Docket Nos. CP16-454-006, et al.
While today’s order correctly rejects Sierra Club’s insistence that the Commission incorporate the “social cost of GHG” constructed numbers associated with the project into its public interest calculus under the NGA,[1] I would have preferred that the order reject this unsupportable claim more comprehensively. I write separately to emphasize the following points.
On remand, the court directed us either to use social cost of GHG, or some other “scientifically accepted” measurement, or to explain why we are declining to do so.[2] The order correctly notes that, as the Commission has explained previously, the social cost of GHG construct is not useful for evaluating project-level emissions.[3] But this barely scratches the surface of the problems with using this construct in our certificate proceedings.
To begin with, a social cost of GHG calculation does not have the slightest scientific validity in any serious cost-benefit analysis of a natural gas infrastructure project, for a slew of reasons. As just one example, the social cost of GHG number is supposed to represent what economists call “negative externalities.” The typical social cost of GHG calculation, however, does not even bother to calculate a project’s positive externalities and net them out, so the social cost of GHG number is utterly useless for its supposed purpose in weighing costs and benefits. Used as the project opponents want us to use it, the social cost of GHG calculation is pure pseudoscience.[4]
The best that can be said about a social cost of GHG number in this context is that it is meaningless. Using such a meaningless number to attempt to gauge the global climate impact of a single project, would be literally an exercise of “garbage in, garbage out.” Fortunately, the order makes clear both that the social cost of GHG calculation is not useful for ascertaining the global climate impacts of a single infrastructure project and that there is no other known method that would be scientifically valid for such purpose.[5] This Commission simply cannot make such a determination, and no court has ever told us we must attempt the impossible.
And let’s get real: The entire push, dating back to the failed attempt last year to enact the draft Certificate Policy and GHG Statements, has always had one overriding goal — a goal that is fully apparent from the insistence of the current CEQ and EPA that this Commission consider both upstream and downstream non-jurisdictional activities before approving any natural gas project.[6] That goal is to put in place a process and legal foundation for this Commission to reject needed natural gas projects solely on the basis of a single project’s purported impacts on the global climate.[7] But as I said in my dissent to the GHG Policy Statement, that would represent a radical rewrite of the Natural Gas Act (NGA), which neither this Commission nor the D. C. Circuit, nor any other appellate court, has the authority to do.[8] Global climate change is far beyond this Commission’s legal authority to regulate under the NGA. Clearly global climate change and what to do about it from a regulatory standpoint are major questions of public policy — which, as the Supreme Court has recently reminded us, are the exclusive province of the legislature.[9]
Finally, in response to Sierra Club’s insistence that we also analyze the upstream GHG emissions caused by the project, today’s order correctly reiterates that such upstream GHG emissions are not reasonably foreseeable.[10] It is true, as the order says, that the record evidence does not support drawing the conclusion that upstream emissions are either caused by, or a natural consequence of, certificating this project.[11] I would add, however, that, unlike with downstream emissions, the Commission has no legal obligation to estimate emissions from upstream, non-jurisdictional activities anyway, so this finding fulfills no legal obligation, and amounts to a “finding” of no legal consequence.[12] Further, the Commission has no legal authority whatsoever to order mitigation of such non-jurisdictional upstream activities, much less to consider such non-jurisdictional upstream emissions in our merits review under the NGA.
To summarize, the order is sufficient as far as it goes to rebut Sierra Club’s claims and to answer the D. C. Circuit’s remand instructions, so I concur. The order does not go far enough, however, to make it absolutely clear that the NGA gives this Commission no legal authority to reject a natural gas project based on its purported impact on global climate,[13] regardless of whether that purported impact is packaged as a “social cost of GHG” number or in some other wrapper. Only Congress can decide the appropriate policy response to climate change and make amendments to the NGA. This Commission has no such legislative authority.
For these reasons, I respectfully concur.
[1] Order at PP 53 – 61.
[2] Vecinos Para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321, 1329-30 (D.C. Cir. 2021) (Vecinos) (“On remand, the Commission must explain whether 40 C.F.R. § 1502.21(c) calls for it to apply the social cost of carbon protocol or some other analytical framework, as ‘generally accepted in the scientific community’ within the meaning of the regulation, and if not, why not.”).
[3] Order at PP 56 – 59.
