Commissioner Richard Glick Dissent in Part Regarding Columbia Gas Transmission, LLC, Eastern Panhandle Expansion Project

Commissioner Richard Glick Statement

March 25, 2020
Docket No. CP17-80-001

I dissent in part from today’s order on rehearing because I believe that the Commission’s action violates both the Natural Gas Act 1 (NGA) and the National Environmental Policy Act 2 (NEPA).  The Commission once again refuses to consider the consequences its actions have for climate change.  Although neither the NGA nor NEPA permit the Commission to assume away the climate change implications of constructing and operating this project, that is precisely what the Commission is doing here.

In today’s order, the Commission denies rehearing of its order authorizing Columbia Gas Transmission, LLC’s (Columbia Gas) Eastern Panhandle Expansion Project (Project), and continues to treat greenhouse gas (GHG) emissions and climate change differently than all other environmental impacts. 3  Even though it quantifies the direct GHG emissions from the Project’s construction and operation, 4 as well as some of the Project’s indirect GHG emissions, 5 the Commission nonetheless insists that upstream emissions are not reasonably foreseeable and again refuses to consider whether the Project’s contribution to climate change from GHG emissions would be significant. 6   That failure forms an integral part of the Commission’s decisionmaking:  The refusal to assess the significance of the Project’s contribution to the harm caused by climate change is what allows the Commission to misleadingly state that the Project “would not constitute a major federal action significantly affecting the quality of the human environment” 7 and, as a result, conclude that the Project is in the public interest and required by the public convenience and necessity. 8   Claiming that the Project’s environmental impacts would not be significant while at the same time refusing to assess the significance of the Project’s impact on the most important environmental issue of our time is not reasoned decisionmaking.

Making matters worse, the Commission refuses to make a serious effort to assess the full scope of the Project’s indirect GHG emissions, in particular the GHG emissions from upstream production of the natural gas transported over the Project’s incremental transportation capacity.  Rather than estimate these indirect emissions or ask applicants for more information, the Commission instead assumes that the “project is not expected to induce future upstream natural gas development.” 9   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 the consumption of natural gas.  The Commission recognizes this relationship, finding, as it must, that climate change is “driven by accumulation of GHG in the atmosphere through combustion of fossil fuels (coal, petroleum, and natural gas), combined with agriculture and clearing of forests.” 10   In light of this undisputed relationship between anthropogenic GHG emissions and climate change, the Commission must carefully consider the Project’s contribution to climate change, both in order to fulfill NEPA’s requirements and to determine whether the Project is required by the public convenience and necessity under the NGA. 11

The Commission’s Public Interest Determination Is Not the Product of Reasoned Decisionmaking

As part of its public interest determination, the Commission must examine the Project’s impact on the environment and public safety, which includes the facilities’ impact on climate change. 12   That is now clearly established D.C. Circuit precedent. 13   In today’s order on rehearing, the Commission falls short of that standard, insisting that it cannot consider whether the Project’s contribution to climate change is significant due to the lack of a “standard methodology” to evaluated significance. 14   However, the most troubling part of the Commission’s rationale is what comes next.  Based on this alleged inability to assess significance, the Commission concludes that the Project’s impacts will generally be not “significant.” 15   Think about that.  The Commission is simultaneously stating that it cannot assess the significance of the Project’s impact on climate change, while concluding that all environmental impacts are acceptable to the public interest. 16   That is unreasoned and an abdication of our responsibility to give climate change the “hard look” that the law demands. 17  

It also means that the Project’s impact on climate change does not play a meaningful role in the Commission’s public interest determination, no matter how often the Commission assures us that it does.  Using the approach in today’s order, the Commission will always conclude that a project will not have a significant environmental impact irrespective of that project’s actual GHG emissions or those emissions’ impact on climate change.  If the Commission’s conclusion will not change no matter how many GHG emissions a project causes, those emissions cannot, as a logical matter, play a meaningful role in the Commission’s public interest determination.  A public interest determination that systematically excludes the most important environmental consideration of our time is contrary to law, arbitrary and capricious, and not the product of reasoned decisionmaking.

