Statement of Commissioner James P. Danly
October 24, 2022
CP20-493-001
I concur in the judgment in this order on rehearing and the decision to deny the request for a stay of the certificate.[1] I commend to the reader’s attention my separate statement to the underlying Certificate Order.[2] In that statement, I concurred in the judgment,[3] agreeing with the Commission’s decision to issue a Natural Gas Act (NGA) section 7[4] authorization to Tennessee Gas Pipeline Company, L.L.C. There, I highlighted several flaws in the Commission’s issuance.[5] I again write separately in order to draw attention to a handful of problems with today’s order.
To begin, the Commission states that “[i]n light of [the] factual record, and the Commission’s continued consideration of issues that include whether and how to assess the significance of GHG emissions, we disagree with Food and Water Watch that more was required of the Commission in this case.”[6] Indeed, nothing more was required of the Commission, but that is not because there is a pending proceeding in which my colleagues are still toying with the idea of declaring a threshold to establish significance for GHG emissions.[7] The actual reason that nothing more is required of the Commission is that—aside from the Commission’s flawed “eyeball” test[8]—there are no means by which the Commission can assess the significance of GHG emissions.
The Commission’s own words underscore this: “the Commission did not characterize those emissions as significant or insignificant because we currently have no methodology for doing so.”[9] It is that simple—there is no methodology. The Commission, therefore, had no choice but to find that it “appropriately did not characterize the emissions as significant or insignificant.”[10] To do otherwise would have been for the Commission to have announced an arbitrary threshold, and done so absent the requisite factual and analytical support necessary to comply with the Administrative Procedure Act’s (APA) requirement to engage in reasoned decision making and in violation of the Commission’s statutory obligation to base its decisions upon substantial evidence.[11]
How exactly will the Commission conduct significance determinations going forward? It is of course no surprise that the Commission asserted in the Certificate Order that it “is not herein characterizing [the] emissions as significant or insignificant because we are conducting a generic proceeding to determine whether and how the Commission will conduct significance determinations going forward.”[12] The Chairman repeatedly suggests that the “eyeball test,” i.e., an approach of “I know it when I see it,” is sufficient in cases such as this;[13] he apparently views such an approach as a “judgment call” falling within the Commission’s authority.[14] I respectfully disagree.
To be clear, the Commission has no authority to establish arbitrary significance thresholds. We also have no expertise. How exactly would my colleagues propose to establish such a threshold and then support it with the substantial evidence and reasoned decision making required to survive judicial review? As the Commission recognizes in this very order, the Social Cost of Carbon is not useful in project-level analysis.[15]
As I have said before, we have a mess on our hands because of changing, inconsistent practice and because the Commission has been picking numbers out of thin air. Any process by which the Commission declares arbitrary, unsupported thresholds will inevitably subject our issuances to significant—and wholly unnecessary—legal risk.[16] Recently, Commission staff has made significance determinations in NEPA documents[17] published after the issuance of the Commission’s Interim GHG Policy Statement[18] and before the policy statement was changed into a draft policy statement.[19] In several cases, the Commission’s order neither acknowledged nor adopted staff’s significance determination.[20] But in one order, the Commission acknowledged that staff had assessed significance, and then declined to adopt staff’s determination.[21] We should stop issuing confusing, inconsistent statements and we should no longer attempt to preserve the possibility of setting arbitrary thresholds. We should never have articulated the 100,000 metric tons per year significance threshold in the now-draft Interim GHG Policy Statement.[22] That was a mistake, and we should not repeat it.
Aside from the legal risk that would attend the establishment of any unsupported, arbitrary threshold, the Supreme Court has recently reminded us to be cautious when contemplating the regulation of subjects that Congress has not placed clearly within our jurisdiction, especially when our actions could have a profound effect on an industry that is critical to the wellbeing of all Americans. West Virginia v. Environmental Protection Agency (West Virginia)[23] perfectly reinforces Commissioner Christie’s dissent regarding the major questions doctrine.[24] The Commission is charged under the NGA with “encourag[ing] the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”[25] The NGA’s purpose, established by Congress and articulated by the Supreme Court, is for the Commission to promote the development of natural gas infrastructure. It is not an environmental statute and to adopt or establish thresholds with an eye towards mitigation policies,[26] the effect of which would be to frustrate the primary purpose of the statute, in order to pursue policy goals in an area Congress has not delegated, invites challenges under West Virginia. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”[27] In light of the Supreme Court’s reinvigoration of the major questions doctrine, we should abandon a project that clearly exceeds the boundaries of our delegated authority and proceed by simply terminating Docket No. PL21-3-000 (Consideration of GHG Emissions in Natural Gas Infrastructure Project Reviews).
