September 23, 2022
CP21-463-000
I concur in the decision to grant Texas Eastern Transmission, LP’s (Texas Eastern) application pursuant to sections 7(b) and 7(c) of the Natural Gas Act (NGA)[1] and Part 157 of the Commission’s regulations[2] for authorization to abandon, install, construct, modify, and operate certain natural gas compression facilities at the Holbrook Compressor Station, located in Greene County, Pennsylvania (Holbrook Compressor Units Replacement Project). I write separately to highlight several aspects of this order and the Commission’s recent NGA sections 3 and 7[3] authorizations more broadly.
First, although I agree that the Commission must act “in accordance with our . . . statutory duties,”[4] we must first examine the scope of our inquiry under the public convenience and necessity standard. The Supreme Court has found that NGA section “7(e) requires the Commission to evaluate all factors bearing on the public interest.”[5] This obligation, however, is not unlimited in scope and this requirement cannot be read in a vacuum. The Supreme Court has explained that the inclusion of the term “public interest” in our statute is not “a broad license to promote the general public welfare”—instead, it “take[s] meaning from the purposes of the regulatory legislation.”[6] The purpose of the NGA, as the Supreme Court has instructed us, is “to encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”[7] To the extent to which any Commission issuance attempts to expand the subjects we consider in our inquiry under the public convenience and necessity standard (as, for example, is contemplated by the now-draft Updated Certificate Policy Statement),[8] I reiterate my view that any regime we institute must “take meaning” from the purpose of the NGA.
Second, as I have explained in recently-issued certificate orders,[9] while not fatal to the durability of the order, I would have explicitly repudiated Northern Natural Gas Company[10] and reaffirmed the Commission’s prior position that “[w]ithout an accepted methodology, the Commission cannot make a finding whether a particular quantity of greenhouse gas [(GHG)] emissions poses a significant impact on the environment, whether directly or cumulatively with other sources, and how that impact would contribute to climate change.”[11] This is because, as the Commission has stated, it is unable to connect a particular project’s GHG emissions to discrete, physical effects on the environment.[12] The Council on Environmental Quality (CEQ) has found similarly.[13] Moreover, there is no standard by which the Commission could, consistent with our obligations under the law, ascribe significance to a particular rate or volume of GHG emissions.[14] And the Commission’s recent attempts to do so, absent the expertise to make such a determination and the statutory authority to impose it, have amounted to little more than picking arbitrary numbers.[15]
In now stating in our orders that “[t]he Commission is not herein characterizing the emissions as significant or insignificant because we are conducting a generic proceeding to determine whether and how the Commission will conduct significance determinations going forward,”[16] the Commission has effectively preserved the ability to expand the use of its flawed “eyeball” test, possibly employing a new number as the threshold. The inclusion of this sentence in our recent orders demonstrates that my colleagues persist in the misapprehension that we have the authority to establish an arbitrary significance threshold. How will the Commission conduct significance determinations going forward? Or a better question: how exactly can the Commission conduct significance determinations going forward? We have a mess on our hands because of changing, inconsistent practice and because the Commission’s policy of picking numbers out of thin air and then declaring new thresholds brings with it significant legal risk.[17] While not done in this case, in several proceedings Commission staff has made significance determinations in a NEPA document[18] published after the issuance of the Commission’s Interim GHG Policy Statement[19] and before that policy statement was retroactively converted to a draft policy statement.[20] In three proceedings, the Commission issued an order that neither acknowledged nor adopted staff’s significance determination.[21] But in one recent proceeding, the Commission did in fact acknowledge that staff previously assessed significance, and declined to adopt that determination.[22] We should stop issuing confusing, inconsistent statements and we should no longer attempt to preserve our ability to set arbitrary thresholds. The establishment of the 100,000 metric tpy significance threshold was a mistake,[23] and I urge the Commission not to make the same mistake again. Establishment of wholly arbitrary thresholds for the purpose of determining when mitigation will be required is likely outside our authority[24] and, if the Commission’s choice of an arbitrary number is unsupported by actual reasoning, it will fail under the Administrative Procedure Act.
