Commissioner Richard Glick Statement

July 16, 2019

Docket No. CP15-521-000


I dissent from today’s order because it violates both the Natural Gas Act 1 (NGA) and the National Environmental Policy Act 2 (NEPA). The Commission is again refusing to consider the consequences its actions have for climate change. Neither the NGA nor NEPA permit the Commission to assume away the climate change implications of constructing and operating this liquefied natural gas (LNG) facility. Yet that is the unmistakable result of today’s order.

In authorizing Gulf LNG Liquefaction Company, LLC and Gulf LNG Energy, LLC (collectively, Gulf Liquefaction) to build and operate the proposed LNG export terminal (the Project) pursuant to NGA section 3, the Commission treats greenhouse gas (GHG) emissions differently than all other environmental impacts. By refusing to assess whether the impact of the Project’s GHG emissions would be significant, the Commission neglects its obligation to actually assess the Project’s environmental impacts. This systematic failure to consider the Project’s impact on climate change is what allows the Commission to misleadingly state that “[a]ll impacts [including environmental impacts] from construction and operation of the facilities will be reduced to less-than-significant levels” 3 and conclude that the Project satisfies the NGA’s public interest standards. 4

The Commission’s Public Interest Determinations Are Not the Product of Reasoned Decisionmaking

The NGA’s regulation of LNG import and export facilities “implicate[s] a tangled web of regulatory processes” split between the U.S. Department of Energy (DOE) and the Commission. 5 The NGA establishes a general presumption favoring the import and export of LNG unless there is an affirmative finding that the import or export “will not be consistent with the public interest.” 6 Section 3 of the NGA, which governs LNG imports and exports, provides for two independent public interest determinations: One regarding the import or export of LNG itself and one regarding the facilities used for that import or export. DOE determines whether the import or export of LNG is consistent with the public interest, with transactions among free trade countries legislatively deemed to be “consistent with the public interest.” 7 The Commission evaluates whether “an application for the siting, construction, expansion, or operation of an LNG terminal” is consistent with the public interest. 8 Pursuant to that authority, the Commission must approve a proposed LNG facility unless the record shows that the facility would be inconsistent with the public interest. 9

As part of that determination, the Commission must examine a proposed LNG facility’s impact on the environment and public safety. A facility’s impact on climate change must be part of a public interest determination under the NGA. 10 The Commission contends that it need not consider whether the Project’s contribution to climate change is significant because it lacks a means to do so—or at least so it claims.11 But the shocking part of the Commission’s rationale is what comes next. Based on this alleged inability to assess the significance of the Project’s impact on climate change, the Commission concludes that the Project will have not have a significant environmental impact, including on climate change.12 Think about that. The Commission is saying out of one side of its mouth that it cannot assess the significance of the Project’s impact on climate change while, out of the other side of its mouth, assuring us that all environmental impacts are insignificant. That is ludicrous, unreasoned, and an abdication of our responsibility to give climate change the “hard look” that the law demands.

The Commission’s failure to consider the impact of the Project’s GHG emissions is all-the-more glaring given the volume of emissions at issue in this proceeding. The Commission points out that the operation of the Project will directly emit roughly three million tons of GHGs every year.13 Given the Final EIS’s acknowledgment of that anthropogenic GHG emissions contribute to climate change,14 the decision to exclude GHG emissions from playing any role in the Commission’s public interest analysis is indefensible.

The implications of the Commission’s approach to evaluating the impacts of GHG emissions extend beyond any single proceeding under NGA section 3. Taking that approach to its logical conclusion, the Commission would approve any project regardless of the amount of GHGs emitted without ever determining the significance of their environmental impact. If the Commission’s assessment of that impact will not change no matter the volume of GHG emissions at issue, those emissions and their consequences cannot meaningfully factor into the public interest determination. Approving a project that may significantly contribute to the harms caused by climate change without meaningfully evaluating the significance of that impact or considering it as part of the public interest determination is contrary to law, arbitrary and capricious, and not the product of reasoned decisionmaking.15

The Commission Fails to Satisfy Its Obligations under NEPA
In order to evaluate the environmental consequences of the Project under NEPA, the Commission must consider the harm caused by the Project’s GHG emissions and “evaluate the ‘incremental impact’ that these emissions will have on climate change or the environment more generally.”16 As noted, the Final EIS states that the Project will directly emit roughly three million tons of GHGs annually. 17 Although that quantification of the Project’s GHG emissions is a necessary step toward meeting the Commission’s NEPA obligations, listing the volume of emissions alone is insufficient.18

As an initial matter, identifying the consequences that those emissions will have for climate change is essential if NEPA is to play the disclosure and good government roles for which it was designed. The Supreme Court has explained that NEPA’s purpose is to “ensure[] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts” and to “guarantee[] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.”19 It is hard to see how hiding the ball on a project’s climate impacts is consistent with either of those purposes.