Commissioner McNamee argues that the D.C. Circuit cases cited above 18 were wrongly decided. 19   Although that is his prerogative, it is irrelevant to the task before us.  As he has explained, we are called on to apply the law and the facts, not our personal policy preferences.  But surely, implicit in that statement, is a recognition that we must apply the law as it is, not as we wish it were.  The D.C. Circuit has unambiguously interpreted the “public convenience and necessity” standard in section 7 of the NGA to encompass the authority to consider and, if appropriate, act upon “the direct and indirect environmental effects” of a proposed pipeline. 20   As Commissioners, our job is to apply that law, not to attack binding judicial precedent in favor of an interpretation that was, in fact, expressly rejected by the court. 21

The Commission’s NEPA Analysis of the Project’s Contribution to Climate Change Is Deficient

The Commission’s NEPA analysis is similarly flawed.  In order to evaluate the environmental consequences of the Project under NEPA, the Commission must consider the harm caused by the Project’s GHG emissions and “evaluate the ‘incremental impact’ that these emissions will have on climate change or the environment more generally.” 22   Today’s order quantifies the GHG emissions caused by the Project’s operation and construction, as well as some of the Project’s indirect GHG emissions caused by the downstream consumption of natural gas transported over the project facilities. 23   But the Commission nevertheless refuses to consider the Project’s upstream GHG emissions as indirect effects, instead adopting an overly narrow and circular definition of indirect effects 24 and disregarding the Project’s central purpose—to facilitate natural gas production and consumption. 25   The Commission cannot ignore the fact that adding transportation capacity is likely to “spur demand,” 26 and, for that reason, it must examine the effects adding incremental transportation capacity might have on production. 27   Indeed, if a proposed pipeline neither increases the supply of natural gas available to consumers nor decreases the price that those consumers would pay, it is hard to imagine why that pipeline would be “needed” in the first place.

Although quantifying the Project’s GHG emissions is a necessary step toward meeting the Commission’s NEPA obligations, simply reporting the volume of emissions is insufficient. 28   In Sabal Trail, the court explained that the Commission was required “to include a discussion of the ‘significance’ of” the indirect effects of the Project, including its GHG emissions. 29   That makes sense.  Identifying and evaluating the consequences that a project’s GHG emissions may have for climate change is essential if NEPA is to play the disclosure and good government roles for which it was designed. 30   But in today’s order on rehearing, the Commission refuses to provide that discussion or even attempt to assess the significance of the Project’s direct and indirect GHG emissions or how they contribute to climate change.  It is hard to see how hiding the ball by refusing to assess the significance of the Project’s climate impacts is consistent with either of those purposes.

In addition, under NEPA, a finding of significance informs the Commission’s inquiry into potential ways of mitigating environmental impacts. 31   An environmental review document must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts. 32   “Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects” of a project, making an examination of possible mitigation measures necessary to ensure that the agency has taken a “hard look” at the environmental consequences of the action at issue. 33

Instead, the Commission continues to insist that it need not assess the significance of the Project’s GHG emissions because it lacks a “standard methodology” to “determine whether, and to what extent, a project’s incremental contribution to greenhouse gas emissions would result in physical effects on the environment.” 34   But that does not excuse the Commission’s failure to evaluate these emissions.  As an initial matter, the lack of a single methodology does not prevent the Commission from adopting a methodology, even if that methodology is not universally accepted.  The Commission has several tools to assess the harm from the Project’s contribution to climate change, including, for example, the Social Cost of Carbon.  By measuring the long-term damage done by a ton of carbon dioxide, the Social Cost of Carbon links GHG emissions to actual environmental effects from climate change, thereby facilitating the necessary “hard look” at the Project’s environmental impacts that NEPA requires.  Especially when it comes to a global problem like climate change, a measure for translating a project’s climate change impacts into concrete and comprehensible terms plays a useful role in the NEPA process by putting the harms from climate change in terms that are readily accessible for both agency decisionmakers and the public at large.  The Commission, however, continues to ignore the tools at its disposal, relying on deeply flawed reasoning that I have previously critiqued at length. 35