Next, I would like to address the Commission’s discussion of indirect effects—a significant portion of which goes beyond the requirements of NEPA. Food and Water Watch argues that the Commission should have considered “the indirect downstream air pollution impacts of the project,” and more specifically, “air pollution from downstream end uses of the natural gas, including increases in ozone in Westchester County, New York, which is in non-attainment status under the National Ambient Air Quality Standards (NAAQS).”[28] I disagree and am perplexed by the approach taken by the Commission to respond to this argument.
As an initial matter, I agree with the Commission’s conclusion that “the localized impacts due to potential increases in ozone and other pollutants in Westchester County are too uncertain.”[29] Indeed, it is correct that “assessing the magnitude of the ozone increase is uncertain and would require the Commission to engage in conjecture regarding both the specific conditions under which the natural gas is combusted and the conditions under which the ozone precursors resulting from combustion mix in the atmosphere to produce ozone.”[30] So why is the Commission, “[f]or purposes of disclosure, . . . estimat[ing] that combustion of the full volume of the natural gas to be transported by the project could potentially result in the emission of ozone precursors including 1,140 to 2,700 tons of NOx per year and about 115 tons of VOCs per year”?[31] For what purpose is this information “disclosed”? It evidently is not being disclosed in order to aid the Commission’s decision making. The Commission acknowledges this,[32] finding that localized impacts due to potential increases in ozone are “too uncertain.”[33] NEPA does not require such speculation, particularly when the actions causing the “too uncertain” effects are not subject to the Commission’s jurisdiction. I cannot, therefore, understand why the Commission feels compelled to include speculation just for the sake of doing so. Unfortunately, such unnecessary recitations are becoming more and more common in our orders.
As a further example,[34] why does the Commission include a calculation of the Social Cost of Carbon or the Social Cost of GHGs when such information, as the Commission itself recognizes, has no bearing on the Commission’s balancing under the public convenience and necessity standard?[35] The Commission states in today’s order that it did not “rely on[] the results of the social cost of carbon methodology,”[36] in the Certificate Order but then goes on to state that it “evaluated the East 300 Upgrade Project’s GHG emissions using the Social Cost of Carbon tool by calculating and disclosing the total cost of carbon for the projects’ annual GHG emissions over the life of the 20-year contract for firm transportation service.”[37] These two statements cannot be reconciled. How can the Commission state in the underlying Certificate Order that it is 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”[38] but merely disclosing Commission staff’s estimate,[39] and then, on rehearing, state that it “evaluated” the project “using the Social Cost of Carbon tool”?[40] Is this gaslighting? Is this an attempt to rewrite the history of this proceeding, using rehearing as an opportunity to recast the analysis conducted in the Certificate Order? Ultimately, it does not matter. What it comes down to is this—to avoid confusion and legal risk, absent unambiguous instructions from the courts or obligations under statute, the Commission should avoid the recitation in its orders of information or analysis that has no bearing on its decision making. This is doubly true when the Commission has stated that the included material has had no bearing on its decision making.
How can the public be informed, or the agency’s decisions be aided, by reciting speculative, uncertain data that, because of its uncertainty, the agency acknowledges cannot be the basis of administrative action under the APA? In short, it cannot. As the Commission explained, “[d]eveloping an approximate range of ozone precursors such as NOx and VOCs for the volume of gas transmitted through the project only shows that emissions may increase, but does not provide any degree of certainty as to those emissions.”[41] In other words, there is no degree of certainty as to the emissions. And the “calculation . . . is of limited utility to the Commission as a decisionmaker” and “to interested members of the public.”[42] There is, therefore, no reason for “disclosing” it. And, of course, this raises a question: how is the matter of estimating ozone precursors in any way distinguishable from the full-burn estimates of downstream GHG emissions that the Commission provides, when the full-burn calculations are also no more than bare numbers, based on uncertain assumptions regarding utilization rates? The question is particularly important given the fact that the Commission has repeatedly declared that there is nothing to be gleaned from those numbers regarding the significance of those emissions.
