Docket Nos. CP22-21-000, CP22-22-000
I dissent from today’s Order[1] because it contravenes sections 3 and 7 of the Natural Gas Act (NGA),[2] the National Environmental Policy Act (NEPA),[3] and the Administrative Procedure Act (APA).[4] The Order’s conclusions that the CP2 LNG Project is not inconsistent with the public interest[5] and that the CP Express Pipeline Project is required by the public convenience and necessity[6] cannot be sustained for several reasons.[7] First, the Order fails to meaningfully assess these Projects’ enormous greenhouse gas (GHG) emissions and does not explain whether or how the Commission factored them into its public interest determinations.[8] Second, the Commission’s analysis of cumulative air pollutant emissions is deficient, both procedurally and substantively. The public has had no access to critical new air impacts modeling information, which should have been addressed in a supplemental environmental impact statement (SEIS) with full opportunity for public review and comment. Third, the Order improperly discounts impacts to commercial fishing businesses, which will likely be significant. Finally, the Commission failed to adequately consider how the full range of adverse project impacts will affect Environmental Justice (EJ) communities.
Failure to Assess and Consider GHG Impacts
At the outset, it is helpful to summarize the Commission’s legal obligations under the NGA, NEPA, and the APA with respect to the consideration of a proposed project’s GHG emissions. A number of cases have recognized that the Commission must consider the impacts of GHG emissions in its public interest determinations under the NGA.[9] Those cases are consistent with the many precedents holding that environmental impacts are relevant to the Commission’s public interest determinations under the statute.[10] Indeed, more than sixty years ago, the Supreme Court held that our predecessor, the Federal Power Commission, properly factored air pollution impacts into its public interest determination under section 7.[11] In NAACP, the Supreme Court held that environmental protection is one purpose of the NGA.[12]
NEPA also requires the Commission to consider climate and other environmental impacts in deciding whether to approve a project application. As the Supreme Court has explained, NEPA’s EIS requirement “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts . . .”[13] The Commission’s obligations under the NGA and NEPA are intertwined. NEPA directs federal agencies “to the fullest extent possible” to interpret and administer their organic statutes in accordance with the environmental protection objectives set forth in NEPA.[14] In requiring the Commission to consider environmental impacts in its substantive decision-making, NEPA gives content to the NGA’s broad “public interest” standard.[15]
Of course, the Commission must do more than consider GHG impacts in its decision-making. The APA requires the Commission to provide a reasoned explanation of how it factored the GHG impacts into its substantive decision.[16]
Today’s order meets none of these statutory obligations. The Order does not and cannot meaningfully explain how the Commission factored the Projects’ GHG emissions into its decision, as the APA required it to do, because the Commission failed its duties under NEPA and the NGA to assess and weigh the impacts of those emissions.[17]
The Commission’s legal errors begin with its deficient NEPA analysis. NEPA regulations and case law require the Commission to assess GHG-related environmental impacts. The Council on Environmental Quality’s (CEQ) regulations state that an EIS must discuss “[t]he environmental impacts of the proposed action and reasonable alternatives to the proposed action and the significance of those impacts.”[18] The D.C. Circuit Court of Appeals recently held that the regulation does not require the Commission to label GHG emissions as significant or insignificant.[19] However, NEPA nevertheless requires more than a mere recitation of general facts about climate change and quantification of emissions; the statute requires evaluation and analysis of environmental impacts.[20] Both the EIS for the Projects[21] and today’s Order[22] violate NEPA and CEQ’s regulations by failing to assess the nature and severity of environmental impacts that project-related GHG emissions will cause.
Beyond failing its duties under NEPA, the Commission has not met its APA obligations because it nowhere explains whether or how the information on GHG emissions factored into its decision. For example, the Order compares project emissions to national and state emissions inventories and emission reduction goals but says nothing about how, if at all, the Commission assessed this information in deciding to authorize the Projects.[23] The public—and a reviewing court—are left to guess what connection there might be between the information the EIS and Order provide on GHG emissions and the Commission’s public interest determinations under the NGA. In failing to articulate that connection, the Commission violated fundamental APA requirements.[24]
The Commission cannot excuse its non-compliance by claiming, as it does here, that there are no “accepted tools or methods for the Commission to use to determine significance” of the impacts of GHG emissions.[25] That statement contradicts the Commission’s own precedent. In Northern Natural, the Commission found that it can determine the significance of GHG-related impacts by applying its “experience, judgment, and expertise,” just as it does for other types of environmental impacts.[26] Citing Supreme Court precedent, the Commission explained that the significance determination furthers NEPA’s purposes by “disclosing to the public and the relevant decisionmakers the extent of a project’s adverse environmental impacts.”[27]
I agree with parties in this docket who have stated that the Commission should have used the SC-GHG Protocol to assess the severity of the environmental impacts caused by the Projects’ GHG emissions.[28] In another recent dissent, I explained in detail that the Commission’s continued refusal to use the SC-GHG Protocol in its substantive decision-making (rather than simply for general “informational purposes”) rests on outmoded reasoning that ignores important recent policy and scientific developments.[29] All of the points I made in that dissent apply here and I incorporate them by reference.