As the rehearing parties argue, 36 regardless of tools or methodologies available, the Commission also can use its expertise to consider all factors and determine, quantitatively or qualitatively, whether the Project’s GHG emissions have a significant impact on climate change.  That is precisely what the Commission does in other aspects of its environmental review.  Consider, for example, the Commission’s findings that the Project will not have a significant effect on issues as diverse as “groundwater,” 37 “forest land,” 38 and “waterbodies.” 39   Notwithstanding the lack of any “standard methodology” to assess these impacts, the Commission managed to use its judgment to conduct a qualitative review, and assess the significance of the Project’s effect on those considerations.  The Commission’s refusal to, at the very least, exercise similar qualitative judgment to assess the significance of GHG emissions here is arbitrary and capricious. 40

That refusal is even more mystifying because NEPA “does not dictate particular decisional outcomes.” 41   NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’” 42   In other words, taking the matter seriously—and rigorously examining a project’s impacts on climate change—does not necessarily prevent any Commissioner from ultimately concluding that a project meets the public interest standard.

Even if the Commission were to determine that a project’s GHG emissions are significant, that would not be the end of the inquiry nor would it mean that the project is not in the public interest or required by the public convenience and necessity.  Instead, the Commission could require mitigation—as the Commission often does with regard to other environmental impacts.  The Supreme Court has held that, when a project may cause potentially significant environmental impacts, the relevant environmental impact statement must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts. 43   The Court explained that, “[w]ithout such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects” of a project, making an examination of possible mitigation measures necessary to ensure that the agency has taken a “hard look” at the environmental consequences of the action at issue. 44   The Commission not only has the obligation to discuss mitigation of adverse environmental impacts under NEPA, but also the authority to condition certificates under section 7 of the NGA, 45 which could encompass measures to mitigate a project’s GHG emissions.

Furthermore, a rigorous examination and determination of significance regarding climate change impacts would bolster any finding of public interest by providing the Commission a more complete set of information necessary to weigh benefits against adverse effects.  By refusing to assess significance, however, the Commission short circuits any discussion of mitigation measures for the Project’s GHG emissions, eliminating a potential pathway for us to achieve consensus on whether the Project is consistent with the public interest.

Today’s order on rehearing is not the product of reasoned decisionmaking.  Its analysis of the Project’s contribution to climate change is shoddy and its conclusion that the Project will not have any significant environmental impacts is illogical.  After all, the Commission itself acknowledges that the Project will contribute to climate change, but refuses to consider whether that contribution might be significant before proclaiming that the Project will have no significant environmental impacts.  So long as that is the case, the record simply cannot support the Commission’s conclusion that there will be no significant environmental impacts.  Simply put, the Commission’s analysis of the Project’s consequences for climate change does not represent the “hard look” that the law requires.


For these reasons, I respectfully dissent in part.





























 

