Commissioner Bernard L. McNamee Statement
April 30, 2020
Docket Nos. CP19-509-000, CP19-509-001
Concurrence Regarding Texas Eastern Transmission, LP (Texas Eastern)
Today’s order issues Texas Eastern Transmission, LP (Texas Eastern) a certificate of public convenience and necessity for authorization to excavate, elevate, and replace segments of four different natural gas pipelines and appurtenant facilities located in Marshall County, West Virginia (Project).1
Texas Eastern is proposing the Project due to anticipated longwall coal mining activities beneath Texas Eastern’s pipelines, and states that the Project will ensure the continued safe and efficient operation of its pipeline system for the duration of the mining activities.
I fully support the order as it complies with the Commission’s statutory responsibilities under the Natural Gas Act and the National Environmental Policy Act. The order determines that the Project is in the public convenience and necessity, finding that the Project will not adversely affect Texas Eastern’s existing customers or competitor pipelines and their captive customers, and that the Project will have minimal impacts on landowners and communities.2
The order also finds that the Project will not significantly affect the quality of the human environment.3
Further, the Commission has quantified and considered the greenhouse gases (GHG) emitted by the construction 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 Commission should have determined whether the incremental GHG emissions related to the construction are “significant” using the Social Cost of Carbon or by establishing its own framework. In my concurrence in Transco, 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.6
Further, it is not 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.7
As I explain in Transco, Congress delegated the Administrator of the U.S. Environmental Protection Agency the exclusive authority to establish standards of performance for air pollutants, including GHGs.8
For logistical reasons and administrative efficiency, I hereby incorporate my analysis in Transco by reference and am not reprinting the full text of my analysis here.9
For the reasons discussed above and incorporated by reference herein, I respectfully concur.
- 11 Texas Eastern Transmission, L.P., 171 FERC ¶ 61,081 (2020). The order also authorizes Texas Eastern to abandon the pipeline segments it intends to replace. Id. P 9 & n.15.
- 22 Id. PP 12-15.
- 33 Id. P 26.
- 44 Id. PP 24-25; Environmental Assessment at 47.
- 55 867 F.3d 1357 (D.C. Cir. 2017). I note that my concurrence in Transcontinental Gas Pipe Line Company, LLC (Transco) in which I incorporate herein, states 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.” Transco, 171 FERC ¶ 61,032, at P 13 n.31 (2020) (McNamee, Comm’r, concurring).
- 66 Id. PP 63-74.
- 77 Id. PP 53-62.
- 88 Id. PP 54-58.
- 99 Id. PP 53-74.