The Order’s treatment of GHG impacts is especially objectionable because of the sheer scale of the Projects’ GHG emissions. The Projects’ annual emissions equate to putting more than 1,850,000 additional gas-fueled automobiles on the road each year.[30] Under any common sense understanding of the word, the Projects’ GHG emissions would have to be considered far more than “significant.” Yet the EIS and the Order fail to provide any analysis of the Projects’ incremental or cumulative climate impacts.[31] As explained above, NEPA requires real analysis, not rote recitation of general facts about climate change. Moreover, the depth of the analysis must be commensurate with the magnitude of the impact.[32] Here, both the EIS and the Order are silent as to the degree or severity of the expected climate impacts[33] and bereft of any analysis of climate impacts the Projects will cause. Consequently, the Commission simply has failed to take the “hard look” at climate impacts that NEPA requires.[34]
In summary, without assessing the Projects’ climate impacts, the Commission cannot credibly claim to have considered them in its substantive decision-making, as both NEPA and the NGA required it to do. And it is beyond dispute that the Commission nowhere explains whether or how it factored the Projects’ climate impacts into its public interest determinations, in violation of the APA. These fundamental legal errors render the Order unsustainable.
Deficiencies in the Cumulative Air Pollution Impacts Analysis Undermine the Order
The Commission’s analysis of cumulative air quality impacts associated with the CP2 LNG Project was deficient, both procedurally and substantively, thereby undermining the Order’s conclusion that the project is “environmentally acceptable.”[35] CEQ regulations require that an agency publish an SEIS if “there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.”[36] After the EIS for the Projects was published, critically important new information became available: EPA updated the National Ambient Air Quality Standard (NAAQS) for annual PM2.5 emissions. Based on the air emissions analysis in the EIS, cumulative PM2.5 emissions would exceed the new NAAQS.[37] The Commission treats NAAQS exceedances as significant environmental impacts because the standards are designed to protect human health.[38] Consequently, with publication of the new NAAQS, the EIS’s conclusions that PM 2.5 emissions would be insignificant could not be sustained. Staff therefore required Venture Global to conduct new air modeling. Venture Global submitted the results of additional modeling purporting to show the new PM2.5 NAAQS would not be exceeded. But, as Sierra Club informed the Commission, the modeling did not account for planned increased PM2.5 emissions[39] at the company’s existing Calcasieu Pass LNG terminal (CP1).[40] These increased emissions are reflected in an air permit application that Venture Global filed with the state regulator but failed to share with the Commission. Commission staff then requested that Venture Global update the modeling to reflect these increased emissions.[41] This time, Venture Global’s response did not include mobile emissions associated with CP1, and staff requested a third round of modeling, which it received June 14, 2024. The data underlying that modeling has not been made public, so the basis for the Order’s conclusions on PM2.5 air pollutant impacts cannot be reviewed or verified by Sierra Club or other members of the public.
The Commission should have published an SEIS presenting and analyzing the new PM2.5 modeling data. NEPA requires that an agency prepare an EIS where there “might” be “any” significant environmental impacts,[42] and “the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance.”[43] Since the EIS indicated that there would be significant PM2.5 air pollution impacts associated with the CP2 terminal, the Commission was required to prepare an SEIS to account for the new data.
While the Order includes a truncated discussion of the updated modeling,[44] that is insufficient. Failure to prepare an SEIS is more than a technical error. CEQ’s regulations provide that an agency “shall prepare, publish, and file a supplement to a[n EIS] . . . as a draft and final statement.”[45] Although the regulation does not say so explicitly, the only purpose for publishing a draft would be for the public to comment on it. Consistent with the regulation, the Commission regularly provides for public comment on draft supplemental EISs.[46] Public input ensures the Commission has a solid foundation for its environmental analysis and substantive decision-making. By failing to publish an SEIS regarding the new modeling, the Commission not only violated CEQ regulations but also compromised the Order itself.
There is a second reason for the Commission to prepare an SEIS addressing air pollution impacts. As Sierra Club repeatedly argued, the EIS improperly failed to consider mobile emissions from other LNG projects in the analysis of cumulative air pollution impacts.[47] The Order suggests, with no explanation or citation to legal authority, that the Commission need not analyze the emissions from other LNG terminals if they are not included in the Louisiana Department of Environmental Quality Emissions Reporting Inventory (LDEQ Inventory). But nowhere does the Order address why the Commission chose to consider only the mobile emissions from the CP2 LNG Project and CP1, but not emissions from other Commission-authorized projects. Specifically, the analysis inexplicably excluded mobile emissions from the Driftwood LNG, Lake Charles Liquefaction, Commonwealth LNG, and Magnolia LNG projects.[48] The LDEQ Inventory does not include the mobile emissions associated with the CP1 or CP2 LNG projects, yet the Commission included these emissions in its cumulative impacts modeling.[49] As Sierra Club notes, the mobile emissions associated with all Commission-jurisdictional LNG facilities are clearly foreseeable as they have already been quantified in prior Commission EISs.[50] NEPA requires that the Commission assess all reasonably foreseeable effects of the Projects.[51] Contrary to the Order’s assertions,[52] it is this foreseeability standard under NEPA, not the requirements for Clean Air Act permitting, that determines the required scope of the Commission’s review. The Commission’s inconsistent treatment of mobile emissions, along with its failure to explain that inconsistency, violates both NEPA and the APA.[53] The Commission should rectify these deficiencies by publishing an SEIS that includes a cumulative impacts analysis incorporating all relevant mobile source emissions.
