Statement of Commissioner James P. Danly
September 25, 2023
Docket No. CP22-138-000

I write separately to identify the specific aspects of today’s order with which I concur and those elements from which I dissent.

I. I Concur in Part with Today’s Order.

I concur in the Commission’s decision to grant Northern Natural Gas Company (Northern) an authorization under section 7(c) of the Natural Gas Act (NGA)[1] for a certificate of public convenience and necessity for authorization to construct and operate six segments of pipeline facilities totaling 9.83 miles, with appurtenances, in Minnesota and Wisconsin.[2]  The need for the project is amply demonstrated by the precedent agreements that Northern executed with nine shippers for the project’s full capacity.[3]

I also concur in the explanations and findings in paragraphs 64 and 65:  the social cost of greenhouse gases (GHG) is neither useful nor part of the Commission’s decision making and the Commission offers no means by which to determine the significance of GHG emissions.[4]  Specifically, paragraphs 64 and 65 explain: (1) the disclosure of the social cost of GHG emissions is “for informational purposes”; (2) for the social cost of GHGs, “there are no criteria to identify what monetized values are significant for [National Environmental Policy Act (NEPA)] purposes”; 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 (3) therefore, there are “no accepted tools or methods for the Commission to use to determine significance.”[5]  This language made its first appearance in orders on the April 20, 2023 open meeting.[6]  I voted for this language, as did two of my colleagues, Chairman Phillips and Commissioner Christie.[7]

Finally, I concur in the Commission’s explanation that it is the Commission’s order that controls and therefore any language in the Final Environmental Impact Statement (Final EIS) that is in tension with the Commission’s order is not relied on or adopted by the Commission.[8]  We have had to resort to this language due to inconsistencies between the environmental documents issued by staff and the contents of the Commission’s orders.[9]

II. I am Compelled to Dissent in Part.

This order suffers a number of crippling infirmities and, were I its sole author, I would have addressed several parts of it quite differently.  In addition to various individual statements in this order with which I disagree, there are also larger, more substantial problems which expose this order to profound risk on petition for review.  While this issuance, unlike the orders on the July Commission meeting, at least now acknowledges Congress’ recent enactment amending the National Environmental Policy Act, the Commission continues to avoid the implementation of the Fiscal Responsibility Act of 2023, and more specifically the “Builder Act.”[10]  Today’s order also violates the Administrative Procedure Act (APA), is inconsistent with Supreme Court precedent regarding the implementation of the National Environmental Policy Act (NEPA), and it unwisely abandons recent Commission practice in our treatment of the social cost of GHGs.

Pausing for a moment to remind the reader of fundamentals, although I agree that the Commission must act “in accordance with our . . . statutory duties,”[11] we must first examine the scope of our inquiry under the public convenience and necessity standard.  The Supreme Court has found that NGA section “7(e) requires the Commission to evaluate all factors bearing on the public interest.”[12]  This obligation, however, is not unlimited in scope and this requirement cannot be read in a vacuum.  The Supreme Court has explained that the inclusion of the term “public interest” in our statute is not “a broad license to promote the general public welfare”—instead, it “take[s] meaning from the purposes of the regulatory legislation.”[13]  The purpose of the NGA, as the Supreme Court has instructed us, is “to encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”[14]  To the extent to which any Commission issuance attempts to expand the subjects we consider in our inquiry under the public convenience and necessity standard (as, for example, is contemplated by the now-draft Updated Certificate Policy Statement),[15] I reiterate my view that any regime we institute must “take meaning” from the purpose of the NGA.

A. The Commission Should Implement the Builder Act in its NGA Authorizations.

As today’s order notes, Congress recently made the first revisions to the text of NEPA since the statute’s enactment in the portion of the Fiscal Responsibility Act of 2023 known as the “Builder Act.”[16]  Though I appreciate that the Commission is finally acknowledging these revisions in its order, the Commission should not be so reticent to pursue substantial changes to the process by which it discharges its duties under NEPA.  The Builder Act does not include any sort of implementation period, so its provisions became effective when the President signed the Fiscal Responsibility Act into law.  The order hints that the Commission will wait for CEQ to offer its interpretation of this text, but there is certainly no legal reason that it must (or can) do so.  Whether CEQ’s interpretations of NEPA in guidance documents or regulations bind independent agencies is a “thorny question,”[17] but there is reason to doubt that they do.

