C-8: Commissioner Clements’s Concurring Statement in Transcontinental Gas Pipe Line Company, LLC

Docket No. CP22-461-000

I concur in today’s Order.[1] After weighing the benefits of the Southside Reliability Enhancement Project against its adverse impacts, I conclude that approving the project is in the public interest.  In particular, the project will enable Piedmont to provide natural gas service for the benefit of residential and industrial customers, military bases, and hospitals.  I write separately to explain the so-called “Driftwood compromise” and how the majority has applied it – or not, as in this particular case.[2]  The compromise is not the yellow brick road its authors profess it to be.[3]  It is instead a blind alley, riddled with analytical potholes that threaten to swallow reasoned decision-making.              

There was a time the Commission was walking down a reasoned path together with respect to the assessment of greenhouse gas (GHG) emissions.  For a period before the issuance of Driftwood, the Commission had explained that it was not determining the significance of GHG emissions because the issue of how to do so was under consideration in the docket for the Commission’s draft GHG Policy Statement.[4]  In Driftwood, the majority order surprisingly switched course, declining to assess the significance of greenhouse gas (GHG) emissions for a very different reason than the Commission had previously articulated.  There, the majority language declared that there are no acceptable methods to determine significance, with the Social Cost of GHGs protocol drawing particularly heavy fire.[5]  Although I concurred in the result in that case, I dissented as to this new “compromise” language because the Commission was (1) effectively deciding key issues raised in the GHG Policy Statement docket[6] without ever having seriously studied those issues, and (2) departing from precedent without reasoned explanation in violation of the Administrative Procedure Act.[7]

Following Driftwood, the Commission has inserted this so-called compromise language into all of its Natural Gas Act project orders, even in cases where no intervenor or protestor challenged the Commission’s failure to assess GHG significance or argued the Commission should use the Social Cost of GHGs protocol to assess GHG emissions.[8]   In those cases, there is simply no argument to be made that the Driftwood compromise language strengthens the order for judicial review or is otherwise useful.  I have dissented with respect to the Driftwood language in every case it has appeared and for the same reasons every time.[9] 

That background brings us to the two orders the Commission issues today, here and in Boardwalk Storage Co., LLC.  In Boardwalk, the Commission aimed the Driftwood language at our own staff’s underlying environmental assessment (EA) because the EA said that it included a disclosure of the Social Cost of GHGs calculations to “assess climate impacts.”[10]  But no intervenor or protestor argued that the Commission must use the Social Cost of GHGs protocol either to determine significance or to “assess” impacts.  Thus, there was no need to include the Driftwood language in the Boardwalk order to bolster it for judicial review or any other legally relevant purpose.    

So too in this case no protestor or intervenor has pursued an argument that the Commission must use the Social Cost of GHGs protocol to assess the GHG emissions attributable to the Southside Reliability Enhancement Project.  The majority apparently understands that it can simply omit the Driftwood language without adverse legal consequences, and that is exactly what it did here.  Very predictably, this has allowed me to concur.[11]  

Knowing what the result will be, why does the Commission reflexively and gratuitously include the Driftwood language in virtually every Natural Gas Act project order?  Is it so repelled by the Social Cost of GHGs protocol that it must drop a house on it in every docket?  By now this Commission has said it enough times that everyone knows, for the majority in Driftwood at least, the protocol is “not only merely dead, [it’s] really most sincerely dead.”[12] 

As I have said many times before, I do not know whether the Social Cost of GHGs protocol or another tool can or should be used to determine the significance of GHG emissions or otherwise assess their environmental effects.  That is because this Commission has not engaged with the voluminous record in the GHG Policy Statement docket or otherwise seriously studied whether or how the Social Cost of GHGs protocol or other tools could be adapted for these purposes.  What I do know is that the Commission’s failure to come to grips with the difficult questions surrounding the assessment of GHG emissions is fraught with legal risk.

A key decision every agency must make in complying with the National Environmental Policy Act[13] is whether to prepare an EA or an Environmental Impact Statement (EIS) for a proposed project it is asked to authorize.  The courts have held that “if any ‘significant’ environmental impacts might result from the proposed action then an EIS must be prepared.”[14]  In approving a project involving substantial GHG emissions, the Commission must either prepare an EIS or risk a court overturning the Commission’s  order for failure to explain why the GHG emissions are insignificant and therefore properly addressed in an EA.[15]  At the moment, having left the GHG Policy Statement docket dormant, the Commission has no reasoned justification for finding emissions insignificant.  Nor does the Commission have any framework for describing the “significance” of the environmental impacts of project related GHG emissions in any EIS it does prepare, as the Council on Environmental Quality’s regulations implementing NEPA require it to do.[16] 

I recognize that the legal and factual questions surrounding GHG emissions are hard.  But the Commission cannot recite the Driftwood language, click its heels three times, and make them go away.  For the benefit of the public we serve, as well as project sponsors whose interests depend on legally durable orders, it is time to do the hard work.

        For these reasons, I respectfully concur.