In addition, we have recently been reminded by the Supreme Court how important it is to be cautious and deliberate when attempting to regulate any subject matter that Congress has not clearly placed within our jurisdiction, especially when the regulation of these fields will have a profound effect on a major industry that is fundamental to the health and prosperity of all Americans. West Virginia v. Environmental Protection Agency (West Virginia)[25] should give the Commission pause before it blunders further into this territory. West Virginia perfectly mirrors Commissioner Christie’s dissent regarding the major questions doctrine and counsels caution.[26] The Commission is charged under the NGA with “encourag[ing] the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”[27] The NGA’s purpose, established by Congress and articulated by the Supreme Court, is for the Commission to promote the consumption of natural gas. It is not an environmental statute and to adopt mitigation policies or establish thresholds, the effect of which would be to frustrate the primary purpose of the statute, in order to pursue policy goals in an arena not delegated by Congress, invites challenges under West Virginia. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”[28] In light of the Supreme Court’s reinvigoration of the major questions doctrine, we should abandon a project that clearly exceeds the boundaries of our delegated authority and proceed by simply terminating Docket No. PL21-3-000 (Consideration of GHG Emissions in Natural Gas Infrastructure Project Reviews).
Third, I object to staff’s inclusion of a Social Cost of GHGs calculation based on the estimated emissions from the project’s construction and operation in this proceeding’s Environmental Assessment.[29] The Commission has often—and extensively—discussed why the Social Cost of Carbon is ill-suited to project-level NEPA review, and why the Social Cost of Carbon cannot meaningfully inform the Commission’s decision to approve or disapprove natural gas infrastructure projects under the NGA.[30] And as the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) recognized just last month, the D.C. Circuit has previously upheld the Commission’s decision to not use the Social Cost of Carbon and has similarly upheld the Commission’s conclusion there is “‘no scientifically-accepted methodology available to correlate specific amounts of [greenhouse-gas] emissions to discrete changes in’ the human environment.”[31] No valuable information can be gleaned from the numbers included in Commission staff’s Environmental Assessment and they serve merely to confuse the matter—they should be omitted from future issuances.[32]
Fourth, I recognize that Texas Eastern stated in its application that “the purpose of the Project is to ensure the continued safe and reliable operation of the Station, at its certificated capacity, while meeting all current air emissions requirements, by replacing the existing reciprocating units at the Station.”[33] I disagree, however, with the Commission’s statement that “[t]he proposed project will enable Texas Eastern to meet state air emission standards while continuing to provide safe and reliable service, which we find sufficient to demonstrate a need for the project.”[34] That the project will meet state air emission standards is not the basis for determining that there is need for the project. I would have instead found that the project is required by the public convenience and necessity solely on the basis that it will allow for continuity of reliable service to Texas Eastern’s customers.
Finally, there may of course be certificate proceedings where it is difficult for the Commission to act by the date requested by the applicant, but we should do everything we can as an institution to meet reasonable and necessary requests by project applicants. In this proceeding, Texas Eastern filed its Application on June 17, 2021 and requested that the Commission act on the Application by January 15, 2022.[35] This date requested for Commission action was due in part to Texas Eastern’s goal to begin construction activities “as early as May 2022, and to complete the Project and place the Project facilities into service by November 1, 2023, prior to the start of the 2023/2024 winter heating season.”[36] Yes, a timeline of approximately seven months for the Commission to act on a certificate application is somewhat optimistic. Nevertheless, there were still perhaps unnecessary delays in this proceeding. For instance, the Commission issued the Notice of Scoping Period[37] on October 1, 2021 (i.e., 106 days after the filing of the Application), and the scoping period lasted until November 1, 2021.[38] The Commission then waited until January 28, 2022 to issue its Notice of Schedule for the Preparation of an Environmental Assessment for the Holbrook Compressor Units Replacement Project re Texas Eastern Transmission, LP under CP21-463. Therefore, Commission staff did not announce the decision to prepare an environmental assessment (EA) and the schedule for the EA until 13 days after the applicant’s requested date for Commission action and 225 days after the Application was filed.[39] We are now issuing the order 250 days after the applicant’s requested date for Commission action and four months after the applicant aimed to begin its construction activities. The construction for this project may very well be delayed even further due to supply chain constraints experienced by the industry[40] and perhaps even construction constraints due to approaching winter season.[41]
I have said it before—repeatedly—and I will say it again: the cost of delays in processing NGA section 7 applications are profound.[42] Delay results in greater project expense and difficulty securing capital on acceptable terms. Uncertainty around timelines increases risk premiums and makes it harder to rationally allocate capital in this capital-intensive industry. This further chills investment and impairs the development of an industry the Commission is charged with promoting.[43] Especially now, when certain regions face desperate shortages of natural gas, we should not be delaying these applications at all.