Among other revisions, the Builder Act changed the requirement that agencies include in environmental documents an analysis of the “environmental impact of the proposed action”[18] to an analysis of the “reasonably foreseeable environmental effects of the proposed agency action.”[19]  In my view, Congress’s revisions reaffirm Public Citizen[20] which held that under NEPA, agencies are only obligated to consider environmental effects for which the agency action itself is the legal proximate cause.[21]

Given this new statutory language, FERC has an opportunity to clarify the appropriate metes and bounds of its obligations under NEPA in light of the jurisdictional limits of the NGA.  Such clarification is particularly called for given the U.S. Court of Appeals for the District of Columbia Circuit’s (D.C. Circuit) mischaracterization of the scope of FERC’s authority in Sabal Trail[22] and its progeny.  Sabal Trail miscasts the nature of FERC’s analysis of the public convenience and necessity under section 7 of the NGA[23] to hold that the Commission has an obligation to consider the GHG emissions from the end use of the gas transported by certificated pipelines.[24]  The NGA, however, confers no authority upon FERC to regulate the end use or local distribution of natural gas.[25]  Rather, when deciding whether to approve a pipeline, the Commission determines whether there is a demonstrated need for interstate natural gas transportation capacity.  Based on this misunderstanding of FERC’s authority, the Sabal Trail court concludes that FERC must include estimates of the GHG emissions from the end use of the gas or explain why it is unable to do so,[26] and goes even further, in dicta, to assert, without any explanation, that FERC has “legal authority to mitigate” the environmental effects that result from that end use.[27]

This mistake provided one (albeit insufficient) rationale for the Commission’s now-draft Updated Certificate Policy Statement[28] and Interim GHG Policy Statement,[29] which envisioned a mitigation scheme for the GHG emissions from the end use of gas transported on the interstate natural gas system.[30]  The Builder Act offers the Commission a rare opportunity to clarify the limits of its authority and move beyond the shadow that the now “draft” policy statements continue to cast over the development critically needed natural gas infrastructure.

B. Today’s Order Falls Short of Our Obligations under the APA.

The Commission is obligated under the APA to engage in reasoned decision making.  It is black letter law that reasoned decision making requires responding to the substance raised in litigants’ submissions.  This order disregards the full scope of the comments from the Environmental Protection Agency (EPA) and ignores record evidence that estimating downstream GHG emissions based on a full burn calculation cannot accurately determine reasonably foreseeable GHG emissions.

On April 13, 2023, the EPA filed comments asserting that the Commission’s disclosure of GHG emissions was incomplete because the Commission did not estimate the upstream GHG emissions, stating that omitting the upstream GHG emissions estimate results in an underestimation of environmental effects, and suggesting that the Council on Environmental Quality’s Interim Guidance, issued in January 2023, reinforces that the Commission should provide such an estimate.[31]

The Commission’s order does not acknowledge the argument that the Commission should calculate upstream GHG emissions because it would be consistent with CEQ’s Interim Guidance.[32]  Instead, the order states that “EPA argue[s] that the final EIS should have considered and calculated the project’s upstream GHG emissions.”[33]  The Commission then correctly finds that a calculation of upstream GHG emissions “is not required here” and that “[u]pstream GHG emissions attributable to the project are not reasonably foreseeable.”[34]  There is no mention, however, of the CEQ Interim Guidance anywhere in the order.  Why would my colleagues refuse to even acknowledge EPA’s argument that we should calculate upstream GHG emissions based on CEQ’s Interim Guidance?  Perhaps because my colleagues are reluctant to declare that we are declining to implement CEQ’s non-binding guidance.  We are required under the APA to respond even when, as here, it is unlikely that a sister agency would pursue a petition for review.[35]  Since the order declines to do so, I will provide the necessary response.  As CEQ acknowledges, the “guidance does not change or substitute for any law, regulation, or other legally binding requirement, and is not legally enforceable.”[36]  The Commission did not apply the CEQ Interim Guidance.  The Commission is not required to do so because it is non-binding and we have repeatedly explained why upstream GHG emissions are not reasonably foreseeable.  Furthermore, upstream production and gathering are outside the Commission’s jurisdiction and there are recent legislative enactments that now supersede CEQ’s Interim Guidance.[37]

More troubling than our refusal to acknowledge, let alone respond to, EPA’s comments is my colleagues’ insistence that all downstream emissions from local distribution companies (LDCs) are reasonably foreseeable, even when, as in this case, we are presented with seemingly unrebutted record evidence to the contrary.  This is an obvious failure under the APA.  An agency’s decision is

arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.[38]

The Commission “must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”[39]  The Commission must also base its decisions on substantial record evidence.  Substantial evidence means “more than a mere scintilla,” that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[40]

Today’s order finds that the “downstream combustion emissions associated with the transportation capacity subscribed by Northern’s shippers, local distribution companies that will primarily deliver gas to residential customers for space heating, hot water, and cooking, are reasonably foreseeable emissions.”[41]