The Order’s claim that modeling additional mobile sources would not change the “cause and contribute” analysis is simply unsupported.[54] Factoring in additional emissions would likely identify new locations where the NAAQS will be exceeded, with the Projects deemed to cause or contribute to the exceedances.[55] Without properly modeling all foreseeable mobile source emissions, the Commission risks failing to account for how the Projects might contribute to NAAQS violations and the consequent significant health risks. That risk is especially high in the case of these Projects, which are located in areas where NAAQS violations are already predicted.[56]
The improper modeling of mobile source emissions highlights why the Commission should have made public all the modeling inputs upon which it relied. NEPA plays an information forcing role by requiring agencies both to assess the environmental impacts of their actions and to inform the public of its analysis.[57] By explaining its reasoning and the data on which it relies, the agency enables the public to identify informational gaps or errors for the agency to correct.[58] Sierra Club did just that in this case, identifying the EIS’s failure to account for sources of mobile emissions in the EIS’s cumulative impacts analysis, as well as the increased PM2.5 emissions reflected in Venture Global’s state permit application. Shielding this information from the public limited the public’s ability to identify additional errors in the cumulative air impacts modeling and how they should be corrected.[59] By limiting the information made available to the public, the Commission limited its ability to satisfy its own legal obligations.[60]
Inadequate Review of Impacts to Commercial Fishing
NEPA requires that when “economic or social and natural or physical environmental effects are interrelated, the environmental impact statement shall discuss and give appropriate consideration to these effects on the human environment.”[61] Here, the Commission recognized that it must assess impacts on commercial fishing interests. Ultimately however, the EIS did not fully consider impacts on commercial fishing and the people who rely on it for their livelihoods.[62] The EIS found that dredging associated with construction of the CP2 LNG Project “would likely result in the direct mortality of benthic organisms, including less mobile life stages of managed species such as shrimp and benthic invertebrates, which are an important food source for many species of fish.”[63] The EIS found that these impacts would not be significant because the “losses would be short term and the benthic community is expected to rebound within a few seasons.”[64] While the EIS concludes that shrimp populations will eventually recover, it fails to consider how this would impact commercial fishing. Comments from FISH,[65] For a Better Bayou, and affected individuals indicate that a single season of decreased shrimp catch threatens to irrevocably end shrimping business ventures in the area.[66] Yet, despite these comments, the EIS ignores the risk that temporary impacts on fisheries might permanently adversely affect commercial fishing businesses. Consequently, the Commission failed to take the legally required “hard look” at commercial fishing impacts.
The Commission’s analysis of fishing impacts is flawed in other ways as well. The EIS recognizes that project construction would cause impacts to nearby fisheries due to marine traffic from LNG carriers.[67] But the EIS is inconsistent in predicting the extent of the marine traffic impact commercial fishing businesses,[68] likely because the Commission has not fully considered marine traffic impacts. The EIS suggests that impacts on shrimping boats are minimal because “[t]ypically, shrimp are most active at night when few vessels are using the Calcasieu Ship Channel.”[69] But the assertion that few ships use the channel at night conflicts with the 2019 Port of Lake Charles Calcasieu Ship Channel Traffic Study (Marine Traffic Study), which the EIS relied on to assess expected traffic impacts.[70] The Marine Traffic Study assumed that “[a]ll vessels were able to transit the channel at night, with no further restrictions and no preference given to either day or night transits.”[71] Either the EIS is incorrect in its assertion that few vessels use the Calcasieu Ship Channel at night, and thus the impact on shrimpers is larger than the EIS contemplated, or the Marine Traffic Study does not paint a representative picture of traffic by assuming no preferences for channel transit time, in which case daytime fishers will face greater impacts than the EIS considered. Either way, the Commission’s analysis of marine traffic impacts on commercial fishing is flawed.
In addition, the EIS ignores the features of the areas of the channel near the project terminal that make it a popular shrimping spot. The Order finds that there would be less than significant impacts on fishers who are members of EJ communities because the area near the terminal facilities “does not have any unique features or habitat characteristics that would draw recreational or commercial users to this particular location versus other locations within the Calcasieu Ship Channel.”[72] But the ship channel, particularly the narrow area of the channel at the firing line,[73] is a special habitat. The ship channel at the firing line represents an especially popular shrimping location in part because it acts as a unique geographic bottleneck where shrimp migrate.[74] While the proposed LNG terminal is south of the firing line and so will not directly impact traffic in this unique location, the EIS fails to consider how “[t]he moving security zone around LNG carriers [which] has the potential to close the channel to traffic” would impact access to the area around the firing line.[75]
In short, there are significant contradictions and omissions in the Commission’s analysis of project impacts on commercial fishing businesses. These errors in the Commission’s environmental analysis join the others in rendering the Order unsustainable.
Inadequate Consideration of Totality of Impacts on EJ Communities
Although the EIS and Order purport to consider the Projects’ cumulative impacts on EJ communities, neither fully considered the interrelationship of the multiple adverse impacts the Projects would have on these communities. The EIS found that “the addition of the Terminal Facilities at this location would represent a significant impact on the viewshed of boaters, beachgoers, tourists, and local residents, as it would detract from the overall quality of the scenic views of this portion of the region.”[76] These impacts would not be felt equally, however. Rather, “permanent changes in the viewshed would have a significant adverse effect on residents and passersby of those environmental justice communities near the Project,”[77] resulting in “disproportionately high and adverse impact[s]”[78] on EJ communities.