I therefore question the Commission’s assertion that “[u]nlike GHGs . . . which are emitted in relatively predictable numbers when combusted, the quantity of ozone precursors can vary significantly based on the conditions under which the natural gas is combusted.”[43] While it is true that “[b]ecause the combustion of the natural gas releases only ozone precursors, estimating the ozone effects would require the Commission to conduct complex regional photochemical modeling that considers the emissions during each season, atmospheric conditions, and existing emissions in the region” and that “incorrect assumptions or data inputs—regarding either the quantity of precursors produced or, for example, the season in which they are produced—would result in large variations in estimated indirect ozone emissions,”[44] the attempt to distinguish the Commission’s ability to assess GHG emissions in comparison to such ozone increases is, in my view, unavailing. It is indeed “speculative” and “requir[es] an extensive series of iterative assumptions”[45] to assess increases in ozone as a result of the proposed project “where, as here, natural gas will be delivered to a mix of residential, commercial, and industrial end users for different uses and in fluctuating volumes,”[46] but does that also not hold true for GHG emissions? As the Commission recognizes, “full burn calculations [for GHG emissions] are, in most cases, an overestimate because pipelines only operate at full capacity during limited periods of full demand.”[47] Further, even if the level of GHG emissions could be known with certainty, the effect that this discrete level of emissions will have is just as speculative as the Commission’s guess as to the effect the combustion of natural gas has on the increase of ozone concentrations.
Should the Commission’s assertion that GHG emissions are “relatively predictable numbers”[48] be taken to mean that the utilization rate is predictable?[49] Should the reader or the courts take this to mean that there is no dispute regarding which utilization rate is appropriate when making calculations regarding downstream GHG emissions? Certainly, that was not the case in this proceeding. In the underlying Certificate Order, the Commission grappled with various utilization rates: a full-burn of the project’s design capacity; the applicant’s request to use an “average utilization rate” in the relevant market area; and the Commission’s preference to use a historical utilization rate. Specifically, the Certificate Order stated,
[w]ith 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.[50]
Can it really be said that “GHGs . . . are emitted in relatively predictable numbers when combusted”[51] when it is still an open question of how the Commission will determine the appropriate utilization rate for estimating downstream emissions? The Commission recently acknowledged in its now-draft Interim GHG Policy Statement that “[a]ssuming a 100% utilization rate estimate of the project (e.g., the maximum capacity is transported 365 days per year, 24 hours a day and fully combusted downstream) . . . represents the maximum potential downstream GHG emissions,” but “most projects do not operate at 100% utilization at all times.”[52] So if “in most instances a 100% utilization rate estimate does not accurately capture the project’s climate impacts” and “estimated emissions that reflect a projected utilization rate will provide more useful information,”[53] can it then be said that such emissions are “predictable”?
The Commission has been all over the map on this issue. Its ideas have included using the “[e]xpected utilization data from project shippers,” “[h]istorical usage data,” “[d]emand projections,” and “[a]n estimate of how much capacity will be used on an interruptible basis”[54]—all of which, depending on which method is selected, could result in various (and varying) utilization rates.
How exactly are the GHGs emitted from combustion more predictable? Does it really make a difference that “ozone itself is not directly released into the atmosphere from combustion of natural gas”?[55] Are the Commission’s calculations of downstream GHG emissions not similarly based on “assumptions, each of which would potentially introduce errors”?[56] The Commission asserts that “GHG emissions . . . can generally be estimated using relatively straightforward arithmetic based upon the capacity of natural gas transported by the project.”[57] But is there really a greater “degree of certainty” as to its calculations of downstream GHG emissions?[58] And what “utility” do these disclosures provide for commissioners when we have no means to determine the significance of the estimated emissions?[59] I am not convinced by the Commission’s attempt to distinguish its ability to predict GHG emissions from its ability to predict impacts on ozone concentrations in this case. Both are speculative. “[W]e cannot . . . assess with confidence estimated ozone precursors” in this proceeding.[60] Nor am I convinced that we can, in most cases, assess with confidence the rates of downstream GHG emissions, let alone their ultimate effect on the environment.
For these reasons, I respectfully concur in the judgment.
[1] Tenn. Gas Pipeline Co., L.L.C., 181 FERC ¶ 61,051 (2022) (Tennessee Gas).
[2] See Tenn. Gas Pipeline Co., L.L.C., 179 FERC ¶ 61,041 (2022) (Certificate Order); id. (Danly, Comm’r, concurring in the judgment).