• 11 15 U.S.C. § 717f (2018).
• 22 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.
• 33 Columbia Gulf Transmission, LLC, 170 FERC ¶ 61,247, at PP 15-18 (2020) (Rehearing Order).
• 44 See Columbia Gulf Transmission, LLC, 164 FERC ¶ 61,036 at P 56 (2018) (Certificate Order); Eastern Panhandle Expansion Project Environmental Assessment at 76-77 Tables 21 & 22 (EA).
• 55 Certificate Order, 164 FERC ¶ 61,036 at P 56; EIS at 77 (estimating that the incremental gas transported by the Project, if combusted “would produce 920,000 metric tons of CO2 per year”).
• 66 Rehearing Order, 170 FERC ¶ 61,247 at PP 15-18; see also Certificate Order, 164 FERC ¶ 61,036 at P 57.
• 77 Certificate Order, 164 FERC ¶ 61,036 at P 73 (determining that “if constructed and operated in accordance with Columbia’s application and supplements, and in compliance with the environmental conditions in the appendix to this order, our approval of this proposal would not constitute a major federal action significantly affecting the quality of the human environment”); EA at 104.
• 88 Certificate Order, 164 FERC ¶ 61,036 at P 16; see also Rehearing Order, 170 FERC ¶ 61,247 at P 1.
• 99 Rehearing Order, 170 FERC ¶ 61,247 at P 8 (stating there is “no evidence that this small project, capable of transporting only up to 47,500 Dth per day of natural gas, will induce future natural gas development”).
• 1010 EA at 96.
• 1111 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. 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). This means that the Commission must consider and discuss the significance of the harm from a pipeline’s contribution to climate change by actually evaluating the magnitude of the pipeline’s environmental impact. Doing so enables the Commission to compare the environment before and after the proposed federal action and factor the changes into its decisionmaking process. See Sierra Club v. FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sabal Trail) (“The [FEIS] needed to include a discussion of the ‘significance’ of this indirect effect.”); 40 C.F.R. § 1502.16 (a)–(b) (An agency’s environmental review must “include the environmental impacts of the alternatives including the proposed action,” as well as a discussion of direct and indirect effects and their significance. (emphasis added)).
• 1212 See Sabal Trail, 867 F.3d at 1373 (explaining that the Commission must consider a pipeline’s direct and indirect GHG emissions because the Commission may “deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment”); see also Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959) (holding that the NGA requires the Commission to consider “all factors bearing on the public interest”).
• 1313 See Allegheny Def. Project v. FERC, 932 F.3d 940, 945-46 (D.C. Cir. 2019), reh’g en banc granted, judgment vacated, 2019 WL 6605464 (D.C. Cir. Dec. 5, 2019); Birckhead v. FERC, 925 F.3d 510, 518-19 (D.C. Cir. 2019); Sabal Trail, 867 F.3d at 1371-72.
• 1414 EIS at 97 (“There is no standard methodology to determine whether, and to what extent, a project’s incremental contribution to greenhouse gas emissions would result in physical effects on the environment for the purposes of evaluating the Project’s impacts on climate change, either locally or nationally. Further, we cannot find a suitable method to attribute discrete environmental effects to greenhouse gas emissions.”); see also Certificate Order, 164 FERC ¶ 61,036 at 57.
• 1515 Certificate Order, 164 FERC ¶ 61,036 at P 73 (determining that “if constructed and operated in accordance with Columbia’s application and supplements, and in compliance with the environmental conditions in the appendix to this order, our approval of this proposal would not constitute a major federal action significantly affecting the quality of the human environment”); EA at 104.
• 1616 Certificate Order, 164 FERC ¶ 61,036 at P 16; see also Rehearing Order, 170 FERC ¶ 61,247 at P 1.
• 1717 E.g., Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015) (“[A]gencies cannot overlook a single environmental consequence if it is even “arguably significant.”); see Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (“Not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” (internal quotation marks omitted)); see also Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (explaining that agency action is “arbitrary and capricious if the agency has . . . entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency”).
• 1818 Supra notes 12-13.
• 1919 See Rehearing Order, 170 FERC ¶ 61,247 (McNamee, Comm’r, concurring at PP 13-14).
• 2020 E.g., Sabal Trail, 867 F.3d at 1373.
• 2121 Id.; see Birckhead, 925 F.3d at 519 (explaining that in “the pipeline certification context the Commission does have statutory authority to act” on the reasonably foreseeable GHG emissions caused by the pipeline (citing Sabal Trail, 867 F.3d at 1373)).
• 2222 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th Cir. 2008); WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 51 (D.D.C. 2019) (explaining that the agency was required to “provide the information necessary for the public and agency decisionmakers to understand the degree to which [its] decisions at issue would contribute” to the “impacts of climate change in the state, the region, and across the country”).
• 2323 See supra notes 4-5.
