Commissioner Richard Glick Dissent in Part Regarding Columbia Gas Transmission, LLC

Commissioner Richard Glick Statement
January 23, 2020
Docket No. CP18-137-000
Order: C-1

Dissent in Part Regarding Columbia Gas Transmission, LLC

I dissent in part from today’s order because it violates both the Natural Gas Act1 (NGA) and the National Environmental Policy Act2 (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 authorizing Columbia Gas Transmission, LLC’s (Columbia) proposed Buckeye XPress Project (Project), the Commission continues to treat greenhouse gas (GHG) emissions and climate change differently than all other environmental impacts.3 The Commission again refuses to consider whether the Project’s contribution to climate change from GHG emissions would be significant, even though it quantifies the direct GHG emissions from the Project’s construction and operation.4 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 state that approval of the Project “would not constitute a major federal action significantly affecting the quality of the human environment”5 and, as a result, conclude that the Project is in the public interest and required by the public convenience and necessity.6 Claiming that a project has no significant environmental impacts 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 again refuses to make a serious effort to assess the indirect effects of the Project. The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has repeatedly criticized the Commission for its stubborn refusal to identify and consider the reasonably foreseeable GHG emissions caused by the downstream combustion of natural gas transported through an interstate pipeline. But even so, today’s order doubles down on approaches that the D.C. Circuit has already rejected. So long as the Commission refuses to heed the court’s unambiguous directives, I have no choice but to dissent.

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

We know with certainty what causes climate change: It is the result of GHG emissions, including carbon dioxide and methane, released in large quantities through the production, transportation, and the consumption of fossil fuels, including natural gas. The Commission recognizes this relationship, finding, as it must, that climate change is “driven by accumulation of GHGs in the atmosphere through combustion of fossil fuels” and that emissions from the Project’s construction and operation, in combination with emissions from other sources, would “contribute incrementally to future climate change impacts.”7 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 in the public interest and required by the public convenience and necessity.8

Today’s order falls short of that standard. As part of its public interest determination, the Commission must examine the Project’s impact on the environment and public safety, which includes the facility’s impact on climate change.9 That is now clearly established D.C. Circuit precedent.10 The Commission, however, insists that it need not consider whether the Project’s contribution to climate change is significant because there is “no universally accepted methodology” for considering the Project’s impact.11 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 will have no significant environmental impact.12 Think about that. The Commission is saying out of one side of its mouth that it need not assess the significance of the Project’s impact on climate change while, out of the other side of its mouth, assuring us that all environmental impacts are insignificant. That is ludicrous, unreasoned, and an abdication of our responsibility to give climate change the “hard look” that the law demands.13

It also means that the volume of emissions caused by the Project does not play a meaningful role in the Commission’s public interest determination, no matter how many times the Commission assures us otherwise. Using the approach in today’s order, the Commission will always be able to conclude that a project will not have any significant environmental impact irrespective of the project’s actual GHG emissions or those emissions’ impact on climate change. So long as that is the case, a project’s impact on climate change 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 above14 were wrongly decided.15 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.16 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.17
II. The Commission’s NEPA Analysis of the Project’s Contribution to Climate Change Is Deficient

The Commission’s NEPA analysis is similarly flawed. When conducting a NEPA review, an agency must consider both the direct and the indirect effects of the project under consideration18 . As noted, the D.C. Circuit has repeatedly instructed the Commission that the GHG emissions caused by the reasonably foreseeable combustion of natural gas transported through a pipeline is an indirect effect and must, therefore, be included within the Commission’s NEPA analysis.19 It is past time for the Commission to learn that lesson.

Beginning with Sabal Trail, the D.C. Circuit has held unambiguously that the Commission must identify and consider reasonably foreseeable downstream GHG emissions as part of its NEPA analysis.20 Shortly after that decision, the Commission attempted to cabin Sabal Trail to its facts, taking the position that it was required to consider downstream GHG emissions only under the exact facts presented in Sabal Trail—i.e., where the pipeline was transporting natural gas for combustion at a particular natural gas power plant (or plants).21 In Birckhead, the D.C. Circuit rejected that argument, admonishing the Commission that it must examine the specific record before it and that it may not categorically ignore a pipeline’s downstream emissions just because it does not fit neatly within the facts of Sabal Trail. Indeed, the Court expressly rejected the Commission’s argument “that downstream emissions are an indirect effect of a project only when the project’s ‘entire purpose’ is to transport gas to be burned at ‘specifically-identified’ destinations”—i.e., the facts of Sabal Trail.22 Since Birckhead, the court has continued to turn aside the Commission’s efforts to ignore reasonably foreseeable downstream GHG emissions. 23