Nowhere in this discussion does the Commission explain why it finds the full burn calculation an accurate basis upon which to estimate reasonably foreseeable downstream emissions, even while in receipt of directly contradictory evidence.  The Commission appears to be establishing a new policy, sub silentio, in which, for LDC shippers, the Commission will find, as a categorical matter, and even in the face of unrebutted, contrary record evidence, that a full burn calculation can be used to estimate reasonably foreseeable downstream emissions.[42]  This is bad policy, it is factually unsupportable, and is a violation of the APA.[43]

Not only is the failure to respond to the applicant’s averments regarding utilization a violation of the APA, but the Commission is also factually incorrect when it finds that the downstream emissions are reasonably foreseeable.  As in Food & Water Watch v. FERC,[44] this case involves adding capacity to provide incremental transportation service to LDC shippers.  In Food & Water Watch, the court did conclude “that the end use of the transported gas is reasonably foreseeable”[45] but went on to state that “[o]n remand, the Commission remains free to consider whether there is a reasonable end-use distinction based on additional evidence, but it has not carried its burden before us at this stage,” and the court explained that it “remand[ed] to the agency to perform a supplemental environmental assessment in which it must either quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so.”[46]  We have not yet acted on the Food & Water Watch remand and, even according to the court, the question remains open.  This case has record evidence of the very type described by the court and there are explanations that the Commission can—and should—rely upon to provide “a reasonable end-use distinction”[47] when the shippers are LDCs.[48]

It is impossible to find any LDC’s downstream GHG emissions reasonably foreseeable based on a full burn calculation.  Suggestions to the contrary demonstrate a total misunderstanding of how LDCs and the interstate natural gas pipeline system work and, worse, ignore the basis upon which LDCs contract for capacity.[49]  As the applicant stated, an estimate based on a 100% utilization rate (a “full burn” calculation), i.e., assuming that the maximum capacity is transported 365 days per year, 24 hours a day, and fully combusted downstream), necessarily overestimates downstream GHG emissions.[50]  The applicant also states that “[b]y applying shipper-specific average summer and winter seasonal load factors” and when “seasonal load factors were calculated for the affected shippers based on a three-year average actual utilization of Northern’s existing system . . . [f]or the Project portion of the system, the winter seasonal load factor is 52.77%; whereas the summer seasonal load factor is 32.08%.”[51]  Northern also explains that operations at a 100% utilization rate is anticipated to occur “less than four days per year.”[52]

Residential and commercial demand for natural gas is highly dependent upon weather.  No LDC expects contracted capacity to match actual utilization rates.  Typically, LDCs do not contract for capacity to meet routine needs but instead, because of their legal obligation to serve their customers at all times, under all conditions, they instead contract to meet peak demand.[53]  They also contract for peak demand as a hedge in order to avoid having to pay market prices at times of scarcity.  Such planning is more prudent than having local authorities pinning the reliability of their systems on rain dances and hopes for a mild winter.[54]

The irony, of course, is that we need not get into any of the facts of this, or any other case, in order to decline to assess downstream emissions.  In his separate statement, Commissioner Christie points to the limits of our jurisdiction as the basis upon which to find that upstream GHG emissions are not reasonably foreseeable, arguing that upstream activities are non-jurisdictional; therefore, we have no legal obligation to either estimate the upstream GHG emissions or consider them.[55]  He is absolutely correct.  But the same logic applies, with equal force, to downstream GHG emissions.  The Commission has no jurisdiction over the LDCs.  Those are licensed and regulated by the states, and we should not consider the Commission to be the legal proximate cause of the GHG emissions of the gas ultimately used by their consumers.

C. The Commission Should Not Include Social Cost of GHGs Calculations in its Orders.

I would not have included the calculations of the social cost of GHGs in the Commission’s order.[56]  As I explained in my separate statement in Boardwalk, that issuance marked a change in the Commission’s approach to the social cost of GHGs in its orders.[57]  In a break with this recent practice, Boardwalk and the orders voted on at the September 21, 2023 Commission meeting, while including language from the April Orders, also include calculations for the social cost of GHGs.[58]  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 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.  The Commission has acknowledged, time and again, that the inclusion of these calculations in an environmental document is “[f]or informational purposes” only and has not included the calculations in several orders when they already appear in the NEPA document.[59]  The Commission should not have changed course.

D. The Commission Must Apply the Appropriate Statutory Standard.

Finally, I want to address the majority’s statement that the project “is an environmentally acceptable action.”[60]  Admittedly, this language has appeared in several prior orders, including orders for which I have voted.  I no longer support the inclusion of this language in the Commission’s NGA authorizations because the standard under NGA section 7 is whether a proposed pipeline is in the present or future public convenience and necessity,[61] not whether the proposed project “is an environmentally acceptable action.”[62]

III. Conclusion

When drafting our orders we must bear in mind—at all times—fidelity to the law, the timely discharge of the duties assigned to us by Congress, and the legal durability of our issuances so as to ensure that the industry we are charged with overseeing can operate free of the burdens (and costs) of regulatory uncertainty and litigation risk.  Sadly, today’s order falls short in all three respects.

