383 (Brown, J., concurring in part and dissenting in part) (“Thus, just as FERC in the [Department of Energy (DOE)] cases and the Federal Motor Carrier Safety Administration in Public Citizen did not have the legal power to prevent certain environmental effects, the Commission here has no authority to prevent the emission of greenhouse gases through newly-constructed or expanded power plants approved by the Board.”); Ctr. for Biological Diversity v. U.S. Army Corps of Eng’rs, 941 F.3d 1288, 1300 (11th Cir. 2019) (“[T]he legal analysis in Sabal Trail is questionable at best. It fails to take seriously the rule of reason announced in Public Citizen or to account for the untenable consequences of its decision.”). Moreover, as I have previously explained, we could no more reasonably deny a pipeline for the effects of induced upstream production, which the statute places outside our jurisdiction, than we could deny an NGA section 3 authorization, 15 U.S.C. § 717b, for an LNG export terminal because we do not like the effects that the expected exports would have on international gas markets. Transcon. Gas Pipe Line Co., LLC, 182 FERC ¶ 61,148 (2023) (Danly, Comm’r, concurring at P 5) (citing Port Arthur LNG, LLC, 181 FERC ¶ 61,024, at P 12 & n.35 (2022) (stating in an extension of time proceeding that “[t]he Commission will not consider Sierra Club’s assertion that we must examine the project’s impact on domestic prices and supply as it is an attempt to re-litigate the issuance of the Authorization Order” and that “[n]or could we consider impacts on domestic prices and supply as the Commission’s authority under the Natural Gas Act is limited to the authorization of the siting, construction, and operation of LNG export facilities, while the consideration of the impact of export of LNG as a commodity is solely under the Department of Energy’s authority”) (emphasis added) (citation omitted); Commonwealth LNG, LLC, 181 FERC ¶ 61,143, at P 13 (2022) (“The Commission’s authority under NGA section 3 applies ‘only to the siting and the operation of the facilities necessary to accomplish an export[,]’ while ‘export decisions [are] squarely and exclusively within the [DOE]’s wheelhouse.’ Similarly, issues related to the impacts of natural gas development and production are related to DOE’s authorization of the export and not the Commission’s siting of the facilities . . . .”) (citations omitted); Columbia Gulf Transmission, LLC, 180 FERC ¶ 61,206, at PP 78, 80 (2022) (explaining for a NGA section 7 project that would provide incremental firm interstate natural gas transportation service to an LNG export facility that “the downstream GHG emissions are attributable to DOE’s ‘independent decision to allow exports—a decision over which the Commission has no regulatory authority’” and that “[w]e see no basis in the NGA for the Commission to encroach upon DOE’s sole authority over the review and authorization of exports of natural gas”); Tenn. Gas Pipeline Co., L.L.C., 180 FERC ¶ 61,205, at PP 62, 64 (2022) (same)). That determination rests solely with the DOE, which is charged with authorizing “the export of natural gas as a commodity.” EarthReports, Inc. v. FERC, 828 F.3d 949, 952-53 (D.C. Cir. 2016) (explaining that the DOE has “exclusive authority over the export of natural gas as a commodity”). The same holds for any induced upstream effects on production, even if they could be found traceable to the proposed project. In my view, this also applies to downstream end use, such as local distribution. The statute reserves those powers to the states. And it does so explicitly:
The provisions of this chapter shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, and to the importation or exportation of natural gas in foreign commerce and to persons engaged in such importation or exportation, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.
15 U.S.C. § 717(b).
[27] As an aside, were the Commission to find that downstream GHG emissions are not reasonably foreseeable or otherwise depart from using a full burn estimate of downstream GHG emissions such a decision would not undercut the Commission’s need determination. Any suggestion along those lines is ridiculous. Here, we have a project that has significant evidence of need demonstrated by a long-term precedent agreement for 100% of the project capacity. The inquiry under NEPA as to whether the downstream GHG emissions are reasonably foreseeable has nothing to do with the need inquiry. As the Commission has explained, NEPA and the NGA are distinct. Commonwealth LNG, LLC, 183 FERC ¶ 61,173, at P 37 (2023) (“[T]he Commission’s NGA and NEPA responsibilities are separate and distinct.”) (citation omitted); Transcon. Gas Pipe Line Co., LLC, 182 FERC ¶ 61,148 at P 101 (“The NGA analysis is distinct from the NEPA analysis . . . .”).