[3] Id. (Danly, Comm’r, concurring in the judgment).
[4] 15 U.S.C. § 717f.
[5] See, e.g., Certificate Order, 179 FERC ¶ 61,041 (Danly, Comm’r, concurring in the judgment at P 1); id. (Danly, Comm’r, concurring in the judgment at P 2) (disagreeing with the Commission’s determination that emissions from the downstream combustion of the gas transported by the project are reasonably foreseeable emissions); id. (Danly, Comm’r, concurring in the judgment at P 3) (stating that the Commission should repudiate the eye-ball test established in Northern Natural Gas Co., 174 FERC ¶ 61,189, at PP 29-36 (2021) (Northern)); id. (Danly, Comm’r, concurring in the judgment at P 3) (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 greenhouse gas (GHG) emissions) (citation omitted); id. (Danly, Comm’r, concurring in the judgment at P 5) (explaining that nothing can be gleaned from the Social Cost of Carbon calculation and that the Commission has provided extensive discussion on why the use of the Social Cost of Carbon is not appropriate in project-level National Environmental Policy Act (NEPA) review); id. (Danly, Comm’r, concurring in the judgment at P 6) (discussing the breadth of the public interest standard under the NGA).
[6] Tennessee Gas, 181 FERC ¶ 61,051 at P 35 (citing Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Reviews, 178 FERC ¶ 61,108 (2022) (Interim GHG Policy Statement); Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,197 (2022) (Order on Draft Policy Statements)).
[7] Indeed, the Commission already attempted this in the Interim GHG Policy Statement (Docket No. PL21-3-000) prior to the policy statement being converted to a draft. See Interim GHG Policy Statement, 178 FERC ¶ 61,108; see also Order on Draft Policy Statements, 178 FERC ¶ 61,197 at P 2 (converting the two policy statements issued on February 18, 2022, Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,107 (2022) (Updated Certificate Policy Statement) and Interim GHG Policy Statement, 178 FERC ¶ 61,108, to “draft” policy statements).
[8] In Northern, a majority of my colleagues established what has been referred to (by some) as the “eyeball” test. See Catherine Morehouse, Glick, Danly spar over gas pipeline reviews as FERC considers project’s climate impacts for first time, Util. Dive (Mar. 19, 2021), https://www.utilitydive.com/news/glick-danly-spar-over-gas-pipeline-reviews-as-ferc-considers-projects-cli/597016/ (“‘We essentially used the eyeball test,’ [Chairman Glick] said, adding that based on that analysis, ‘it didn’t seem significant in terms of the impact of those emissions on climate change.’”).
[9] Tennessee Gas, 181 FERC ¶ 61,051 at P 34 (emphasis added).
[10] Id. P 37 (citations omitted). I pause to note that my colleagues can point to no court decision finding that the Commission should have determined the significance of the GHG emissions or that the Commission should have prepared an Environmental Impact Statement (EIS) due to its inability to determine the significance of GHG emissions. No such judicial decision exists. We therefore have no such obligation. Nor has there ever been a remand or vacatur of a certificate order on that basis.
[11] See 5 U.S.C. § 706(2).
[12] Certificate Order, 179 FERC ¶ 61,041 at P 49 (footnote omitted).
[13] See Tennessee Gas, 181 FERC ¶ 61,051 (Glick, Chairman, concurring at P 1) (“I write separately to reiterate my view that the Commission could have—and, in my view, should have—assessed the significance of the project’s reasonably foreseeable GHG emissions, consistent with Northern”) (citations omitted); id. (Glick, Chairman, concurring at P 1) (“As I explained in my underlying concurrence, I would have concluded based on the record in this proceeding that the reasonably foreseeable GHG emissions caused by [Tennessee Gas’s] East 300 Upgrade Project are significant, but nevertheless outweighed by the benefits of the project.”) (citation omitted).
[14] See id. (Glick, Chairman, concurring at P 2) (“Nor is it necessary for the Commission to identify discrete impacts when assessing significance, when we know, beyond any serious dispute, that impacts will result from those emissions. After all, the administration of NEPA is rife with judgment calls, and agencies necessarily must use the best tools and information at hand, caveating them as appropriate.”) (emphasis in original) (footnotes & citations omitted).
