Docket Nos. CP21-465-000, CP21-465-001, CP21-465-002
I concur with the result of today’s Order, but dissent from its discussion regarding the Commission’s ability to assess the significance of the impacts of greenhouse gas (GHG) emissions.[1]
Paragraphs 61 and 63 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 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.”[2] In other recent certificate 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.[3] This Order does not say that. Readers might therefore wonder whether this Order has effectively decided some of the central issues raised in the GHG Policy Statement docket.[4]
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 certificate orders.[5] 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.
[1] Driftwood Pipeline LLC, 183 FERC ¶ 61,046, at PP 61, 63 (2023) (Order).
[2] Id. at P 61.
[3] 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).
[4] See Docket No. PL21-3.
[5] To depart from prior precedent without explanation violates the Administrative Procedure Act. See, e.g., West 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).