Docket No. CP22-494-000
I concur with the result of today’s Order, which should be a straightforward approval. 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 BSC Compression Replacement Project.[1] The Commission should have simply found that the project’s minor GHG emissions are insignificant for purposes of both the National Environmental Policy Act[2] and the Commission’s public interest determination under section 7(e) of the Natural Gas Act.[3] Instead, the Order imports extraneous and wrong-headed language used in other recent certificate orders to find there are no acceptable tools for determining the significance of GHG emissions.[4]
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.[5] The combined construction related and operational GHG emissions in that case amounted to 20,006 metric tons, which the Commission found to be insignificant. The BSC Compression Replacement Project would generate only construction related GHG emissions and would not increase operational emissions.[6] The construction related emissions would be only 8,155 metric tons[7], less than half the projected emissions in Northern Natural. 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 reaching the clear conclusion that the GHG emissions would be insignificant, the majority strains to include in the Order the same unnecessary and misguided language to which I have previously objected.[8] Paragraphs 23 and 24 of the Order suggest the Commission has definitively concluded that the Social Cost of GHGs protocol is inherently unsuitable for determining the significance of GHG emissions associated with natural gas infrastructure projects.[9] Moreover, the Order says that there is no “other currently scientifically accepted method that would enable the Commission to determine the significance of reasonably foreseeable GHG emissions.” [10] For some time, our certificate orders had explained that the Commission would not make significance findings because the issue of how to do so is under consideration in the docket for the Commission’s draft GHG Policy Statement.[11] This Commission recently made an about-face, concluding it is impossible to assess the significance of GHG emissions.[12] That conclusion is unsupported and arbitrary because this Commission has never evaluated, let alone responded to, comments in the GHG Policy Statement docket addressing methods for doing so.[13]
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 there is no acceptable method, with no explanation of why the Commission departs from the approach taken in other certificate orders.[14] As I have said before, the Commission should decide the important unresolved issues relating to our assessment of GHG emissions through careful deliberation in a generic proceeding with full transparency. However, in the meantime, the Commission should rely on our precedent in Northern Natural, as well as our common sense, to find that the GHG emissions here are not significant.
For these reasons, I respectfully dissent in part.
[2] 42 U.S.C. §§ 4321 et seq.
[3] 15 U.S.C. § 717f(e).
[4] In this case, the majority is aiming the so-called “Driftwood compromise” language at our own staff’s underlying environmental assessment (EA) because the EA said that it included a disclosure of the Social Cost of GHGs calculations to “assess climate impacts.” See Order at P 23. But no intervenor or protestor has argued that the Commission must use the Social Cost of GHGs protocol either to determine significance or to “assess” impacts. Consequently, there is no need to include the Driftwood language in this Order to bolster it for judicial review or any other legally relevant purpose. See Transcon. Gas Pipe Line Co.,184 FERC ¶ 61,066 (2023) (Clements, Comm’r, concurring at P 4).
[5] See N. Nat. Gas Co., 174 FERC ¶ 61,189, at PP 32, 36 (2021).
[6] Order at P 20.
[7] Id. To place this number in context, it is estimated that the typical household in the United States has a “carbon footprint” of approximately 48 metric tons per year of CO2e. Carbon Footprint Factsheet, Center for Sustainable Systems, U. Mich. (Sept. 2021), https://css.umich.edu/factsheets/carbon-footprint-factsheet. Using that estimate, the one-time construction emissions from the BSC Compressor Replacement Project would equate to the carbon footprint of about 170 households for one year.
[8] See, e.g., Equitrans, L.P., 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 and Rio Bravo Pipeline Company, LLC, 183 FERC ¶ 61,046 (2023) (Clements, Comm’r, dissenting at PP 14-15); Texas LNG Brownsville LLC, 183 FERC ¶ 61,047 (2023) (Clements, Comm’r, dissenting at PP 14-15); Driftwood Pipeline LLC, 183 FERC ¶ 61,049 (2023) (Clements, Comm’r, dissenting at PP 2-3).
[9] Order at PP 23-24.
[10] Id. at P 23.
[11] 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).
[12] I recount the history of the Commission’s decisions relating to this issue in my concurring statement in Transcon. Gas Pipe Line Co.,184 FERC ¶ 61,066.
[13] See Docket No. PL21-3.
[14] 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).