Docket No. CP16-116-002
I dissent from the Order[1] because (1) the Commission was required to prepare a supplemental environmental impact statement (EIS) and its failure to do so renders the Order’s significance determinations unsupportable; (2) the Commission should have granted the requests it received to hold public meetings addressing the Commission’s new analyses of environmental and other impacts;[2] and (3) I disagree with the Order’s explanation for why the Commission is not determining the significance of greenhouse gas (GHG) emissions associated with the Texas LNG Terminal project.[3] The Commission’s failure to prepare a supplemental environmental impact statement (EIS) for the project, and to take public comment on the supplement, leaves the Commission with a fundamentally flawed record that cannot support a public interest determination for the project. I therefore dissent from the Order’s ultimate conclusion that the Texas LNG Terminal is not inconsistent with the public interest.[4]
In performing the expanded review of EJ impacts required by the D.C. Circuit’s remand decision in Vecinos,[5] the Commission identified 274 additional EJ communities in the area around the Texas LNG Terminal that could be impacted by the project, beyond the five identified in the Commission’s original analysis.. The Commission has not provided members of these newly identified EJ communities any meaningful opportunity to comment on the impacts the projects may have on them or what mitigation measures would help prevent or minimize any adverse impacts. For the reasons explained below, the Commission should have issued the new environmental and safety analyses included in the body and appendices of the Order as a supplemental EIS, issued targeted notices of the supplemental EIS to potentially affected EJ communities, and allowed a reasonable period for public comment on the supplemental EIS, including oral comments at the town hall style meetings that commenters have requested. The Commission’s failure to do so leaves us with an incomplete administrative record with respect to potential adverse impacts on newly identified EJ communities, the significance of those impacts, and mitigation measures to address them. In short, we lack the foundation for reasoned decision-making on these vital issues.
The National Environmental Policy Act (NEPA) requires agencies to prepare an EIS for “major Federal actions significantly affecting the quality of the human environment.”[6] The Commission did so before approving the Texas LNG Terminal project. However, that was not enough to meet our obligations under NEPA. According to the Council on Environmental Quality’s (CEQ) regulations implementing NEPA, an agency must prepare a supplemental EIS if “there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.”[7] Since issuing the original EIS for the Texas LNG Terminal project, and following the remand in Vecinos, the Commission has identified hundreds of additional potentially affected EJ communities. Under any reasonable interpretation of CEQ’s regulation, this is significant new information “relevant to environmental concerns.” For that reason alone, the Commission should have issued its new analyses as a supplemental EIS and provided an opportunity for public comment on it.[8]
The other reasons a supplemental EIS is required are equally plain. In the Order, the Commission finds that, even with Texas LNG’s proposed mitigation measures, during periods when construction, operation, and commissioning activities occur at the same time at the LNG terminal, the Clean Air Act National Air Ambient Quality Standards (NAAQS) may be exceeded for certain air pollutants.[9] The Order imposes a new air pollution and monitoring condition that may prevent or reduce NAAQS violations.[10] Although I agree that imposing this condition is a beneficial step to take, I cannot conclude that it will be sufficient to reduce cumulative air emissions to an insignificant level because the condition itself is vague[11] and we have had no public comment on whether it will be effective or what additional mitigation may be needed. The Order also finds that visual impacts on EJ communities would be significant.[12] However, it imposes no new mitigation measures to minimize those impacts. These findings in the Order themselves indicate a supplemental EIS is necessary.
The need for a supplemental EIS does not hinge on a definitive finding that environmental impacts will be significant. To the contrary, NEPA requires that an agency prepare an EIS where there “might” be “any” significant environmental impacts.[13] Moreover, “the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance.”[14] Since the Commission has determined that there may be significant air pollution and visual impacts associated with the Texas LNG Terminal, it was required to prepare a supplemental EIS.