[28] See Transco July 13, 2022 Answer to Motion to Intervene & Comments of Upstate Forever & Sierra Club at 8 (“The maximum capacity of a pipeline is determined by the pipeline with extensive market analysis of the customers’ needs to satisfy the peak demand of the customers. Peak demand occurs during the coldest days of the winter, when heating demand is high, and during the hottest days of the summer, when demand for electricity for cooling is high. The social and environmental costs of failing to meet the demand on these peak days can be significant, even catastrophic.”); see also Piedmont Natural Gas Co., Inc. June 28, 2022 Motion to Intervene & Comments at 5 (“Because the purpose of the Pine Needle Capacity is to provide Piedmont with gas supply assurance on peak days, it is critical that Piedmont can reliably move its natural gas from Pine Needle to its service territories on the very days that Transco’s facilities are being utilized the most heavily. Having the firm service provided by the Mainline Path is even more critical given the increased utilization of Transco’s Zone 5 mainline, which has seen secondary and [non-secondary reverse path (NSRP)] constrained on average ninety percent of the year over the past three years. Thus, it is imperative that Piedmont be able to obtain firm transportation capacity under the Project to reliably access its Pine Needle Capacity.”).
[29] Cf. New England’s Power Grid Prepared for Winter, ISO New England (Dec. 5, 2022), https://www.iso-ne.com/static-assets/documents/2022/12/20221205_pr_winteroutlook_final.pdf (“Based on seasonal weather forecasts and information provided by generators about their fuel arrangements, the region’s power system is prepared for mild and moderate weather conditions,’ said Gordon van Welie, ISO New England’s president and CEO. ‘If long periods of severely cold weather develop, we’ll lean on our forecasting tools to identify potential problems early enough to take proactive measures, such as calling for increased fuel deliveries or asking for public conservation.’”).
[30] See Transco, 184 FERC ¶ 61,066 (Christie, Comm’r, concurring at P 2) (“[T]he Commission has no legal obligation to estimate or consider emissions from upstream, non-jurisdictional activities. Further, the Commission has no legal authority whatsoever to order mitigation of such non-jurisdictional upstream activities, much less to consider such non-jurisdictional upstream emissions in our merits review under the Natural Gas Act.”).
[31] 184 FERC ¶ 61,062 (2023) (Boardwalk).
[32] See id. P 24; see also Boardwalk Storage Co., LLC BSC Compression Replacement Project Environmental Assessment, Docket No. CP22-494-000, at 48-49 (Mar. 13, 2023).
[33] Boardwalk, 184 FERC ¶ 61,062 (Danly, Comm’r, concurring).
[34] Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61, 63 (2023) (Driftwood); Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047, at PP 20-21, 25 (2023); Rio Grande LNG, LLC, 183 FERC ¶ 61,046, at PP 92-94, 101 (2023); see also Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047 at P 20 (“although we are including the social cost of GHG[s] figures for informational purposes, we find that because the social cost of GHGs tool was not developed for project level review and, as discussed below, does not enable the Commission to credibly determine whether the GHG emissions are significant, section 1502.21 of the CEQ regulations does not require its use in this proceeding”); Rio Grande LNG, LLC, 183 FERC ¶ 61,046 at P 92 (same).
[35] See Transco, 184 FERC ¶ 61,066 (Phillips, Chairman & Christie, Comm’r, concurring). I note that in my colleagues’ separate statement, they claim that “[i]n Driftwood Pipeline LLC, we reached a compromise regarding the appropriate consideration and evaluation of downstream greenhouse gas (GHG) emissions and whether and how the significance of such emissions could be determined,” that “the compromise language . . . allows the Commission to approve needed natural gas infrastructure projects,” and that “an appropriate compromise way to go forward in future orders in evaluation of the downstream impact of GHG emissions.” Id. (Phillips & Christie, Chairman & Comm’r, concurring at PP 1, 5) (emphasis added) (citing Driftwood, 183 FERC ¶ 61,049 at PP 61-63). I am not sure what Chairman Phillips and Commissioner Christie mean regarding the Driftwood being a “a compromise regarding the appropriate consideration and evaluation of downstream [GHG] emissions and whether and how the significance of such emissions could be determined.” Id. (Phillips & Christie, Chairman & Comm’r, concurring at P 1). There was no such guidance in Driftwood regarding how the Commission evaluates downstream GHG emissions. Instead, the language at issue in Driftwood concerned the social cost of GHGs, explaining that the Commission cannot use the social cost of GHGs to assess significance, and the Commission also found that there is no method for the Commission to assess the significance of GHG emissions. Unlike, my colleagues’ suggestion, it is not a matter of “whether and how the significance of such emissions could be determined”; rather, the Commission unequivocally states that it cannot determine the significance of GHG emission because there is no means to do so. See Driftwood, 183 FERC ¶ 61,049 at P 63 (“We note that there currently are no accepted tools or methods for the Commission to use to determine significance, therefore the Commission is not herein characterizing these emissions as significant or insignificant.”) (citation omitted). And it is worth noting that the downstream end use is different in Driftwood than this case. As the Commission explained in Driftwood, the Line 200 and Line 300 Project will serve power plants and will provide additional supply options for an export facility. See Driftwood, 183 FERC ¶ 61,049 at P 27 (“Entergy Louisiana, which is not a shipper on the Mainline System, has indicated that its project capacity will support the resilience and reliability of the natural gas supply plan for its local power plants in the Lake Charles area. And while Driftwood LNG has not asserted that there is insufficient supply for its authorized exports, the Line 200 and Line 300 Project would provide the shipper with additional supply options, enhancing the diversity, resilience, and reliability of its supply.”) (citation omitted).
