Docket No. CP23-501-000
I partially dissent from the Order’s discussion in paragraphs 47 and 48 contending the Commission has no means for assessing the significance of the impacts of greenhouse gas (GHG) emissions, and rejecting use of the Social Cost of GHGs Protocol for anything other than “informational purposes.”[1] This language is objectionable because (1) it reflects a final Commission decision that it cannot determine the significance of GHG emissions, despite the fact the Commission has never responded to comments in the GHG Policy Statement docket[2] addressing methods for doing so; and (2) it departs from previous Commission precedent without reasoned explanation, thereby violating the Administrative Procedure Act.[3]
I also dissent from the discussion in paragraphs 47 and 48 because the SC-GHG Protocol is a useful tool for assessing the significance of GHG emissions; the Commission’s determination to the contrary ignores recent scientific developments supporting its use. I explained the bases for these conclusions in my recent dissent in Transco,[4] and the reasoning applies equally here.
Since Transco was issued, the Council on Environmental Quality (CEQ) promulgated revisions to its regulations implementing the National Environmental Policy Act (NEPA).[5] Although CEQ stated that agencies are not required to use the SC-GHG Protocol, it explained that the protocol may be used for “evaluating the reasonably foreseeable . . . climate change-related effects” of a proposed agency action.[6] I remain hopeful the Commission will consider in the GHG Policy Statement docket whether there is a better tool for assessing GHG emissions than the SC-GHG Protocol. Until then, however, the Commission should follow CEQ’s advice and use the SC-GHG Protocol to assess the impacts of GHG emissions and weigh them in its substantive decision-making.
For these reasons, I respectfully dissent in part.
[1] Port Arthur LNG, LLC, 187 FERC ¶ 61,058, at PP 47-48 (2024) (Order).
[2] Docket No. PL21-3.
[3] In my concurrence in Transcon. Gas Pipe Line Co., 184 FERC ¶ 61,066 (2023) (Clements, Comm’r, concurring, at PP 2-3), I explained the history of the language, which the majority suddenly adopted in Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61, 63 (2023) (Driftwood). I dissented from this language in Driftwood and every subsequent order in which it has appeared. See Driftwood, 183 FERC ¶ 61,049 (Clements, Comm’r, dissenting in part at PP 2-3 & n.5); see also, e.g., Great Basin Gas Transmission Co., 187 FERC ¶ 61,043 (2024) (Clements, Comm’r, dissenting in part at P 1); Fla. Gas Transmission Co., 187 FERC ¶ 61,042 (2024) (Clements, Comm’r, dissenting in part at P 1); Rio Grande LNG, LLC, 183 FERC ¶ 61,046 (2023) (Clements, Comm’r, dissenting at PP 14-15); Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047 (2023) (Clements, Comm’r, dissenting at PP 14-15).
[4] Transcon. Gas Pipe Line Co., 187 FERC ¶ 61,024 (Clements, Comm’r, dissenting at PP 2-18) (Transco).
[5] NEPA Implementing Regulations Revisions Phase 2, 89 Fed. Reg. 35442 (May 1, 2024) (to be codified at 40 C.F.R. pts. 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508).
[6] Id. at 35571, 35527 (requirement to use projections to evaluate reasonably foreseeable effects to be codified at 40 C.F.R. § 1506.6(d)). CEQ went on to explain that, where appropriate, agencies could instead choose to analyze GHG impacts with other methods. Id. at 35527.