Commissioner James Danly Statement
December 20, 2023
Docket No. CP20-55-001
I concur with the Commission’s decision, on rehearing, to “modify[] the discussion in the Authorization Order” and “set[] aside the [Authorization Order], in part.”[1] I write separately for two reasons.
First, I would like to draw the reader’s attention to my separate statement to the Authorization Order.[2]
Second, I want to take a moment to discuss the scope of Environmental Condition 2 since this order touches on what that condition means. This condition is often used in Natural Gas Act (NGA) section 3[3] authorizations, and there is a similar condition in NGA section 7[4] authorizations.[5] Specifically, the condition in the Authorization Order provides:
The Director of OEP, or the Director’s designee, has delegated authority to address any requests for approvals or authorizations necessary to carry out the conditions of the Order, and take whatever steps are necessary to ensure the protection of life, health, property, and the environment during construction and operation of the Expansion Project. This authority shall allow:
a. the modification of conditions of the Order;
b. stop-work authority and authority to cease operation; and
c. the imposition of any additional measures deemed necessary to ensure continued compliance with the intent of the conditions of the Order as well as the avoidance or mitigation of unforeseen adverse environmental impact resulting from Expansion Project construction and operation.[6]
With regard to this condition, today’s order states that “Condition 2 allows the Commission to stop work or require PALNG Phase II to make any necessary modifications to protect the life, health, property, and the environment during the construction process.”[7] While the scope of that condition during project operation is not discussed in detail, I want to take a moment to underscore that I have continued misgivings regarding the Commission’s claim of ongoing authority to oversee the safety of liquefied natural gas facilities once in operation.[8] And, if the Commission does not actually have such authority for ongoing oversight when it comes to the operational safety of liquefied natural gas facilities, it is worth pointing out that the Commission cannot delegate authority that it does not have to begin with.[9]
For these reasons, I respectfully concur.
[1] Port Arthur LNG Phase II, LLC, 185 FERC ¶ 61,194, at P 2 (2023) (Rehearing Order); see id. at Ordering Para. (A) (“[T]he Authorization Order is hereby modified and set aside, in part, as discussed in the body of this order.”).
[2] See Port Arthur LNG Phase II, LLC, 184 FERC ¶ 61,184 (2023) (Authorization Order) (Danly, Comm’r, concurring in part & dissenting in part).
[3] 15 U.S.C. § 717b.
[4] Id. § 717f.
[5] See, e.g., Equitrans, L.P., 183 FERC ¶ 61,200, at Environmental Condition 2 (2023) (“The Director of the OEP, or the Director’s designee, has delegated authority to address any requests for approvals or authorizations necessary to carry out the conditions of the Order, and take whatever steps are necessary to ensure the protection of environmental resources during construction and operation of the project. This authority shall allow: a. the modification of conditions of the Order; b. stop-work authority; and c. the imposition of any additional measures deemed necessary to ensure continued compliance with the intent of the conditions of the Order, as well as the avoidance or mitigation of unforeseen adverse environmental impacts resulting from project construction and operation.”). I pause to note that the Director of OEP certainly could not unilaterally change the conditions of an NGA section 7 order during the operation of a project when that authorization is a final, unappealable decision. See Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021) (Danly, Comm’r, dissenting at P 22) (“The current Commission may believe that the Commission, voting unanimously, acted improvidently in early 2017. They may believe that circumstances have changed. They may believe that the parties seeking rehearing were completely correct and that rehearing should have been granted. They may be right. Regardless, there is no basis in law to re-examine final orders.”) (citations omitted); id. (Danly, Comm’r, dissenting at P 29) (“[T]he Order Establishing Briefing impairs the finality normally enjoyed by certificate holders, based on issues well outside our jurisdiction.”).
[6] Authorization Order, 184 FERC ¶ 61,184 at Environmental Condition 2.
[7] Port Arthur LNG Phase II, LLC, 185 FERC ¶ 61,194 at P 9.
[8] See EcoEléctrica, L.P., 184 FERC ¶ 61,114 (2023) (Danly, Comm’r, concurring at P 3); EcoEléctrica, L.P., 180 FERC ¶ 61,054 (2022) (Danly, Comm’r, concurring at P 3); EcoEléctrica, L.P., 179 FERC ¶ 61,038 (2022) (Danly, Comm’r, concurring); EcoEléctrica, L.P., 177 FERC ¶ 61,164 (2021) (Danly, Comm’r, concurring); EcoEléctrica, L.P., 176 FERC ¶ 61,192 (2021) (Danly, Comm’r, concurring).
[9] See Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C. Cir. 2002) (“As a federal agency, FERC is a ‘creature of statute,’ having ‘no constitutional or common law existence or authority, but only those authorities conferred upon it by Congress.’”) (quoting Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001)) (emphasis in original); see also West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (“Extraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s]’”) (citation omitted); id. (“Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’”) (citation omitted); Midship Pipeline Co., L.L.C. v. FERC, 45 F.4th 867, 877 (5th Cir. 2022) (vacating part of the Commission’s order and remanding the remainder because “[t]he FERC’s interpretation of the NGA to give the agency power to determine ‘the reasonable cost’ of remediation efforts ‘change[d] the plot line’ of its enabling legislation, and was therefore erroneous” and “[t]he FERC lacks such authority under the NGA, and it likewise lacked authority to order an ALJ to make such a determination indirectly”) (quoting West Virginia v. EPA, 142 S. Ct. at 2609).