For these reasons, I respectfully concur in the judgment.
[1] 15 U.S.C. § 717f(b), (c).
[2] 18 C.F.R. pt. 157.
[4] Tex. E. Transmission, LP, 180 FERC ¶ 61,186, at P 32 n.53 (2022) (Texas Eastern) (“While the Commission is not one of the specified agencies in Executive Order 12898, the Commission nonetheless addresses environmental justice in its analysis, in accordance with our governing regulations and guidance, and statutory duties.”) (citing 15 U.S.C. § 717f).
[5] Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959).
[6] NAACP v. FPC, 425 U.S. 662, 669 (1976) (NAACP).
[7] Id. at 669-70; accord Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1307 (D.C. Cir. 2015) (Myersville Citizens for a Rural Cmty.) (quoting NAACP, 425 U.S. at 669-70). I note that the Supreme Court has also recognized the Commission has authority to consider “other subsidiary purposes,” such as “conservation, environmental, and antitrust questions.” NAACP, 425 U.S. at 670 & n.6 (citations omitted). But all subsidiary purposes are, necessarily, subordinate to the statute’s primary purpose.
[8] Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,107 (2022) (Updated Certificate Policy Statement); see Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,197, at P 2 (2022) (Order on Draft Policy Statements) (converting the two policy statements issued on February 18, 2022, Updated Certificate Policy Statement, 178 FERC ¶ 61,107 and Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Revs., 178 FERC ¶ 61,108 (2022) (Interim GHG Policy Statement), to “draft” policy statements).
[9] See, e.g., Columbia Gulf Transmission, LLC, 178 FERC ¶ 61,198 (2022) (Danly, Comm’r, concurring in the judgment at PP 2-4) (Columbia Gulf).
[10] N. Nat. Gas Co., 174 FERC ¶ 61,189 (2021) (Northern). In Northern, a majority of my colleagues established what has been referred to (by some) as the “eyeball” test. See Catherine Morehouse, Glick, Danly spar over gas pipeline reviews as FERC considers project’s climate impacts for first time, Util. Dive, Mar. 19, 2021, https://www.utilitydive.com/news/glick-danly-spar-over-gas-pipeline-reviews-as-ferc-considers-projects-cli/597016/ (“‘We essentially used the eyeball test,’ [Chairman Glick] said, adding that based on that analysis, ‘it didn’t seem significant in terms of the impact of those emissions on climate change.’”).
[11] Dominion Transmission, Inc., 163 FERC ¶ 61,128, at P 67 (2018) (footnote omitted).
[12] See, e.g., Nat’l Fuel Gas Supply Corp., 158 FERC ¶ 61,145, at P 188 (2017).
[13] See CEQ, Draft [National Environmental Policy Act (NEPA)] Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions, at 3 (Feb. 18, 2010), https://obamawhitehouse.archives.gov/sites/default/files/microsites/ceq/20100218-nepa-consideration-effects-ghg-draft-guidance.pdf (“it is not currently useful for the NEPA analysis to attempt to link specific climatological changes, or the environmental impacts thereof, to the particular project or emissions, as such direct linkage is difficult to isolate and to understand.”).
[14] See, e.g., Mountain Valley Pipeline, LLC, 163 FERC ¶ 61,197, at P 292 (2018).
[15] See Interim GHG Policy Statement, 178 FERC ¶ 61,108, at PP 79-81 (2022) (establishing a significance threshold of 100,000 metric tons per year (tpy) of CO2e); id. (Danly, Comm’r, dissenting at PP 32-36) (explaining why the majority’s presumptive significance threshold is illogical); see also Northern, 174 FERC ¶ 61,189 (Danly, Comm’r, concurring in part and dissenting in part at P 16) (comparing the Northern test to “like posting a speed limit sign with a question mark instead of a number, leaving it to the police officer to decide arbitrarily whether you were speeding”).
[16] Texas Eastern, 180 FERC ¶ 61,186 at P 27.
[17] The Commission is authorized to make a “‘rational legislative-type judgment’” but may not “pluck a number out of thin air when it promulgates rules.” WJG Tel. Co., Inc. v. FCC, 675 F.2d 386, 388-89 (D.C. Cir. 1982) (quoting FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775, 814 (1978)); see also LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55, 61 (D.C. Cir. 2004) (“In the absence of an explanation, the ‘totality of the circumstances’ can become simply a cloak for agency whim—or worse.”) (citation omitted).