Members of EJ communities would also suffer from the LNG terminal’s adverse impacts on commercial fishing businesses. As discussed above, the EIS and Order provide a deficient analysis of the project’s impacts on commercial fishing businesses.[79] The EIS acknowledges that “commercial users in the Calcasieu Ship Channel . . . would likely include individuals from environmental justice communities.”[80] Thus, the deficiencies in the analysis of adverse impacts on fishing blind the Commission to the adverse impacts on members of EJ communities. EJ communities are especially vulnerable to those impacts since one bad season can significantly disrupt fishing businesses,[81] and low-income fishers without significant savings likely would be among those least likely to recover from that disruption.
The Commission has also failed to fully consider climate change impacts on EJ communities. The EIS found that “the impacts of compounded extreme events . . . may exacerbate preexisting community vulnerabilities and have a cumulative adverse impact on environmental justice communities.” [82] But we know that climate change will have adverse impacts on EJ communities. Commission Staff found “local mean sea level rise . . . [would be] 2.1 feet . . . between 2050 and 2060 (relative to year 2000) at the proposed project site area.”[83] These rising sea levels can “accelerate coastal erosion and wetland loss, exacerbate flooding, and increase storm impacts.”[84] Indeed, with the 2.1 feet of sea level rise some homes in identified impacted EJ communities will be permanently underwater.[85] Surely this is an adverse impact on EJ communities, but it is one the Commission completely failed to consider. Marginalized communities face additional barriers to moving when climate change makes their homes unlivable,[86] highlighting why it is important for the Commission to fully consider impacts to EJ communities in its NEPA reviews.
Finally, the Order fails to adequately assess the impact of cumulative air pollutant emissions on EJ communities. As discussed above, the Commission failed to properly assess cumulative emissions impacts by omitting foreseeable mobile sources that might well lead to NAAQS violations.[87] This is especially disturbing given that “[p]eople in low socioeconomic neighborhoods and communities may be more vulnerable to air pollution,”[88] making the health impacts even more severe.
The Order’s failure to fully assess the totality of impacts on EJ communities, like its deficient analysis of GHG impacts, falls short of the Commission’s legal obligations under NEPA, the NGA, and the APA. It is also difficult to square with the Commission’s commitment to “better integrate environmental justice and equity considerations in its decision-making processes,”[89] and to address barriers to “adequate and consistent review of all potential project impacts to environmental justice communities, including cumulative impacts and impacts to health and safety.”[90] Today’s approval of the Projects will compound the cumulative impacts of existing LNG projects on nearby EJ communities, and is a key reason the Projects will not serve the public interest.
For these reasons, I respectfully dissent.
[2] 15 U.S.C. §§ 717b, 717f.
[3] 42 U.S.C. § 4321 et seq.
[4] 5 U.S.C. § 551 et seq.
[5] Order, 187 FERC ¶ 61,199 at PP 32, 199. I agree with commenters that the bifurcation of authority between the Commission and the Department of Energy (DOE) with respect to authorizations under section 3 of the Natural Gas Act leaves us no clear standard for making our public interest determination. See, e.g., Better Bayou et al. March 13, 2023 Comments on Draft Environmental Impact Statement (DEIS) at 1-3; NRDC March 13, 2023 Comments on DEIS at 2-3; Niskanen Center March 13, 2023 Comments on DEIS at 7-9. We have no record on the economic or other benefits from LNG exports and therefore cannot weigh them against the adverse impacts from construction and operation of the CP2 LNG Project. I reiterate my call for Congressional clarification of how the Commission is to make its public interest determination. See Commonwealth LNG, LLC, 181 FERC ¶ 61,143 (2022) (Clements, Comm’r, concurring at P 5). However, in this case, the CP2 LNG Project’s adverse environmental and socioeconomic impacts are so great that I am compelled to find that approving the project is inconsistent with the public interest.
[6] Order, 187 FERC ¶ 61,199 at P 200.
[7] The CP2 LNG Project and CP Express Pipeline Project are collectively referred to below as the Projects.
[8] Order, 187 FERC ¶ 61,199 at PP 178-80.
[9] See Vecinos Para el Bienstar de la Comunidad Costera v. FERC, 6 F.4th 1321, 1329, 1331 (D.C. Cir. 2021) (Vecinos) (finding the Commission’s analysis of climate change impacts deficient under both the NGA and NEPA and directing the Commission to revisit its public interest determination after correcting deficiencies); see also Del. Riverkeeper Network v. FERC, 45 F.4th 104, 109, 115 (D.C. Cir. 2022) (finding “the Commission’s NGA section 7 balancing of public benefits and adverse consequences reasonably accounted for potential environmental impacts” and noting that in some circumstances “[g]reenhouse gas emissions are a reasonably foreseeable effect of a pipeline project” that must be studied under NEPA); Food & Water Watch v. FERC, 28 F.4th 277, 282 (D.C. Cir. 2022) (recognizing the NGA section 7 certificate process incorporates environmental review under NEPA, which includes analysis of downstream GHG emissions); Birckhead v. FERC, 925 F.3d 510, 518-19 (D.C. Cir. 2019) (affirming previous holdings that the Commission is the “legally relevant cause of the direct and indirect environmental effects of pipelines it approves,” including reasonably foreseeable GHG emissions (cleaned up)); Sierra Club v. FERC, 867 F.3d 1357, 1373 (D.C. Cir. 2017) (addressing Commission’s treatment of GHG emissions and explaining that the Commission’s public convenience and necessity determination must weigh a project’s environmental effects).