[36] 541 U.S. 752.
[37] William Shakespeare, Romeo and Juliet, act II, scene I (The Complete Works of William Shakespeare 255 (Barnes & Noble, Inc. ed., Sterling Publishing Co., Inc. 2015)) (quoting Juliet).
[38] Compare WBI Energy Transmission, Inc. Wahpeton Expansion Project Final EIS, Docket No. CP22-466-000, at 4-118 (Apr. 7, 2023) (“The Commission stated in a recent Order that a project’s share of contribution to GHG emissions at the national level provides a reasoned basis to consider the significance of the Project’s GHG emissions and their potential impact on climate change; and when states have GHG emissions reduction targets, the Commission will endeavor to consider the GHG emissions of a project on those state goals (or state inventories if the state does not have emissions targets.)”) (citing N. Nat. Gas Co., 174 FERC ¶ 61,189, at P 29 (2021) (Northern Natural)), with Tenn. Gas Pipeline Co., L.L.C., 178 FERC ¶ 61,199 (2022) (Danly, Comm’r, concurring in the judgment at PP 2-3) (disagreeing with Northern Natural and explaining that “there is no standard by which the Commission could, consistent with our obligations under the law, ascribe significance to a particular rate or volume of GHG emissions”) (citation omitted), and with Tenn. Gas Pipeline Co., L.L.C., 178 FERC ¶ 61,199 (Phillips & Christie, Comm’rs, concurring at P 2) (“depart[ing] from Northern Natural, where the Commission stated that emissions for a project were not significant,” explaining that “[i]n Northern Natural, the Commission disclosed the yearly emissions volumes and the estimated contribution to national and state emissions estimates, and then stated that, based on this record, that the emissions were not significant,” and stating that “[i]t is not clear how this determination was made or how a finding of ‘significance’ would have affected our duties and authority under the Natural Gas Act”) (citations omitted). Compare Boardwalk Storage Co. LLC BSC Compression Replacement Project Environmental Assessment, Docket No. CP22-494-000, at 48 (Mar. 13, 2023) (“We include a disclosure of the social cost of GHGs (also referred to as the [‘]social cost of carbon’ [SCC]) to assess climate impacts generated by each additional metric ton of GHGs emitted by the Project.”), with Golden Pass LNG Terminal LLC, 180 FERC ¶ 61,058, at P 24 (2022) (rejecting an argument raised in a comment that “the EA should use the social cost of GHGs (also referred to as the ‘social cost of carbon’ [SCC]) to assess climate impacts generated by each additional ton of GHGs that would be emitted or saved as a result of authorizing the proposed amendment, and that all GHG emissions are significant” by explaining that “we are not relying on or using the social cost of GHGs estimates to make any finding or determination regarding either the impact of the project’s GHG emissions or whether the project is in the public convenience and necessity”) (citations omitted). Notably, the Commission does not review or approve the contents of the environmental assessments and environmental impact statements issued by staff. Staff, for those documents, act under the supervision of the Chairman. But great care must be exercised to ensure that environmental documents adhere to Commission precedent. Cf. Great River Hydropower, LLC, 135 FERC ¶ 61,151, at P 44 (2011) (explaining that if a delegated order “is inconsistent with [Commission] precedent . . . , it was wrongly decided”). See also 42 U.S.C. § 7171(c) (explaining that “[t]he Chairman shall be responsible on behalf of the Commission for the executive and administrative operation of the Commission, including functions of the Commission with respect to . . . the supervision of personnel employed by or assigned to the Commission, except that each member of the Commission may select and supervise personnel for his personal staff . . . .”) (emphasis added).
[39] See supra P 12.
[40] See supra PP 5-6; see, e.g., Statement of Commissioner James P. Danly re Texas Gas Transmission, LLC, Docket No. CP21-467-001, at P 9 (June 8, 2023) (“All that was required was a simple response to a simple question: Is the Commission required to use the Social Cost of GHGs? The Commission has repeatedly said no. The courts have repeatedly affirmed the Commission. We should have said no (again) and allowed CAC to pursue its appeal with a merits order on rehearing. I must also point out that the notice issued by the Office of the Secretary was not a Commission action. That is to say, it was not issued at the direction of the Commission as a body. Instead, this notice was issued by the Office of the Secretary at the direction of one individual, the Chairman, who, as the executive head of the agency, has, and has exercised, the authority to direct today’s notice unilaterally.”) (emphasis in original) (citation omitted) (Accession No. 20230608-4004).
[41] See supra P 13.