September 23, 2022
CP21-44-000
I concur in the decision to grant LA Storage, LLC’s (LA Storage) application pursuant to section 7(c) of the Natural Gas Act (NGA)[1] and Parts 157 and 284 of the Commission’s regulations[2] for authorization to construct and operate new natural gas storage and transmission facilities (Hackberry Storage Project) located in Cameron and Calcasieu Parishes, Louisiana. I write separately to highlight several aspects of this order and the Commission’s recent NGA sections 3 and 7[3] authorizations more broadly.
First, although I agree that the Commission must act “in accordance with our . . . statutory duties,”[4] we must first examine the scope of our inquiry under the public convenience and necessity standard. The Supreme Court has found that NGA section “7(e) requires the Commission to evaluate all factors bearing on the public interest.”[5] This obligation, however, is not unlimited in scope and this requirement cannot be read in a vacuum. The Supreme Court has explained that the inclusion of the term “public interest” in our statute is not “a broad license to promote the general public welfare”—instead, it “take[s] meaning from the purposes of the regulatory legislation.”[6] The purpose of the NGA, as the Supreme Court has instructed us is “to encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”[7] To the extent to which any Commission issuances attempts to expand the subjects we consider in our inquiry under the public convenience and necessity standard (as, for example, is contemplated by the now-draft Updated Certificate Policy Statement),[8] I reiterate my view that any regime we institute must “take meaning” from the purpose of the NGA.
Second, as I have explained in recently-issued certificate orders,[9] while not fatal to the durability of the order, I would have explicitly repudiated Northern Natural Gas Company[10] and reaffirmed the Commission’s prior position that “[w]ithout an accepted methodology, the Commission cannot make a finding whether a particular quantity of greenhouse gas [(GHG)] emissions poses a significant impact on the environment, whether directly or cumulatively with other sources, and how that impact would contribute to climate change.”[11] This is because, as the Commission has stated, it is unable to connect a particular project’s GHG emissions to discrete, physical effects on the environment.[12] The Council on Environmental Quality (CEQ) has found similarly.[13] Moreover, 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.[14] And the Commission’s recent attempts to do so, absent the expertise to make such a determination and the statutory authority to impose it, have amounted to little more than picking arbitrary numbers.[15]
In now stating in our orders 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,”[16] the Commission has effectively preserved the ability to expand the use of its flawed “eyeball” test, possibly employing a new number as the threshold. The inclusion of this sentence in our recent orders demonstrates that my colleagues persist in the misapprehension that we have the authority to establish an arbitrary significance threshold. How will the Commission conduct significance determinations going forward? Or a better question: how exactly can the Commission conduct significance determinations going forward? We have a mess on our hands because of changing, inconsistent practice and because the Commission’s policy of picking numbers out of thin air and then declaring new thresholds brings with it significant legal risk.[17] In several proceedings Commission staff has made significance determinations in a NEPA document[18] published after the issuance of the Commission’s Interim GHG Policy Statement[19] and before that policy statement was retroactively converted to a draft policy statement.[20] In three proceedings, the Commission issued an order that neither acknowledged nor adopted staff’s significance determination.[21] But in one recent proceeding, the Commission did in fact acknowledge that staff previously assessed significance, and declined to adopt that determination.[22] We should stop issuing confusing, inconsistent statements and we should no longer attempt to preserve our ability to set arbitrary thresholds. The establishment of the 100,000 metric tpy significance threshold was a mistake,[23] and I urge the Commission not to make the same mistake again. Establishment of wholly arbitrary thresholds for the purpose of determining when mitigation will be required is likely outside our authority[24] and, if the Commission’s choice of an arbitrary number is unsupported by actual reasoning, it will fail under the Administrative Procedure Act.
