Docket No. CP16-454-004
I concur in the Commission’s decision to grant Rio Grande LNG, LLC’s (Rio Grande) request for a two-year extension of time,[1] until November 22, 2028, to complete construction of and make available for service the Rio Grande LNG Terminal authorized on November 22, 2019.[2]
As today’s order recognizes, “[e]xtension of time proceedings are not an invitation to re-open the underlying dockets.”[3] Our inquiry when reviewing a request for extension of time is narrow—it is not an opportunity to revisit the determinations made in Natural Gas Act (NGA) authorizations after orders have become final and unappealable.[4] There is thus no question of whether the public interest determination made in the Authorization Orders remains valid. Instead, it is a question of whether there is good cause to grant the extension of time, and Rio Grande has indeed demonstrated good cause for the requested extension of time. I write separately to highlight the unnecessary delays that applicants for NGA authorizations have suffered over the last couple of years.
As recognized in today’s order,[5] on August 3, 2021, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded, without vacatur, the Authorization Orders due to deficiencies under the Administrative Procedure Act in the Commission’s analysis of environmental justice issues and the Commission’s failure to respond to an argument regarding section 1502.21(c) of the Council on Environmental Quality’s National Environmental Policy Act regulations[6] when deciding whether it should use the Social Cost of Carbon.[7] It has been approximately a year since the Commission reacquired jurisdiction over the orders on remand.[8] And on August 12, 2022, in one of the remanded dockets, i.e., Docket No. CP16-116-000, Texas LNG Brownsville, LLC (Texas LNG) requested prompt Commission action on remand and explained that “[t]he lack of Commission action on remand is having a material impact on Texas LNG” and that “Texas LNG has significant internal and external technical resources standing by to continue the development and eventual construction of the project, but without a final order on remand, Texas LNG lacks much-needed clarity on timing for project planning purposes.”[9] In my view, there is no reason why the Commission could not have already acted on remand for all of the relevant dockets. As is demonstrated by Texas LNG’s filing, delay in Commission action has consequences.
Despite the need for prompt action, we continue to delay resolution of the remand. On September 30, 2022, Commission staff issued notices in Docket Nos. CP16-454, CP16-455 and CP16-116, stating—in the respective dockets—that “Commission staff requests public comments on the issues addressed in Rio Grande’s and Rio Bravo’s responses to staff’s above-referenced information requests of May 2, May 10, August 16, and August 31, 2022, regarding environmental justice communities, visual impacts, air quality modeling, and emergency planning”[10] and that “Commission staff requests public comments on the issues addressed in Texas LNG’s responses to staff’s above-referenced information requests of August 16 and August 31, 2022, regarding environmental justice communities, visual impacts, air quality modeling, and emergency planning.”[11]
Why would we do this? What possible purpose could these comments serve? These notices are unnecessary. They amount to no more than needless additional process and will only create additional, pointless delay. Here we are, approximately a year after reacquiring jurisdiction, noticing requests for comments on post-remand procedural steps. As far as I have been able to determine, we have never done that before. Why now? Why here? It is becoming increasingly difficult not to take a cynical view of the objectives animating the creation of novel procedural steps for an already-delayed project. Perhaps, once again, this is an attempt to expand the scope of what the Commission will address on remand.[12]
I have said it before—repeatedly—and I will say it again: the cost of delays in processing NGA authorizations is profound.[13] Delay results in greater project expense and difficulty securing capital on acceptable terms. Uncertainty around timelines increases risk premiums and makes it harder to rationally allocate capital in this capital-intensive industry. This further chills investment and impairs the development of an industry the Commission is charged with promoting[14] and one that is affected with the public interest.[15] Especially now, when certain regions face desperate shortages of natural gas, we should not be delaying action on applications for NGA authorizations at all.
For these reasons, I respectfully concur.
[1] See Rio Grande LNG, LLC April 6, 2022 Request for Extension of Time.
[2] See Rio Grande LNG, LLC, 169 FERC ¶ 61,131 (2019), order on reh’g, 170 FERC ¶ 61,046 (2020) (Authorization Orders).
[3] Rio Grande LNG, LLC, 181 FERC ¶ 61,032, at P 17 (2022) (citation omitted).
[4] See Corpus Christi Liquefaction Stage III, LLC, 179 FERC ¶ 61,087, at P 15 (2022) (“extension of time proceedings are not an invitation to re-open the dockets”) (citations omitted); see also Nat’l Fuel Gas Supply Corp., 179 FERC ¶ 61,226, at P 20 (2022) (“Rule 716 does not provide the Commission with additional authority to reopen the record underlying the Certificate Order here, where a final, non-appealable order has issued.”) (citations omitted); id. (Danly, Comm’r, concurring at P 5) (“Circumstances, no matter how extraordinary, cannot themselves grant jurisdiction where Congress has conferred no power. In the absence of authority provided by Congress, the Commission simply cannot revisit its public convenience and necessity determinations once a certificate order becomes final and unappealable.”).