• 2424 See San Juan Citizens All. et al. v. U.S. Bureau of Land Mgmt., No. 16-CV-376-MCA-JHR, 2018 WL 2994406, at *10 (D.N.M. June 14, 2018) (holding that it was arbitrary for the Bureau of Land Management to conclude “that consumption is not ‘an indirect effect of oil and gas production because production is not a proximate cause of GHG emissions resulting from consumption’” as “this statement is circular and worded as though it is a legal conclusion”). The Commission must use its “best efforts” to identify and quantify the full scope of the environmental impacts and, as the U.S. Court of Appeals for the District of Columbia found in Sierra Club v. FERC, educated assumptions are inevitable in the process of emission quantification. See 867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sabal Trail).
• 2525 Columbia Gas Transmission, LLC, Application for Certificate of Public Convenience and Necessity, Docket No. CP17-80-000, at 13-14 (“For example, the Project provides a competitive alternative and increases access to new supplies for natural gas capacity in the market in which Mountaineer Gas participates. It also meets unserved demand, as demonstrated by the PA representing a commercial contractual commitment for the entire amount of Project capacity.”) (emphasis added).
• 2626 Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1138 (9th Cir. 2011) (holding that it “is completely inadequate” for an agency to ignore a project’s “growth inducing effects” where the project has a unique potential to spur demand); id. at 1139(distinguishing City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142 (9th Cir. 1997) (“[O]ur cases have consistently noted that a new runway has a unique potential to spur demand, which sets it apart from other airport improvements, like changing flight patterns, improving a terminal, or adding a taxiway, which increase demand only marginally, if at all.”); id. at 1139 (“[E]ven if the stated purpose of [a new airport runway project] is to increase safety and efficiency, the agencies must analyze the impacts of the increased demand attributable to the additional runway as growth-inducing effects.”).
• 2727 As the United States Court of Appeals for the Eighth Circuit explained in Mid States Coal. for Progress v. Surface Transp. Bd.—a case that involved the downstream emissions from new infrastructure for transporting fossil fuels—when the “nature of the effect” (end-use emissions) is reasonably foreseeable, but “its extent is not” (specific consumption activity producing emissions), an agency may not simply ignore the effect. 345 F.3d 520, 549 (8th Cir. 2003). Even where exact information regarding the source of the gas to be transported is not available to the pipeline developer, the Commission will often be able to produce comparably useful information based on reasonable forecasts of the GHG emissions associated with production. Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1310 (2014) (quoting Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C. Cir. 1973)); see Sierra Club v. U.S. Dep’t of Energy, 867 F.3d 189, 198 (“In determining what effects are ‘reasonably foreseeable,’ an agency must engage in ‘reasonable forecasting and speculation.’”) (quoting Del. Riverkeeper, 753 F.3d at 1310). Forecasting environmental impacts is a regular component of NEPA reviews and a reasonable estimate may inform the federal decisionmaking process even where the agency is not completely confident in the results of its forecast. In determining what constitutes reasonable forecasting, it is relevant to consider the “usefulness of any new potential information to the decisionmaking process.” Sierra Club, 867 F.3d at 198 (citing Pub. Citizen, 541 U.S. at 767). Similar forecasts can play a useful role in the Commission’s evaluation of the public interest, even in those instances when the Commission must make a number of assumptions in its forecasting process. In comments recently submitted in the Commission’s pending review of the natural gas certification process, the Environmental Protection Agency identified a number of tools the Commission can use to quantify the reasonably foreseeable “upstream and downstream GHG emissions associated with a proposed natural gas pipeline.” These include “economic modeling tools” that can aid in determining the “reasonably foreseeable energy market impacts of a proposed project.” U.S. Environmental Protection Agency, Comments, Docket No. PL18-1-000, at 3–4 (filed June 21, 2018) (explaining that the “EPA has emission factors and methods” available to estimate GHG emissions—from activities upstream and downstream of a proposed natural gas pipeline—through the U.S. Greenhouse Gas Inventory and the Greenhouse Gas Reporting Program); see Certification of New Interstate Natural Gas Facilities, Notice of Inquiry, 163 FERC ¶ 61,042 (2018).