In addition, we have recently been reminded by the Supreme Court how important it is to be cautious and deliberate when attempting to regulate any subject matter that Congress has not clearly placed within our jurisdiction, especially when the regulation of these fields will have a profound effect on a major industry that is fundamental to the health and prosperity of all Americans. West Virginia v. Environmental Protection Agency (West Virginia)[25] should give the Commission pause before it blunders further into this territory. West Virginia perfectly mirrors Commissioner Christie’s dissent regarding the major questions doctrine and counsels caution.[26] The Commission is charged under the NGA with “encourag[ing] the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”[27] The NGA’s purpose, established by Congress and articulated by the Supreme Court, is for the Commission to promote the consumption of natural gas. It is not an environmental statute and to adopt mitigation policies or establish thresholds, the effect of which would be to frustrate the primary purpose of the statute in order to pursue policy goals in an arena not delegated by Congress, 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.”[28] 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).
Third, I object to the Commission’s inclusion of a Social Cost of Carbon calculation based on the estimated emissions from the project’s operation in this order.[29] 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 disapprove natural gas infrastructure projects under the NGA.[30] No valuable information can be gleaned from the numbers included in the Commission’s order and they serve merely to confuse the matter—they should be omitted from future issuances.[31]
Fourth, I would like to take a moment to address Engineering Condition 8, which states that “LA Storage shall operate its facility in such manner as to prevent/minimize gas loss or migration.”[32] I recognize that the Commission has included this condition in prior orders, including orders for which I have voted.[33] Upon further consideration, however, this condition and the manner in which the Commission could evaluate whether the condition has been satisfied are unclear to me. For that reason, I do not support the inclusion of this condition as formulated. Though its purpose may be to assist us in overseeing the proper operation of storage facilities, it is unclear how exactly the Commission could, as a practical matter, compel proper operation under a condition this vague. As the Commission acknowledges, “LA Storage is subject to the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) underground natural gas facility regulations, which require storage companies to file integrity monitoring program plans, and the provisions of American Petroleum Institute Recommended Practice 1170, codified in PHMSA’s regulations, which details recommended practices for the Design and Operation of Solution-mined Salt Caverns Used for Natural Gas Storage.”[34] Given this, I question whether it is properly within the Commission’s power to determine whether the facilities are “operate[d] . . . in such manner as to prevent/minimize gas loss or migration.”[35] Could it be that this is yet another example of the Commission blundering into another agency’s domain?[36]
Fifth, I disagree with the inclusion of the cumulative impacts analysis appended to this order.[37] As the Commission recognizes, “the [Environmental Impact Statement (EIS)] was prepared in accordance with CEQ’s 2020 NEPA rules.[38] And while revised NEPA regulations went into effect on May 20, 2022,[39] the revised NEPA regulations do not speak to any expectation that when agencies have already initiated the NEPA process under the 2020 NEPA regulations or when an environmental document has already been prepared prior to May 20, 2022, that an agency is required to supplement its analysis. I am also aware of no formal guidance from CEQ to do so. For that reason, I disagree with the inclusion of the supplemented analysis.
Finally, I would like to address my disagreement with the environmental review process in this proceeding. LA Storage’s application was filed on January 29, 2021. The application was noticed in the Commission’s docket on February 10, 2021. That notice stated that “[p]ursuant to section 157.9 of the Commission’s Rules of Practice and Procedure, within 90 days of this Notice the Commission staff will either: complete its environmental review and place it into the Commission’s public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review.”[40] Indeed, 18 C.F.R. § 157.9(b) provides that “[f]or each application that will require an environmental assessment or an environmental impact statement, notice of a schedule for the environmental review will be issued within 90 days of the notice of the application, and subsequently will be published in the Federal Register.”[41] The Commission failed to do so. Instead, on August 27, 2021, the Commission issued a Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Hackberry Storage Project, Request for Comments on Environmental Issues, and Schedule for Environmental Review—that is, 198 days after the application was noticed in the docket.[42]
Commission staff issued the final EIS on April 8, 2022. This order is therefore issued more than five months after the issuance of the final EIS. I disagree with the decision of Commission staff (who work at the Chairman’s direction) to prepare an EIS when an Environmental Assessment (EA) would have been sufficient. For this project, the applicant participated in the Commission’s pre-filing process in Docket No. PF20-5-000, which began on July 15, 2020 with Commission Staff’s approval of the request for pre-filing.[43] Notably, LA Storage stated in its application that “[i]n light of the detailed and substantial information submitted as part of the pre-filing process and the analysis and review that has already been conducted by Commission staff, LA Storage respectfully requests that the Commission issue the requested certificate of public convenience and necessity for the Hackberry Storage Project and the other authorizations requested herein by no later than January 31, 2022.”[44] This requested action date was in order to “allow LA Storage to complete and place the Hackberry Storage Project facilities into service on the dates requested by its prospective customers.”[45] We are now issuing this order 234 days after the requested action date included in the application, 601 days after the application was filed, and 799 days after the approval of the request for pre-filing. In my view, there is no question that the Commission could have and should have acted on this application sooner. The fact that this proposed project underwent pre-filing should have allowed for a more efficient process.[46] Indeed, efficiency was the basis of LA Storage requesting that the Commission allow it to undergo the pre-filing process.[47] Commission Staff, in approving the request for pre-filing, recognized as much.[48] What incentive do applicants have to voluntarily participate in the Commission’s pre-filing process[49] when the Commission then requires a longer environmental review process through the preparation of an EIS in proceedings where an environmental assessment should suffice and the Commission then makes no attempt to act by the applicant’s requested action date?
