Statement of Commissioner James P. Danly
July 31, 2023
CP22-494-000
I concur in the Commission’s decision to grant the Natural Gas Act (NGA) section 7[1] authorizations requested by Boardwalk Storage Company, LLC. I write separately because this order departs, unjustifiably, from the Commission’s recent practice in its treatment of the social cost of greenhouse gases (GHGs).
I would like to point to paragraphs 23 through 25 of today’s order.[2] The attentive reader will note a marked difference in paragraph 24 from the Commission’s recent decisions. In the orders acted upon at the April 20, 2023 open meeting, the Commission included language stating: (1) that the disclosure of the social cost of GHGs is “for informational purposes”; (2) that for the social cost of GHGs, “there are no criteria to identify what monetized values are significant for NEPA purposes”; (3) that the Commission is not “aware of any . . . method,” including the social cost of GHGs, “that would enable the Commission to determine the significance of reasonably foreseeable GHG emissions”; and (4) that therefore, there are “no accepted tools or methods for the Commission to use to determine significance.”[3]
This language that two of my colleagues and I voted for in April makes sense. Why, one might ask, would we bother to include calculations regarding the social cost of GHGs in the environmental documents, especially in light of the Commission’s specific declarations enumerated above?[4]
In a break with this recent practice, today’s order, while including the same elements listed above, also includes calculations for the social cost of GHGs.[5] I do not support their inclusion in this order both because their inclusion breaks with recent practice and because the calculations are meaningless in light of the very finding, stated explicitly in the text of the Commission’s order, that the social cost of GHGs cannot be used for any meaningful purpose to inform project-level analysis, including the assessment of significance. That is why, to state it again, those calculations are being disclosed solely “for informational purposes.” Though I object to their inclusion, surplusage, even when specifically declared to be irrelevant to the reasoning of an order, is not, in itself, unlawful. It is just silly.
In contrast to all three of my colleagues, I am firm in my view that these calculations should not be reiterated in Commission orders. I fear new precedent is being set. We shall see what happens in future orders in light of my colleagues’ regrettable backpedaling, both in this proceeding and to an even greater extent in Transcontinental Gas Pipe Line Company, LLC.[6]
What should have happened instead? Following the Commission’s adoption at the April open meeting of our new social cost of GHGs language, our orders have not included those calculations when they have appeared in the Commission staff’s environmental documents.[7] Instead, the Commission has included the disclosure of the social cost of GHGs in its orders “for informational purposes” when those calculations were not included as part of the environmental assessment or environmental impact statements[8] or when the calculation in the staff’s environmental document included (improperly) downstream emissions that are not reasonably foreseeable, e.g., the downstream emissions from exports.[9] The Commission has acknowledged, time and again, that the inclusion of these calculations in an environmental document is “for informational purposes” only and has not included the calculations in several orders when already in the environmental document.[10] The Commission should not have changed course.
It is really simple: nothing can be gleaned from the social cost of GHGs calculations,[11] they serve no useful purpose in the Commission’s decision making,[12] and court precedent has repeatedly held that it is not required in the Commission’s decision making.[13]
For these reasons, I respectfully concur.
[1] 15 U.S.C. § 717f.
[2] Boardwalk Storage Co., LLC, 184 FERC ¶ 61,062, at PP 23-25 (2023).
[3] Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61, 63 (2023); Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047, at PP 20-21, 25 (2023); Rio Grande LNG, LLC, 183 FERC ¶ 61,046, at PP 92-94, 101 (2023); see also Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047 at P 20 (“although we are including the social cost of GHG figures for informational purposes, we find that because the social cost of GHGs tool was not developed for project level review and, as discussed below, does not enable the Commission to credibly determine whether the GHG emissions are significant, section 1502.21 of the CEQ regulations does not require its use in this proceeding”); Rio Grande LNG, LLC, 183 FERC ¶ 61,046 at P 92 (same).