[15] See Tennessee Gas, 181 FERC ¶ 61,051 at P 37 (“[T]here are no established criteria for identifying the monetized values from the Social Cost of Carbon tool that are to be considered significant for NEPA reviews and we are currently unable to identify any such appropriate criteria.”) (citations omitted); id. P 36 (“We also noted that the Commission ‘has not determined which, if any, modifications are needed to render that tool useful for project-level analyses.’”) (citation omitted).
[16] The Commission is authorized to make a “‘rational legislative-type judgment’” but may not “pluck a number out of thin air when it promulgates rules.” WJG Tel. Co., Inc. v. FCC, 675 F.2d 386, 388-89 (D.C. Cir. 1982) (quoting FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775, 814 (1978)); see also LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55, 61 (D.C. Cir. 2004) (“In the absence of an explanation, the ‘totality of the circumstances’ can become simply a cloak for agency whim—or worse.”) (citation omitted).
[17] See, e.g., Commission Staff, Environmental Assessment for Golden Pass LNG Terminal LLC Variance Request No. 15, Docket No. CP14-517-001, at 25 (Mar. 22, 2022) (“In order to assess impacts on climate change associated with the Project, we applied the Commission’s Interim Policy Statement on ‘Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews’ issued on February 18, 2022 in Docket No. PL21-3-000 that established a significance threshold of 100,000 metric tpy of CO2e. The Amendment’s construction emissions of 93,642 metric tpy of CO2e would not exceed the Commission’s presumptive significance threshold.”) (citing Interim GHG Policy Statement, 178 FERC ¶ 61,108); Commission Staff, Environmental Assessment for Equitrans L.P. Truittsburg Well Conversion Project, Docket No. CP22-24-000, at 29 (Mar. 7, 2022) (finding that the “Project’s construction and operation emissions would fall below the Commission’s presumptive [100,000 metric tpy] significance threshold”); Commission Staff, Final Environmental Impact Statement for Kern River Transmission Company Delta Lateral Project, Docket No. CP21-197-000, at 4-75 (Feb. 25, 2022) (finding that “[t]he Project operations and downstream combustion of gas transported by the Project could potentially increase emissions by over 2.7 million metric tpy of CO2e, which exceeds the Commission’s presumptive threshold of significance”).
[18] Interim GHG Policy Statement, 178 FERC ¶ 61,108.
[19] See Order on Draft Policy Statements, 178 FERC ¶ 61,197 at P 2.
[20] Compare ANR Pipeline Co., 179 FERC ¶ 61,122, at P 35 (2022) (“The Commission is not herein characterizing these emissions as significant or insignificant because we are conducting a generic proceeding to determine whether and how the Commission will conduct significance determinations going forward.”), and id. P 35 n.42 (“Although we acknowledge that the Commission has previously assessed the ‘significance’ of GHGs, see N. Nat. Gas Co., 174 FERC ¶ 61,189 (2021), we do not do so here. The Commission is considering approaches for assessing significance in a pending proceeding.”) (citing Order on Draft Policy Statements, 178 FERC ¶ 61,197), with Commission Staff, Final Environmental Impact Statement for ANR Pipeline Co. Wisconsin Access Project, Docket No. CP21-78-000, at 53-54 (Mar. 18, 2022) (“In order to assess impacts on climate change associated with the Project, Commission staff applied the Commission’s Interim Policy Statement on ‘Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews’ issued on February 18, 2022 in Docket No. PL21-3-000 that established a significance threshold of 100,000 metric tpy of CO2e. The Project’s operational and downstream emissions would exceed the Commission’s presumptive significance threshold based on 100 percent utilization.”) (citing Interim GHG Policy Statement, 178 FERC ¶ 61,108). See, e.g., Golden Pass LNG Terminal LLC, 180 FERC ¶ 61,058, at P 20 (2022) (stating that “[t]he Commission is not herein characterizing these emissions as significant or insignificant because we are conducting a generic proceeding to determine whether and how the Commission will conduct significance determinations going forward” even though staff previously applied a significance threshold in the Environmental Assessment); Rover Pipeline LLC, 179 FERC ¶ 61,043, at P 18 (2022) (same).
[21] See Spire Storage W. LLC, 179 FERC ¶ 61,123, at P 52 n.106 (2022) (“acknowledg[ing] that the Commission has previously assessed the ‘significance’ of GHGs, see N. Nat. Gas Co., 174 FERC ¶ 61,189 (2021), and Commission staff assessed the significance of GHGs for the project in the final EIS by applying the Commission’s February 17, 2022 Interim Policy Statement”).