[5] See Rio Grande LNG, LLC, 181 FERC ¶ 61,032 at P 3.
[6] 40 C.F.R. § 1502.21(c).
[7] Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. 2021) (Vecinos).
[8] The remaining authorizations at issue on remand are for Texas LNG Brownsville LLC’s Texas LNG Project in Docket No. CP16-116 (Brownsville Project) and Rio Grande LNG, LLC’s Rio Grande LNG Terminal in Docket No. CP16-454 and Rio Bravo Pipeline Company, LLC’s Rio Bravo Pipeline Project in Docket No. CP16-455 (collectively, Rio Projects). For the authorizations relevant to Rio Projects, the D.C. Circuit’s mandate issued on October 25, 2021. For the authorizations relevant to the Brownsville Project, the D.C. Circuit’s mandate issued on September 27, 2021. In regard to the authorizations for Annova LNG Common Infrastructure, LLC’s Annova LNG Brownsville Project in Docket No. CP16-480, the court in Vecinos “dismiss[ed] the petition . . . as moot.” Vecinos, 6 F.4th at 1327. The Commission granted a request to vacate the Annova LNG Brownsville Project authorization on April 15, 2021. Annova LNG Common Infrastructure, LLC, 175 FERC ¶ 61,030 (2021).
[9] Texas LNG Brownsville LLC, Request for Commission Action on Remand for Texas LNG Project, Docket No. CP16-116-000, at 2-3 (Aug. 12, 2022).
[10] Commission Staff, Notice Seeking Public Comment on Responses to Information Requests re Rio Grande LNG, LLC et al. under CP16-454 et al., Docket Nos. CP16-454 & CP16-455, at 2 (Sept. 30, 2022).
[11] Commission Staff, Notice Seeking Public Comment on Responses to Information Requests re Texas LNG Brownsville LLC under CP16-116, Docket No. CP16-116, at 1 (Sept. 30, 2022).
[12] See, e.g., Commissioner Danly’s Dissent to PJM Interconnection, L.L.C., 177 FERC ¶ 61,209 (2021), Docket Nos. EL19-58-006 & ER19-1486-003, (Danly, Comm’r, dissenting at P 2) (issued Jan. 20, 2022) (“What is more, in this order, the revisions go far beyond the specific issue identified in the motion for voluntary remand, which was to revisit the 10% adder in light of the U.S. Court of Appeals for the District of Columbia Circuit’s (D.C. Circuit) recent decision in Delaware Division of the Public Advocate v. FERC.”) (citing Del. Division of the Pub. Advocate v. FERC, 3 F.4th 461 (D.C. Cir. 2021)) (citation omitted); id. PP 10-13 (explaining that the order reversed Commission determinations, including some that were not the basis of the Chairman’s request for a voluntary remand).
[13] See, e.g., Nat’l Grid LNG, LLC, 179 FERC ¶ 61,205, at PP 5-7 (2022) (explaining that although National Grid LNG, LLC “planned to begin construction of the project at the end of 2016[,] . . . it did not receive certificate authorization until October 2018,” and therefore it requested an increase in its initial recourse rates since the estimated cost of the facilities increased from $180,256,679 to $390,829,000—a difference of $210,572,321—as a result of increased construction costs due to the timing change and construction work plan changes). Cf. Duke Energy, Dominion Energy and Duke Energy cancel the Atlantic Coast Pipeline (July 5, 2020), https://news.duke-energy.com/releases/dominion-energy-and-duke-energy-cancel-the-atlantic-coast-pipeline (announcing Dominion Energy’s and Duke Energy’s cancellation of the Atlantic Coast Pipeline Project—a project with a Commission-issued certificate of public convenience and necessity—due to “ongoing delays and increasing cost uncertainty which threaten[ed] the economic viability of the project” and explaining that the project faced many challenges, including: (1) adverse court decisions regarding their federal permit for waterbody and wetland crossings (Nationwide Permit 12), which led to uncertainty in the companies’ investment; and (2) “legal challenges to the project’s federal and state permits[,] . . . [which] caused significant project cost increases and timing delays” and resulted in an estimated “project cost . . . increase[] to $8 billion from the original estimate of $4.5 to $5.0 billion” as well as an estimated delay of “three-and- a-half-year[s]” for the project’s in-service date).
[14] See NAACP v. Fed. Power Comm’n, 425 U.S. 662, 669-70 (1976) (recognizing that the purpose of the NGA is to “encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices”) (citations omitted).
[15] See 15 U.S.C. § 717(a) (“[I]t is declared that the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest, and that Federal regulation in matters relating to the transportation of natural gas and the sale thereof in interstate and foreign commerce is necessary in the public interest.”).