Docket No. CP23-519-000
I dissented from the Commission’s Remand Order approving the amended certificate for the Rio Bravo Pipeline Project (Project) because the Commission’s failure to prepare a supplemental environmental impact statement (EIS) for the Project, and take public comment on the supplemental EIS – particularly from the 367 newly identified environmental justice (EJ) communities[1] – produced a fundamentally flawed record that could not support a determination that the Project is required by the public convenience and necessity.[2] Although the certificate amendment approved in today’s Order[3] will decrease the Project’s impacts on endangered ocelots and jaguarundis, I am compelled to dissent because the Project’s certificate is fatally compromised by the Commission’s errors. In other words, because the certificate itself is invalid, any amendment to the certificate is invalid. As explained below, I also dissent because the Order fails to consider significant adverse air pollution impacts that will occur as a direct result of the Commission’s approval of the certificate amendment.
To comply with the National Environmental Policy Act (NEPA), the Commission must consider reasonable alternatives to a proposed project, including the “no action” alternative.[4] The Environmental Assessment (EA) for the Route Amendment Project mischaracterized the no action alternative, and thereby improperly limited the analysis of environmental impacts to the incremental impacts of the certificate amendment, rather than the impacts of the Project as a whole. The EA states that under the no action alternative “[Rio Bravo] would still be authorized to construct the Pipeline Project as previously approved by the 2019 Order and Remand Order,” and thus that “environmental impacts would still result as described in the final Environmental Impact Statement (EIS), Amendment EA and Remand Order.”[5] That is incorrect. Every Commission order regarding the Project has been clear that there must be a route realignment that meets the Fish and Wildlife Service’s (FWS) Biological Opinion (BiOp) terms[6] approved by the Commission before the pipeline can be built.[7] Without the requested certificate amendment, the Project would not have an approved variance request or an amendment for a route comporting with the BiOp’s terms, and thus the Project could not be built. Approving the certificate amendment would therefore be the direct cause of all Project impacts, and those impacts should be considered in assessing the no action alternative and comparing it to the alternative of approving the amendment.[8]
The Commission routinely uses compliance with Clean Air Act National Ambient Air Quality Standards (NAAQS) in determining the significance of a project’s emissions of air pollutants covered by the NAAQS.[9] The EA for the Rio Bravo Pipeline Project Amendment (Amendment EA) approved in the Remand Order found that emissions of PM2.5 from Compressor Station 1 would not cause, or significantly contribute to, an exceedance of the NAAQS for PM2.5, and therefore would not result in regionally significant impacts on air quality.[10] That conclusion was based on the annual PM2.5 NAAQS in effect at the time, which was 12 μg/m3. However, EPA subsequently determined that the annual PM2.5 NAAQS must be set at 9.0 μg/m3 to be protective of the public health and welfare.[11] According to the Amendment EA, the annual PM2.5 background concentration in the project area exceeds that value;[12] the modeled emissions of Compressor Station 1 would be 0.8 μg/m3 and the total PM2.5 annual concentration would therefore be 10 µg/m3.[13] Accordingly, based on the values in the Amendment EA, PM2.5 emissions from Compressor Station 1 would contribute to a NAAQS violation[14] and therefore would be deemed significant for NEPA purposes.
I have long contended that the Commission should have prepared a supplemental EIS after the Vecinos court’s remand. Although the Commission declined to correct the errors in the Remand Order proceeding, it should not compound them by ignoring in this proceeding that PM2.5 emissions from the Compressor Station 1 are projected to exceed the NAAQS and thereby threaten human health. By the Commission’s own yardstick, the NAAQS exceedance constitutes a significant adverse environmental impact. NEPA requires that an agency prepare an EIS for any project that will or might have a significant environmental impact.[15] Accordingly, the Commission should assess the compressor station’s air impacts in an EIS issued in this docket and provide ample opportunity for public comment before deciding on the proposed certificate amendment.
Knowing that Compressor Station 1 is projected to violate the PM2.5 NAAQS, the Commission must assess potential effects on human health and methods to avoid or mitigate them. That is particularly true given that the compressor station’s emissions may impact EJ communities.[16] The Order discounts the significance of the NAAQS revision in citing Sierra Club v. FERC,[17] which addressed the effect of a state law on the Commission’s analysis of the need for a proposed project. Here, air modeling shows that Compressor Station 1’s PM2.5 emissions will exceed the NAAQS and therefore pose a threat to human health, a fact that the Commission should not ignore.
It is disheartening that, with each decision relating to the Rio Bravo Pipeline, the Commission has failed to take the “hard look” at environmental impacts that NEPA requires.[18] The public as a whole – and the 367 newly identified EJ communities in particular – deserve better.
For these reasons, I respectfully dissent.
[1] In performing the expanded review of EJ impacts required by the D.C. Circuit's remand decision in Vecinos para el Bienstar de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. 2021) (Vecinos), the Commission identified 85 additional EJ communities in the area around the Rio Bravo Pipeline project, beyond the 21 identified in the Commission's original analysis.
[2] Rio Grande LNG, LLC, 183 FERC ¶ 61,046 (2023) (Remand Order) (Clements, Comm’r, dissenting at PP 2-12). I also dissented from the Commission’s order on rehearing for the same reasons. Rio Grande LNG, LLC, 185 FERC ¶ 61,080 (2023) (Clements, Comm’r, dissenting at PP 2-8) (Remand Rehearing Order). See also Rio Grande LNG, LLC, 186 FERC ¶ 61,021 (2024) (Clements, Comm’r, dissenting at P 16) (order denying stay).
[3] Rio Bravo Pipeline Co., 187 FERC ¶ 61,104 (2024) (Order).
