Docket No. CP23-29-000
I concur with the result of today’s Order, but I dissent from the majority’s conclusion that the Commission is incapable of assessing the significance of the impacts of greenhouse gas (GHG) emissions associated with the Saguaro Border Facility.[1] The Commission should have simply found that the project’s minor GHG emissions are insignificant for purposes of both the National Environmental Policy Act[2] and the Commission’s public interest determination under section 3 of the Natural Gas Act.[3] Instead, the Order imports wrong-headed language used in other recent certificate orders to find there are no acceptable tools for determining the significance of GHG emissions.
In Northern Natural Gas Co., the Commission found that it could determine the significance of GHG emissions of a natural gas project by applying its experience, judgment, and expertise to the evidence in the record.[4] The combined construction related and operational GHG emissions in that case amounted to 20,006 metric tons of carbon dioxide equivalents (CO2e), which the Commission found to be insignificant. The Saguaro Border Facility will generate a third of the projected emissions in Northern Natural: 6,869.2 metric tons CO2e of construction related GHG emissions and no operational emissions.[5] Where, as here, the GHG emissions clearly would be deemed insignificant under any reasonable framework for assessing significance, the Commission should simply say so.
Rather than reaching the obvious conclusion that the GHG emissions would be insignificant, the majority strains to include in the Order the same unnecessary and misguided language to which I have previously objected. In my concurrence in Transco, I explained the history of the language in Paragraphs 76 and 77 of the Order,[6] which is the so-called “Driftwood compromise.”[7] In Driftwood, the majority suddenly adopted new language declaring that there are no methods for assessing the significance of GHG emissions, and particularly criticizing the Social Cost of GHGs protocol.[8] I have dissented from this language in Driftwood and subsequent orders 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[9] addressing methods for doing so; and (2) the language departs from previous Commission precedent without reasoned explanation, thereby violating the Administrative Procedure Act.[10] I dissent from Paragraphs 76 and 77 of this Order for the same reasons.
As I have said before, the Commission has not seriously studied whether the Social Cost of GHGs protocol or another tool can or should be used to determine significance. I cannot countenance the Commission’s continued refusal to objectively consider potential methods for assessing the impacts of GHG emissions and transparently incorporate analysis of GHG impacts in its substantive decision-making under the Natural Gas Act. At the very least, however, the Commission should rely on our precedent in Northern Natural to find that the GHG emissions here are not significant.
For these reasons, I respectfully dissent in part.
[1] Saguaro Connector Pipeline, LLC, 186 FERC ¶ 61,114, at PP 76-77 (2024) (Order).
[2] 42 U.S.C. §§ 4321 et seq.
[3] 15 U.S.C. § 717b.
[4] See N. Nat. Gas Co., 174 FERC ¶ 61,189, at PP 32, 36 (2021).
[5] Order, 186 FERC ¶ 61,114 at P 65.
[6] See Transcon. Gas Pipe Line Co., 184 FERC ¶ 61,066 (2023) (Clements, Comm’r, concurring at PP 2-3) (Transco).
[7] See id. (Phillips, Chairman, and Christie, Comm’r, concurring at PP 1-2).
[8] See Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61, 63 (2023) (Driftwood).
[9] Docket No. PL21-3. On February 18, 2022, the Commission issued an Interim GHG Policy Statement, Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Revs., 178 FERC ¶ 61,108 (2022), which proposed a NEPA significance threshold of 100,000 tons per year of CO2e. The Commission subsequently suspended the Interim GHG Policy Statement and opened it to further public comment. Order on Draft Policy Statements, 178 FERC ¶ 61,197, at P 2 (2022). The Commission has not yet addressed the comments in the reopened docket.
[10] See Driftwood, 183 FERC ¶ 61,049 (Clements, Comm’r, dissenting at PP 2-3 & n.5); see also Transcon. Gas Pipe Line Co., 186 FERC ¶ 61,063 (2024) (Clements, Comm’r, dissenting in part at PP 2-3); Columbia Gas Transmission, LLC, 186 FERC ¶ 61,048 (2024) (Clements, Comm’r, dissenting in part at PP 2-4); Transcon. Gas Pipe Line Co., 186 FERC ¶ 61,047 (2024) (Clements, Comm’r, dissenting at PP 8-9); Tenn. Gas Pipeline Co., 186 FERC ¶ 61,046 (2024) (Clements, Comm’r, dissenting in part at PP 1-2); ANR Pipeline Co., 185 FERC ¶ 61,191 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Transcon. Gas Pipe Line Co., 185 FERC ¶ 61,133 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Transcon. Gas Pipe Line Co., 185 FERC ¶ 61,130 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Tex. LNG Brownsville LLC, 185 FERC ¶ 61,079 (2023) (Clements, Comm’r, dissenting at PP 9-10); Rio Grande LNG, LLC, 185 FERC ¶ 61,080 (2023) (Clements, Comm’r, dissenting at PP 9-10); Gas Transmission Nw., LLC, 185 FERC ¶ 61,035 (2023) (Clements, Comm’r, concurring in part and dissenting in part at PP 7-8); WBI Energy Transmission, Inc., 185 FERC ¶ 61,036 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Venture Global Plaquemines LNG, LLC, 185 FERC ¶ 61,037 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Tex. E. Transmission, LP, 185 FERC ¶ 61,038 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Trailblazer Pipeline Co., 185 FERC ¶ 61,039 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Equitrans, L.P., 185 FERC ¶ 61,040 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Port Arthur LNG Phase II, LLC, 184 FERC ¶ 61,184 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Venture Global Calcasieu Pass, LLC, 184 FERC ¶ 61,185 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); N. Nat. Gas Co., 184 FERC ¶ 61,186 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Tex. E. Transmission, LP, 184 FERC ¶ 61,187 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Equitrans, L.P., 183 FERC ¶ 61,200 (2023) (Clements, Comm’r dissenting at PP 2-3); Commonwealth LNG, LLC, 183 FERC ¶ 61,173 (2023) (Clements, Comm’r, dissenting at PP 5-8); 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).
oned analysis. . . .”) (citations omitted).