[10] See, e.g., Ctr. for Biological Diversity v. FERC, 67 F.4th 1176, 1188 (D.C. Cir. 2023) (holding that the Commission makes an appropriate NGA public interest determination when it finds that a project has “substantial economic and commercial benefits” that are “not outweighed by the projected environmental impacts”); Sierra Club v. FERC, 827 F.3d 36, 42 (D.C. Cir. 2016) (“As required by the Natural Gas Act and NEPA, the Commission undertook an extensive review of the Freeport Projects.”); City of Oberlin v. FERC, 937 F.3d 599, 602 (D.C. Cir. 2019) (holding that “[a]s part of the Section 7 certificating process . . . the Commission must complete an environmental review of the proposed project under the National Environmental Policy Act” (emphasis added)); Minisink Residents for Env’t Pres. & Safety v. FERC, 762 F.3d 97, 106–11 (D.C. Cir. 2014) (stating that FERC is obligated to consider alternatives to a proposed project that might better serve the public interest, including on the basis of their environmental impact, when issuing a certificate under section 7).
[11] Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 365 U.S. 1, 5 (1961).
[12] NAACP v. Fed. Power Comm’n, 425 U.S. 662, 670 n.6 (1976).
[13] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (Methow Valley) (emphasis added).
[14] 42 U.S.C. § 4332; see also 42 U.S.C. § 4331 (setting forth NEPA’s environmental protection objectives).
[15] Cf. Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 665-66 (D.C. Cir. 2011) (upholding agency’s interpretation of “public interest” in its organic statute to include environmental considerations given NEPA’s language and goals).
[16] See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.”); Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014) (“[A]n agency action will be set aside as arbitrary and capricious if it is not the product of ‘reasoned decisionmaking.’” (quoting Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983) (State Farm))).
[17] In Vecinos, the D.C. Circuit Court of Appeals found the Commission must reconsider its NGA public interest determinations because they rested on a deficient EIS. See Vecinos, 6 F.4th at 1331.
[18] 40 C.F.R. § 1502.16(a)(1) (2024); see also Sierra Club v. FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sabal Trail) (recognizing CEQ regulations requires an EIS to discuss the significance of environmental impacts). The Commission’s regulations implementing NEPA provide that the Commission will comply with CEQ’s regulations under the statute. 18 C.F.R. § 380.1 (2024).
[19] See Food and Water Watch v. FERC, No. 22-1214, 2024 WL 2983833, at *6 (D.C. Cir. 2024) (East 300).
[20] See, e.g., 40 C.F.R. § 1502.1 (2024) (“Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses.”) (emphasis added); Reed v. Salazar, 744 F. Supp. 2d 98, 100 (D.D.C. 2009) (“NEPA ‘requires that agencies assess the environmental consequences of federal projects by following certain procedures during the decision-making process.’”) (emphasis added) (quoting City of Alexandria v. Slater, 198 F.3d 862, 866 (D.C. Cir. 1999))); 40 C.F.R. § 1502.15 (2024) (“The environmental impact statement may combine the description with evaluation of the environmental consequences.”) (emphasis added). The court in East 300 did not consider these requirements.
[21] Final EIS at 4-557 to 4-561.
[22] Order, 187 FERC ¶ 61,199 at PP 178-80.
[23] See id. at PP 171-73.
[24] See State Farm, 463 U.S. at 43 (“[T]he agency 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.’” (emphasis added) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).
[25] Order, 187 FERC ¶ 61,199 at P 180. In addition to the reasons explained in the text of my dissent, I dissent from paragraphs 179-80 of the Order because they (1) reflect a final Commission decision that it cannot determine the significance of GHG emissions, despite the fact the Commission has never responded to comments in the GHG Policy Statement docket (Docket No. PL21-3) addressing methods for doing so; and (2) depart from previous Commission precedent without reasoned explanation, thereby violating the APA. In my concurrence in Transcon. Gas Pipe Line Co., 184 FERC ¶ 61,066 (2023) (Clements, Comm’r, concurring, at PP 2-3), I explained the history of the language, which the majority suddenly adopted in Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61, 63 (2023) (Driftwood). I dissented from this language in Driftwood and every subsequent order in which it has appeared. See Driftwood, 183 FERC ¶ 61,049 (Clements, Comm’r, dissenting in part at PP 2-3 & n.5); see also Gas Transmission Nw. LLC, 187 FERC ¶ 61,177 (2024) (Clements, Comm’r, dissenting at P 3); Tenn. Gas Pipeline Co., 187 FERC ¶ 61,136 (2004) (Clements, Comm’r, dissenting in part at P 2) Port Arthur LNG, LLC, 187 FERC ¶ 61,058 (2024) (Clements, Comm’r, dissenting in part at P 1); Great Basin Gas Transmission Co., 187 FERC ¶ 61,043 (2024) (Clements, Comm’r, dissenting in part at P 1); Fla. Gas Transmission Co., 187 FERC ¶ 61,042 (2024) (Clements, Comm’r, dissenting in part at P 1); El Paso Nat. Gas Co., 187 FERC ¶ 61,041 (2024) (Clements, Comm’r, dissenting in part at P 1); Transcon. Gas Pipe Line Co., 187 FERC ¶ 61,024 (2024) (Clements, Comm’r, dissenting at P 1) (Transco); Gas Transmission Nw., LLC, 187 FERC ¶ 61,023 (2024) (Clements, Comm’r, dissenting at P 28); E. Tenn. Nat. Gas, LLC, 186 FERC ¶ 61,210 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); Transcon. Gas Pipe Line Co., 186 FERC ¶ 61,209 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); N. Nat. Gas Co., 186 FERC ¶ 61,064 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); Saguaro Connector Pipeline, LLC, 186 FERC ¶ 61,114 (2024) (Clements, Comm’r, dissenting in part at PP 2-4); Tenn. Gas Pipeline Co., 186 FERC ¶ 61,113 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); Transcon. Gas Pipe Line Co., 186 FERC ¶ 61,063 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); Columbia Gas Transmission, LLC, 186 FERC ¶ 61,048 (2024) (Clements, Comm’r, dissenting in part at PP 2-4); Transcon. Gas Pipe Line Co., 186 FERC ¶ 61,047 (2024) (Clements, Comm’r, dissenting at PP 8-9); Tenn. Gas Pipeline Co., 186 FERC ¶ 61,046 (2024) (Clements, Comm’r, dissenting in part at PP 1-2); ANR Pipeline Co., 185 FERC ¶ 61,191 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Transcon. Gas Pipe Line Co., 185 FERC ¶ 61,133 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Transcon. Gas Pipe Line Co., 185 FERC ¶ 61,130 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Tex. LNG Brownsville LLC, 185 FERC ¶ 61,079 (2023) (Clements, Comm’r, dissenting at PP 9-10); Rio Grande LNG, LLC, 185 FERC ¶ 61,080 (2023) (Clements, Comm’r, dissenting at PP 9-10); Gas Transmission Nw., LLC, 185 FERC ¶ 61,035 (2023) (Clements, Comm’r, concurring in part and dissenting in part at PP 7-8); WBI Energy Transmission, Inc., 185 FERC ¶ 61,036 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Venture Glob. Plaquemines LNG, LLC, 185 FERC ¶ 61,037 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Tex. E. Transmission, LP, 185 FERC ¶ 61,038 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Trailblazer Pipeline Co., 185 FERC ¶ 61,039 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Equitrans, L.P., 185 FERC ¶ 61,040 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Port Arthur LNG Phase II, LLC, 184 FERC ¶ 61,184 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Venture Glob. Calcasieu Pass, LLC, 184 FERC ¶ 61,185 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); N. Nat. Gas Co., 184 FERC ¶ 61,186 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Tex. E. Transmission, LP, 184 FERC ¶ 61,187 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Equitrans, LP, 183 FERC ¶ 61,200 (2023) (Clements, Comm’r dissenting at PP 2-3); Commonwealth LNG, LLC, 183 FERC ¶ 61,173 (2023) (Clements, Comm’r, dissenting at PP 5-8); Rio Grande LNG, LLC, 183 FERC ¶ 61,046 (2023) (Clements, Comm’r, dissenting at PP 14-15); Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047 (2023) (Clements, Comm’r, dissenting at PP 14-15).
[26] N. Nat. Gas Co., 174 FERC ¶ 61,189, at P 32 (2021) (Northern Natural).
[27] Id. at P 31 & n.47 (citing Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004)).
[28] For a Better Bayou March 13, 2023 Comments on DEIS at 18-19; Niskanen Center March 13, 2023 Comments on DEIS at 39-42; NRDC March 13, 2023 Comments on DEIS at 10-12.
[29] Transco, 187 FERC ¶ 61,024 (Clements, Comm’r, dissenting at PP 9-17). While some courts have found that the Commission is not required to use the SC-GHG Protocol, the parties in those cases did not raise, nor did the courts consider, the points made in my dissent regarding recent policy and scientific developments supporting the protocol’s use.
[30] The Projects are estimated to emit approximately 8,510,099 metric tons per year of CO2e. Order, 187 FERC ¶ 61,199 at P 165. That is equivalent to putting more than 1,850,000 additional gas-fueled automobiles on the road. EPA, Greenhouse Gas Emissions from a Typical Passenger Vehicle (Aug. 28, 2023), https://www.epa.gov/greenvehicles/greenhouse-gas-emissions-typical-passenger-vehicle (“A typical passenger vehicle emits about 4.6 metric tons of CO2 per year.”).
[31] See supra P 6 & n.20 (discussing agency obligations under NEPA to engage in substantive analysis of environmental impacts).
[32] See 40 C.F.R. § 1502.2(b) (2024) (stating EISs “shall discuss impacts in proportion to their significance”); 40 C.F.R. § 1502.15 (2024) (“Data and analyses in a statement shall be commensurate with the importance of the impact . . .”).
[33] See Methow Valley, 490 U.S. at 352 (stating that an EIS must allow “the agency [or] other interested groups and individuals [to] properly evaluate the severity of the adverse effects [of an agency action]”).
[34] Id. at 350 (“The sweeping policy goals announced in § 101 of NEPA are thus realized through a set of action-forcing procedures that require that agencies take a hard look at environmental consequences.”) (cleaned up).