[18] See, e.g., Commission Staff, Environmental Assessment for Golden Pass LNG Terminal LLC Variance Request No. 15, Docket No. CP14-517-001, at 25 (Mar. 22, 2022) (“In order to assess impacts on climate change associated with the Project, we applied the Commission’s Interim Policy Statement on ‘Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews’ issued on February 18, 2022 in Docket No. PL21-3-000 that established a significance threshold of 100,000 metric tpy of CO2e. The Amendment’s construction emissions of 93,642 metric tpy of CO2e would not exceed the Commission’s presumptive significance threshold.”) (citing Interim GHG Policy Statement, 178 FERC ¶ 61,108); Commission Staff, Environmental Assessment for Equitrans L.P. Truittsburg Well Conversion Project, Docket No. CP22-24-000, at 29 (Mar. 7, 2022) (finding that the “Project’s construction and operation emissions would fall below the Commission’s presumptive [100,000 metric tpy] significance threshold”); Commission Staff, Final Environmental Impact Statement for Kern River Transmission Company Delta Lateral Project, Docket No. CP21-197-000, at 4-75 (Feb. 25, 2022) (finding that “[t]he Project operations and downstream combustion of gas transported by the Project could potentially increase emissions by over 2.7 million metric tpy of CO2e, which exceeds the Commission’s presumptive threshold of significance”).
[19] Interim GHG Policy Statement, 178 FERC ¶ 61,108.
[20] See Order on Draft Policy Statements, 178 FERC ¶ 61,197 at P 2.
[21] Compare ANR Pipeline Co., 179 FERC ¶ 61,122, at P 35 (2022) (“The Commission is not herein characterizing these emissions as significant or insignificant because we are conducting a generic proceeding to determine whether and how the Commission will conduct significance determinations going forward”), and id. P 35 n.42 (“Although we acknowledge that the Commission has previously assessed the ‘significance’ of GHGs, see N. Nat. Gas Co., 174 FERC ¶ 61,189 (2021), we do not do so here. The Commission is considering approaches for assessing significance in a pending proceeding.”) (citing Order on Draft Policy Statements, 178 FERC ¶ 61,197), with Commission Staff, Final Environmental Impact Statement for ANR Pipeline Co. Wisconsin Access Project, Docket No. CP21-78-000, at 53-54 (Mar. 18, 2022) (“In order to assess impacts on climate change associated with the Project, Commission staff applied the Commission’s Interim Policy Statement on ‘Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews’ issued on February 18, 2022 in Docket No. PL21-3-000 that established a significance threshold of 100,000 metric tpy of CO2e. The Project’s operational and downstream emissions would exceed the Commission’s presumptive significance threshold based on 100 percent utilization.”) (citing Interim GHG Policy Statement, 178 FERC ¶ 61,108). See also Golden Pass LNG Terminal LLC, 180 FERC ¶ 61,058, at P 20 (2022) (stating that “[t]he Commission is not herein characterizing these emissions as significant or insignificant because we are conducting a generic proceeding to determine whether and how the Commission will conduct significance determinations going forward” even though staff previously applied a significance threshold in the Environmental Assessment); Rover Pipeline LLC, 179 FERC ¶ 61,043, at P 18 (2022) (same).
[22] See Spire Storage W. LLC, 179 FERC ¶ 61,123, at P 52 n.106 (2022) (“acknowledg[ing] that the Commission has previously assessed the ‘significance’ of GHGs, see N. Nat. Gas Co., 174 FERC ¶ 61,189 (2021), and Commission staff assessed the significance of GHGs for the project in the final EIS by applying the Commission’s February 17, 2022 Interim Policy Statement”).
[23] But see Columbia Gulf, 178 FERC ¶ 61,198 (Glick, Chairman, concurring at P 5 n.14) (“I recognize the now-draft GHG policy statement proposes 100,000 metric tons as a threshold over which a project’s GHG emissions would be presumed significant. In my view, that is a deliberately conservative number intended to ensure that the Commission did not lead projects developers down the path of an environmental assessment, only to subsequently change course and require an environmental impact statement in the event that the Commission were to establish a lower threshold in a final GHG policy statement than it did in the then-interim, now-draft policy statement. I remain open to reviewing the comments submitted in response to that draft statement, as well as guidance we may receive from other federal agencies, in considering what threshold would be appropriate in a final policy statement.”) (emphasis added) (citation omitted).