And yet, with today’s order, the Commission continues to thumb its nose at the court by stubbornly clinging to its interpretation of Sabal Trail that Birckhead rejected. Although the EA estimated some of the Project’s direct and indirect GHG emissions from construction and operation,24 there is no comparable estimate of the downstream GHG emissions associated with the Project’s expansion capacity—at least the portion of that new capacity with a subscribed shipper.25 The Commission does not provide any reason to ignore those emissions. As an initial matter, we know that the vast majority, 97 percent, of all natural gas consumed in the United States is combusted26 —a fact that, on its own, might be sufficient to make downstream emissions reasonably foreseeable, at least absent contrary evidence. Moreover, the record here makes this a relatively easy case: The stated purpose for the expansion capacity is “to transport increasing natural gas supply from Ohio and the Marcellus and Utica Shales region to markets, particularly in Appalachia, and to support regional power generation.”27 Using that information, the Commission could have easily engaged in a little “‘reasonable forecasting’” aided by “‘educated assumptions’”—which is precisely what NEPA requires—in order to develop an estimate or a range of estimates of the likely emissions caused by the Project.28

Nevertheless, in today’s order, the Commission neither attempts to assess the downstream GHG impacts of the Project nor asks the applicant to provide any details about end use, which it consistently claims is necessary to consider downstream GHG emissions. In so doing, it is again “excus[ing] itself from making any effort to develop the record in the first place.”29 That is exactly the result it was so roundly criticized for in Birckhead—i.e., that the Commission will ignore downstream GHG emissions “outside the context of known specific end use.”30 Today’s holding means that, almost by definition, the Commission will never consider the GHG emissions resulting from a shipper’s capacity subscription, even when the record indicates that the gas will be used for electricity generation, as it does here. It is hard to imagine what would cause the Commission to try so hard to ignore those emissions other than its lingering inability to take the Sabal Trail line of cases seriously and its apparent belief that those decisions can still essentially be cabined to its facts.31

The Commission also gives no consideration to whether the Project will lead to an increase in upstream GHG emissions from additional production. The Commission cannot ignore the fact that adding firm transportation capacity is likely to “spur demand” for natural gas, particularly where, as here, the stated purpose of the expansion capacity is to transport increasing supplies of natural gas produced in the Ohio and the Marcellus and Utica Shales region to market.32 Until the Commission starts taking its responsibilities under NEPA seriously, I will have no choice but to continue to dissent from determinations that ignore reasonably foreseeable GHG emissions.

In addition, even where the Commission quantifies the Project’s GHG emissions, it fails to “evaluate the ‘incremental impact’ that [those emissions] will have on climate change or the environment more generally.”33 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.34 That makes sense. Identifying and evaluating the consequences that the 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.35 But neither today’s order nor the accompanying EA provide that discussion or even attempt to assess the significance of the Project’s GHG emissions.

Instead, the Commission insists that it need not assess the significance of the Project’s GHG emissions because it lacks a “universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment.”36 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 single 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.37

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 “vegetation,”38 “wildlife,”39 or “visual resources” (including “scenic byways”).40 Notwithstanding the lack of any “universally accepted” methodology or “significance criteria” 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. 41