[35] Order, 187 FERC ¶ 61,199 at P 198.
[36] 40 C.F.R. § 1502.9(d)(1)(ii) (2024).
[37] See EIS at 4-372, table 4.12.1-22 (showing expected annual PM2.5 concentrations at 9.4 µg/m3, exceeding the new NAAQS of 9.0 µg/m3).
[38] See 42 U.S.C. § 7409(b)(1) (“National primary ambient air quality standards . . . shall be ambient air quality standards the attainment and maintenance of which . . . are requisite to protect the public health.”); EIS at 4-376 (“[W]e find that the Project would not cause or contribute to an exceedance of the NAAQS, which are established to be protective of human health, including sensitive populations such as children, the elderly, and those with compromised respiratory function, i.e. asthmatics.”).
[39] Sierra Club April 22, 2024 Comments at 2.
[40]On February 21, 2019, the Commission granted Venture Global authorization to site, construct, and operate its Calcasieu Pass LNG export terminal. Venture Global Calcasieu Pass, LLC, 166 FERC ¶ 61,144 (2019).
[41] May 15, 2024 Environmental Information Request (EIR) No. 15 at 1.
[42] Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1039 (D.C. Cir. 2021) (quoting Grand Canyon Tr. V. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002)); see also Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983).
[43] Stand Up for Cal.! v. DOI, 994 F.3d 616, 628 (D.C. Cir. 2021) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 374 (1989)) (internal quotation marks omitted).
[44] Order, 187 FERC ¶ 61,199 at PP 192, 194, 197.
[45] 40 C.F.R. § 1502.9(d)(3) (2024).
[46] Consistent with the regulation, the Commission regularly provides for public comment on draft supplemental EIS’s. See, e.g., Magnolia LNC, LLC; Notice of Availability of the Draft Environmental Impact Statement for the Proposed Magnolia Production Capacity Amendment, 84 Fed. Reg. 52,881 (Oct. 3, 2019); Fla. Se. Connection, LLC; Transcon. Gas Pipe Line Co., LLC; Sabal Trail Transmission, LLC; Notice of Availability of the Draft Supplemental Environmental Impact Statement for the Se. Mkt. Pipelines Project, 82 Fed. Reg. 46,233 (Oct. 4, 2017).
[47] Sierra Club October 16, 2023 Comments on FEIS at 3-4; Sierra Club May 30, 2024 Comments at 2.
[48] Sierra Club October 16, 2023 Comments on FEIS at 3-4. Driftwood LNG, Lake Charles Liquefaction, Commonwealth LNG, and Magnolia LNG operations all contribute or will contribute to cumulative air quality impacts in the project area. EIS at 4-511 to 4-512.
[49] In fact, the Commission rejected Venture Global’s air modeling as insufficient because it only included LDEQ Inventory sources and not CP1 mobile emissions. May 29 EIR No. 16 at 3 (rejecting the May 15 modeling which was derived from modeling submitted to LDEQ because “it does not include the LNG ship and support vessel emissions from CP1”).
[50] Sierra Club October 16, 2023 Comments on FEIS at 3.
[51] See 40 C.F.R. § 1508.1(g)(3) (2024) (describing cumulative effects as “effects on the environment that result from the incremental effects of the action when added to the effects of other past, present, and reasonably foreseeable actions”); Sabal Trail, 867 F.3d at 1371 (“Effects are reasonably foreseeable if they are ‘sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision.’”) (quoting EarthReports, Inc. v. FERC, 828 F.3d 949, 955 (D.C. Cir. 2016)).
[52] Order, 187 FERC ¶ 61,199 at P 195.
[53] State Farm, 463 U.S. at 43 (“[T]he agency 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.’” (emphasis added) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. at 168)).
[54] See Order, 187 FERC ¶ 61,199 at PP 186-88.
[55] The record confirms that including additional emissions sources will likely change the cause and contribute analysis. In Appendix K of the EIS, the highest project contribution to any potential NAAQS exceedance location for the 1-hour NO2 standard is 3.7 μg/m3. EIS at Appendix K. But in updated modeling reflecting greater NO2 emissions from CP1, new NAAQS exceedances were found, including a location where CP2 contributed 6.36 μg/m3 to the NO2 exceedance. See CP2 LNG June 3, 2024 Response to EIR No. 16 at 3. Thus, the Order relies on outdated information in stating that “the highest project contribution to any potential NAAQS exceedance location for the 1-hour NO2 standard is 3.7 micrograms per cubic meter.” Order, 187 FERC ¶ 61,199 at P 187.
[56] Order, 187 FERC ¶ 61,199 at P 186.
[57] Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983) (“NEPA has twin aims. First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.”) (internal citations omitted).
[58] See Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 143 (1981) (“Through the disclosure of an EIS, the public is made aware that the agency has taken environmental considerations into account.”); see also Methow Valley, 490 U.S. at 349 (“Publication of an EIS . . . provides a springboard for public comment.”).