[24] See Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C. Cir. 2002) (“As a federal agency, FERC is a ‘creature of statute,’ having ‘no constitutional or common law existence or authority, but only those authorities conferred upon it by Congress.’”) (quoting Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001)) (emphasis in Atl. City Elec. Co.); see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.”); see also Senate Energy & Nat. Res. Committee, Full Committee Hearing To Review FERC’s Recent Guidance On Natural Gas Pipelines, https://www.energy.senate.gov/hearings/2022/3/full-committee-hearing-to-review-ferc-s-recent-guidance-on-natural-gas-pipelines, at 00:58:30 (Mar. 3, 2022) (questioning by Chairman Manchin regarding the recent policy statements: “The Commission, you all acknowledge, that . . . no federal agency, including this Commission has established a threshold for determining what level of project-induced greenhouse gas emissions is significant. Why do you all think that FERC, whose primary purpose is to regulate efficient and reliable energy, should be the first agency, the first to set such a standard rather than the environmental agencies?”) (March 2022 Senate Hearing); see generally Interim GHG Policy Statement, 178 FERC ¶ 61,108 (Danly, Comm’r, dissenting).
[25] No. 20-1530, 2022 WL 2347278 (U.S. June 30, 2022).
[26] See Interim GHG Policy Statement, 178 FERC ¶ 61,108 (Christie, Comm’r, dissenting at PP 3, 22-28); Updated Certificate Policy Statement, 178 FERC ¶ 61,107 (Christie, Comm’r, dissenting at PP 3, 22-28).
[27] NAACP, 425 U.S. at 669-70 (1976) (citations omitted); accord Myersville Citizens for a Rural Cmty., 783 F.3d at 1307 (quoting NAACP, 425 U.S. at 669-70).
[28] West Virginia v. EPA, 2022 WL 2347278, at **18.
[29] See Commission Staff, Environmental Assessment for the Holbrook Compressor Station Units Replacement Project Under CP21-463-000, at 49-50 (May 12, 2022); Texas Eastern, 180 FERC ¶ 61,186 at P 87.
[30] See, e.g., Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043, at P 296 (2017), order on reh’g, 163 FERC ¶ 61,197, at PP 275-97 (2018), aff’d sub nom. Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199, at *2 (D.C. Cir. 2019) (“[The Commission] gave several reasons why it believed petitioners’ preferred metric, the Social Cost of Carbon tool, is not an appropriate measure of project-level climate change impacts and their significance under NEPA or the Natural Gas Act. That is all that is required for NEPA purposes.”).
[31] Del. Riverkeeper Network v. FERC, 45 F.4th 104, 111 (D.C. Cir. 2022) (citing EarthReports, Inc. v. FERC, 828 F.3d 949, 956 (D.C. Cir. 2016)) (citation omitted); see id. at 112 (finding that because petitioners “did not argue before the Commission that section 1502.21(c) required the use of the Social Cost of Carbon tool,” the court lacked jurisdiction to consider that argument). But see Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321, 1330 (D.C. Cir. 2021) (remanding the Commission’s decision to not use the Social Cost of Carbon because the court found that the Commission failed to respond to an argument raised on rehearing that 40 C.F.R. § 1502.21(c) calls for the Commission to apply the social cost of carbon).
[32] Because the Social Cost of Carbon was not developed for project-level review, its use is not required for the evaluation of impacts under section 1502.21 of the CEQ’s regulations. 40 C.F.R. § 1502.21(c). This reasoning is consistent with Florida Southeast Connection, LLC where the Commission stated, “[a]nd we do not dispute that [the Social Cost of Carbon] is generally accepted in the scientific community and can play an important role in different contexts, such as rulemaking proceedings.” 164 FERC ¶ 61,099, at P 35 (2018) (emphasis added) (footnote omitted).
[33] Application at 9; see id. at 10; see also Transmittal at 1.
[34] Texas Eastern, 180 FERC ¶ 61,186 at P 46 (emphasis added).
[35] Application at 3; see also Transmittal at 1.
[36] Application at 3.
[37] Commission Staff October 1, 2021 Notice of Scoping Period Requesting Comments on Environmental Issues for the Proposed Holbrook Compressor Units Replacement Project re Texas Eastern Transmission, LP under CP21-463 (Notice of Scoping Period).