[4] One of the best definitions of “pseudoscience” is from the renowned 20th century philosopher Karl Popper, who said that, unlike true science, which seeks facts first before reaching logical conclusions, pseudoscience starts with preconceived conclusions and then selects (viz. “cherry picks”) facts to fit its preconceived conclusions. See, e.g., “Drawing the line between science and pseudo-science.” Sternwedel, Janet D., Scientific American Blog, Oct. 4, 2011, https://blogs.scientificamerican.com/doing-good-science/drawing-the-line-between-science-and-pseudo-science/.
[5] Order at P 57. This is what has been called the “Driftwood language.” It is worth observing that determining whether a proposed project is in the public convenience and necessity is not a question for the “scientific community”; it is a question for this Commission, acting pursuant to its lawful authority and in accordance with its good judgment.
[6] It is also flatly contrary to law. See, e.g., Sierra Club v. FERC, 827 F.3d 36, 47 (D.C. Cir. 2016) (Freeport) (“[W]here, as here, an agency ‘has no ability to prevent a certain effect due to’ that agency’s ‘limited statutory authority over the relevant action,’ then that action ‘cannot be considered a legally relevant “cause” of the effect’ for NEPA purposes.”) (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 771 (Public Citizen)) (cleaned up).
[7] See Certification of New Interstate Natural Gas Facilities, 178 FERC ¶ 61,107 (2022) (Christie, Comm’r, dissenting at P 49 & n.97) (Christie Dissent) (identifying that the goal of many well-funded groups is to stymie development of natural gas infrastructure), https://www.ferc.gov/news-events/news/items-c-1-and-c-2-commissioner-christies-dissent-certificate-policy-and-interim; see also Rich Glick and Matthew Christiansen, FERC and Climate Change, 40 Energy L.J. 1 (May 2019) (“Where climate change factors explicitly into the Commission’s decision-making process, such as with respect to infrastructure permitting, the Commission must thoroughly examine how its decision can affect the climate in order to ensure that it is consistent with the public interest. In these instances, the Commission cannot bury its head in the sand and ignore the climate change consequences of its decisions. . . . [The Commission] must consider an infrastructure project’s implications for climate change when evaluating whether that project is consistent with the public interest. The urgent threat posed by climate change demands nothing less.”) (emphases added).
[8] See Christie Dissent at PP 11-21.
[9] See, e.g., West Virginia v. EPA, 597 U.S. ---, 142 S. Ct. 2587 (2022); Biden v. Nebraska, 600 U.S. ---, 143 S.Ct. 2355 (2023); see also, Christie Dissent at PP 22-40.
[10] Order at PP 63 – 65.
[11] Id. PP 64 – 65.
[12] The order correctly describes the limited “reasonably foreseeable” analysis under NGA section 3. Id. P 65. Although courts have told us to examine downstream emissions for NGA section 7 projects transporting natural gas in interstate commerce, they have not done so for NGA section 3 projects providing LNG for export. Compare Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (Sabal Trail) with Freeport, 827 F.3d 36. As I have previously observed, I believe the Sabal Trail court got it wrong. Christie Dissent at PP 42-48. I am in good company in questioning Sabal Trail. See Ctr. For Biological Diversity v. U.S. Army Corp of Eng’rs, 941 F.3d 1288, 1300 (11th Cir. 2019) (“[T]he legal analysis in Sabal Trail is questionable at best. It fails to take seriously the rule of reason announced in Public Citizen or to account for the untenable consequences of its decision. The Sabal Trail court narrowly focused on the reasonable foreseeability of the downstream effects, as understood colloquially, while breezing past other statutory limits and precedents — such as Metropolitan [Edison Co. v. People Against Nuclear Energy, 460 U.S. 776 (1983),] and Public Citizen — clarifying what effects are cognizable under NEPA.”).
[13] Nor does this Commission have the authority under the NGA to reject a project based on its impacts on “environmental justice” or other communities as a result of the public-interest review under the NGA. See NAACP v. Fed. Power Comm’n, 425 U.S. 662, 669 (1976) (explaining that the Supreme Court “ha[s] consistently held that the use of the words ‘public interest’ in a regulatory statute is not a broad license to promote the general public welfare[,] [r]ather, the words take meaning from the purposes of the regulatory legislation”); id. (explaining that the purpose of the NGA as to “encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices” and also observing that there are subsidiary purposes to the Act) (citation omitted). While impacts on such communities should be fully and carefully considered and the mitigation of such impacts should be a focus of attention in the NEPA process, along with the mitigation of other environmental impacts, they are not the legal basis for a rejection under the NGA.