[22] But see Columbia Gulf Transmission, LLC, 178 FERC ¶ 61,198 (2022) (Glick, Chairman, concurring at P 5 n.14) (“I recognize the now-draft GHG policy statement proposes 100,000 metric tons as a threshold over which a project’s GHG emissions would be presumed significant. In my view, that is a deliberately conservative number intended to ensure that the Commission did not lead projects developers down the path of an environmental assessment, only to subsequently change course and require an environmental impact statement in the event that the Commission were to establish a lower threshold in a final GHG policy statement than it did in the then-interim, now-draft policy statement. I remain open to reviewing the comments submitted in response to that draft statement, as well as guidance we may receive from other federal agencies, in considering what threshold would be appropriate in a final policy statement.”) (emphasis added) (citation omitted).
[24] See Interim GHG Policy Statement, 178 FERC ¶ 61,108 (Christie, Comm’r, dissenting at PP 3, 22-28); Updated Certificate Policy Statement, 178 FERC ¶ 61,107 (Christie, Comm’r, dissenting at PP 3, 22-28).
[25] NAACP v. Fed. Power Comm’n, 425 U.S. 662, 669-70 (1976) (NAACP) (citations omitted); accord Myersville Citizens for a Rural Cmty. v. FERC, 783 F.3d 1301, 1307 (D.C. Cir. 2015) (quoting NAACP, 425 U.S. at 669-70).
[26] See Interim GHG Policy Statement, 178 FERC ¶ 61,108 at PP 79-95 (establishing a 100,000 metric tons per year of CO2e significance threshold); id. PP 97-127 (discussing mitigation under NEPA generally and what three commissioners viewed as potential forms of mitigation for GHG emissions). But see id. (Danly, Comm’r, dissenting at PP 32-36) (explaining why the significance threshold is illogical); id. (Danly, Comm’r, dissenting at PP 37-42) (disagreeing with the majority that the Commission’s conditioning power gives it authority to require a pipeline to mitigate GHGs emitted by its operations and reasonably foreseeable indirect effects and questioning the Commission’s “encouragement” that project sponsors mitigate GHG emissions).
[27] West Virginia, 142 S. Ct. at 2616.
[28] See Tennessee Gas, 181 FERC ¶ 61,051 at P 28 (citation omitted).
[29] Id. P 29 (citations omitted).
[30] Id. P 30 (footnote omitted).
[31] Id. P 30 n.85 (emphasis added).
[32] See id. P 30 (“It would require adopting a range of assumptions to estimate how much ozone may be emitted from the combustion of gas, which would result in a calculation that is of limited utility to the Commission as a decisionmaker, or to interested members of the public.”) (citations omitted).
[33] Id. P 29.
[34] There are others, like Commission staff’s disclosures of downstream emissions in recent cases where there is no question that the emissions are not reasonably foreseeable because the gas is being delivered to a liquefied natural gas export facility. Compare Columbia Gulf Transmission, LLC, 178 FERC ¶ 61,198 at P 31 (“On June 25, 2021, the Commission issued a draft EIS, which incorporated the EA’s analysis and conclusions, with the exception of those related to the project’s impacts on climate change, responded to comments received on the EA, and estimated downstream greenhouse gas (GHG) emissions related to the project, thus providing information that might assist the Commission’s consideration of the project’s contribution to climate change.”) (emphasis added), with id. P 46 (explaining that “[u]nder D.C. Circuit precedent, the Commission need not consider the effects of upstream production or downstream transportation, consumption, or combustion of exported gas” and that “where, as here, it is known that the natural gas being transported by a proposed project is intended to be delivered to a LNG export terminal for liquefaction and ultimate, export to other countries, the Commission’s environmental analysis will not consider the upstream or downstream effects of increased natural gas exports”) (citations omitted). Compare Tenn. Gas Pipeline Co., L.L.C., 178 FERC ¶ 61,199, at P 72 (2022) (“On July 16, 2021, the Commission issued the draft EIS, which incorporated the EA’s analysis and conclusions with the exception of those related to the project’s impacts on climate change, responded to comments received on the EA, and estimated downstream greenhouse gas (GHG) emissions related to the project.”), with id. P 87 (explaining that “[u]nder D.C. Circuit precedent, the Commission need not consider the effects of upstream production or downstream transportation, consumption, or combustion of exported gas” and that “where, as here, it is known that the natural gas being transported by a proposed project will be delivered to an LNG export terminal for liquefaction and, ultimately, export to other countries, the Commission’s environmental analysis will not consider the upstream or downstream effects of increased natural gas exports”) (citations omitted).