[38] See id. at 1. In the Notice of Scoping Period, Commission staff explained that it would determine after the scoping period whether to prepare an environmental assessment or an environmental impact statement. Notice of Scoping Period at 4 (“Following this scoping period, Commission staff will determine whether to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). . . . If Commission staff prepares an EA, a Notice of Schedule for the Preparation of an Environmental Assessment will be issued. . . . If Commission staff prepares an EIS, a Notice of Intent to Prepare an EIS/Notice of Schedule will be issued, which will open up an additional comment period.”).
[39] But see 18 C.F.R. § 157.9(b) (“For each application that will require an environmental assessment or an environmental impact statement, notice of a schedule for the environmental review will be issued within 90 days of the notice of the application, and subsequently will be published in the Federal Register.”).
[40] See Southern Star Central Gas Pipeline, Inc., Request for an Extension of Time, Docket No. CP19-31-000, at 2 (April 1, 2022) (Accession No. 20220401-5060) (“As is the case with many materials used not only in the natural gas industry but across many industries, supply chain issues are wreaking havoc with projects of all kinds. Using the current lead time for the materials, Southern Star expects to complete construction of the mitigation by December 2, 2022 and submit the follow-up sound survey report by January 31, 2023.”) (emphasis added); The Williams Co., Inc. Comments, Docket Nos. PL18-1-000 & PL21-3-000, at 8 (Mar. 16, 2022) (Accession No. 20220316-5132) (explaining that a “delay [in] purchasing materials or entering into binding arrangements with contractors until after a final, binding certificate is in hand . . . would require pipelines to stretch estimated construction schedules under the best of circumstances, even more so given the existing tight labor markets and constrained supply chains”).
[41] See, e.g., Spire Storage West LLC, 179 FERC ¶ 61,123 (2022) (Danly, Comm’r, concurring in part & dissenting in part at P 3) (explaining that the Clear Creek Expansion Project was “unnecessarily delayed” because “Commission staff (who work at the Chairman’s direction) chose to prepare an EIS when a much shorter EA would have been sufficient, adding months to the process” and “[t]he majority’s decision to . . . stay the certificate could very possibly result in a delay that is ‘harmful’ to the proposed project due to the need to ‘contend with especially short construction seasons’ because ‘Wyoming’s winters are severe and the ground freezes early.’”) (quoting Senator Barrasso Letter, Docket No. CP21-6-000, at 2 (filed Apr. 28, 2022)). See also Senator Barrasso Letter, Docket Nos. PL18-1-000, et al., at 3 (filed Feb. 15, 2022) (“Administrative delays hit projects in Wyoming particularly hard. Our short construction season effectively begins in May after the spring thaw and continues only through October, when freezing weather begins to set in. Even a delay of a few weeks can lead to a much longer delay. . . . Practically speaking, if the Commission does not act . . . by May 31, 2022, the project will be at severe risk of losing an entire construction season. The result could be that Americans across the West will not have the benefits of this natural gas storage until years later than planned.”).
[42] See, e.g., Nat’l Grid LNG, LLC, 179 FERC ¶ 61,205, at PP 5-7 (2022) (explaining that although National Grid LNG, LLC “planned to begin construction of the project at the end of 2016[,] . . . it did not receive certificate authorization until October 2018,” and therefore it requested an increase in its initial recourse rates since the estimated cost of the facilities increased from $180,256,679 to $390,829,000—a difference of $210,572,321—as a result of increased construction costs due to the timing change and construction work plan changes). Cf. Duke Energy, Dominion Energy and Duke Energy cancel the Atlantic Coast Pipeline (July 5, 2020), https://news.duke-energy.com/releases/dominion-energy-and-duke-energy-cancel-the-atlantic-coast-pipeline (announcing Dominion Energy’s and Duke Energy’s cancellation of the Atlantic Coast Pipeline Project—a project with a Commission-issued certificate of public convenience and necessity—due to “ongoing delays and increasing cost uncertainty which threaten[ed] the economic viability of the project” and explaining that the project faced many challenges, including: (1) adverse court decisions regarding their federal permit for waterbody and wetland crossings (Nationwide Permit 12), which led to uncertainty in the companies’ investment; and (2) “legal challenges to the project’s federal and state permits[,] . . . [which] caused significant project cost increases and timing delays” and resulted in an estimated “project cost . . . increase[] to $8 billion from the original estimate of $4.5 to $5.0 billion” as well as an estimated delay of “three-and- a-half-year[s]” for the project’s in-service date).
[43] See NAACP, 425 U.S. at 669-70 (recognizing that the purpose of the NGA is to “encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices”) (citations omitted).