The procedures employed here run counter to NEPA’s fundamental purposes. As the Supreme Court has explained, the statute’s EIS requirement “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” [15] NEPA’s public participation requirements ensure that “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.”[16] Publishing an EIS “provides a springboard for public comment.”[17] By failing to issue a supplemental EIS for public comment prior to today’s Order, the Commission deprived the public of any meaningful opportunity to participate. That, in turn, prevented the Commission from reflecting in its decision today essential information the public generally and affected EJ communities otherwise could have provided on the Commission’s new environmental and safety analyses.
Embedding the Commission’s new environmental and safety analyses in the Order and its appendices is no substitute for the public notice and comment process under NEPA. The Commission does not send out notices of its orders to the mailing list compiled for purposes of the original EIS process. And it certainly does not send targeted notices to members of newly identified EJ communities. Consequently, the hundreds of EJ communities potentially impacted by the Texas LNG Terminal project have no practical way of even discovering that they are within the project’s potential impact zone.
Failing to allow meaningful public participation is not just some technical error. Rather, public input provides the foundation for an agency’s substantive decisions. The procedures used here not only violated NEPA, but also undermined the Commission’s ability to engage in reasoned decision-making, as it is required to do under the Administrative Procedure Act (APA).[18] That is because the Commission does not have a complete record reflecting input from the hundreds of newly identified EJ communities, or from the public generally, on the new environmental and safety analyses.
Even if the Commission were not legally required to issue a supplemental EIS for public comment, doing so would be the right way to implement the applicable Executive Orders (EOs) and guidance on EJ.[19] These documents call for identification, analysis, and mitigation of impacts on EJ communities. Where agencies have identified potentially affected minority and/or low income communities, the identification “should trigger” an “enhanced outreach effort to assure that low-income and minority populations are engaged in public participation.”[20] Section 5-5 of the 1994 EJ EO states that agencies “shall work to ensure that public documents, notices, and hearings relating to human health or the environment are concise, understandable, and readily accessible to the public.”[21] Furthermore, the 1997 CEQ Guidance specifically instructs that agencies “should develop effective public participation strategies” and “overcome linguistic, cultural, institutional, geographic, and other barriers to meaningful participation.”[22] The sad fact is that the Commission has made no effort to inform potentially affected EJ communities of its new environmental and safety analyses, let alone make the analyses “readily accessible” to them. Rather than implementing an “effective public participation strategy,” the Commission has shut the door on public participation by embedding its new analyses in the Order.
I am particularly troubled that neither the general public nor the newly identified EJ communities will have a meaningful opportunity to comment on the Commission’s new air monitoring and mitigation condition or other potential mitigation measures. CEQ’s guidance on EJ specifically instructs that “members of the affected communities should be consulted” when an agency is “identifying and developing potential mitigation measures to address environmental justice concerns.”[23]
To give credit where it is due, the Commission did provide an opportunity for comment on the project sponsors’ responses to certain of Commission staff’s environmental information requests (EIRs).[24] However, there was no opportunity to comment on critical air modeling information used in the Commission staff’s cumulative air impacts analysis because that information was submitted after the comment period closed.[25] The necessity for, and value of, allowing public comment on the new analyses is evinced by the fact that Vecinos para el Bienestar de la Comunidad Costera and Sierra Club submitted a joint comment letter identifying discrepancies in Texas LNG’s and Rio Grande LNG’s cumulative air impacts modeling that led staff to direct the companies to reconcile their analyses and submit new cumulative air impact modeling.[26]
At the Commission’s March 29, 2023, Roundtable on Environmental Justice and Equity in Infrastructure Permitting, all Commissioners acknowledged the importance of appropriately addressing EJ concerns in our proceedings. In this of all cases, where the D.C. Circuit remanded our inadequate EJ analysis, we should translate our good intentions into action and provide EJ communities a meaningful opportunity to participate. Considering our discussion at the Roundtable of how to facilitate EJ communities’ full participation, it is especially disheartening that the Order rejects requests to hold public meetings, with Spanish translation, to hear communities’ concerns about the project and our new analyses.[27]
I am sensitive to the comments in the record, from the project sponsor and others, that the Commission has unduly delayed its response to the court’s remand in Vecinos and that the delay may postpone benefits the projects offer, including local employment opportunities. More generally, I desire to efficiently process applications for approval of natural gas and LNG projects, as well as the Commission’s response to any court directives relating to project approvals. No member of the current Commission had control over the process for, or timing of, the Commission’s response to the Vecinos court’s remand. The question now is what to do with the hand we have been dealt. Taking procedural shortcuts is the wrong answer. In failing to meet its statutory and regulatory obligations, the Commission invites litigation challenging the Order, potentially leading to further delay. For the sake of all stakeholders, including project sponsors and communities impacted by our decisions, we must do better.