I have said it before—repeatedly—and I will say it again: the cost of delays in processing NGA section 7 applications are profound.[50] Delay results in greater project expense and difficulty securing capital on acceptable terms. Uncertainty around timelines increases risk premiums and makes it harder to rationally allocate capital in this capital-intensive industry. This further chills investment and impairs the development of an industry the Commission is charged with promoting.[51] Especially now, when certain regions face desperate shortages of natural gas, we should not be delaying these applications at all—such delays are simply unjustifiable.
For these reasons, I respectfully concur in the judgment.
[1] 15 U.S.C. § 717f(c).
[2] 18 C.F.R. pt. 157 and pt. 284.
[3] 15 U.S.C. § 717b; id. § 717f(b), (c).
[4] LA Storage, LLC, 180 FERC ¶ 61,188, at P 67 n.93 (2022) (LA Storage) (“While the Commission is not one of the specified agencies in Executive Order 12898, the Commission nonetheless addresses environmental justice in its analysis, in accordance with our governing regulations and guidance, and statutory duties.”) (citing 15 U.S.C. § 717f; see also 18 C.F.R. § 380.12(g) (2021) (requiring applicants to submit information about the socioeconomic impact area of a project for the Commission’s consideration during NEPA review); Commission, Guidance Manual for Environmental Report Preparation at 4-76 to 4-80 (Feb. 2017), https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf).
[5] Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959).
[6] NAACP v. FPC, 425 U.S. 662, 669 (1976) (NAACP).
[7] Id. at 669-70; accord Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1307 (D.C. Cir. 2015) (Myersville Citizens for a Rural Cmty.) (quoting NAACP, 425 U.S. at 669-70). I note that the Supreme Court has also recognized the Commission has authority to consider “other subsidiary purposes,” such as “conservation, environmental, and antitrust questions.” NAACP, 425 U.S. at 670 & n.6 (citations omitted). But all subsidiary purposes are, necessarily, subordinate to the statute’s primary purpose.
[8] Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,107 (2022) (Updated Certificate Policy Statement); see Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,197, at P 2 (2022) (Order on Draft Policy Statements) (converting the two policy statements issued on February 18, 2022, Updated Certificate Policy Statement, 178 FERC ¶ 61,107 and Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Revs., 178 FERC ¶ 61,108 (2022) (Interim GHG Policy Statement), to “draft” policy statements).
[9] See, e.g., Columbia Gulf Transmission, LLC, 178 FERC ¶ 61,198 (2022) (Danly, Comm’r, concurring in the judgment at PP 2-4) (Columbia Gulf).
[10] N. Nat. Gas Co., 174 FERC ¶ 61,189 (2021) (Northern). 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.’”).
[11] Dominion Transmission, Inc., 163 FERC ¶ 61,128, at P 67 (2018) (footnote omitted).
[12] See, e.g., Nat’l Fuel Gas Supply Corp., 158 FERC ¶ 61,145, at P 188 (2017).
