I dissent from this Order[1] for two principal reasons. First, the Order’s discussion of how, if at all, the Commission considered the project’s climate impacts in its public interest determination is incomprehensible. By speaking in code that only they can decipher, the majority violated the most basic requirement of the Administrative Procedure Act (APA) that an agency give a reasoned explanation for its decision. The majority also failed to respond to important arguments in the Environmental Coalition’s rehearing request, which is yet another violation of the APA. Second, I cannot countenance the majority’s refusal to seriously consider whether or how the Commission should assess the significance of greenhouse gas (GHG) emissions.[2]
The first reason for my dissent arises from the opaque language in paragraph 37 of the Order. The Environmental Coalition argues that the Commission is required to consider climate impacts in its public interest determination under section 3 of the NGA.[3] If the Commission had done so, one would expect it to say as much in response. But the Order does not say the Commission considered climate impacts in its public interest determination. Instead, paragraph 37 says only that “the Commission’s balancing under the public interest standard is consistent with the purpose of the NGA and is therefore afforded deference.”[4] In a footnote to this sentence, the Order cites the Supreme Court’s decision in NAACP v. Fed. Power Comm’n[5], and includes a parenthetical explaining that the Court said “the purpose of the NGA is to ‘encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices’ and also observ[ed] that there are subsidiary purposes to the Act.” The parenthetical fails to mention that environmental protection is one of those subsidiary purposes. This cryptic section of the Order leaves the reader to wonder whether encouraging plentiful supplies of natural gas was the Commission’s driving consideration in its “balancing.” Did climate impacts factor into the public interest determination at all? If so, how? Neither the parties nor a reviewing court can discern from the Order whether the Commission even agrees that it must consider climate impacts and, if so, whether and how it weighed them in its public interest determination. In failing to explain its reasoning, the Commission violated the APA.[6]
To the extent paragraph 37 of the Order is meant to suggest the Commission is not required to consider the environmental impacts of the project’s GHG emissions in its public interest determination under section 3 of the NGA, it is plainly wrong. Nearly fifty years ago the Supreme Court held in NAACP that environmental protection is a purpose of the NGA.[7] More recent decisions make clear that the Commission must consider the climate impacts of GHG emissions in its public interest determinations under the statute.[8]
Like the NGA, the National Environmental Policy Act (NEPA) also requires the Commission to consider climate and other environmental impacts in deciding whether to approve a project application. As the Supreme Court has explained, NEPA’s environmental impact statement requirement “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts….”[9] The Order’s statement that the Commission’s responsibilities under the NGA are “separate and distinct” from those under NEPA could be interpreted to suggest the statutes bear no relation to each other.[10] To the contrary, the Commission’s obligations under the two statutes are inextricably linked. In requiring the Commission to consider environmental impacts in its substantive decision-making, NEPA gives content to the NGA’s broad “public interest” standard.[11]
The second reason for my dissent centers on language in paragraphs 40 and 41 of the Order indicating the Commission has definitively concluded that it is impossible for it to assess the significance of GHG emissions. Although the Environmental Coalition’s rehearing request did not expressly contend the Commission must use the Social Cost of GHGs protocol to assess significance, the Order gratuitously expounds on the purported unsuitability of the protocol, using the same language that appears in other recent orders.[12] The Order then proclaims that there is no other “currently scientifically accepted method that would enable the Commission to determine the significance of reasonably foreseeable GHG emissions.”[13] Yet, the Order does not substantively respond to the Environmental Coalition’s argument that there is an alternative method available[14] – one that has been sitting unaddressed in the Commission’s open docket for the GHG Policy Statement.[15] This too violates the Administrative Procedure Act.[16]
In concentrating its fire on the Social Cost of GHGs protocol, the majority failed to provide a reasoned response to the Environmental Coalition’s key contention that the Commission violated a Council on Environmental Quality regulation requiring that an environmental impact statement include a discussion of “the environmental impacts of the proposed action and reasonable alternatives to the proposed action and the significance of those impacts.”[17] Instead, the Commission merely states that it “disclosed and contextualized the reasonably foreseeable GHG emissions.”[18] I agree with the Environmental Coalition that “to the extent that FERC actually attempted to substitute these analyses for a significance determination about the Project’s climate effects, it must so state, and failure to do so is arbitrary and capricious ….”[19]
Until the last few months, in other recent certificate orders, the Commission has explained that it is not determining the significance of GHG emissions because the issue of how to do so is under consideration in the docket for the Commission’s draft GHG Policy Statement.[20] This Order does not say that. Instead, it appears effectively to decide some of the central issues raised in the GHG Policy Statement docket.
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 never seriously studied the answer to that question. Now, the majority has simply decided there is no acceptable method, with no explanation of why the Commission departs from the approach so recently taken in other certificate orders.[21] We have yet to address the voluminous record in the GHG Policy Statement docket, including comments that speak to the significance issue. As I have said before, 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.
[1] Commonwealth LNG, LLC, 183 FERC ¶ 61,173 (2023) (Order).
[2] I have dissented from other recent orders for the same reason. See, e.g., Rio Grande LNG, LLC and Rio Bravo Pipeline Company, 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); Driftwood Pipeline LLC, 183 FERC ¶ 61,049 (2023) (Clements, Comm’r, dissenting at PP 2-3).
[3] Rehearing Request at 31 (“FERC is … required by NEPA and the NGA to consider the direct and cumulative effects on climate change in its public interest analysis….”).
[4] Order at P 37 (citations omitted).
[5] 425 U.S. 662, 669 (1976).
[6] See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.”); Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014) (quoting Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (“[A]n agency action will be set aside as arbitrary and capricious if it is not the product of ‘reasoned decisionmaking.’”).
[7] 425 U.S. at 670 n.6.
[8] See, e.g., Vecinos para el Bienstar de la Comunidad Costera v. FERC, 6 F.4th 1321, 1331 (D.C. Cir. 2021) (finding Commission’s analysis of climate change impacts deficient under both NGA and NEPA); Birckhead v. FERC, 925 F.3d 510, 519 (D.C. Cir. 2019) (in addressing arguments relating to GHG emissions, the court explains that the Commission’s public interest determination includes environmental considerations); Sierra Club v. FERC, 867 F.3d 1357, 1373 (D.C. Cir. 2017) (in addressing Commission’s treatment of GHG emissions, the court explains that the balancing of factors in determining the public convenience and necessity includes environmental effects).
[9] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (emphasis added).
[10] See Order at P 37.
[11] Cf. Village of Barrington v. Surface Transp. Bd., 636 F.3d 650, 665-66 (D.C. Cir. 2011) (upholding agency’s interpretation of “public interest” in its organic statute to include environmental considerations in light of NEPA’s language and goals).
[12] Order at PP 40-41. For comparison, see Rio Grande LNG, LLC and Rio Bravo Pipeline Company, LLC, 183 FERC ¶ 61,046 at PP 92-93, 101; Texas LNG Brownsville LLC, 183 FERC ¶ 61,047 at PP 20, 25; Driftwood Pipeline LLC, 183 FERC ¶ 61,049 at PP 61, 63.
[13] Id. at P 41.
[14] The Environmental Coalition specifically points to a model for assessing significance that the Natural Resources Defense Council submitted for the Commission’s consideration on September 23, 2022. See Rehearing Request at 37 n.75.
[15] Docket No. PL21-3.
[16] 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”).
[17] Rehearing Request at 31 (citing and quoting 40 C.F.R. § 1502.16(a)(1)) (emphasis added).
[18] Order at P 38.
[19] Rehearing Request at 35 (citation omitted).
[20] 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).
[21] 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).