Docket No. CP24-21-000
I concur with the result of today’s Order, but I dissent from the majority’s conclusion that the Commission is incapable of assessing the significance of the impacts of greenhouse gas (GHG) emissions associated with the E-1 System Regulator Installation Project.[1] Consistent with its own precedent, the Commission should have simply found that the project’s minor GHG emissions are insignificant for purposes of both the National Environmental Policy Act (NEPA)[2] and the Commission’s public interest determination under section 7 of the Natural Gas Act (NGA).[3] Instead, the Order imports language from a recent string of Commission decisions that wrongly claims there are no acceptable tools to determine the significance of GHG emissions.
First, I dissent from the Order’s contention that the Commission is incapable of assessing the significance of GHG emissions because it flatly contradicts the Commission’s own determination to the contrary. In Northern Natural Gas Co., the Commission found that it could determine the significance of GHG emissions of a natural gas project by applying its experience, judgment, and expertise to the evidence in the record.[4] The combined construction related and operational GHG emissions in that case amounted to 20,006 metric tons of carbon dioxide equivalents (CO2e), which the Commission found to be insignificant. The E-1 System Regulator Installation Project will generate up to 1,908 metric tons of CO2e from project construction and 14 metric tons per year of CO2e from operation, a tenth of the project emissions in Northern Natural.[5] The NGA,[6] NEPA,[7] and the Administrative Procedure Act (APA)[8] require the Commission to assess and fully consider the environmental impacts of GHG emissions associated with projects for which Commission authorization is sought. Where, as here, the GHG emissions clearly would be deemed insignificant under any reasonable framework for assessing significance, the Commission should simply say so rather than shirk its NEPA obligations. [9]
I further dissent from the language in paragraphs 26 and 27 of the Order because it (1) reflects a final Commission decision that it cannot determine the significance of GHG emissions, despite the fact the Commission has never responded to comments in the GHG Policy Statement docket[10] addressing methods for doing so; and (2) departs from previous Commission precedent without reasoned explanation, thereby violating the APA.[11]
I also dissent from the discussion in Paragraphs 26 and 27 because, as I explained in another recent dissent, there is a tool the Commission can and should use to assess the significance of GHG emissions: the Social Cost of Greenhouse Gas Protocol.[12]
For these reasons, I respectfully dissent in part.
[1] Algonquin Gas Transmission, LLC, 187 FERC ¶ 61,198, at PP 26, 27 (2024) (Order).
[2] 42 U.S.C. §§ 4321 et seq.
[3] 15 U.S.C. § 717f.
[4] See N. Nat. Gas Co., 174 FERC ¶ 61,189, at PP 32, 36 (2021).
[5] Order, 187 FERC ¶ 61,198 at P 21.
[6] NGA § 7(e), 15 U.S.C. § 717f(e). Courts have recognized that the Commission must consider the impacts of proposed project’s GHG emissions in determining the “public convenience and necessity” under the NGA. See Vecinos Para el Bienstar de la Comunidad Costera v. FERC, 6 F.4th 1321, 1329, 1331 (D.C. Cir. 2021) (Vecinos) (finding the Commission’s analysis of climate change impacts deficient and directing the Commission to revisit its NEPA analysis and NGA public interest determination after correcting deficiencies); see also Del. Riverkeeper Network v. FERC, 45 F.4th 104, 109, 115 (D.C. Cir. 2022) (finding the Commission’s NGA section 7 balancing of public benefits and adverse consequences reasonably accounted for potential environmental impacts” and noting that in some circumstances GHG emissions are a reasonably foreseeable effect of a pipeline project that must be studied under NEPA); Food & Water Watch v. FERC, 28 F.4th 277, 282 (D.C. Cir. 2022) (recognizing the NGA section 7 certificate process incorporates environmental review under NEPA, which includes analysis of downstream GHG emissions.); Birckhead v. FERC, 925 F.3d 510, 518-519 (D.C. Cir. 2019) (affirming previous holdings that the Commission is the “legally relevant cause of the direct and indirect environmental effects of pipelines it approves,” including reasonably foreseeable GHG emissions (cleaned up)); Sierra Club v. FERC, 867 F.3d 1357, 1373 (D.C. Cir. 2017) (addressing Commission’s treatment of GHG emissions and explaining that the Commission’s public convenience and necessity determination must weigh a project’s environmental effects).
[7] See, e.g., Council on Environmental Quality, National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 Fed. Reg. 1196, 1202 (Jan. 9, 2023) (“In most instances . . . [agencies] should apply the best available estimates of the SC-GHG to the incremental metric tons of each individual type of GHG emissions [in their NEPA analyses]. . .”); Mont. Env’t Info. Ctr. v. U.S. Off. of Surface Mining, 274 F. Supp. 3d 1074, 1099 (D. Mont. 2017) (finding the Office of Surface Mining needed to consider the SC-GHG Protocol in a NEPA analysis); High Country Conservation Advocs. v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1193 (D. Colo. 2014) (rejecting an EIS as deficient for not using the SC-GHG Protocol to assess climate impacts).
[8] The APA requires the Commission to provide a reasoned explanation of its decisions, including how it factors GHG emissions into its public interest determinations under the NGA. See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.”); Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014) (“[A]n agency action will be set aside as arbitrary and capricious if it is not the product of ‘reasoned decisionmaking.” (quoting Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983))).
