Commissioner James Danly Statement
October 23, 2023
Docket No. CP21-455-000
I concur in the decision to deny the protests and authorize Equitrans, L.P. (Equitrans) to abandon the facility and related appurtenances under its Part 157 blanket certificate.[1]
Additionally, I concur in the determinations in paragraphs 29 and 30: 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 assess the significance of GHG emissions.[2] Specifically, paragraphs 29 and 30 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”; (3) 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 (4) therefore, there are “no accepted tools or methods for the Commission to use to determine significance.”[3] This language made its first appearance in orders on the April 20, 2023 open meeting.[4] I voted for this language, as did two of my colleagues, Chairman Phillips and Commissioner Christie.[5]
I also concur in the Commission’s declaration that it is the Commission’s order that controls and therefore any language in the Environmental Assessment (EA) or Supplemental EA that is in tension with the Commission’s order is not relied upon or adopted by the Commission.[6] 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.[7]
I dissent in part for a handful of reasons. Specifically, I write separately to note that the resolution of this proceeding has taken far longer than necessary. Equitrans, L.P. filed its prior notice request on June 3, 2021, and Commission staff filed the EA in the record on August 5, 2021. Nearly two years passed in which the Commission could have acted. On July 17, 2023, Commission staff filed a supplemental EA examining “cumulative impacts, greenhouse gas emissions and climate change, and environmental justice.”[8] The Commission is now acting on the matter more than 28 months after the prior notice request was filed. This sort of delay, and the novel environmental review process attendant to a relatively minor abandonment project, neatly showcases the regulatory uncertainty this Commission creates and which results in the stultification of an industry that provides essential services and which we are charged with promoting.[9]
While the supplemental environmental review may be gratifying to some—a signal of the Commission’s virtue—there is no argument that it was necessary for the legal durability of today’s order. Certainly, the Commission offers no argument that it was.
The Supreme Court has explained that a “rule of reason” should guide the scope of the environmental review that agencies undertake to fulfill their obligations under the NEPA.[10] The agencies must gauge “whether and to what extent” to prepare reviews such as an environmental impact statement “based on the usefulness of any new potential information to the decisionmaking process.”[11] With respect to the Supplemental EA’s examination of greenhouse gas emissions and climate change, undertaking additional review implies that the Commission could learn something that would aid its deliberation. What could that information possibly be?—the Commission has no way to identify or assess the impact that the process of abandoning a natural gas well could have on the chaotic non-linear system that is the Earth’s climate and, what is more, the Commission has explicitly said as much.[12]
The Social Cost of GHG, a number included in the Supplemental EA, does not help in this regard. The Commission has often—and extensively—discussed why the Social Cost of Carbon is ill-suited to project-level NEPA review, and why the Social Cost of Carbon cannot meaningfully inform the Commission’s decision to approve or reject natural gas infrastructure projects under the NGA.[13] And as the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) recognized just last month, it (the D.C. Circuit) has previously upheld the Commission’s decision to not use the Social Cost of Carbon and has similarly upheld the Commission’s conclusion there is “‘no scientifically-accepted methodology available to correlate specific amounts of [greenhouse-gas] emissions to discrete changes in’ the human environment.”[14] No valuable information can be gleaned from the numbers included in Commission staff’s Supplemental EA[15] and they serve merely to confuse the matter—they should be omitted from all future issuances.[16]
That there may be colorable arguments that the Commission is required to make some sort of prediction as to the effects on climate change that might be caused by the abandonment of a well is a sign of just how broken the environmental review process has become. Agencies engaging in such speculation (under the encouragement of certain courts) do nothing to advance the quality of decision making but add no end of confusion as to what may be required to obtain necessary federal permits to develop and maintain critical infrastructure.