[4] The Council on Environmental Quality’s (CEQ) regulations implementing NEPA provide that an environmental assessment must discuss alternatives to the proposed action and the environmental impacts of the proposed action and alternatives. 40 C.F.R. § 1501.5(c)(2). The Commission’s own regulations provide that it will comply with CEQ’s regulations. 18 C.F.R. § 380.1. The Commission requires applicants for a Natural Gas Act certificate to submit a resource report on alternatives that discusses the no action alternative. See 18 C.F.R. § 380.12(l). CEQ has explained that, for agency approvals of a proposed project, the no action alternative “mean[s] the proposed activity would not take place, and the resulting environmental effects from taking no action would be compared with the effects of permitting the proposed activity or an alternative activity to go forward.” Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, 18027 (Mar. 23, 1981).
[5] EA at 56.
[6] The BiOp requires that Rio Bravo realign the initially proposed pipeline route to avoid at least 62.6 acres of the 135.9 originally impacted acres of ocelot and jaguarundi habitat. Oct. 2, 2019 FWS Final BiOP at 5. While designated a voluntary conservation measure, the BiOp makes clear that “Rio Bravo must fully implement the Voluntary Conservation Measures proposed in their [BiOp] for this project.” Id. at 34.
[7] Remand Order, 183 FERC ¶ 61,046 at P 14 & n.38 (“Rio Bravo is required to, prior to receiving authorization to commence construction of the pipeline project, submit for Commission approval either a variance request or an amendment, as appropriate, for the route realignment it agreed to with FWS.”); Rio Grande LNG, LLC, 170 FERC ¶ 61,046, at P 31 (2020) (“[T]he November 22 Order also conditioned the LNG Terminal and pipeline authorizations on Rio Grande’s and Rio Bravo’s implementation of the mandatory measures contained in FWS’s Biological Opinion. The Biological Opinion requires Rio Grande and Rio Bravo to implement certain applicant-proposed conservation measures, including realigning the pipeline route to avoid 62.6 acres out of 135.9 acres of ocelot and jaguarundi habitat.”); Rio Grande LNG, LLC, 169 FERC ¶ 61,131, at P 91 (2019) (“With imposition of the conditions required herein, which include all measures required by FWS in its Biological Opinion, we find construction and operation of the projects as approved will be an environmentally acceptable action and not inconsistent with the public interest.”) (emphasis added). The Order attempts to whistle past these mandatory provisions in suggesting Rio Bravo will somehow be able to satisfy FWS with some unspecified alternative to the route realignment. Order, 187 FERC ¶ 61,104 at P 8 & n.16. But the BiOP and the Commission’s orders speak for themselves.
[8] As one court explained, CEQ “intended that agencies compare the potential impacts of the proposed major federal action to the known impacts of maintaining the status quo.” Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001); see also, e.g., Hydro Dev. Group, 101 FERC ¶ 61,100, App. B at 61,390 (“We use [the no-action] alternative to establish baseline environmental conditions for comparison with other alternatives.”). If the Commission were to deny the certificate amendment, the Rio Bravo pipeline could not be built. Accordingly, the required comparison is between the environmental impacts of not building the pipeline and the full range of environmental impacts from building the pipeline.
[9] See, e.g., Great Basin Gas Transmission Co., 187 FERC ¶ 61,043, at P 81 (2024); Fla. Gas Transmission Co., 187 FERC ¶ 61,042, at P 42 (2024); Transcon. Gas Pipe Line Co., 186 FERC ¶ 61,209, at P 48 (2024). The Commission justifies using the NAAQS as a metric on the basis that NAAQS are “established to be protective of human health.” Trailblazer Pipeline Co., 185 FERC ¶ 61,039, at P 98 (2024).
[10] Rio Bravo Pipeline Project Amendment Environmental Assessment at 28-29, Docket No. CP20-481-000 (filed Dec. 21, 2020).
[11] See Reconsideration of the National Ambient Air Quality Standards for Particulate Matter, 89 Fed. Reg. 16202 (Mar. 6, 2024) (to be codified at 40 C.F.R. pts. 50, 53, and 58).
[12] The Amendment EA identified the annual PM2.5 background value at 9.2 µg/m3. Amendment EA at 28, Table 6.
[13] Id.
[14] EPA regulations establish that for the annual PM2.5 NAAQS a source should be considered to cause or contribute to the violation if the source’s emissions exceed 0.3 µg/m3. 40 C.F.R. § 51.165(b)(2). Compressor Station 1’s PM2.5 emissions level of 0.8 µg/m3 exceeds 0.3 µg/m3 and therefore would contribute to the modeled NAAQS exceedance.
[15] Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1039 (D.C. Cir. 2021) (“If any ‘significant’ environmental impacts might result from the proposed agency action, then an EIS must be prepared before agency action is taken.”) (quoting Grand Canyon Tr. v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002)); see also Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983).
[16] The Commission uses Significant Impact Levels (SILs) to determine the area of impact for criteria air pollutants such as PM2.5. The Commission cannot know the extent to which EJ communities will be affected by Compressor Station 1’s PM2.5 emissions until it applies the newly revised PM2.5 SIL to determine the impact radius. See EPA, Supplement to the Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration Permitting Program at 6 -7 (Apr. 30, 2024), https://www.epa.gov/system/files/documents/2024-04/supplement-to-the-guidance-on-significant-impact-levels-for-ozone-and-fine-particles-in-the-psd-permitting-program-4-30-2024.pdf.
[17] Order, 187 FERC ¶ 61,104 at P 8 & n.16 (citing Sierra Club v. FERC, 97 F.4th 16, 28 (D.C. Cir. 2024).
[18] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).