Finally, I dissent from the Commission’s explanation of why it cannot determine the significance of GHG emissions associated with the Texas LNG Terminal.[28] This section of the Order could be interpreted as the Commission’s definitive conclusion that the Social Cost of GHGs protocol is inherently unsuitable for determining the significance of GHG emissions associated with natural gas and LNG infrastructure projects. Moreover, the Order suggests that there is no other “currently scientifically accepted method that would enable the Commission to determine the significance of reasonably foreseeable GHG emissions.”[29] In other recent orders, the Commission has explained that it is not determining the significance of GHG emissions because the issue of how to do so is under consideration in the docket for the Commission’s draft GHG Policy Statement.[30] This Order does not say that. Readers therefore might wonder whether this Order has effectively decided some of the central issues raised in the GHG Policy Statement docket.
I do not know whether the Social Cost of GHGs protocol or another tool can or should be used to determine significance. That is because the Commission has not seriously studied the answer to that question. Rather, the majority has simply decided the method does not work, with no explanation of why the Commission departs from the approach so recently taken in other similar orders.[31] We have yet to address the voluminous record in the GHG Policy Statement docket, including comments that speak to this question. What I do know is that we should decide the important unresolved issues relating to our assessment of GHG emissions through careful deliberation in a generic proceeding with full transparency.
For the foregoing reasons, I respectfully dissent.
[1] Texas LNG Brownsville LLC, 183 FERC ¶ 61,047 (2023) (Order).
[2] See Order at PP 12, 15.
[3] See id. at PP 21, 26.
[4] Id. at P 84.
[5] Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. 2021). The Court instructed that, on remand, the Commission must explain why it used only a two-mile radius for its analysis of EJ impacts or use a different radius. Id. at 1331. The Commission correctly chose to use the 50-kilometer radius in its analysis on remand because that was the only rational choice given that the Commission uses that radius for analysis of air quality impacts. See Order at P 34 & n.86 (explaining 50 kilometers is the distance that the U.S. Environmental Protection Agency uses for cumulative air modeling for major stationary sources under its Prevention of Significant Deterioration Program).
[6] 42 U.S.C. § 4332(2)(C).
[7] 40 C.F.R. § 1502.9(d)(1)(ii). The Commission’s regulations implementing NEPA provide that the Commission will comply with CEQ’s regulations. See 18 C.F.R. § 380.1.
[8] CEQ’s regulations provide that an agency “shall prepare, publish, and file a supplement to a[n EIS] . . . as a draft and final statement.” 40 C.F.R. § 1502.9(3). Although the regulation does not say so explicitly, the only purpose for publishing a draft would be for the public to comment on it. Consistent with the regulation, the Commission’s practice is to issue a draft supplemental EIS for public comment. See, e.g., Magnolia LNC, LLC; Notice of Availability of the Draft Environmental Impact Statement for the Proposed Magnolia Production Capacity Amendment, 84 Fed. Reg. 52,881 (Oct. 3, 2019); Florida Southeast Connection, LLC; Transcontinental Gas Pipe Line Company, LLC; Sabal Trail Transmission, LLC; Notice of Availability of the Draft Supplemental Environmental Impact Statement for the Southeast Market Pipelines Project, 82 Fed. Reg. 16,233 (Oct. 4, 2017).
[9] Order at PP 68, 70.
[10] Id. at PP 70-71.