For these reasons, I respectfully concur in part and dissent in part.


[1] 15 U.S.C. § 717f(c).

[2] See N. Nat. Gas Co., 184 FERC ¶ 61,186 (2023).

[3] See id. P 14 (“Northern entered into binding precedent agreements with nine shippers for the project’s full capacity.  Precedent agreements for 100% of the project’s capacity are significant evidence of need for the proposed project.”); see also  Certification of New Interstate Nat. Gas Pipeline Facilities, 88 FERC ¶ 61,227, at 61,748, corrected, 89 FERC ¶ 61,040 (1999), clarified, 90 FERC ¶ 61,128, further clarified, 92 FERC ¶ 61,094 (2000) (Certificate Policy Statement) (explaining that “precedent agreements for the capacity . . . constitute significant evidence of demand for the project”); see also, e.g., Transcon. Gas Pipe Line Co., LLC, 182 FERC ¶ 61,148, at P 20 (2023) (explaining that precedent agreements subscribing to 100% of the project capacity is significant evidence on the issue of need).

[4] See N. Nat. Gas Co., 184 FERC ¶ 61,186 at PP 64-65.

[5] Id.

[6] See 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 [the Council on Environmental Quality (CEQ)] regulations does not require its use in this proceeding”); Rio Grande LNG, LLC, 183 FERC ¶ 61,046 at P 92 (same) (collectively, “April Orders”).

[7] I pause to note that the referenced language was not included in an order voted on at the July 27, 2023 Commission meeting.  See Transcon. Gas Pipe Line Co., LLC, 184 FERC ¶ 61,066 (2023).  I am pleased that the language is included in this issuance, and I want to emphasize that the language, as included in this order, does not intertwine my colleagues’ view that downstream GHG emissions from local distribution companies are reasonably foreseeable—a position that I have consistently disagreed with and continue to disagree with, as explained below—with the language explaining that there is no means by which the Commission can determine the significance of an amount of GHG emissions.

[8] See N. Nat. Gas Co., 184 FERC ¶ 61,186 at P 90 (“We note that the analysis in the Final EIS provides substantial evidence for our conclusions in this order, but that it is the order itself that serves as the record of decision, consistent with the Commission’s obligations under NEPA and the Administrative Procedure Act.  For that reason, to the extent that any of the analysis in the Final EIS is inconsistent with or modified by the Commission’s analysis and findings in the order, it is the order that controls and we do not rely on or adopt any contrary analysis in the Final EIS.”).

[9] See Transcon. Gas Pipe Line Co., LLC, 184 FERC ¶ 61,066 (Danly, Comm’r, dissenting in part at P 14) (“We have witnessed environmental documents including language that runs contrary to Commission orders.”) (citations omitted).  Compare WBI Energy Transmission, Inc. Wahpeton Expansion Project Final EIS, Docket No. CP22-466-000, at 4-118 (Apr. 7, 2023) (“The Commission stated in a recent Order that a project’s share of contribution to GHG emissions at the national level provides a reasoned basis to consider the significance of the Project’s GHG emissions and their potential impact on climate change; and when states have GHG emissions reduction targets, the Commission will endeavor to consider the GHG emissions of a project on those state goals (or state inventories if the state does not have emissions targets.)”) (citing N. Nat. Gas Co., 174 FERC ¶ 61,189, at P 29 (2021) (Northern Natural)), with Tenn. Gas Pipeline Co., L.L.C., 178 FERC ¶ 61,199 (2022) (Danly, Comm’r, concurring in the judgment at PP 2-3) (disagreeing with Northern Natural and explaining that “there is no standard by which the Commission could, consistent with our obligations under the law, ascribe significance to a particular rate or volume of GHG emissions”) (citation omitted), and with Tenn. Gas Pipeline Co., L.L.C., 178 FERC ¶ 61,199 (Phillips & Christie, Comm’rs, concurring at P 2) (“depart[ing] from Northern Natural, where the Commission stated that emissions for a project were not significant,” explaining that “[i]n Northern Natural, the Commission disclosed the yearly emissions volumes and the estimated contribution to national and state emissions estimates, and then stated that, based on this record, that the emissions were not significant,” and stating that “[i]t is not clear how this determination was made or how a finding of ‘significance’ would have affected our duties and authority under the Natural Gas Act”) (citations omitted).  Compare Boardwalk Storage Co. LLC BSC Compression Replacement Project Environmental Assessment, Docket No. CP22-494-000, at 48 (Mar. 13, 2023) (“We include a disclosure of the social cost of GHGs (also referred to as the [‘]social cost of carbon’ [SCC]) to assess climate impacts generated by each additional metric ton of GHGs emitted by the Project.”), with Golden Pass LNG Terminal LLC, 180 FERC ¶ 61,058, at P 24 (2022) (rejecting an argument raised in a comment that “the EA should use the social cost of GHGs (also referred to as the ‘social cost of carbon’ [SCC]) to assess climate impacts generated by each additional ton of GHGs that would be emitted or saved as a result of authorizing the proposed amendment, and that all GHG emissions are significant” by explaining that “we are not relying on or using the social cost of GHGs estimates to make any finding or determination regarding either the impact of the project’s GHG emissions or whether the project is in the public convenience and necessity”) (citations omitted).  Notably, the Commission does not review or approve the contents of the EAs and EISs issued by staff.  Staff, for those documents, act under the supervision of the Chairman.  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).  But great care must be exercised to ensure that environmental documents adhere to 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”). 