[35] See, e.g., Tenn. Gas Pipeline Co., L.L.C., 178 FERC ¶ 61,199 at PP 92-93 (providing Social Cost of Carbon calculations and stating that “we are not relying on or using the social cost of carbon 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”) (footnotes omitted); Columbia Gulf Transmission, LLC, 178 FERC ¶ 61,198 at PP 51-52 (same) (footnotes omitted); North Baja Pipeline, LLC, 179 FERC ¶ 61,039, at PP 42-43 (2022) (same) (footnotes omitted); ANR Pipeline Co., 179 FERC ¶ 61,040, at PP 52-53 (2022) (providing Social Cost of Carbon calculations and stating 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”) (footnotes omitted); Certificate Order, 179 FERC ¶ 61,041 at PP 60-61 (same) (providing Social Cost of GHGs calculations and stating 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”) (footnotes omitted); ANR Pipeline Co., 179 FERC ¶ 61,122 at PP 43-44 (same) (footnotes omitted); Kern River Gas Transmission Co., 179 FERC ¶ 61,121, at PP 36-37 (2022) (same) (footnotes omitted); Spire Storage W. LLC, 179 FERC ¶ 61,123 at PP 59-60 (providing Social Cost of Carbon calculations and stating that “we are not relying on or using the social cost of carbon 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”) (footnotes omitted); Gas Transmission Nw. LLC, 180 FERC ¶ 61,056, at PP 62-63 (2022) (providing Social Cost of GHGs calculations and stating 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 proposed project’s GHG emissions or whether the project is in the public convenience and necessity”) (footnotes omitted); Golden Pass LNG Terminal LLC, 180 FERC ¶ 61,058 at PP 24-25 (same) (footnotes omitted); LA Storage, LLC, 180 FERC ¶ 61,188, at PP 86-87 (2022) (same) (footnotes omitted); Tex. E. Transmission, LP, 180 FERC ¶ 61,186, at P 29 (2022) (“The [Environmental Assessment (EA)] discloses the [Social Cost of GHGs], however, as we have previously explained, because of the pending litigation challenging federal agencies’ use of the Interagency Working Group on the Social Cost of Greenhouse Gas’ (IWG) interim values for calculating the social cost of GHGs, 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 proposed project’s GHG emissions or whether the project is in the public convenience and necessity.”) (footnotes omitted).
[36] Tennessee Gas, 181 FERC ¶ 61,051 P 36 (citation omitted).
[37] Id. P 37 (emphasis added) (citation omitted).
[38] Certificate Order, 179 FERC ¶ 61,041 at P 60.
[39] See id. PP 60-61.
[40] Tennessee Gas, 181 FERC ¶ 61,051 at P 37.
[41] Id. P 30 (emphasis added) (footnote omitted).
[42] Id.
[43] Id.
[44] Id. P 31 (footnote omitted).
[45] Id. P 32.
[46] Id.
[47] Id. P 32 n.96.
[48] Id. P 30.
[49] I pause to note that a meaningful analysis of the downstream GHG emissions that could be attributed to the gas transported on a particular project should consider the project’s utilization factor. But the utilization factor is not easily predicted. Regardless of the end user of the transported gas—whether it be residential/commercial customers of a local distribution company or a power plant or industrial plant—the utilization factor of the pipeline is not easily predicted because the Commission does not know what amount of gas will actually be transported on a specific project at any given time. Even in circumstances where the record identifies a single power plant that is receiving the transported gas, the eventual use of the contracted-for capacity cannot be forecasted with accuracy.
[50] Certificate Order, 179 FERC ¶ 61,041 at P 51 (footnotes omitted).
[51] Tennessee Gas, 181 FERC ¶ 61,051 at P 30.
[52] Interim GHG Policy Statement, 178 FERC ¶ 61,108 at P 49.
[53] Id. P 50.
[54] Id.
[55] Tennessee Gas, 181 FERC ¶ 61,051 at P 30.
[56] Id.
[57] Id. P 32.
[58] Id. P 30.
[59] Id.
[60] Id. P 30 n.86.