[11] The new condition describes the basic components of the monitoring and mitigation plan that Texas LNG must file for approval, but it leaves it to the company to flesh out the specific monitoring protocol and corrective actions to be employed. In particular, the condition does not say what Texas must do in response to a NAAQS exceedance or how quickly it must do it. See Order, App. A, Condition 130.
[12] Id. at PP 80-82.
[13] Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1039 (D.C. Cir. 2021) (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).
[14] Stand Up for California! v. U.S. Dep’t of the Interior, 994 F.3d 616, 628 (D.C. Cir. 2021) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 374 (1989)) (internal quotation marks omitted).
[15] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (emphasis added); see also Marsh, 490 U.S. at 371 (“[B]y focusing Government and public attention on the environmental effects of proposed agency action . . . NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.”) (citations omitted); 40 C.F.R. § 1500.1(a) (“The purpose and function of NEPA is satisfied if Federal agencies have considered relevant environmental information, and the public has been informed regarding the decision-making process.”).
[16] Robertson, 490 U.S. at 349.
[17] Id.
[18] 5 U.S.C. § 706(2)(A); see also Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983) (requiring that an agency’s explanation be a “product of reasoned decisionmaking” under the APA); Vecinos, 6 F.4th at 1330 (“[A] petitioner may challenge an agency’s environmental justice analysis as arbitrary and capricious under NEPA and the APA.”); Coliseum Square Ass’n v. Jackson, 465 F.3d 215, 232 (5th Cir. 2006) (finding an agency’s environmental justice considerations reviewable under the “arbitrary and capricious” standard of the APA).
[19] The Commission states that it complies with the relevant EOs and guidance. See Order at PP 28-29; see generally Exec. Order No. 12,898, 59 Fed. Reg. 7629 (1994) (1994 EJ EO); Presidential Memorandum, Executive Order on Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations, 1 Pub. Papers 241 (Feb. 11, 1994) (1994 EJ Memo); Federal Interagency Working Group on Environmental Justice and NEPA Committee, Promising Practices for EJ Methodologies in NEPA Reviews (2016) (Promising Practices Guidance).
[20] Council on Envtl. Quality, Guidance for Incorporating Environmental Justice Concerns in EPA’s NEPA Compliance Analysis 28 (1998) (1998 CEQ Guidance).
[21] 1994 EJ EO § 5-5(c) (emphasis added); see also 1994 EJ EO § 5-5(b) (stating that meeting this public accessibility standard may require, “whenever practicable and appropriate,” “translat[ing] crucial public documents, notices, and hearings related to human health or the environment for limited English speaking populations”).
[22] CEQ, Environmental Justice: Guidance Under the National Environmental Policy Act 9 (1997) (1997 CEQ Guidance) (emphasis added).
[23] 1998 CEQ Guidance at 36.
[24] See Order at P 11.
[25] See id. at P 77 (“Texas LNG filed [its updated air quality impact] model on January 30, 2023.”), P 11 (“[I]nitial comments were due no later than October 21, 2022, and reply comments no later than November 4, 2022.”).
[26] See id. at P 74; see also Rio Grande LNG, LLC, 183 FERC ¶ 61,046, at PP 87, 137 (2023) (describing Sierra Club’s joint comment letter that pointed out the modeling discrepancies between Rio Grande and Texas LNG).
[27] See id. at P 15.
[28] See id. at PP 20-21, 26.
[29] Id. at P 21.
[30] See, e.g., Transcon. Gas Pipe Line Co., 182 FERC ¶ 61,006, at P 73 & n.174 (2023); Columbia Gas Transmission, LLC, 182 FERC ¶ 61,171, at P 46 & n.93 (2023).
[31] To depart from prior precedent without explanation violates the Administrative Procedure Act. See, e.g., W. Deptford Energy, LLC v. FERC, 766 F.3d 10, 17 (D.C. Cir. 2014) (“[T]he Commission cannot depart from [prior] rulings without providing a reasoned analysis.”) (citations omitted).