[10] See Fiscal Responsibility Act of 2023, Pub. L. 118-5, 137 Stat 10, at § 321 (June 3, 2023) (providing the “Builder Act”) (Fiscal Responsibility Act).

[11] N. Nat. Gas Co., 184 FERC ¶ 61,186 at P 66 n.113 (“While the Commission is not one of the specified agencies in Executive Order 12898, the Commission nonetheless addresses environmental justice in its analysis, in accordance with our governing regulations and guidance, and statutory duties.”) (citing 15 U.S.C. § 717f; 18 C.F.R. § 380.12(g) (requiring applicants for projects involving significant aboveground facilities to submit information about the socioeconomic impact area of a project for the Commission’s consideration during NEPA review); FERC, Guidance Manual for Environmental Report Preparation at 4-76 to 4-80 (Feb. 2017),

[12] Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959).

[13] NAACP v. FPC, 425 U.S. 662, 669 (1976) (NAACP).

[14] Id. at 669-70; accord Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1307 (D.C. Cir. 2015) (Myersville Citizens for a Rural Cmty.) (quoting NAACP, 425 U.S. at 669-70).  I note that the Supreme Court has also recognized the Commission has authority to consider “other subsidiary purposes,” such as “conservation, environmental, and antitrust questions.”  NAACP, 425 U.S. at 670 & n.6 (citations omitted).  But all subsidiary purposes are, necessarily, subordinate to the statute’s primary purpose.

[15] Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,107 (2022) (Updated Certificate Policy Statement); see Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,197, at P 2 (2022) (Order on Draft Policy Statements) (converting the two policy statements issued on February 18, 2022, Updated Certificate Policy Statement, 178 FERC ¶ 61,107 and Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Revs., 178 FERC ¶ 61,108 (2022) (Interim GHG Policy Statement), to “draft” policy statements).

[16] See Fiscal Responsibility Act, Pub. L. 118-5, 137 Stat 10, at § 321 (providing the “Builder Act”).

[17] Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm’n, 45 F.4th 291, 300 (D.C. Cir. 2022) (citing Food & Water Watch v. U.S. Dep’t of Agric., 1 F.4th 1112, 1119 (D.C. Cir. 2021) (Randolph, J., concurring) (questioning CEQ’s authority to promulgate binding regulations)).

[18] 42 U.S.C. § 4332(c)(i) (1970).

[19] 42 U.S.C. § 4332(c)(i) (2023) (emphasis added).

[20] Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) (Public Citizen).

[21] See id. at 767.

[22] Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (Sabal Trail).

[23] 15 U.S.C. § 717f.

[24] See Sabal Trail, 867 F.3d at 1373 (“Because FERC could deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment, the agency is a ‘legally relevant cause’ of the direct and indirect environmental effects of pipelines it approves.  Public Citizen thus did not excuse FERC from considering these indirect effects.”) (citation & footnote omitted).  I note, however, that National Cable & Telecommunications Association v. Brand X Internet Services holds that even following a binding judicial issuance, agencies remain free in subsequent proceedings to offer reasonable interpretations of the jurisdiction conferred upon them by their organic statutes.  545 U.S. 967, 982-83 (2005) (Brand X).  This proposition, for better or for worse, is now black letter administrative law.  Far from flouting the authority of the courts, I suggest no more than that the Commission act within the remit confirmed in Brand X by offering a reasonable interpretation of our statute which would limit our jurisdiction consistent with the NGA’s purpose and its plain text.  See 15 U.S.C. § 717(b) (listing the exemptions from the Commission’s jurisdiction).  And we can do so secure in the knowledge that such an interpretation—again, for better or for worse—will be accorded the deference guaranteed by ChevronSee Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (Chevron) (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”).

[25] See 15 U.S.C. § 717(b) (“The provisions of this chapter shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, and to the importation or exportation of natural gas in foreign commerce and to persons engaged in such importation or exportation, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.”) (emphasis added).