Aside from the above, there is an obvious logical flaw in this order. Commission staff’s Supplemental EA states “GHG emissions from the short duration of Project removal and plugging activities would increase the atmospheric concentration of GHGs in combination with past, current, and future emissions from all other sources globally and contribute incrementally to future climate change impacts.”[17] My colleagues, in today’s order, acknowledge this statement found in the EIS and then go on to state (in the order itself) that “[w]e clarify that, to the extent that the emissions associated with the proposed abandonment are not offset by the reduction in fugitive emissions from plugging Well 3660, the activities authorized herein will result in GHG emissions which contribute incrementally to future climate change impacts, including impacts in the region.”[18] In a footnote to that same paragraph, in disclosing the construction GHG emissions that are estimated to occur from the abandonment activities, the order states “these GHG emissions will be offset to some degree by the project reducing fugitive emissions of methane from Well 3660, but we do not have a basis to calculate this offset.”[19]
But the declaration that the proposed abandonment will “contribute incrementally to future climate change impacts” appears at the same time as we say that we have no means by which to assess the significance of GHG emissions and we do not have a basis to calculate any offset. This is obviously problematic. First, it is unclear what, exactly, the majority means when it says that the proposed abandonment will “contribute incrementally to future climate change impacts.”[20] Second, this statement is only offered to respond to Commission staff’s inclusion of statements in their NEPA documents indicating that the proposed project “would increase the atmospheric concentration of GHGs in combination with past, current, and future emissions from all other sources globally and contribute incrementally to future climate change impacts.”[21] The reality of the matter is that staff has no idea whether that is the case. The Commission has declared as much. So why repeatedly include such statements? How does such speculation inform the Commission’s decision making? Quite simply, it does not.
For these reasons, I respectfully concur in part and dissent in part.
[1] See Equitrans, L.P., 185 FERC ¶ 61,040 (2023) (Equitrans).
[2] See id. PP 29-30.
[3] Id.
[4] 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 [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).
[5] 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 (though not at issue here) 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.
[6] See Equitrans, 185 FERC ¶ 61,040 at P 35 (“We note that the analysis in the EA and Supplemental EA 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 EA or Supplemental EA 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 EA or Supplemental EA.”).
[7] 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”).
[8] Equitrans, L.P., 185 FERC ¶ 61,040 at P 19; see also Supplemental EA.
[9] The purpose of the Natural Gas Act (NGA), as the Supreme Court has instructed us, is “to encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices.” NAACP v. FPC, 425 U.S. 662, 669-70 (1976) (citations omitted).
[10] Dep’t of Trans. v. Public Citizen, 541 U.S. 752, 767 (2004).
[11] Id. (citation omitted).
[12] See Equitrans, L.P., 185 FERC ¶ 61,040 at P 29 & n.66 (explaining that there is no “methodology to attribute discrete, quantifiable, physical effects on the environment resulting from the Project’s incremental contribution to GHGs”) (citing Supplemental EA at 5); id. P 29 (explaining that there is no “method that would enable the Commission to determine the significance of reasonably foreseeable GHG emissions”); id. PP 29-30.
[13] See, e.g., Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043, at P 296 (2017), order on reh’g, 163 FERC ¶ 61,197, at PP 275-97 (2018), aff’d sub nom. Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199, at *2 (D.C. Cir. 2019) (“[The Commission] gave several reasons why it believed petitioners’ preferred metric, the Social Cost of Carbon tool, is not an appropriate measure of project-level climate change impacts and their significance under NEPA or the Natural Gas Act. That is all that is required for NEPA purposes.”).
[14] Del. Riverkeeper Network v. FERC, 45 F.4th 104, 111 (D.C. Cir. 2022) (citing EarthReports, Inc. v. FERC, 828 F.3d 949, 956 (D.C. Cir. 2016)) (citation omitted); see id. at 112 (finding that because petitioners “did not argue before the Commission that section 1502.21(c) required the use of the Social Cost of Carbon tool,” the court lacked jurisdiction to consider that argument). But see Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321, 1329-30 (D.C. Cir. 2021) (remanding the Commission’s decision to not use the Social Cost of Carbon because the court found that the Commission failed to respond to an argument raised on rehearing that 40 C.F.R. § 1502.21(c) calls for the Commission to apply the Social Cost of Carbon).
[15] See Supplemental EA at 6-7.
[16] Because the Social Cost of Carbon was not developed for project-level review, its use is not required for the evaluation of impacts under section 1502.21 of the CEQ’s regulations. 40 C.F.R. § 1502.21(c). This reasoning is consistent with Florida Southeast Connection, LLC where the Commission stated, “[a]nd we do not dispute that [the Social Cost of Carbon] is generally accepted in the scientific community and can play an important role in different contexts, such as rulemaking proceedings.” 164 FERC ¶ 61,099, at P 35 (2018) (emphasis added) (footnote omitted).
[17] Supplemental EA at 4.
[18] Equitrans, L.P., 185 FERC ¶ 61,040 at P 25 (citation omitted).
[19] Id. P 25 n.58.
[20] See id. P 25. I acknowledge that various formulations of this language have been included in orders that I have previously voted for, but I no longer support this language and object to its inclusion.
[21] Supplemental EA at 4.