Docket No. CP21-455-000
I concur with the result of today’s Order, but I dissent from the majority’s conclusion that the Commission is incapable of assessing the significance of the impacts of greenhouse gas (GHG) emissions associated with the Well 3660 Project.[1] The Commission should have simply found that the project’s minor GHG emissions are insignificant for purposes of both the National Environmental Policy Act[2] and the Commission’s public interest determination under section 7(b) of the Natural Gas Act.[3] Instead, the Order imports wrong-headed language used in other recent certificate orders to find there are no acceptable tools for determining the significance of GHG emissions.
In Northern Natural Gas Co., the Commission found that it could determine the significance of GHG emissions of a natural gas project by applying its experience, judgment, and expertise to the evidence in the record.[4] The combined construction related and operational GHG emissions in that case amounted to 20,006 metric tons, which the Commission found to be insignificant. The Well 3660 Project will generate only a tiny fraction of that amount: 110 metric tons of construction related GHG emissions and no operational emissions.[5] That equates to the carbon footprint of just three United States households in one year.[6] Where, as here, the GHG emissions clearly would be deemed insignificant under any reasonable framework for assessing significance, the Commission should use its common sense and simply say so.
Rather than reaching the obvious conclusion that the GHG emissions would be insignificant, the majority strains to include in the Order the same unnecessary and misguided language to which I have previously objected. In my concurrence in Transco, I explained the history of the language in Paragraphs 29 and 30 of the Order,[7] which is the so-called “Driftwood compromise.”[8] In Driftwood, the majority adopted unheralded new language declaring that there are no methods for assessing the significance of GHG emissions, and particularly criticizing the Social Cost of GHGs protocol.[9] I have dissented from this language in Driftwood and subsequent orders for two reasons: (1) it reflects 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[10] addressing methods for doing so; and (2) the language departs from previous Commission precedent without reasoned explanation, thereby violating the Administrative Procedure Act.[11] I dissent from Paragraphs 29 and 30 of this Order for the same reasons.
I do not know whether the Social Cost of GHGs protocol or another tool can or should be used to determine significance. That is because the Commission has not seriously studied the answer to that question. Rather, the majority has simply decided there is no acceptable method, with no explanation of why the Commission departs from the approach taken in other certificate orders.[12] As I have said before, the Commission should decide the important unresolved issues relating to our assessment of GHG emissions through careful deliberation in a generic proceeding with full transparency. However, in the meantime, the Commission should rely on our precedent in Northern Natural, as well as our common sense, to find that the GHG emissions here are not significant.
For these reasons, I respectfully dissent in part.
[2] 42 U.S.C. §§ 4321 et seq.
[3] 15 U.S.C. § 717f(b).
[4] See N. Nat. Gas Co., 174 FERC ¶ 61,189, at PP 32, 36 (2021).
[5] See Order at P 25.
[6] The typical household in the United States has a carbon footprint of approximately 48 metric tons per year of CO2e. Carbon Footprint Factsheet, Center for Sustainable Systems, U. Mich. (Sept. 2021), https://css.umich.edu/factsheets/carbon-footprint-factsheet.
[7] See Transcon. Gas Pipe Line Co., 184 FERC ¶ 61,066 (2023) (Clements, Comm’r, concurring at PP 2-3) (Transco).
[8] See id. (Phillips, Chairman, and Christie, Comm’r, concurring at PP 1-2).
[9] See Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61, 63 (2023) (Driftwood).
[10] Docket No. PL21-3.
[11] See Driftwood, 183 FERC ¶ 61,049 (Clements, Comm’r, dissenting at PP 2-3 & n.161); see also Port Arthur LNG Phase II, LLC, 184 FERC ¶ 61,184 (2023) (Clements, Comm'r, dissenting in part at PP 2-3); Venture Global Calcasieu Pass, LLC, 184 FERC ¶ 61,185 (2023) (Clements, Comm'r, dissenting in part at PP 2-4); Northern Natural Gas Company, 184 FERC ¶ 61,186 (2023) (Clements, Comm'r, dissenting in part at PP 2-3); Texas Eastern Transmission, LP, 184 FERC ¶ 61,187 (2023) (Clements, Comm'r, dissenting in part at PP 2-4); Equitrans, L.P., 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); Texas LNG Brownsville LLC, 183 FERC ¶ 61,047 (2023) (Clements, Comm'r, dissenting at PP 14-15).
[12] To depart from prior precedent without explanation violates the Administrative Procedure Act. See, e.g., West Deptford Energy, LLC v. FERC, 766 F.3d 10, 17 (D.C. Cir. 2014) (“[T]he Commission cannot depart from [prior] rulings without providing a reasoned analysis.”) (citations omitted).