Texas Gas Transmission, LLC
Docket No. CP21-467-001
Because the Commission issued a Notice in this proceeding stating that under 15 U.S.C. § 717r(a) the request for rehearing in this matter “will be addressed in a future order to be issued consistent with the requirements of such section”[1] and has now failed to do so, I am issuing this statement to be included in the record of this proceeding.
To get vitally needed natural gas transportation and other infrastructure facilities actually built and put into service to consumers, it is not enough for this Commission simply to issue an order stating that a permit for a facility, such as a Certificate of Public Convenience and Necessity (CPCN), is approved. The Commission has another job under the Administrative Procedure Act (APA) that must be done to get these projects actually built. It must answer – clearly, completely and directly – the arguments raised by parties that oppose a facility’s construction. The Commission must do so in original orders when it finds a facility is needed, in orders on petitions for rehearing challenging the permits if those arguments are not otherwise sufficiently addressed in the underlying order, and in the inevitable appeals to the federal appellate courts. If the Commission fails to do so the order approving a permit goes to the appellate court highly vulnerable to remand or reversal, which could delay construction – possibly for years – or even prevent the project from ever being built and put into service.
In this proceeding a party opposed to the facility has explicitly claimed, inter alia, that the Commission failed to consider, as part of its review under the Natural Gas Act (NGA), the potential effect of the facility’s GHG emissions on the global climate, as measured by a “social cost of carbon” formulation.[2] Because this claim was explicitly raised, under the APA it must be addressed adequately. It cannot be dodged or avoided. We could have answered this claim by explaining that the NGA does not require us to do what the party wants us to do, and the courts have upheld similar refusals in prior cases.[3] In a broader sense, because the party explicitly claimed that the NGA requires us to consider global climate effects of a single project by using a social cost of carbon formulation, we could have addressed more completely that fundamental issue with this simple and straightforward answer: Congress has never given us such authority in the NGA. The authority to consider a facility’s GHG impact on global climate inextricably would include the authority to reject a permit for the facility on that very basis, notwithstanding all other evidence of need for the facility.[4] The power to reject an otherwise needed facility’s CPCN on the basis of its purported impact on global climate change unquestionably represents a major question of public policy, as I pointed out in my dissent to the then-majority’s proposed and now suspended GHG Policy Statement last year,[5] an analysis that was wholly consistent with the Supreme Court’s ruling in West Virginia v. EPA a few months later.[6]
Until the Commission squarely and forthrightly addresses such claims when they are raised specifically in cases by parties, and acknowledges the limits on our authority under the NGA to consider global climate impacts of a single project, the cloud over investment in such facilities caused by the GHG and Certificate policy statements issued by this Commission’s majority last year will remain a huge disincentive to investment in construction at a time when natural gas transportation facilities are needed more than ever to provide a dependable supply of natural gas to electric power generating units that are critically important to the reliability of our nation’s power grid, as well as providing consumers with the fuel needed to heat their homes and operate their businesses.
[1] Texas Gas Transmission, LLC, 181 FERC ¶ 62,197 (Dec. 22, 2022).
[2] See, e.g., Rehearing Request at 47 (“[T]he Commission’s failure to account for and consider the costs of the Project’s contributions to climate change violate the NGA. Section 7 of the NGA requires FERC to consider all relevant factors bearing on the public interest, including the environmental costs associated with a project’s GHG emissions. . . . FERC . . . provides no justification for failing to equally weigh the Project’s costs, as is required by the NGA. The Commission has before it a firm figure that would allow an apples-to-apples comparison between the alleged economic benefits of the Project and its $12 billion-worth of climate costs [referencing social cost of greenhouse gas number]. The Order does not dispute the accuracy of the Project’s total costs; it fails to address them entirely. This one-sided view of the Project’s effects on climate is, therefore, arbitrary and cannot support a finding that the Project is in the public convenience and necessity.”) (footnotes omitted).
[3] See n.7 infra.
[4] To claim that the power to “consider” GHG global impacts in an NGA merits determination does not necessarily include the power to “reject” is a logical non sequitur, akin to trying to take a shower and not get wet. The former establishes the legal predicate for the latter and there is no way to draw a credible red line between the power to “consider” and the power to “reject.”
[5] See, e.g., Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews, 178 FERC ¶ 61,108 (2022) (Christie, Comm’r, dissenting at PP 21-28) (available at https://www.ferc.gov/news-events/news/items-c-1-and-c-2-commissioner-christies-dissent-certificate-policy-and-interim). This policy statement was subsequently suspended in Certification of New Interstate Natural Gas Facilities and Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews, 179 FERC ¶ 61,012 (2022).
[6] West Va. v. EPA, 142 S. Ct. 2587 (2022).