[26] See Sabal Trail, 867 F.3d at 1374 (“We conclude that the EIS for the Southeast Market Pipelines Project should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so.”) (emphasis added); id. at 1375 (“Our discussion so far has explained that FERC must either quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so.”) (emphasis added).

[27] Id. at 1374.

[28] Updated Certificate Policy Statement, 178 FERC ¶ 61,107.

[29] Interim GHG Policy Statement, 178 FERC ¶ 61,108.

[30] See Order on Draft Policy Statements, 178 FERC ¶ 61,197 at P 2 (converting the Updated Certificate Policy Statement and the Interim GHG Policy Statement to “draft policy statements”).

[31] EPA April 13, 2023 Comments at 3 (citing Nat’l Env’t Policy Act Guidance on Consideration of Greenhouse Gas Emissions & Climate Change, 88 Fed. Reg. 1196 (Jan. 9, 2023) (CEQ Interim Guidance)).

[32] See CEQ Interim Guidance, 88 Fed. Reg. 1196.

[33] N. Nat. Gas Co., 184 FERC ¶ 61,186 at P 55 (citation omitted).

[34] Id.

[35] See New England Power Generators Ass’n, Inc. v. FERC, 881 F.3d 202, 211 (D.C. Cir. 2018) (finding “that FERC did not engage in the reasoned decisionmaking required by the Administrative Procedure Act” because it “failed to respond to the substantial arguments put forward by Petitioners and failed to square its decision with its past precedent”).

[36] 88 Fed. Reg. at 1197 n.4.

[37] See Fiscal Responsibility Act of 2023, Pub. L. 118-5, 137 Stat 10, at § 321 (providing the “Builder Act”); see also 42 U.S.C. § 4332(c) (listing what should be included in “a detailed statement” “except where compliance would be inconsistent with other statutory requirements”).

[38] Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (emphasis added).

[39] Id. at 43 (quoting Burlington Truck Lines, Inc. v. U.S., 371 U.S. 156, 168 (1962)); see also id. at 56 (“failed to offer the rational connection between facts and judgment required to pass muster under the ‘arbitrary and capricious’ standard”).

[40] Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938).

[41] N. Nat. Gas Co., 184 FERC ¶ 61,186 at P 54 & n.82 (noting that “[t]he capacity also includes delivery of gas for electric generation and for the heating and machinery operation of commercial and industrial users”) (citations omitted); see also Application at 9 (“The shippers provide natural gas to the upper Midwest, and a large percentage of the customers are residential customers.  The primary use of the natural gas to be delivered to these residences will be used for space heating, hot water, and cooking. Because of independent projected population growth in these areas, the expanded delivery of natural gas will enable the local distribution companies to reliably meet the peak-day cold-weather winter events that can be frequent and are particularly harsh during the winters in Minnesota and Wisconsin.”); id. at 24 (“These commitments total an aggregated expansion entitlement of 50,889 Dth/day.  Of the 50,889 Dth/day, 44,222 Dth/day will serve Northern’s customers to meet growing energy demands for commercial, residential and industrial use.  This capacity includes the delivery of natural gas to heat homes and businesses and supplying natural gas for appliance and machinery operation.  The remaining 6,667 Dth/day will allow an LDC enhanced reliability and flexibility in nominating requests for electric generation capacity.”).

[42] See Transcon. Gas Pipe Line Co., LLC, 184 FERC ¶ 61,066 (Danly, Comm’r, dissenting in part at P 8) (disagreeing with the Commission that a full burn calculation of downstream GHG emissions reflects reasonably foreseeable GHG emissions and explaining that the applicant argued that a full burn estimate for downstream GHG emissions was “grossly inaccurate” and that a utilization rate of 38.6% should be used instead) (citation omitted).  Cf. Tenn. Gas Pipeline Co., L.L.C., 179 FERC ¶ 61,041, at PP 49-51 (2022) (“For the proposed project, we find that the construction emissions, direct operational emissions, and the emissions from the downstream combustion of the gas transported by the project are reasonably foreseeable emissions.  With respect to downstream emissions, the record in this proceeding demonstrates that the natural gas to be transported by the project will be combusted by end-use customers. . . .  With respect to downstream emissions, the EIS calculates a full-burn of the project’s design capacity would result in 2.22 million metric tpy of CO2e.  However, Tennessee urges the Commission to estimate the potential downstream GHG emissions using the ‘average utilization rate’ in the relevant market area on Tennessee’s system, Zone 5, which Tennessee states has a 77% utilization rate.  We decline to accept Tennessee’s 77% average utilization rate without additional substantiation, especially in light of the contradictory 85% historical utilization rate provided in Tennessee’s application used to support its proposed commodity charge.  Based on an assumed 85% utilization rate, the estimated GHG emissions related to the downstream use of the incremental capacity provided by the project is approximately 1,887,000 metric tpy.”).