[13] See CEQ, Draft [National Environmental Policy Act (NEPA)] Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions, at 3 (Feb. 18, 2010), https://obamawhitehouse.archives.gov/sites/default/files/microsites/ceq/20100218-nepa-consideration-effects-ghg-draft-guidance.pdf (“it is not currently useful for the NEPA analysis to attempt to link specific climatological changes, or the environmental impacts thereof, to the particular project or emissions, as such direct linkage is difficult to isolate and to understand.”).
[14] See, e.g., Mountain Valley Pipeline, LLC, 163 FERC ¶ 61,197, at P 292 (2018).
[15] See Interim GHG Policy Statement, 178 FERC ¶ 61,108, at PP 79-81 (2022) (establishing a significance threshold of 100,000 metric tons per year (tpy) of CO2e); id. (Danly, Comm’r, dissenting at PP 32-36) (explaining why the majority’s presumptive significance threshold is illogical); see also Northern, 174 FERC ¶ 61,189 (Danly, Comm’r, concurring in part and dissenting in part at P 16) (comparing the Northern test to “like posting a speed limit sign with a question mark instead of a number, leaving it to the police officer to decide arbitrarily whether you were speeding”).
[16] LA Storage, 180 FERC ¶ 61,188 at P 77.
[17] 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).
[18] 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”).
[19] Interim GHG Policy Statement, 178 FERC ¶ 61,108.
[20] See Order on Draft Policy Statements, 178 FERC ¶ 61,197 at P 2.
[21] 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 also 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).
[22] 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”).
[23] But see Columbia Gulf, 178 FERC ¶ 61,198 (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 Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C. Cir. 2002) (“As a federal agency, FERC is a ‘creature of statute,’ having ‘no constitutional or common law existence or authority, but only those authorities conferred upon it by Congress.’”) (quoting Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001)) (emphasis in Atl. City Elec. Co.); see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.”); see also Senate Energy & Nat. Res. Committee, Full Committee Hearing To Review FERC’s Recent Guidance On Natural Gas Pipelines, https://www.energy.senate.gov/hearings/2022/3/full-committee-hearing-to-review-ferc-s-recent-guidance-on-natural-gas-pipelines, at 00:58:30 (Mar. 3, 2022) (questioning by Chairman Manchin regarding the recent policy statements: “The Commission, you all acknowledge, that . . . no federal agency, including this Commission has established a threshold for determining what level of project-induced greenhouse gas emissions is significant. Why do you all think that FERC, whose primary purpose is to regulate efficient and reliable energy, should be the first agency, the first to set such a standard rather than the environmental agencies?”) (March 2022 Senate Hearing); see generally Interim GHG Policy Statement, 178 FERC ¶ 61,108 (Danly, Comm’r, dissenting).
[25] No. 20-1530, 2022 WL 2347278 (U.S. June 30, 2022).
[26] 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).
[27] NAACP, 425 U.S. at 669-70 (citations omitted); accord Myersville Citizens for a Rural Cmty., 783 F.3d at 1307 (quoting NAACP, 425 U.S. at 669-70).
[28] West Virginia v. EPA, 2022 WL 2347278, at **18.
[29] See LA Storage, 180 FERC ¶ 61,188 at P 87.
[30] 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.”).
[31] 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).
[32] LA Storage, 180 FERC ¶ 61,188 at App. C, Condition (8).
[33] See, e.g., Washington 10 Storage Corp., 175 FERC ¶ 61,051, at App., Condition 1 (2021).
[34] LA Storage, 180 FERC ¶ 61,188 at P 58 (citations omitted).
[35] Id. at App. C, Condition (8) (emphasis added).
[36] See, e.g., Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126 (2021) (Danly, Comm’r, dissenting at P 31).
[37] LA Storage, LLC, 180 FERC ¶ 61,188, at App. A.
[38] Id. P 63 (citing Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020) (effective as of September 14, 2020)).
[39] See National Environmental Policy Act Implementing Regulations Revisions, 87 Fed. Reg. 23,453 (April 20, 2022).
