Commissioner James Danly Statement
September 24, 2021
Docket No. CP95-35-000
I concur with today’s order. I write separately to discuss my lingering apprehension that the Commission may not actually have authority to oversee the safety of liquefied natural gas (LNG) facilities under section 3 of the Natural Gas Act (NGA), and that it may not have had authority to issue its Remedial Order[1] in the first instance.
There is no language in the NGA that explicitly grants power to either the Commission or the Department of Energy to take responsibility for LNG safety. Instead, the NGA states that the Commission “shall have the exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal.”[2] It appears to me that we might rely rather heavily on the word “operation.” I am far from certain that it can bear all the weight we have placed upon it.
The language granting jurisdiction to the Commission speaks in terms of “exclusive authority” to “approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal.”[3] To base our wide-ranging and comprehensive LNG safety program on the Commission’s exclusive authority to approve an application for, among other things, the “operation” of LNG terminals strikes me as, at best, questionable. And if that is indeed the provision of the statute upon which we rely, it simply cannot be that Congress intended the Department of Energy or the Commission to have exclusive, ongoing jurisdiction over all aspects of LNG terminal operations, including safety, particularly when Congress has granted the Department of Transportation unambiguous authority to regulate in this field.[4]
I am also troubled by our inconsistent interpretation of the term “operation” across different parts of the NGA. For example, the Commission disclaims jurisdiction over the operation of natural gas pipeline facilities while it exercises jurisdiction over the operation of LNG peakshaver plants that are authorized under NGA section 7.[5] Is the term “operation” broad enough to authorize the Commission to assert jurisdiction over the safety of LNG peakshavers?
There are a handful of other provisions that cause me to question our jurisdiction. The NGA section 3A(d) provision requiring us to “transmit information regarding [safety] allegations to the appropriate Federal agency, which shall take appropriate action,”[6] seems to imply that the Commission is assumed not to be the appropriate agency. NGA section 3 also provides that we can issue “supplemental order[s]” which, while suggesting ongoing jurisdiction, does not appear, in itself, to suggest that the contemplated supplemental orders would be related to safety.[7]
Given my concerns, I would encourage parties to include any information or analysis they think appropriate regarding the Commission’s jurisdiction over LNG safety in their briefing.
My colleagues’ well-written and well-researched joint separate statement did not succeed in “dispel[ling]” my doubts, so I am compelled to raise them.[8] Jurisdiction is fundamental. When adjudicators are uncertain of their authority, they have a duty to satisfy themselves that they are privileged to exercise it. At a time when the Commission is exercising its authority in increasingly novel ways, it is all the more important for commissioners to ask the most basic question, “do we have the authority to do what we are doing?”
For these reasons, I respectfully concur.
[1] EcoEléctrica, L.P., 170 FERC ¶ 61,260 (2020) (Remedial Order).
[2] 15 U.S.C. § 717b(e)(1).
[3] Id.
[4] See 49 U.S.C. § 60103. The foregoing assumes, of course, that our oversight of LNG safety cannot be based wholly upon our power to attach conditions to the “mandatory authorization order” required by NGA section 3(a) which, presumably, the Commission had historically relied upon.
[5] 15 U.S.C. § 717f(c)(1)(A) (“No natural-gas company . . . shall . . . undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations.”). Compare Mountain Valley Pipeline, LLC, 171 FERC ¶ 61,047, at P 21 n.62 (2020), with Chattanooga Gas Co., 51 F.P.C. 1278 (1974).
[6] 15 U.S.C. § 717b-1(d).
[7] Id. § 717b(a).
[8] EcoEléctrica, L.P., 176 FERC ¶ 61,192 (2021) (Glick and Clements, Chairman and Comm’r, concurring at P 1). While my appreciation for my colleagues’ thorough and informative survey of the history surrounding the LNG safety program is sincere, this history is not dispositive. See id. (Glick and Clements, Chairman and Comm’r, concurring at PP 4-8). The Supreme Court has said post-enactment legislative history of the sort relied upon in the joint concurrence is “not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011).