Docket No. CP22-138-000
I support issuing this certificate, as the Northern Lights 2023 Expansion Project is clearly needed to serve retail customers. I write separately to address two issues: the “full burn” analysis, which assumes, counterfactually, that the facility in question will be utilized at maximum capacity at all times, and upstream emissions.
“Full Burn”
The Commission’s practice has been to provide an analysis of potential downstream emissions in NGA Section 7 cases based on a “full burn” or “maximum burn” estimate. Such an estimate may be the most administratively efficient way to comply with two court opinions from the D.C. Circuit — “Sabal Trail”[1] and Appalachian Voices[2] — but in the real world that amount of combustion rarely ever happens.
As noted in today’s order, the final EIS for this project provided an estimate of downstream emissions (here, emissions generated by end-use retail consumers).[3] This estimate was based on staff’s calculation of a “full burn.” That is to say, staff assumed, for purposes of this calculation, that the project would be utilized at 100% of its capacity 100% of the time—24/7/365.
This 100% utilization rate assumption, however, simply does not reflect what is likely to happen. On the contrary, the full capacity of a pipeline project will rarely be used for combustion at a rate of 100% of capacity. Instead, this number “represents an upper-bound amount of end-use combustion that could result from the gas transported by this Project.”[4] In other words, this is a purely hypothetical number. For its part, Northern Natural provided two alternative scenarios more closely reflecting anticipated use — each of which results in dramatically lower emissions.[5] We are not adjudicating that question, nor do I believe that we need to do so at this time and place.
Although a full burn analysis is not required by law,[6] the Commission has adopted the practice, apparently for administrative convenience. It also is consistent with the guidance provided by Appalachian Voices that said the Commission could comply with the highly questionable opinion in Sabal Trail simply by providing an upper-bound estimate of greenhouse gas (GHG) emissions from a project.[7] Providing an upper-bound limit on possible emissions based on concrete and undisputed data (viz., the capacity of the facility), without introducing difficult and inevitably speculative questions about utilization rates, which can be highly variable, satisfies our obligations under NEPA.[8] I accept this practice, driven as it is by court opinions, but believe that it is worth reminding the public that it very significantly overstates the emissions associated with the project being evaluated.
Here, for example, Northern Natural represents that the project is needed for roughly a small handful of peak demand days each year. If the project were needed for anything remotely resembling the 100% utilization assumed in the “full burn” analysis, Northern Natural would desperately need another project with much greater capacity in order to handle peak demand days and the reliability of service to its customers would be gravely imperiled. Fortunately, that is not the case.
Moreover, while combustion by end-use customers is reasonably foreseeable in the sense that we know the project will deliver natural gas to retail customers who will burn it in some quantity, a further caveat is in order. Many local distribution companies seek to minimize customer costs by remarketing surplus gas supply and pipeline capacity. They may even be required to do so by their state regulators to save retail consumers’ money. Consequently, it is very likely that some unknown percentage of the gas transported for this Project will wind up resold elsewhere, and such destination is not reasonably foreseeable.
Finally, I will reiterate here, as I have said before, that just as this Commission has no authority under the NGA over upstream, non-jurisdictional activities, this Commission also has no legal authority to impose a requirement on a certificate applicant to attempt to prevent or mitigate emissions by non-jurisdictional downstream consumers.[9] Nor does this Commission have a shred of legal authority to reject a project outright, as part of the merits review under the NGA, based on an estimate, inflated or not, of global GHG impacts.[10]
Upstream Emissions
Today’s order makes a finding of fact that the upstream GHG emissions are not reasonably foreseeable.[11] I would add, however, that, unlike downstream emissions, the Commission has no legal obligation to estimate emissions from upstream, non-jurisdictional activities anyway, so this finding fulfills no legal obligation, and amounts to a “finding” of no legal consequence. Further, the Commission has no legal authority whatsoever to order mitigation of such non-jurisdictional upstream activities, much less to consider such non-jurisdictional upstream emissions in our merits review under the NGA.
For these reasons, I respectfully concur.
[1] Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (“Sabal Trail”).
[2] Appalachian Voices v FERC, 2019 WL 847199 (D.C. Cir. 2019) (unpublished).
[3] Order at P 58.
[4] Final EIS at 4-98 (emphasis added).
[5] See Northern Natural Mar. 28, 2022 Application for Certificate of Public Convenience and Necessity at App. 9E. Whereas the final EIS assumes the project will be utilized 100% 24 hours per day, 365 days per year, and thus produce an additional 982,776 metric tons per year (mt/y) of CO2 equivalent (CO2e) from downstream combustion, Northern Natural has estimated that the project – intended to allow flexibility to meet demand on 1% of peak demand days each year – will be utilized on only a handful of days each year and thus produce between 7,021 mt/y and 702,088 mt/y. See Appx. 9E at §§ 1.3-1.4. So the emissions estimate under a full burn scenario is significantly greater than what Northern Natural represents is a likely scenario.
[6] See Del. Riverkeeper Network v. FERC, 45 F.4th 104, 109-110 (D.C. Cir. 2022).
[7] I am in good company in questioning Sabal Trail. See Ctr. For Biological Diversity v. U.S. Army Corp of Eng’rs, 941 F.3d 1288, 1300 (11th Cir. 2019) (“[T]he legal analysis in Sabal Trail is questionable at best. It fails to take seriously the rule of reason announced in [Dep’t of Transp. v.] Public Citizen[, 541 U.S. 752 (2004),] or to account for the untenable consequences of its decision. The Sabal Trail court narrowly focused on the reasonable foreseeability of the downstream effects, as understood colloquially, while breezing past other statutory limits and precedents – such as Metropolitan [Edison Co. v. People Against Nuclear Energy, 460 U.S. 776 (1983),] and Public Citizen – clarifying what effects are cognizable under NEPA.”)
[8] Appalachian Voices v FERC, 2019 WL 847199, at *2. (“FERC provided an estimate of the upper bound of emissions resulting from end-use combustion, and it 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.”).
[9] Please see my dissent to the short-lived and ill-conceived Revised Policy Statement. Certification of New Interstate Natural Gas Facilities, 178 FERC ¶ 61,107 (2022) (Christie, Comm’r, dissenting at PP 14-21), available at https://www.ferc.gov/news-events/news/items-c-1-and-c-2-commissioner-christies-dissent-certificate-policy-and-interim.
[10] Id. PP 11-29. My view of the limits on this Commission’s authority has only been strengthened by intervening precedent from the Supreme Court. See, e.g., West Virginia v. EPA, 597 U.S. ---, 142 S. Ct. 2587 (2022); Biden v. Nebraska, 600 U.S. ---, 143 S.Ct. 2355 (2023).
[11] Order at PP 54-57. The Final EIS reached the same conclusion. Final EIS at 4-136.