Commissioner Richard Glick
August 10, 2018
Docket No. CP17-15-001
Today’s order denies rehearing of the Commission’s decision to certificate Dominion Energy Cove Point LNG’s Eastern Market Access Project (Project). I dissent from the order because it falls short of our obligations under the Natural Gas Act (NGA)1
and the National Environmental Policy Act (NEPA).2
The Commission maintains that it is not required to consider the harm from the Project’s contribution to climate change. Even though the Commission quantified the Project’s downstream greenhouse gas (GHG) emissions, the Commission nonetheless fails to determine whether the resulting harm from climate change is significant.3
I dissent in part from today’s order because I believe the Commission cannot find that the Project is in the public interest without first considering the significance of the Project’s contribution to climate change.4
As today’s order explains, the Project will add compression to the Cove Point LNG pipeline to provide incremental transportation capacity, delivering a portion of the natural gas to the Mattawoman Energy Center power plant, along with other destinations.5
Therefore, there is no question that downstream GHG emissions as a result of end-use combustion are a reasonably foreseeable indirect impact of the Project. While the order provides a “full-burn” analysis of the transportation capacity of the Project,6
the Commission ends its analysis there. In doing so, it fails to determine whether the Project’s downstream GHG emissions will result in a significant environmental impact.7
Quantifying and disclosing downstream GHG emissions are necessary steps in evaluating the Project’s indirect impact on climate change, but cataloguing these pollutants and acknowledging GHG emission contribute to climate change is not enough to satisfy our statutory obligations.8
The NGA and NEPA require more.9
In Sierra Club v. FERC (Sabal Trail), the D.C. Circuit held that the Commission is required to “discuss the significance” of GHG emissions caused by the pipeline and to “quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so.”10
Yet, the Commission claims here it is unable to consider the identified downstream GHG by stating “[w]e are aware of no standard established by international or federal policy, or by a recognized scientific body that would assist us to ascribe significance to a given rate of volume of GHG emissions.”11
As I have previously explained,12
the Commission has available tools to ascribe significance to a Project’s GHG emissions. The Social Cost of Carbon translates the long-term damage done by a ton of carbon dioxide into a monetary value, thereby providing a meaningful and informative approach for satisfying an agency’s obligation to consider how its actions contribute to the harm caused by climate change. Furthermore, the U.S. Environmental Protection Agency (EPA) recommended an approach for considering the significance of the harm from a project’s contribution to climate change in its comments on the Commission’s pending review of the natural gas certification process. EPA explains that “even absent a full [cost-benefit analysis],” estimates of the Social Cost of Carbon “may be used for project analysis when [the Commission] determines that a monetary assessment of the impacts associated with the estimated net change in GHG emissions provides useful information in its environmental review or public interest determination.”13
The lack of an external threshold to evaluate significance does not prevent the Commission from using available tools to develop one. The CEQ regulations expressly outline a framework for determining whether the Project’s impacts on the environment should be considered significant.14
Finally, the Commission suggests that it has satisfied its obligation to consider the harm caused by the Project’s contribution to climate change with a summary acknowledgment that GHG emissions contribute to climate change, while still avoiding making a determination of whether the harm caused specifically by the Project’s contribution to climate change is significant. But in refusing to actually consider the Project’s potential impact, the Commission has failed to take the “hard look” that NEPA demands and that Sabal Trail explicitly required.15
Climate change poses an existential threat to our security, economy, environment, and, ultimately, the health of individual citizens. Unlike many of the challenges that our society faces, we know with certainty what causes climate change: It is the result of GHG emissions, including carbon dioxide and methane, which can be released in large quantities through the production and consumption of natural gas. Congress determined under the NGA that no entity may transport natural gas interstate, or construct or expand interstate natural gas facilities, without the Commission first determining the activity is in the public interest.16
This requires the Commission to find, on balance, that a project’s benefits outweigh the harms, including the environmental impacts from climate change that result from authorizing additional transportation. Accordingly, it is critical that, as an agency of the federal government, the Commission comply with its statutory responsibility to document and consider how its authorization of a natural gas pipeline facility will lead to the emission of GHGs, contributing to the existential threat of climate change.
For these reasons, I respectfully dissent in part.
- 11 15 U.S.C. § 717f (2012).
- 22 42 U.S.C. § 4321 et seq. (2012).
- 33 Dominion Energy Cove Point LNG/LP, 164 FERC ¶ 61,102, at P 18 (2018) (Rehearing Order).
- 44 Section 7 of the NGA requires that, before issuing a certificate for new pipeline construction, the Commission must find both a need for the pipeline and that, on balance, the pipeline’s benefits outweigh its harms. 15 U.S.C. § 717f (2012). Furthermore, NEPA requires the Commission to take a “hard look” at the environmental impacts of its decisions. See 42 U.S.C. § 4332(2)(C)(iii); Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983).
- 55 Environmental Assessment at 1 (EA).
- 66 Id. at 79–80. The EA includes an estimate that if all natural gas transported by the Project were combusted, downstream end-use would result in the emissions of about 5.9 million tons of carbon dioxide equivalents per year.
- 77 See Accokeek Request for Rehearing at 24–25.
- 88 While I supported the Commission’s original decision to authorize this certificate, in the following months, the Commission has announced a new policy that fails to adequately consider the environmental harm caused by a pipeline’s contribution to climate change. Accordingly, I must dissent from today’s order.
- 99 See also Pub. Utils. Comm’n of Cal. v. FERC, 900 F.2d 269, 281 (D.C. Cir. 1990) (The public interest standard under the NGA includes factors such as the environment and conservation, particularly as decisions concerning the construction, operation, and transportation of natural gas in interstate commerce “necessarily and typically have dramatic natural resource impacts.”).
- 1010 Sabal Trail, 867 F.3d at 1375.
- 1111 Rehearing Order, 164 FERC ¶ 61,102 at P 18.
- 1212 Fla. Se. Connection, LLC, 162 FERC ¶ 61,233 at 7–8 (2018) (Glick, Comm’r, dissenting).
- 1313 U.S. Environmental Protection Agency, Comments, Docket No. PL18-1-000, at 4–5 (filed June 21, 2018).
- 1414 40 C.F.R. § 1508.27 (2017) (setting forth a list of factors agencies should rely on when determining whether a project’s environmental impacts are “significant” considering both “context” and “intensity”).
- 1515 See Sabal Trail, 867 F.3d at 1375; see also Mont. Envtl. Info. Ctr. v. U.S. Off. of Surface Mining, 274 F. Supp. 3d 1074, 1098 (D. Mont. 2017) (Montana), amended in part, adhered to in part sub nom. Mont. Envtl. Info. Ctr. v. U.S. Off. of Surface Mining, CV 15-106-M-DWM, 2017 WL 5047901 (D. Mont. Nov. 3, 2017) (explaining that even assuming an agency “conducted a full and thorough analysis of greenhouse gas emissions from [a project],” such analysis alone does not constitute the required “hard look that ensured both the agency and the public were well-informed”).
- 1616 15 U.S.C. § 717f(c)(1)(A) (2012).