Docket No. CP22-461-000
We concur in today’s order, which authorizes the construction of a vitally needed project that will serve residential and industrial consumers, as well as hospitals and military bases. In Driftwood Pipeline LLC, we reached a compromise regarding the appropriate consideration and evaluation of downstream greenhouse gas (GHG) emissions and whether and how the significance of such emissions could be determined. This compromise language adopted in Driftwood is legally sound and allows the Commission to approve needed natural gas infrastructure projects when we may disagree on other aspects of the NEPA requirements with regard to GHGs.[1]
We continue to believe that the Driftwood compromise represents a prudent path forward for resolving these issues. However, for the compelling purpose of moving this needed project forward, we will support the alternative approach in today’s order, which moves the Driftwood language—for purposes of this order—to this Joint Concurrence.
That being said, for illustrative purposes, we outline below generally how we would apply the Driftwood compromise to the facts of this case
For informational purposes, the EIS includes an estimate of the social cost of GHGs from construction, operation and downstream emissions.[2] While we have recognized in some past orders that the social cost of GHGs may have utility in certain contexts such as rulemakings,[3] we have also found that calculating the social cost of GHGs does not enable the Commission to determine credibly whether the reasonably foreseeable GHG emissions associated with a project are significant or not significant in terms of their impact on global climate change.[4] Currently, however, there are no criteria to identify what monetized values are significant for NEPA purposes, and we are currently unable to identify any such appropriate criteria.[5] Nor are we aware of any other currently scientifically accepted method that would enable the Commission to determine the significance of reasonably foreseeable GHG emissions.[6] The D.C. Circuit has repeatedly upheld the Commission’s decisions not to use the social cost of carbon, including to assess significance.[7] In fact, the D.C. Circuit recently affirmed the Commission’s decision not to analyze the social cost of carbon in its NEPA analysis,[8] rejected the suggestion that it was required to do so, found that the petitioner’s arguments “fare no better when framed as NGA challenges,” and then, in the very same paragraph, sustained the Commission’s public interest determination as “reasonable and lawful.”[9]
The Driftwood language provides an appropriate compromise way to go forward in future orders in evaluation of the downstream impact of GHG emissions.
For these reasons, we respectfully concur.
[1] Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61-63 (2023) (Driftwood) (“For informational purposes, we are disclosing Commission staff's revised estimate of the social cost of GHGs associated with the reasonably foreseeable emissions from the Line 200 and Line 300 Project. While we have recognized in some past orders that social cost of GHGs may have utility in certain contexts such as rulemakings, we have also found that calculating the social cost of GHGs does not enable the Commission to determine credibly whether the reasonably foreseeable GHG emissions associated with a project are significant or not significant in terms of their impact on global climate change. Currently, however, there are no criteria to identify what monetized values are significant for NEPA purposes, and we are currently unable to identify any such appropriate criteria. Nor are we aware of any other currently scientifically accepted method that would enable the Commission to determine the significance of reasonably foreseeable GHG emissions. The DC Circuit has repeatedly upheld the Commission's decisions not to use the SCC, including to assess significance . . .The Commission has disclosed the project's reasonably foreseeable GHG emissions above. By adopting the analysis in the EIS, we recognize that the project's contributions to GHG emissions globally contribute incrementally to future climate change impacts, including impacts in the region. We note that there currently are no accepted tools or methods for the Commission to use to determine significance, therefore the Commission is not herein characterizing these emissions as significant or insignificant. Accordingly, we have taken the required “hard look” and have satisfied our obligations under NEPA.”)
[2] EIS at 4-120.
[3] Fla. Se. Connection, LLC, 164 FERC ¶ 61,099, at PP 35-37 (2018).
[4] See Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043, at P 296 (2017), aff’d sub nom., Appalachian Voices v. FERC, 2019 WL 847199 (D.C. Cir. 2019); Del. Riverkeeper v. FERC, 45 F.4th 104, 111 (D.C. Cir. 2022). The social cost of GHGs tool merely converts GHG emissions estimates into a range of dollar-denominated figures; it does not, in itself, provide a mechanism or standard for judging “significance.”
[5] Tenn. Gas Pipeline Co., L.L.C., 181 FERC ¶ 61,051 at P 37; see also Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043 at P 296, order on reh’g, 163 FERC ¶ 61,197, at PP 275-297 (2018), aff’d, Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199, at 2 (D.C. Cir. Feb. 19, 2019) (unpublished) (“[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.”); EarthReports v. FERC, 828 F.3d 949, 956 (D.C. Cir. 2016) (accepting the Commission’s explanation why the social cost of carbon tool would not be appropriate or informative for project-specific review, including because “there are no established criteria identifying the monetized values that are to be considered significant for NEPA purposes”); Tenn. Gas Pipeline Co., L.L.C., 180 FERC ¶ 61,205, at P 75 (2022); See, e.g., LA Storage, LLC, 182 FERC ¶ 61,026, at P 14 (2023); Columbia Gulf Transmission, LLC, 180 FERC ¶ 61,206, at P 91 (2022).
[6] See, e.g., LA Storage, LLC, 182 FERC ¶ 61,026 at P 14 (“there are currently no criteria to identify what monetized values are significant for NEPA purposes, and we are currently unable to identify any such appropriate criteria”)
[7] See, e.g., Ctr. for Biological Diversity v. FERC, 67 F.4th 1176, 1184 (D.C. Cir. 2023) (explaining that “the Commission compared the Project’s direct emissions with existing Alaskan and nationwide emissions,” “declined to apply the social cost of carbon for the same reasons it had given in a previous order”; describing those reasons as (1) “the lack of consensus about how to apply the social cost of carbon on a long time horizon,” (2) that “the social cost of carbon places a dollar value on carbon emissions but does not measure environmental impacts as such,” and (3) “FERC has no established criteria for translating these dollar values into an assessment of environmental impacts”; and recognizing that the Commission’s “approach was reasonable and mirrors analysis . . . previously upheld” and that the Commission “had no obligation in this case to consider the social cost of carbon”) (citations omitted) (Alaska LNG); EarthReports, 828 F.3d at 956 (upholding the Commission’s decision not to use the social cost of carbon tool due to a lack of standardized criteria or methodologies, among other things); Del. Riverkeeper v. FERC, 45 F.4th 104 (also upholding the Commission’s decision not to use the social cost of carbon); Appalachian Voices v. FERC, 2019 WL 847199 (D.C. Cir. 2019) (same).
[8] Alaska LNG, 67 F.4th at 1184 (“Rather than use the social cost of carbon, the Commission compared the Project’s direct emissions with existing Alaskan and nationwide emissions. It declined to apply the social cost of carbon for the same reasons it had given in a previous order. . . FERC’s approach was reasonable and mirrors analysis we have previously upheld.”).
[9] Id.