In refusing to assess the significance of the Project’s GHG emissions during the environmental review process, the Commission relegates climate change to playing a negligible role, at best, in its NEPA analysis. Nothing in today’s order justifies this result. The Commission argues that it cannot determine whether the Project’s contribution to climate change is significant, relying on the premise that there is no “universally accepted methodology” to estimate a project’s impact on climate change, either locally or nationally.20 As a logical matter, the argument that there is no unanimously agreed upon methodology for evaluating the significance of GHG emissions does not excuse the Commission from assessing the Project’s environmental impacts under NEPA.

Moreover, the argument that there is no single standard methodology for evaluating the significance of GHG emissions is a red herring. The lack of any single methodology does not prevent the Commission from adopting a methodology, even if others are available. The Commission has several tools to assess the harm from the Project’s contribution to climate change. By measuring the long-term damage done by a ton of carbon dioxide, the Social Cost of Carbon links GHG emissions to the harm caused by the actual environmental effects of climate change, thereby facilitating the necessary “hard look” at the Project’s environmental impacts that NEPA requires. Especially when it comes to a global problem like climate change, a measure for translating a project’s climate change impacts into concrete and comprehensible terms plays a useful role in the NEPA process by putting the harm in terms that are readily accessible for both agency decisionmakers and the public at large. Yet, the Commission continues to ignore the Social Cost of Carbon, relying instead on deeply flawed reasoning that I have previously critiqued at length. 21

Regardless of tools or methodologies available, the Commission can use its judgement and discretion to consider all factors and determine, quantitatively or qualitatively, whether the Project’s GHG emissions have a significant impact on climate change. After all, that is precisely what the Commission does in other aspects of its environmental review. For example, consider how the Commission evaluated the land impacts of a similarly sized LNG facility earlier this year. The Final EIS for the Port Arthur facility determined that a total of 992 acres of vegetation and upland forest will be permanently affected by the Project,22 but nevertheless concluded that the Project “will not have a significant impact on vegetation.”23 That Final EIS provided no “standard methodology” available to the Commission to evaluate this impact24 and the Commission instead used its judgment to determine that that project’s impact would not be significant based on the “minor nature of the impacts.”25 The Commission’s refusal to exercise similar discretion and judgment when it comes to evaluating the impacts of GHG emissions is arbitrary and capricious and willfully ignorant.

The Commission’s failure to seriously consider the significance of the impact of the Project’s GHG emissions is even more mystifying because NEPA “does not dictate particular decisional outcomes.”26 NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’”27 Taking the matter seriously—and rigorously examining a project’s impacts on climate change—does not necessarily prevent any of my colleagues from ultimately concluding that a project meets the public interest standard, even if its consequences for climate change are significant. Indeed, a thorough investigation of a project’s contribution to climate change would also help infrastructure developers by reducing their legal risk in the appeals that will inevitably follow. At the end of the day, no one benefits from the Commission’s refusal to consider a project’s impact on climate change.

Finally, even if the Commission were to determine that the Project’s GHG emissions are significant, that would not be the end of the inquiry nor would it mean that the project was necessarily inconsistent with the public interest. Instead, we could require mitigation—as the Commission often does with regard to other environmental impacts. The Supreme Court has held that an EIS must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts.28 The Court explained that, “[w]ithout such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects” of a project, making an examination of possible mitigation measures necessary to ensure that the agency has taken a “hard look” at the environmental consequences of the action at issue.29

Consistent with this obligation, the Final EIS discusses mitigation measures to ensure that the Project’s adverse environmental impacts, excluding GHG emissions, are reduced to less than significant levels.30 For example, in finding that the Project’s impacts on wetlands are not anticipated to be significant, the Commission relies on compensatory mitigation including the purchase of mitigation credits.31 The Commission not only has the obligation to discuss mitigation of adverse environmental impacts under NEPA, but also the authority to condition certificates under section 3 of the NGA.32 By refusing to assess significance, however, the Commission short circuits any discussion of mitigation measures for the Project’s GHG emissions, eliminating a potential pathway for us to achieve consensus on whether the Project is consistent with the public interest.

For these reasons, I respectfully dissent.