That refusal is even more mystifying because NEPA “does not dictate particular decisional outcomes.” 42 NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’” 43 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. 44 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. 45 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, 46 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 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 Gas Transmission, LLC, 170 FERC ¶ 61,045 (2020) (Certificate Order); Buckeye XPress Project Environmental Assessment (EA) at B-235.
• 44 As discussed further below, see infra PP 10-12, the Commission quantified some of the Project’s direct and indirect GHG emissions from construction and operation but not the downstream emissions resulting from the Project’s incremental expansion capacity, including capacity subscribed by the Project’s only expansion shipper, Range Resources-Appalachia (Range Resources).
• 55 Certificate Order, 170 FERC ¶ 61,045 at P 48; EA at D-1.
• 66 Id. at P 27.
• 77 EA at B-233–B-235.
• 88 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)).
• 99 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”).
• 1010 See Allegheny Def. Project v. FERC, 932 F.3d 940, 945-46 (D.C. Cir. 2019); Birckhead v. FERC, 925 F.3d 510, 518-19 (D.C. Cir. 2019); Sabal Trail, 867 F.3d at 1371-72. The history of these cases is discussed further below. See infra P 9.
• 1111 See EA at B-235 (“Currently, there is no universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment to the [Project’s] incremental contribution to GHGs.”).
• 1212 See Certificate Order, 170 FERC ¶ 61,045 at P 138 (Approval of the Project “would not constitute a major federal action significantly affecting the quality of the human environment.”); EA at D-1.
• 1313 E.g., Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015) (agencies 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.”).
• 1414 Supra note 10.
• 1515 Certificate Order, 170 FERC ¶ 61,045 (McNamee, Comm’r, concurring at P 12 & n.29).
• 1616 E.g., Sabal Trail, 867 F.3d at 1373.
• 1717 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)).
• 1818 40 C.F.R. §§ 1502.16(b), 1508.8(b); Sabal Trail, 867 F.3d at 1371.
• 1919 See Allegheny Def. Project, 932 F.3d at 945-46; Birckhead, 925 F.3d at 518-19; Sabal Trail, 867 F.3d at 1371-72.
• 2020 Sabal Trail, 867 F.3d at 1371-72; see also id. at 1371 (“Effects are reasonably foreseeable if they are ‘sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision.’” (quoting EarthReports, Inc. v. FERC, 828 F.3d 949, 955 (D.C. Cir. 2016))).
• 2121 Birckhead, 925 F.3d at 518-19 (rejecting the “Commission[’s] conten[tion] [that Sabal Trail] . . . is narrowly limited to the facts of that case” (internal quotation marks omitted)).
• 2222 Id. at 519 (citing the Commission’s brief in that case).
• 2323 See Allegheny Def. Project, 932 F.3d at 945-46 (holding that the petitioners are “correct that NEPA required the Commission to consider both the direct and indirect environmental effects of the Project, and that, despite what the Commission argues, the downstream greenhouse-gas emissions are just such an indirect effect”).
• 2424 EA at B-174–B-178, Tables B.8-1 & B.8-2 (estimating approximately 78,500 metric tons of GHG emissions per year from construction and operation); id. B-235 (estimating a one-time release of approximately 96,112 metric tons of GHG emissions due to forest clearing, plus an additional loss of about 461 metric tons per year of sequestration capacity).
• 2525 A substantial portion of the Project’s expansion capacity, which the Commission deems “incidental” to the need for the Project, remains unsubscribed; however, one shipper, Range Resources, has subscribed to 50,000 Dth/day of firm transportation service. Certificate Order, 170 FERC ¶ 61,045 at P 25.
• 2626 U.S. Energy Info. Admin., September 2019 Monthly Energy Review 22, 97 (2019) (reporting that, in 2018, 778 Bcf of natural gas had a non-combustion use compared to 29,956 Bcf of total consumption), https://www.eia.gov/totalenergy/data/monthly/archive/00351908.pdf.
• 2727 EA at A-6.
• 2828 Sabal Trail, 867 F.3d at 1374 (quoting Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1310 (D.C. Cir. 2014)); see id. (“We understand that emission estimates would be largely influenced by assumptions rather than direct parameters about the project, but some educated assumptions are inevitable in the NEPA process. And the effects of assumptions on estimates can be checked by disclosing those assumptions so that readers can take the resulting estimates with the appropriate amount of salt.” (internal citations and quotation marks omitted)).
• 2929 Birckhead, 925 F.3d at 520 (quoting Tennessee Gas Pipeline, 163 FERC 61,190 (2018) (Glick, Comm’r, dissenting at 2)).
• 3030 Certificate Order, 170 FERC ¶ 61,045 at P 125.
• 3131 Cf. id. P 126 (declining to perform a downstream emissions calculation for the quantities of natural gas that would be transported by the Project because “the end-use . . . is unknown”). But see Birckhead, 925 F.3d at 518-19 (rejecting the “Commission[’s] conten[tion] [that Sabal Trail] . . . is narrowly limited to the facts of that case” (internal quotation marks omitted)).
• 3232 See supra note 27. Moreover, the Project cannot possibly achieve the benefits that Columbia advances—improved reliability and access to economic supplies of natural gas—unless consumers actually use the natural gas the Project will transport. EA at A-5–A-6.
• 3333 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th Cir. 2008); see also WildEarth Guardians v. Zinke, No. CV 16-1724 (RC), 2019 WL 1273181, at *1 (D.D.C. Mar. 19, 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”).
• 3434 Sabal Trail, 867 F.3d at 1374.
• 3535 See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (explaining that one of NEPA’s purpose 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.”).
• 3636 Certificate Order, 170 FERC ¶ 61,045 at P 129; EA at B-235.
• 3737 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).
• 3838 EA at B-84, B-90.
• 3939 Id. at B-94–B-103.
• 4040 Id. at B-149–B-153.
• 4141 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., id. at B-1. 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 wildlife and scenic byways, but not climate change.
• 4242 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 4343 Id. (quoting Robertson, 490 U.S. at 351).
• 4444 Robertson,490 U.S. at 351.
• 4545 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).
• 464615 U.S.C. § 717f(e); Certificate Order, 169 FERC ¶ 61,133 at P 139 (“[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 . . . .”).