Commissioner Mark C. Christie Statement
January 20, 2022
Docket Nos. CP16-9-011, CP16-9-012
I concur with the Order’s[1] termination of the exercise initiated in the Feb. 18, 2021 Order Establishing Briefing (Briefing Order), an unjustified and unwise action to which I dissented.[2] As this Order acknowledges, the specific concerns offered to justify the Briefing Order were committed by law to another agency, the Pipeline and Hazardous Materials and Safety Administration (PHMSA), not this Commission.[3]
I dissent from those portions of this Order that attempt to justify retroactively the improper Briefing Order, and, in so doing, appear to create, or imply, some new inchoate authority to revisit certificates after they have been approved.[4] While such language in the Order may be downplayed as the proverbial “mere dicta” (there are no supply chain constraints on dicta in this Order), even “mere dicta” remains on the record and adds to the growing uncertainty about the Commission’s reliability when it comes to standing behind the certificates it approves after they have been fully and fairly litigated.
While this Order correctly terminates the proceeding launched in February of last year, the exercise itself should not be blithely dismissed as “no harm, no foul.” The Weymouth facility under attack in this proceeding is an integral component of the Atlantic Bridge project that is necessary to alleviate gas supply constraints in New England.[5] While not participating in this proceeding, just a few weeks ago the independent system operator for New England warned that gas pipeline constraints in New England were a factor threatening the reliability of the electric grid that serves millions of New Englanders.[6] The Maine Public Utilities Commission,[7] along with local distribution companies serving tens of thousands of retail customers in New England,[8] which did submit comments in this proceeding, expressed serious concerns about their ability to provide critically needed gas service to their customers. Multiple former FERC commissioners expressed concern that the Briefing Order, “… deviates from the Commission’s traditional respect for the finality of existing authorizations.”[9]
The only way to un-ring that bell now is to terminate the Briefing Order – and I concur – but we should not kid ourselves that this termination will make the uncertainty resulting from that order evaporate. Even today in two other cases the majority is issuing a new procedural rule that will drive up litigation costs and create new avenues to attack certificates after they have been issued.[10] These actions do not appear to recognize the reality that a reliable supply of natural gas will be critically necessary to keep the lights on and homes warm in New England and the rest of the country for years to come.
For these reasons, I respectfully concur in part and dissent in part.
[1] Algonquin Gas Transmission, LLC, 178 FERC ¶ 61,029 (2022) (Order).
[2] Algonquin Gas Transmission, LLC, 174 ¶ 61,126 (2021) (Christie, Comm’r, dissenting) (available at https://www.ferc.gov/news-events/news/item-c-4-commissioner-mark-c-christie-dissent-regarding-algonquin-gas-transmission).
[4] See, e.g., id. P 26.
[5] Id. P 3; Algonquin Gas Transmission, LLC, 158 FERC ¶ 61,061 (Certificate Order), order on reh’g, 161 FERC ¶ 61,255 (2017) (Certificate Rehearing Order), aff’d sub nom., Town of Weymouth v. FERC, No. 17-1135, 2018 WL 6921213, at *1 (D.C. Cir. Dec. 27, 2018) (unpublished opinion); Algonquin Gas Transmission, LLC, 161 FERC ¶ 61,287 (2017) (order denying rehearing of notice to proceed).
[6] See, Harsh Weather Conditions Could Pose Challenges to New England’s Power System This Winter, ISO Newswire (Dec. 6, 2021) (available at https://isonewswire.com/2021/12/06/harsh-weather-conditions-could-pose-challenges-to-new-englands-power-system-this-winter/?utm_source=isone&utm_medium=newsfeed) (“Well-documented natural gas pipeline constraints, coupled with global supply chain issues related to deliveries of oil and liquefied natural gas (LNG), are placing New England’s power system at heightened risk heading into the winter season, according to ISO New England, Inc., operator of the region’s power grid.”); see also New England ISO: Winter reliability risks include “controlled outages,” The Energy Daily (Dec. 8, 2021) (“the ISO once again noted that the region’s long-standing failure to expand its gas pipeline network means fuel supply for gas-fired power plants may be curtailed in extreme weather if limited gas supplies are strained by strong demand for home heating.”); Jared Anderson, ISO New England sees precarious power reliability heading into winter, Megawatt Daily (Dec. 6, 2021) (“New England has been dealing with winter energy security concerns for several years and ISO-NE sometimes sees power system conditions running up to the edge of reliability during winter”); Miranda Willson, Northeast grid “vulnerable” this winter amid gas squeeze, EnergyWire (Dec. 7, 2021) (“ISO New England . . . said it expects to be able to meet demand for power this winter, assuming current forecasts predicting a mild winter hold true. But the region’s limited natural gas pipeline system could make it difficult to get enough gas into New England when it is most needed.”) (emphasis added); Michael Kuser and Rich Heidorn Jr., ISO-NE: New England Could Face Load Shed in Cold Snaps, RTO Insider (Dec. 6, 2021).
[7] Maine Public Utilities Commission April 5, 2021 Brief at 2-3 (noting that the Weymouth facility is “a necessary element of … service” for tens of thousands of customers in Maine, and that if the facility were shuttered, “Maine’s natural gas customers would be left facing a future with even more constrained and uncertain natural gas supply while their investments in services intended to alleviate this situation will have produced nothing in return.”) (emphasis added); Maine Office of the Public Advocate April 5, 2021 Brief at 3-4 (describing the Weymouth facility as “a critical source of natural gas supply capacity” and noting that “[d]uring the most severe winter weather, many natural gas-fired units simply cannot obtain fuel to generate electricity. Removing the Weymouth compressor station from service would reduce the number of units able to obtain fuel.”) (emphases added, citation omitted).
[8] New England Local Distribution Companies April 5, 2021 Brief (arguing that the Briefing Order was unlawful, infringes on the jurisdiction of other agencies, and undermines significant reliance interests); Northern Utilities April 5, 2021 Brief at 1 (“an order that would require AGT and Maritimes to shut down or in any way limit the use of the Weymouth Compressor Station would have a direct, immediate, and long-term adverse impact on Northern and its customers in Maine and New Hampshire.”) (emphasis added); Bangor Natural Gas Co. April 5 Brief at 1 (“an order that would . . . in any way limit the use of the Weymouth Compressor Station would have a direct, immediate, and long-term adverse impact on Bangor and its customers.”) (emphases added); Northeast Gas Ass’n April 5 Brief at 9-10 (“A Commission order that would revisit, let alone modify or rescind, the Certificate Order and/or the Authorization order, or otherwise result in the Weymouth Compressor Station not being permitted to remain in service, would be inconsistent with the Commission’s responsibility under the NGA. . . . The consequences of the Commission staying or reversing the Authorization order in this case would be harmful to the regional energy market and raise serious concerns about energy reliability, price volatility, and the stability of energy projects under the Commission’s review.”).
[9] Bipartisan Former FERC Commissioners April 9, 2021 Comment at 1–2 (“We are troubled by the novel assertion of authority to reconsider a long-since-final certificate order, without any suggestion that the terms of the order were violated, and long after a private company built and placed into service the facilities in question, at a cost of approximately a half billion dollars. We are unaware of any other instance, in the eight-decade history of the Natural Gas Act, where the Commission has taken such a step.”).
[10] Adelphia Gateway, LLC, 178 FERC ¶ 61,030 (2022) (Christie, Comm’r, concurring in part and dissenting in part); Delfin LNG LLC, 178 FERC ¶ 61,031 (2022) (Christie, Comm’r, concurring in part and dissenting in part).