[43] It is beyond cavil that an agency must explain its departure from prior precedent and “may not . . .  depart from a prior policy sub silentio or simply disregard rules that are still on the books.”  FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position.”) (emphasis in original) (citation omitted).

[44] 28 F.4th 277 (D.C. Cir. 2022) (Food & Water Watch).

[45] 28 F.4th at 289.

[46] Id. (emphasis added).

[47] Id.

[48] The LDCs at issue here and the discrete, known generators in Sierra Club v. FERC, are dissimilar enough that the Sabal Trail precedent cannot directly apply.  Sabal Trail, 867 F.3d 1357.  Additionally, as I have said before, Sabal Trail, which Food & Water Watch applies, is inconsistent with the Supreme Court’s holding in Public Citizen, 541 U.S. at 767 (“NEPA requires ‘a reasonably close causal relationship’ between the environmental effect and the alleged cause.  The Court analogized this requirement to the ‘familiar doctrine of proximate cause from tort law.’”) (citation omitted); see id. at 770 (holding that “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect” and “under NEPA and the implementing CEQ regulations, the agency need not consider these effects in its EA when determining whether its action is a ‘major Federal action.’”).  My views are not idiosyncratic.  Both the partial dissenting statement in Sabal Trail and the U.S. Court of Appeals for the Eleventh Circuit agree.  See 867 F.3d at 1383 (Brown, J., concurring in part and dissenting in part) (“Thus, just as FERC in the [Department of Energy (DOE)] cases and the Federal Motor Carrier Safety Administration in Public Citizen did not have the legal power to prevent certain environmental effects, the Commission here has no authority to prevent the emission of greenhouse gases through newly-constructed or expanded power plants approved by the Board.”); Ctr. for Biological Diversity v. U.S. Army Corps 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 Public Citizen or to account for the untenable consequences of its decision.”).  Moreover, as I have previously explained, we could no more reasonably deny a pipeline for the effects of induced upstream production, which the statute places outside of our jurisdiction, than we could deny an NGA section 3 authorization, 15 U.S.C. § 717b, for an LNG export terminal because we do not like the effects that the expected exports would have on international gas markets.  Transcon. Gas Pipe Line Co., LLC, 182 FERC ¶ 61,148 (Danly, Comm’r, concurring at P 5) (citing Port Arthur LNG, LLC, 181 FERC ¶ 61,024, at P 12 & n.35 (2022) (stating in an extension of time proceeding that “[t]he Commission will not consider Sierra Club’s assertion that we must examine the project’s impact on domestic prices and supply as it is an attempt to re-litigate the issuance of the Authorization Order” and that “[n]or could we consider impacts on domestic prices and supply as the Commission’s authority under the Natural Gas Act is limited to the authorization of the siting, construction, and operation of LNG export facilities, while the consideration of the impact of export of LNG as a commodity is solely under the Department of Energy’s authority”) (emphasis added) (citation omitted); Commonwealth LNG, LLC, 181 FERC ¶ 61,143, at P 13 (2022) (Commonwealth) (“The Commission’s authority under NGA section 3 applies ‘only to the siting and the operation of the facilities necessary to accomplish an export[,]’ while ‘export decisions [are] squarely and exclusively within the [DOE]’s wheelhouse.’  Similarly, issues related to the impacts of natural gas development and production are related to DOE’s authorization of the export and not the Commission’s siting of the facilities . . . .”) (citations omitted); Columbia Gulf Transmission, LLC, 180 FERC ¶ 61,206, at PP 78, 80 (2022) (explaining for a NGA section 7 project that would provide incremental firm interstate natural gas transportation service to an LNG export facility that “the downstream GHG emissions are attributable to DOE’s ‘independent decision to allow exports—a decision over which the Commission has no regulatory authority’” and that “[w]e see no basis in the NGA for the Commission to encroach upon DOE’s sole authority over the review and authorization of exports of natural gas”); Tenn. Gas Pipeline Co., L.L.C., 180 FERC ¶ 61,205, at PP 62, 64 (2022) (same)).  That determination rests solely with the DOE, which is charged with authorizing “the export of natural gas as a commodity.”  EarthReports, Inc. v. FERC, 828 F.3d 949, 952-53 (D.C. Cir. 2016) (explaining that the DOE has “exclusive authority over the export of natural gas as a commodity”).  The same holds for any induced upstream effects on production, even if they could be found traceable to the proposed project.  In my view, this also applies to downstream end use, such as local distribution.  The statute reserves those powers to the states.  And it does so explicitly:

The provisions of this chapter shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, and to the importation or exportation of natural gas in foreign commerce and to persons engaged in such importation or exportation, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.

