Commissioner Bernard L. McNamee Statement
March 19, 2020
Docket No. CP19-125-000
Concurrence Regarding Gulf South Pipeline Company, LP
Today’s order issues Gulf South Pipeline Company, LP (Gulf South) a certificate to construct and operate its proposed Index 99 Expansion Project (Project) to provide 750,000 dekatherms per day (Dth/d) of firm transportation service to existing interconnects with Transcontinental Gas Pipeline Company, LLC and Sabine Pipe Line, LLC.1
I fully support the order as it complies with the Commission’s statutory responsibilities under the Natural Gas Act (NGA) and the National Environmental Policy Act (NEPA). The order determines that the Project is in the public convenience and necessity, finding that the Project will not adversely affect Gulf South’s existing customers or competitor pipelines and their captive customers, and that Gulf South had taken appropriate steps to minimize adverse impacts on landowners. 2
TThe order also finds that the Project will not significantly affect the quality of the human environment. 3
Further, the Commission has quantified and considered greenhouse gases (GHG) directly emitted by the construction and operation of the Project, 4
consistent with the holding in Sierra Club v. FERC (Sabal Trail).5
I write separately to respond to my colleague’s argument that the NGA and NEPA requires the Commission to quantify and consider emissions related to the downstream use of natural gas. The NGA does not permit the Commission deny a pipeline application based on the environmental effects related to the downstream use of natural gas, or require a pipeline to mitigate such effects, in determining whether a project is in public convenience and necessity. 6
In Adelphia Gateway, LLC (Adelphia), I issued a concurrence explaining that the text of the NGA does not support denying an application based on the environmental effects related to the upstream production and downstream use of natural gas. Rather, the text of NGA sections 1 and 7 make evident that Congress enacted the NGA to provide public access to natural gas, 7
and does not provide the Commission with the authority to regulate the environmental impacts of upstream production or downstream use of natural gas, since such authority was provided to the U.S. Environmental Protection Agency (EPA) and the States.8
Further, acting on GHG emissions related to the upstream production and downstream use of natural gas would be contrary to subsequent acts by Congress—including the National Gas Policy Act of 1978, 9
repeal of the Fuel Use Act of 1978, 10
the Natural Gas Wellhead Decontrol Act of 1989,11
and the Energy Policy Act of 1992.12
In addition, the meaning of the public convenience and necessity does not support denying an application based on environmental effects that are unrelated to the construction and operation of the pipeline itself. 13
Further, I disagree with my colleague that the Commission should have determined whether the incremental GHG emissions directly emitted by the Project are “significant” using the Social Cost of Carbon or by establishing its own framework. In my concurrence in Adelphia, I explain why the Social Cost of Carbon is not a useful tool to determine whether the GHG emissions are “significant” and the Commission has no authority or reasoned basis to make a determination of significance using its own expertise. 14
I also disagree with my colleague that it is appropriate for the Commission to establish out of whole cloth a GHG emission mitigation program, particularly when Congress has introduced and failed to pass 70 legislative bills to reduce GHG emissions over the last 15 years. 15
As I explain in Adelphia, Congress delegated the Administrator of the EPA the exclusive authority to establish standards of performance for air pollutants, including GHGs. 16
For logistical reasons and administrative efficiency, I hereby incorporate my entire analysis in Adelphia by reference and am not reprinting the full text of my analysis here.17
For the reasons discussed above and incorporated by reference herein, I respectfully concur.
- 11 170 FERC ¶ 61,201 (2020). The Project will provide 750,000 Dth/d using a combination of existing unsubscribed capacity (250,000 Dth/d) and new capacity made by the proposed expansion (500,000 Dth/d). Id. P 3.
- 22 Id. PP 12-15.
- 33 Id. P 29.
- 44 Id. PP 27-28; EA at 47-48.
- 55 867 F.3d 1357 (D.C. Cir. 2017).
- 66 Despite my colleague’s arguments to the contrary, I state in my concurrence in Adelphia Gateway, L.L.C. in which I incorporate herein that “[t]hough the D.C. Circuit’s holding in Sabal Trail is binding on the Commission, it is not appropriate to expand that holding through the dicta in Birckhead so as to establish new authorities under the NGA and NEPA. The Commission is still bound by the NGA and NEPA as enacted by Congress, and interpreted by the U.S. Supreme Court and the D.C. Circuit. Our obligation is to read the statutes and case law in harmony.” Adelphia, 169 FERC ¶ 61,220, at P 12 n.29 (2019) (McNamee, Comm’r, concurring) (McNamee Adelphia Concurrence).
- 77 Id. PP 15-24; see also Weaver’s Cove Energy, LLC v. Rhode Island Coastal Res. Mgmt. Council, 589 F.3d 458, 461 (1st Cir. 2009) (“The NGA was originally passed in the 1930s to facilitate the growth of the energy-transportation industry . . . .”).
- 88 McNamee Adelphia Concurrence at PP 25-31.
- 99 Id. PP 33-35.
- 1010 Id. P 36.
- 1111 Id. PP 37-38.
- 1212 Id. P 39.
- 1313 Id. PP 41-47.
- 1414 Id. PP 62-73.
- 1515 Id. PP 52-61.
- 1616 Id. PP 53-57.
- 1717 Id. PP 15-73.