[9] In Food & Water Watch v. FERC, Nos. 22-1214, 22-1315, 2024 WL 2983833, at *6 (D.C. Cir. Jun. 14, 2024), the court explained that “[a] finding of no significant impact is . . . essential if an agency chooses not to prepare an EIS.” A finding of no significant impact requires that “the agency determines, based on the environmental assessment, not to prepare an environmental impact statement because the proposed action will not have significant effects.” 40 C.F.R. § 1501.6(a) (2024) (emphasis added). The Commission must meet its NEPA obligations and can readily do so by finding the GHG emissions in this case are insignificant.
[10] Docket No. PL21-3.
[11] In my concurrence in Transcon. Gas Pipe Line Co., 184 FERC ¶ 61,066 (2023) (Clements, Comm’r, concurring, at PP 2-3), I explained the history of the language, which the majority suddenly adopted in Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61, 63 (2023) (Driftwood). I dissented from this language in Driftwood and every subsequent order in which it has appeared. See Driftwood, 183 FERC ¶ 61,049 (Clements, Comm’r, dissenting in part at PP 2-3 & n.5); see also Gas Transmission Nw. LLC, 187 FERC ¶ 61,177 (2024) (Clements, Comm’r, dissenting at P 3); Tenn. Gas Pipeline Co., 187 FERC ¶ 61,136 (2004) (Clements, Comm’r, dissenting in part at P 2); Port Arthur LNG, LLC, 187 FERC ¶ 61,058 (2024) (Clements, Comm’r, dissenting in part at P 1); Great Basin Gas Transmission Co., 187 FERC ¶ 61,043 (2024) (Clements, Comm’r, dissenting in part at P 1); Fla. Gas Transmission Co., 187 FERC ¶ 61,042 (2024) (Clements, Comm’r, dissenting in part at P 1); El Paso Nat. Gas Co., 187 FERC ¶ 61,041 (2024) (Clements, Comm’r, dissenting in part at P 1); Transcon. Gas Pipe Line Co., 187 FERC ¶ 61,024 (2024) (Clements, Comm’r, dissenting at P 1) (Transco); Gas Transmission Nw., LLC, 187 FERC ¶ 61,023 (2024) (Clements, Comm’r, dissenting at P 28); E. Tenn. Nat. Gas, LLC, 186 FERC ¶ 61,210 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); Transcon. Gas Pipe Line Co., 186 FERC ¶ 61,209 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); N. Nat. Gas Co., 186 FERC ¶ 61,064 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); Saguaro Connector Pipeline, LLC, 186 FERC ¶ 61,114 (2024) (Clements, Comm’r, dissenting in part at PP 2-4); Tenn. Gas Pipeline Co., 186 FERC ¶ 61,113 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); Transcon. Gas Pipe Line Co., 186 FERC ¶ 61,063 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); Columbia Gas Transmission, LLC, 186 FERC ¶ 61,048 (2024) (Clements, Comm’r, dissenting in part at PP 2-4); Transcon. Gas Pipe Line Co., 186 FERC ¶ 61,047 (2024) (Clements, Comm’r, dissenting at PP 8-9); Tenn. Gas Pipeline Co., 186 FERC ¶ 61,046 (2024) (Clements, Comm’r, dissenting in part at PP 1-2); ANR Pipeline Co., 185 FERC ¶ 61,191 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Transcon. Gas Pipe Line Co., 185 FERC ¶ 61,133 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Transcon. Gas Pipe Line Co., 185 FERC ¶ 61,130 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Tex. LNG Brownsville LLC, 185 FERC ¶ 61,079 (2023) (Clements, Comm’r, dissenting at PP 9-10); Rio Grande LNG, LLC, 185 FERC ¶ 61,080 (2023) (Clements, Comm’r, dissenting at PP 9-10); Gas Transmission Nw., LLC, 185 FERC ¶ 61,035 (2023) (Clements, Comm’r, concurring in part and dissenting in part at PP 7-8); WBI Energy Transmission, Inc., 185 FERC ¶ 61,036 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Venture Glob. Plaquemines LNG, LLC, 185 FERC ¶ 61,037 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Tex. E. Transmission, LP, 185 FERC ¶ 61,038 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Trailblazer Pipeline Co., 185 FERC ¶ 61,039 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Equitrans, L.P., 185 FERC ¶ 61,040 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Port Arthur LNG Phase II, LLC, 184 FERC ¶ 61,184 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Venture Glob. Calcasieu Pass, LLC, 184 FERC ¶ 61,185 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); N. Nat. Gas Co., 184 FERC ¶ 61,186 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Tex. E. Transmission, LP, 184 FERC ¶ 61,187 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Equitrans, LP, 183 FERC ¶ 61,200 (2023) (Clements, Comm’r dissenting at PP 2-3); Commonwealth LNG, LLC, 183 FERC ¶ 61,173 (2023) (Clements, Comm’r, dissenting at PP 5-8); Rio Grande LNG, LLC, 183 FERC ¶ 61,046 (2023) (Clements, Comm’r, dissenting at PP 14-15); Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047 (2023) (Clements, Comm’r, dissenting at PP 14-15).
[12] Transco, 187 FERC ¶ 61,024 (Clements, Comm’r, dissenting at PP 9-17).