Order No. 881 Compliance Items
I'll start with some good news on the agenda—so don't go away from this meeting thinking I'm all tough and grumble—but I want to mention the orders E-6 through E-11 that might fly under the radar. They’re compliance orders for Order No. 881 which was the Commission's final rule to require that transmission providers use ambient adjusted ratings on their systems.
These are important decisions and it’s the beginning of a bigger opportunity to squeeze more juice out of our existing system at a relatively minimal cost to customers. The Commission has dockets open, including an inquiry about dynamic line ratings, in our interconnection NOPR, and in our transmission planning NOPR. I’m looking forward to moving forward with opportunities to promote various kinds of grid-enhancing technologies, which are really no-brainers when it comes to the Commission's responsibility to ensure fair rates.
Certificate Items
Now, moving on to the gas items C-1 and C-2, the Rio Grande, Rio Bravo, and Texas LNG orders. I'll be dissenting from both of them today.
The DC circuit remanded these orders in August 2021. The basis for that remand, as the Chairman mentioned, was the deficient analysis of greenhouse gas impact impacts, and impacts on environmental justice communities. The responsibility for the timing and nature of the Commission's response to that remand hasn't been the responsibility of any commissioner sitting here today, but today the question is, how do we deal with this deck of cards we've been dealt?
What I see happening here is an insufficient order that creates a lose-lose situation. It is going to invite further litigation and further delay for the project sponsors who want to get this done, and it is a loss for the potentially impacted communities who haven't had the chance to comment on the proceedings.
I'll start first on environmental justice. In C-1, which is the Rio Grande LNG facility and Rio Bravo, there are 367 new communities that may be environmental justice communities impacted by the Commission's decision. Those communities have had no meaningful opportunity to comment on the potential impacts the project may have or on the mitigation to address those potential impacts.
By failing to issue a supplemental EIS and instead tucking this revised safety and environmental analyses into the body and appendices of today's order, the Commission has created an incomplete and inadequate record and lacks a basis for reasoned decision-making. I disagree; I believe that these orders are deficient under the Natural Gas Act, under NEPA, and under the APA, and that fact alone invites further delay. More generally, this procedural corner-cutting represents a gobsmacking departure, frankly, from the lessons I took away from the environmental justice roundtable we held just a month ago.
I also want to touch on the significance issue—that's relevant in C-1, C-2, as well as a partial dissent of mine in C-4.
The majority order on the significance of greenhouse gas emissions should be considered in the context of the ongoing dialogue that this Commission has been having for the last year in our open greenhouse gas policy statement docket and our natural gas certificate policy statement document.
Over the last year, our Commission orders have justified the lack of a significance finding because that issue is under consideration in that open generic proceeding. I have been clear in my own lessons-learned department that I am open to working with my colleagues toward incremental improvements to the 1999 policy statement and our environmental considerations via the record in those dockets.
Today, unfortunately, the majority order flouts that process and all of the comments in those dockets pertaining to GHG significance findings. Instead, it moves to solidify in this individual fact-specific proceeding the idea that it is simply impossible to use the social cost of carbon protocol at the project level and that no other credible method is available.
So here’s the thing. I don't know if the social cost of carbon protocol will ultimately work for project level review or not. But the Commission hasn’t tried to seriously evaluate the question. Today’s order provides a hit parade of previously expressed concerns about the social cost of carbon protocol, but nowhere engages with counter perspectives in the open docket or explains why it need not do so. This doesn't further the goals of regulatory certainty, and it certainly doesn't engage with and value the comments that we asked for in the docket related to our significance findings.
For those reasons, while I hope that we will continue to find a path forward on these issues collaboratively at the Commission, I'm going to dissent in C-1, C-2, and partially in C-4.