• 2828 See Ctr. for Biological Diversity, 538 F.3d at 1216 (“While the [environmental document] quantifies the expected amount of CO2 emitted . . . , it does not evaluate the ‘incremental impact’ that these emissions will have on climate change or on the environment more generally . . . .”); Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 995 (9th Cir. 2004) (“A calculation of the total number of acres to be harvested in the watershed is a necessary component . . . , but it is not a sufficient description of the actual environmental effects that can be expected from logging those acres.”). The Commission points to the D.C. Circuit’s judgment in an unpublished opinion upholding the Commission’s action in Appalachian Voices v. FERC,2019 WL 847199, at *2(D.C. Cir. Feb 2019), to buttress its claim that the Commission need not evaluate and consider the significance of the harm from the Projects’ contribution to climate change. But this effort is unavailing here, where the Commission refuses, without explanation, to qualitatively assess the significance of the Projects’ GHG emissions. The Commission’s refusal to evaluate the Projects’ potential harm due to climate change with the type of qualitative judgment it routinely applies in other similar aspects of its environmental review is arbitrary and capricious. See infra paragraphs 9-10. It also flies in the face of the D.C. Circuit’s admonition in Sabal Trail that the Commission must “discuss[] the ‘significance’” of the project’s indirect effects. 867 F.3d 1357 at 1374.
• 2929 Sabal Trail, 867 F.3d at 1374.
• 3030 See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (explaining that one of NEPA’s purposes is to ensure that “relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision”); Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008) (“The idea behind NEPA is that if the agency’s eyes are open to the environmental consequences of its actions and if it considers options that entail less environmental damage, it may be persuaded to alter what it proposed.”).
• 3131 40 C.F.R. § 1502.16 (2018) (NEPA requires an implementing agency to form a “scientific and analytic basis for the comparisons” of the environmental consequences of its action in its environmental review, which “shall include discussions of . . . [d]irect effects and their significance.”).
• 3232 Robertson, 490 U.S. at 351
• 3333 Id. at 352. The discussion of mitigation is especially critical under today’s circumstances where the Commission prepared an EA instead of an Environmental Impact Statement to satisfy its NEPA obligations. The EA relies on the fact that certain environmental impacts will be mitigated in order to ultimately find that the Project “would not . . . significantly affect[] the quality of the human environment.” EA at 69. Absent these mitigation requirements, the Project’s environmental impacts would require the Commission to develop an Environmental Impact Statement—a much more extensive undertaking. See Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) (“If any ‘significant’ environmental impacts might result from the proposed agency action then an [Environmental Impact Statement] must be prepared before the action is taken.”).
• 3434 See supra note 14.
• 3535 See, e.g.,Transcontinental Gas Pipe Line Co., LLC, 167 FERC ¶ 61,110 (2019) (Glick, Comm’r, dissenting in part at P 6 & n.11) (noting that the Social Cost of Carbon “gives both the Commission and the public a means to translate a discrete project’s climate impacts into concrete and comprehensible terms”); Fla. Se. Connection, LLC, 164 FERC ¶ 61,099 (2018) (Glick, Comm’r, dissenting).
• 3636 Rehearing Request of Potomac Riverkeeper Network and Chesapeake Climate Action Network at 19-20 (“FERC complains that, even if it were to use the [SCC] tool, it still would not have appropriate scientific methodologies to quantify the related climate change effects. But, the CEQ already provides a helpful framework for agencies to use when assessing the significance of a project’s environmental effects, directing agencies to consider ‘context’ and ‘intensity.’ If FERC is unable to sufficiently quantify the effects, it cannot just throw up its hands and give up. Instead, it should analyze them qualitatively.”).
• 3737 EA at 39 (“Due to the minor and temporary nature of potential impacts on groundwater and Columbia’s proposed measures to minimize and/or mitigation construction impacts, we conclude that the Project would not significantly affect groundwater.”).
• 3838 Id. at 68 (determining “[a]bout 19 acres of upland forest land would be affected by the Project,” but concluding “the small amount of acreage cleared would not constitute a significant impact on forest land.”).
• 3939 Id. at 93 (“Due to the limited number of waterbodies crossed using open cut method and Columbia’s mitigation measures to protect waterbodies and downstream resources, we conclude that the Project would not significantly contribute to cumulative impacts on waterbodies when considered with other projects in the geographic scope.”).
• 4040 After all, the standard the Commission typically uses for evaluating significance is whether the adverse impact would result in a substantial adverse change in the physical environment. See e.g. Adelphia Gateway Project Environmental Assessment, Docket No. CP18-46-000 at 33 (Jan 1, 2019). Surely that standard is open to some subjective interpretation by each Commissioner. What today’s order does not explain is why it is appropriate to exercise subjective interpretation and judgment when it comes to impacts such as groundwater, forest land, and waterbodies but not climate change.
• 4141 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 4242 Id. (quoting Robertson, 490 U.S. at 351).
• 4343 Robertson,490 U.S. at 351.
• 4444 Id. at 352; see also 40 C.F.R. §§ 1508.20 (defining mitigation), 1508.25 (including in the scope of an environmental impact statement mitigation measures).
• 4545 15 U.S.C. § 717f(e); Certificate Order, 164 FERC ¶ 61,036 at P 73 (“[T]he Commission has the authority to take whatever steps are necessary to ensure the protection of environmental resources . . . , including authority to impose any additional measures deemed necessary . . . .”).