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Commissioner Bernard L. McNamee Statement
March 19, 2020

Docket No. CP19-78-000 PDF
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Concurrence Regarding PennEast Pipeline Company, LLC

Today’s order grants PennEast Pipeline Company, LLC’s (PennEast) request to amend its certificate of public convenience and necessity granted in Docket No. CP15-558-000 to construct and operate its PennEast Pipeline Project.1 PennEast’s amendment request proposes several route realignments and workspace modifications to address landowner requests and constructability concerns.

I fully support the order as it complies with the Commission’s statutory responsibilities under the Natural Gas Act and the National Environmental Policy Act. The order determines that PennEast’s proposal does not alter the Commission’s conclusion that the construction and operation of the PennEast Pipeline Project is in the public convenience and necessity given that the facilities will not adversely affect competitor pipelines and their captive customers, and that PennEast has taken appropriate steps to minimize adverse impacts on landowners.2 In fact, the order finds that PennEast’s amendment proposal will further reduce impacts to landowners and surrounding communities.3 The order also finds that PennEast’s proposal will not significantly affect the quality of the human environment.4 Further, the Commission has quantified and considered the additional greenhouse gases (GHG) related to route realignments and workspace modifications,5consistent with the holding in Sierra Club v. FERC (Sabal Trail).6

I write separately to respond to my colleague’s argument that the Commission should have determined whether the incremental GHG emissions related to the route realignment and workspace modifications are “significant” using the Social Cost of Carbon or by establishing its own framework. In my concurrence in Adelphia, I explain why the Social Cost of Carbon is not a useful tool to determine whether the GHG emissions are “significant” and the Commission has no authority or reasoned basis to make a determination of significance using its own expertise.7 Further, it is not appropriate for the Commission to establish out of whole cloth a GHG emission mitigation program, particularly when Congress has introduced and failed to pass 70 legislative bills to reduce GHG emissions over the last 15 years.8 As I explain in Adelphia, Congress delegated the Administrator of the U.S. Environmental Protection Agency the exclusive authority to establish standards of performance for air pollutants, including GHGs.9 For logistical reasons and administrative efficiency, I hereby incorporate my analysis in Adelphia by reference and am not reprinting the full text of my analysis here.10

For the reasons discussed above and incorporated by reference herein, I respectfully concur.






                                               

    1 170 FERC ¶ 61,198 (2020).
    2 Id. P 13.
    3 Id. P 12.
    4 Id. P 67.
    5 Id. PP 59-60; Environmental Assessment at 95, 100-102.
    6 867 F.3d 1357 (D.C. Cir. 2017). Despite my colleague’s arguments to the contrary, I state in my concurrence in Adelphia Gateway, LLC in which I incorporate herein that “[t]hough the D.C. Circuit’s holding in Sabal Trail is binding on the Commission, it is not appropriate to expand that holding through the dicta in Birckhead so as to establish new authorities under the NGA and NEPA. The Commission is still bound by the NGA and NEPA as enacted by Congress, and interpreted by the U.S. Supreme Court and the D.C. Circuit. Our obligation is to read the statutes and case law in harmony.” Adelphia, 169 FERC ¶ 61,220 at P 12 n.29 (2019) (McNamee, Comm’r, concurring).
    7 Id. PP 62-73.
    8 Id. PP 52-61.
    9 Id. PP 53-57.
    10 Id. PP 52-73.
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