[59] See Sierra Club October 16, 2023 Comments on FEIS at 5-6 (explaining Sierra Club’s inability to provide a complete analysis of air modeling without modeling inputs). The majority’s claims that modeling information was provided is incorrect. See Order, 187 FERC ¶ 61,199 at P 189. Venture Global did not make public any of the modeling data supporting the results submitted on June 3, 2024. This is the modeling supporting the ultimate conclusions in the Order with respect to air impacts. As to the earlier modeling, the Order mischaracterizes what information Venture Global made public. The “modeling files” are not included in Venture Global’s EIR, as the page referencing them is blank and has no link or embedded files. See Appendix E of CP2 LNG August 1, 2022 Supplemental Response to EIR No. 3 at 951. While the public might be able to request the modeling files from the Commission, the Commission’s failure to affirmatively notify participants in the docket that they may request the modeling files means that the public functionally had no access. Of course, even if the data had been made public, there would have been too little time before issuance of this Order for any real evaluation of such highly technical information.
[60] See, e.g., Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072-74 (1st Cir. 1980) (failure to present data and analysis supporting agency’s decision in EIS improperly hampers public comment, “mut[ing] those most likely to identify problems and criticize decisions”); Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974) (“An EIS is in compliance with NEPA when its form, content, and preparation substantially . . . make available to the public, information of the proposed project's environmental impact and encourage public participation in the development of that information.”) (emphasis added).
[61] 40 C.F.R. § 1502.16(b).
[62] I distinguish between the fisheries, the fish population and ecosystem in a given area, and businesses and individuals engaged in commercial fishing businesses, who make their livelihood catching fish in the fishery.
[63] EIS at 4-206.
[64] Id.
[65] Fishermen Involved in Sustaining our Heritage (FISH) is a coalition of commercial fishermen in Southwestern Louisiana. See FISH April 18, 2024 Motion to Intervene at 1.
[66] Comments of Mr. Eustis at the March 1, 2023 Public Comment Meeting, pg. 24 at lines 19-23 (noting that with regards to shrimping impacts “discontinuity of one season can be the difference between -- can bankrupt the family.”); FISH June 14, 2024 Comments at 6 (“Mr. Theriot is unsure whether his commercial fishing business will survive through 2024 and he is worried that he may not be able to continue to make payments on his home.”); Id. at Exhibit 4, Theriot Declaration (describing how Mr. Theriot has experienced decreased catch volume since 2022, and declaring that “[i]f my shrimp catch does not recover this year, I am concerned that I will be forced out of business.”).
[67] EIS at 4-270 (finding that an “increase in delays associated with LNG carrier transit would have a moderate, but not significant impact on commercial fishing”).
[68] Contrast the EIS finding that the CP2 terminal in isolation would have a “moderate, but not significant impact on commercial fishing,” id., with later findings that “the Project would contribute negligibly to overall temporary and minor cumulative impacts on commercial fisheries in the Calcasieu Ship Channel.” Id. at 4-541. It is clearly inconsistent to find that the cumulative impacts of all ship traffic in the channel would be minor when the impacts of ship traffic from the ships servicing CP2 alone would be moderate.
[69] EIS at 4-270.
[70] EIS at 4-295; EIS at 4-543 to 4-544.
[71] Marine Traffic Study at 20.
[72] Order, 187 FERC ¶ 61,199 at P 112.
[73] The firing line represents the boundary between waters open for commercial fishing year round and those only open for seasonal commercial fishing. See EIS at 4-267 to 4-268.
[74] See EIS at 4-541. The EIS states that the migration occurs for “approximately two weeks,” although the length of migration is characterized as “generally… much longer than two weeks” by LDWF. Memo of May 23, 2023 Telephone Conversation with NMFW and LDWF at 1. It is not clear why the Commission disagreed with the LDWF assessment, or if a longer migration period would have changed the Commission’s assessment of the significance of impacts on shrimpers.
[75] EIS at 4-538. The Terminal facilities are approximately 1.5 miles from the firing line, and thus the shrimping location at the firing line would be impacted by any moving security zone, which extends for 2 miles ahead of applicable ships. 33 C.F.R. § 165.805(a)(2) (2024) (“The following areas are moving security zones: . . . 2 miles ahead and 1 mile astern of certain designated vessels while in transit.”).
[76] EIS at 4-546. Notably, although the EIS recognizes that the terminal represents a significant impact on the viewshed of tourists, it does not examine how such an impact would affect tourism in the region.
[77] Id. at 4-319.
[78] Id. at 4-328.
[79] See supra PP 18-21.
[80] EIS at 4-545.
[81] See supra P 18.
[82] EIS at 4-549 (emphasis added).
[83] Id. at 4-453.
[84] Id. at 4-90.
[85] For example, some of the homes on Mildred street are at an elevation of just 1.72 feet above current sea levels, leaving them underwater with 2.1 feet of additional sea level rise. See U.S. Geological Surv., The National Map, https://apps.nationalmap.gov/viewer/ (showing a 1.72 ft elevation at lat. 29.78469, long. 93.29007 using the spot elevation tool).
[86] See, e.g., Bergan et al., Creating Moves to Opportunity: Experimental Evidence on Barriers to Neighborhood Choice, 114 Am. Econ. Rev. 2181 (2024).
[87] See supra P 15.
[88] EPA, Research on Health Effects from Air Pollution (May 28, 2024), https://www.epa.gov/air-research/research-health-effects-air-pollution.
[89] FERC, 2023 Equity Action Plan at 2 (Apr. 15, 2022), https://www.ferc.gov/equity.
[90] FERC, 2024 Equity Action Plan at 14 (June 6, 2024), https://www.ferc.gov/equity.