Docket No. CP22-161-000
We concur with the decision to issue a certificate of public convenience and necessity to Gulf South for its Index 130 MS River Crossing Replacement Project. We write separately because today’s order does not assess the significance of the climate impacts from the project’s greenhouse gas (GHG) emissions.[1] Both Commission precedent and common sense support the conclusion that the project’s GHG emissions will not “significantly” affect the environment within the meaning of the National Environmental Policy Act (NEPA).[2] Where, as here, it is obvious that climate impacts cannot be deemed significant under any framework for assessing significance that the Commission may ultimately adopt, the Commission should just say so.
In Northern Natural Gas Co., the Commission found that it could determine the significance of GHG impacts for NEPA purposes using best available quantitative and qualitative evidence and applying its expertise and judgment.[3] The courts have long construed NEPA based on a “common sense” understanding of its terms.[4] The Commission has appropriately decided it will not make significance findings in cases involving potentially significant GHG emissions while we are considering comments on the draft GHG Policy Statement.[5] However, in the meantime we can rely on applicable Commission precedent – and our common sense – in determining whether the GHG emissions in this case would “significantly” affect the environment.
The Index 130 MS River Crossing Replacement Project would have construction related GHG emissions, but would not increase operational GHG emissions. The construction related emissions here would be lower than those from the project in Northern Natural. The project’s construction related GHG emissions would be approximately 4,871 metric tons per year (tpy) CO2e.[6] In Northern Natural, construction-related emissions were estimated at 19,655 metric tons and operational emissions at 351 tpy.[7]
Under any framework the Commission may ultimately adopt for determining GHG significance, the minor construction related GHG emissions here would be deemed insignificant. The Commission should apply our precedent, as well as our common sense, to find that the GHG emissions here are not significant.
For these reasons, we respectfully concur.
[1] Gulf South Pipeline Company, LLC, 181 FERC ¶ 61,145, at P 24 (2022) (Order). We agree with one another that (1) the Commission is fully capable of determining the significance of GHG emissions, and (2) there is no reason to wait for a final GHG Policy Statement to find the emissions here insignificant when they would be deemed so under any reasonable framework for assessing significance. However, as reflected in our separate concurring statements in recent certificate orders, our approaches differ when emissions levels are potentially significant. See, e.g., Tenn. Gas Pipeline Co., L.L.C., 179 FERC ¶ 61,041 (2022) (Glick, Chairman, concurring, at P 7) (“I would have found this project’s GHG emissions to be significant”) (Clements, Comm’r, concurring, at P 3) (appropriate to decline to label emissions or significant or insignificant while Commission considers comments on Draft GHG Policy Statement).
[2] NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C).
[3] See N. Nat. Gas Co., 174 FERC ¶ 61,189, at PP 32, 33 (2021).
[4] See, e.g., Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 551 (1978) (“common sense” teaches NEPA requirement for “detailed statement of alternatives” does not include every conceivable alternative).
[5] Order at P 24.
[6] Id. at P 23.
[7] N. Nat. Gas Co., 174 FERC ¶ 61,189 at P 29.