15 U.S.C. § 717(b).

[49] As an aside, were the Commission to find that downstream GHG emissions are not reasonably foreseeable or otherwise depart from using a full burn estimate of downstream GHG emissions such a decision would not undercut the Commission’s need determination.  Any suggestion along those lines is ridiculous.  Here, we have a project that has significant evidence of need demonstrated by precedent agreements for the project’s full capacity.  The inquiry under NEPA as to whether the downstream GHG emissions are reasonably foreseeable has nothing to do with the need inquiry.  As the Commission has explained, NEPA and the NGA are distinct.  Commonwealth LNG, LLC, 183 FERC ¶ 61,173, at P 37 (2023) (“[T]he Commission’s NGA and NEPA responsibilities are separate and distinct.”) (citation omitted); Transcon. Gas Pipe Line Co., LLC, 182 FERC ¶ 61,148 at P 101 (“The NGA analysis is distinct from the NEPA analysis . . . .”).

[50] See Application at Resource Report No. 9, App. 9E § 1.3 (explaining that a “full burn analysis grossly overstates the emissions associated with end-use consumption of natural gas because it does not reflect the reality of ambient temperature dependent space heating (homes, schools, hospitals and businesses etc.) that rely on natural gas for the health and safety of the occupants” and also explaining that “[o]n the coldest days of the year, this capacity is used at a higher load factor, but as temperatures increase, natural gas utilization decreases significantly,” and that “[f]urnaces are not needed during the summer”).

[51] Id.

[52] Id. (“Accordingly, for purposes of initial incremental GHG emissions, a 1% load factor on the incremental capacity was used.  In other words, the Project facilities will, in their initial years of use, only be needed to transport peak demand during the three to four days of the winter season.  These facilities will not be transporting incremental volumes during approximately 361 days per year.  In reality, initial utilization would likely be even less than four days per year.”) (emphasis added).

[53] See, e.g., Application at 25 (“Northern is providing information from the served shippers demonstrating their requests are firmly based on a realistic response to identified expansion needs for their residential, industrial, and commercial customers for heating and other domestic needs.  Those needs are based on predicted peak-day demands, required reserve margins, and predicted demands for growth based on the shipper’s internal forecasts.”) (footnote omitted).

[54] Cf. New England’s Power Grid Prepared for Winter, ISO New England (Dec. 5, 2022),‌_winteroutlook_final.pdf (“Based on seasonal weather forecasts and information provided by generators about their fuel arrangements, the region’s power system is prepared for mild and moderate weather conditions,’ said Gordon van Welie, ISO New England’s president and CEO.  ‘If long periods of severely cold weather develop, we’ll lean on our forecasting tools to identify potential problems early enough to take proactive measures, such as calling for increased fuel deliveries or asking for public conservation.’”).

[55] See N. Nat. Gas Co., 184 FERC ¶ 61,186 (Christie, Comm’r, concurring at P 9) (“Today’s order makes a finding of fact that the upstream GHG emissions are not reasonably foreseeable. . . .  [T]he Commission has no legal obligation to estimate emissions from upstream, non-jurisdictional activities anyway . . . .”) (citation omitted).

[56] See N. Nat. Gas Co., 184 FERC ¶ 61,186 at P 58.

[57] See generally Boardwalk Storage Co., LLC, 184 FERC ¶ 61,062 (2023) (Boardwalk) (Danly, Comm’r, concurring at PP 1-7).

[58] See Boardwalk, 184 FERC ¶ 61,062 at P 24.  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.  See Equitrans, L.P., 183 FERC ¶ 61,200, at P 47 (2023) (Equitrans) (explaining that “[f]or informational purposes, Commission staff estimated the social cost of GHGs associated with reasonably foreseeable emissions from the project.”).  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.”) (footnote omitted); Commonwealth, LLC, 181 FERC ¶ 61,143 at P 75 (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.  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 EAs or EISs 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.  See Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047 at P 24 (including the calculations in the remand order because they were not in the environmental document); Rio Grande LNG, LLC, 183 FERC ¶ 61,046 at PP 98-99 (same); 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).

[59] E.g., Equitrans, 183 FERC ¶ 61,200 at P 47.

[60] N. Nat. Gas Co., 184 FERC ¶ 61,186 at P 90 (“Based on our consideration of this information, as supplemented or clarified herein, we agree with the conclusions presented in the final EIS and find that the Northern Lights 2023 Expansion Project is an environmentally acceptable action.”).

[61] See 15 U.S.C. § 717f(e) (“[A] certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application, if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied.”).

[62] Cf. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989) (explaining that “it would not have violated NEPA if the Forest Service, after complying with [NEPA’s] procedural prerequisites, had decided that the benefits to be derived from downhill skiing at Sandy Butte justified the issuance of a special use permit, notwithstanding the loss of 15 percent, 50 percent, or even 100 percent of the mule deer herd” and also explaining that “[o]ther statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed—rather than unwise—agency action”) (citations omitted).

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