[40] Commission Staff February 10, 2021 Notice at 2 (citing 18 C.F.R. § 157.9).
[41] 18 C.F.R. § 157.9(b).
[42] Commission Staff August 27, 2021 Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Hackberry Storage Project, Request for Comments on Environmental Issues, and Schedule for Environmental Review (Notice of Environmental Schedule).
[43] See LA Storage, LLC, Request to Initiate NEPA Pre-filing Process, Docket No. PF20-5-000 (July 1, 2020).
[44] Application at 4.
[45] Id.
[46] Cf. Regulations Implementing Energy Policy Act of 2005; Pre-Filing Procedures for Review of LNG Terminals and Other Natural Gas Facilities, 70 Fed. Reg. 60,426-01, at P 22 (2005) (“the Commission encourages pipelines to consider in all instances whether undertaking the pre-filing process voluntarily might expedite approval of a contemplated project to expand the capacity of the pipeline's facilities that are directly interconnected with an LNG terminal”).
[47] See LA Storage, LLC, Request to Initiate NEPA Pre-filing Process, Docket No. PF20-5-000, at 2 (July 1, 2020) (“[LA Storage] is seeking authorization to use the Commission’s pre-filing review process to develop a complete environmental record that will allow [LA Storage] to better prepare its environmental resource reports. The pre-filing process allows more involvement and engagement from landowners, stakeholders, and other state and federal agencies. The process will also provide information to Commission staff at the earliest possible time to obtain the most expedient review and processing of the certificate application.”) (emphasis added).
[48] See Commission Staff, Letter to LA Storage, LLC discussing the 07/01/2020 request to use FERC’s pre-filing review process for the planned Hackberry Storage Project, Docket No. PF20-5-000, at 1 (July 15, 2020) (“We believe that beginning the Commission’s review of this proposal prior to the receipt of your application will greatly improve our ability to identify issues early and address them in our environmental document.”); id. at 2 (“As outlined in your request, LA Storage intends to file an applicant-prepared draft environmental assessment (EA) with its certificate application. The objective of the applicant-prepared draft EA is to accelerate staff review after filing an application; however, close coordination with my staff is necessary to ensure the draft EA is adequately crafted to realize the benefits of this process.”).
[49] See 18 C.F.R. § 157.21(b) (“When a prospective applicant for authorization for natural gas facilities is not required by paragraph (a) of this section to comply with this section’s pre-filing procedures, the prospective applicant may file a request seeking approval to use the pre-filing procedures.”).
[50] See, e.g., Nat’l Grid LNG, LLC, 179 FERC ¶ 61,205, at PP 5-7 (2022) (explaining that although National Grid LNG, LLC “planned to begin construction of the project at the end of 2016[,] . . . it did not receive certificate authorization until October 2018,” and therefore it requested an increase in its initial recourse rates since the estimated cost of the facilities increased from $180,256,679 to $390,829,000—a difference of $210,572,321—as a result of increased construction costs due to the timing change and construction work plan changes). Cf. Duke Energy, Dominion Energy and Duke Energy cancel the Atlantic Coast Pipeline (July 5, 2020), https://news.duke-energy.com/releases/dominion-energy-and-duke-energy-cancel-the-atlantic-coast-pipeline (announcing Dominion Energy’s and Duke Energy’s cancellation of the Atlantic Coast Pipeline Project—a project with a Commission-issued certificate of public convenience and necessity—due to “ongoing delays and increasing cost uncertainty which threaten[ed] the economic viability of the project” and explaining that the project faced many challenges, including: (1) adverse court decisions regarding their federal permit for waterbody and wetland crossings (Nationwide Permit 12), which led to uncertainty in the companies’ investment; and (2) “legal challenges to the project’s federal and state permits[,] . . . [which] caused significant project cost increases and timing delays” and resulted in an estimated “project cost . . . increase[] to $8 billion from the original estimate of $4.5 to $5.0 billion” as well as an estimated delay of “three-and- a-half-year[s]” for the project’s in-service date).
[51] See NAACP, 425 U.S. at 669-70 (recognizing that the purpose of the NGA is to “encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices”) (citations omitted).