  • 11 15 U.S.C. §§ 717b, 717f (2012).
  • 22 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.
  • 33 Gulf LNG Liquefaction Company, LLC, 168 FERC ¶ 61,020, at PP 12, 18 (2019) (Certificate Order); see also Final Environmental Impact Statement at ES-10 (Final EIS).
  • 44 Certificate Order, 168 FERC ¶ 61,020 at P 15.
  • 55 Sierra Club v. FERC, 827 F.3d 36, 40 (D.C. Cir. 2016) (Freeport).
  • 66 15 U.S.C. §717b(a); see EarthReports, Inc. v. FERC, 828 F.3d 949, 953(D.C. Cir. 2016)(citing W. Va. Pub. Servs. Comm’n v. Dep’t of Energy, 681 F.2d 847, 856 (D.C. Cir. 1982) (“NGA [section] 3, unlike [section] 7, ‘sets out a general presumption favoring such authorization.’”)). Under section 7 of the NGA, the Commission approves a proposed pipeline if it is shown to be consistent with the public interest, while under section 3, the Commission approves a proposed LNG import or export facility unless it is shown to be inconsistent with the public interest. Compare 15 U.S.C. § 717b(a) with 15 U.S.C. §717f(a), (e).
  • 77 15 U.S.C. § 717b(c). The courts have explained that, because the authority to authorize LNG exports rests with DOE, NEPA does not require the Commission to consider the upstream or downstream GHG emissions that may be indirect effects of the export itself when determining whether the related LNG export facility satisfies section 3 of the NGA. See Freeport, 827 F.3d at 46-47; see also Sierra Club v. FERC, 867 F.3d 1357, 1373 (D.C. Cir. 2017) (Sabal Trail) (discussing Freeport). NEPA still requires, however, that the Commission consider the direct GHG emissions associated with a proposed LNG export facility. See Freeport, 827 F.3d at 41, 46.
  • 88 15 U.S.C. § 717b(e). In 1977, Congress transferred the regulatory functions of NGA section 3 to DOE. DOE, however, subsequently delegated to the Commission authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal, while retaining the authority to determine whether the import or export of LNG to non-free trade countries is in the public interest. See EarthReports, Inc., 828 F.3d at 952-53.
  • 99 See Freeport, 827 F.3d at 40-41.
  • 1010 See Sabal Trail, 867 F.3d at 1373 (explaining that the Commission may “deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment”); see also Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959) (holding that the NGA requires the Commission to consider “all factors bearing on the public interest”).
  • 1111 Certificate Order, 168 FERC ¶ 61,020 at P 55; see also Final EIS at 4-230 (explaining that “there is no universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment to the Project’s incremental contribution to GHGs”). As discussed below, that simply is not the case. See infra PP 10-12.
  • 1212 Certificate Order, 168 FERC ¶ 61,020 at PP 12, 18; Final EIS at 5-1 (“If the Project is constructed and operated in accordance with the mitigating measures discussed in this EIS, and our recommendations, adverse environmental impacts would be reduced to less than significant levels.”).
  • 1313 Certificate Order, 168 FERC ¶ 61,020 at P 54; Final EIS at Table 4.11.1-4 (carbon dioxide emissions in the Final EIS are expressed in short tons). That is an incremental increase of roughly 2.5 million tons over the Project as previously authorized. Certificate Order, 168 FERC ¶ 61,020 at P 54.
  • 1414 Final EIS at 4-109, 4-228 – 4-230.
  • 1515 As noted, the NGA “requires the Commission to evaluate all factors bearing on the public interest,” Atl. Ref. Co., 360 U.S. at 391, which Sabal Trail held includes a facility’s contribution to the harms caused by climate change, 867 F.3d at 1373.
  • 1616 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th Cir. 2008); WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 51 (D.D.C. 2019) (explaining that the agency was required to “provide the information necessary for the public and agency decisionmakers to understand the degree to which [its] decisions at issue would contribute” to the “impacts of climate change in the state, the region, and across the country”).
  • 1717 Supra note 13.
  • 1818 See Ctr. for Biological Diversity, 538 F.3d at 1216 (“While the [environmental document] quantifies the expected amount of CO2 emitted . . . , it does not evaluate the ‘incremental impact’ that these emissions will have on climate change or on the environment more generally.”); Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 995 (9th Cir. 2004) (“A calculation of the total number of acres to be harvested in the watershed is a necessary component . . . , but it is not a sufficient description of the actual environmental effects that can be expected from logging those acres.”).
  • 1919 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004) (citing Robertson v. Methow Valley Citizens Coun., 490 U.S. 332, 349 (1989)).
  • 2020 Final EIS at 4-230.
  • 2121 See, e.g., Fla. Se. Connection, LLC,164 FERC ¶ 61,099 (2018) (Glick, Comm’r, dissenting at 9-12).
  • 2222 Port Arthur LNG, LLC, 167 FERC ¶ 61,052, PP 110-111 (2019).
  • 2323 Id. P 112.
  • 2424 As compared to the Commission’s requirement for a “standard methodology” to determine the significance of the Project’s GHG emissions, as discussed inthat order. Id. at P 138 (citing Dominion Transmission, Inc., 163 FERC ¶ 61,128, at PP 67-70 (2018) (LaFleur, Comm’r, dissenting in part; Glick, Comm’r, dissenting in part)).
  • 2525 Id. P 112.
  • 2626 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
  • 2727 Id. (quoting Robertson, 490 U.S. at 351).
  • 2828 Robertson,490 U.S. at 351.
  • 2929 Id. at 352; see also 40 C.F.R. §§ 1508.20 (defining mitigation), 1508.25 (including in the scope of an environmental impact statement mitigation measures).
  • 3030 Certificate Order, 168 FERC ¶ 61,020 at PP 19, 22, 28, 30, 33, 36 (finding that the adverse environmental effects on geology, soil, water, wetlands, vegetation, wildlife, and air quality, among other things, will not be significant either on their own or following the required mitigation measures).
  • 3131 Certificate Order, 168 FERC ¶ 61,020 at P 30.
  • 3232 15 U.S.C. § 717b(e)(3)(A); 15 U.S.C. § 717f(e); Certificate Order, 168 FERC ¶ 61,020 at P 63 (“[T]he Commission has the authority to take whatever steps are necessary to ensure the protection of environmental resources . . . , including authority to impose any additional measures deemed necessary.”).

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