[4] Notably, the Commission does not review or approve the contents of the environmental assessments and environmental impact statements issued by staff. Staff, for those documents, act under the supervision of the Chairman. But that does not mean that staff should do as it pleases or depart from Commission precedent. Cf. Great River Hydropower, LLC, 135 FERC ¶ 61,151, at P 44 (2011) (explaining that if a delegated order “is inconsistent with [Commission] precedent . . . , it was wrongly decided”). See also 42 U.S.C. § 7171(c) (explaining that “[t]he Chairman shall be responsible on behalf of the Commission for the executive and administrative operation of the Commission, including functions of the Commission with respect to . . . the supervision of personnel employed by or assigned to the Commission, except that each member of the Commission may select and supervise personnel for his personal staff . . . .”) (emphasis added).
[5] Boardwalk Storage Co., LLC, 184 FERC ¶ 61,062 at P 24.
[6] 184 FERC ¶ 61,066 (2023) (Transco). In Transco, my colleagues do not include in the Commission’s order the language discussed in paragraph 2 of this statement, which was adopted by the Commission in orders voted on during the April 20, 2023 Commission meeting.
[7] See Equitrans, L.P., 183 FERC ¶ 61,200, at P 47 (2023) (explaining that “[f]or informational purposes, Commission staff estimated the social cost of GHGs associated with reasonably foreseeable emissions from the project.”) (Equitrans). Even before the April 20, 2023 Commission meeting, the calculations were not included in several orders where the environmental document already contained the calculations. See, e.g., Cameron LNG, LLC, 182 FERC ¶ 61,173, at P 37 (2023) (“Further, the EA, for informational purposes, disclosed the social cost of GHGs associated with the project’s reasonably foreseeable GHG emissions.”); Commonwealth LNG, LLC, 181 FERC ¶ 61,143, at P 75 (2022) (stating that “the final EIS disclosed the social cost of GHGs associated with the project’s reasonably foreseeable GHG emissions” and not including the calculations in the order) (citation omitted). I note that there are some inconsistencies in this prior to the issuance of the orders voted on at the April open meeting, with occasional orders including the calculations. In every circumstance, though, I have objected to the inclusion of the social cost of GHGs calculations in our orders and will continue to do so.
[8] See Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047 at P 24; Rio Grande LNG, LLC, 183 FERC ¶ 61,046 at PP 98-99.
[9] See Driftwood Pipeline LLC, 183 FERC ¶ 61,049 at PP 57 nn.109, 112, 61-62 (disclosing a “revised estimate of the social cost of GHGs associated with the reasonably foreseeable emissions” in the Commission’s order because the calculation in the final EIS included in the calculation downstream GHG emissions from exports, which are not reasonably foreseeable).
[10] Equitrans, L.P., 183 FERC ¶ 61,200 at P 47.
[11] See Boardwalk Storage Co., LLC, 184 FERC ¶ 61,062 at P 23 (“We clarify that for informational purposes, the EA estimated the social cost of GHGs associated with the reasonably foreseeable emissions from [the] project. While we have recognized in some past orders that social cost of GHGs may have utility in certain contexts such as rulemakings, we have also found that calculating the social cost of GHGs does not enable the Commission to determine credibly whether the reasonably foreseeable GHG emissions associated with a project are significant or not significant in terms of their impact on global climate change.”) (citations omitted).
[12] See id. (explaining the disclosure is “for informational purposes”).
[13] See id. (explaining that “the D.C. Circuit recently affirmed the Commission’s decision to not analyze the Social Cost of Carbon in its NEPA analysis, rejected the suggestion that it was required to do so, found that the petitioner’s arguments ‘fare no better when framed as NGA challenges,’ and then, in the very same paragraph, sustained the Commission’s public interest determination as ‘reasonable and lawful’”) (quoting Ctr. for Biological Diversity v. FERC, 67 F.4th 1176, 1184 (D.C. Cir. 2023)).