Commissioner Richard Glick Dissent in Part Regarding Natural Gas Pipeline Company of America, LLC

Commissioner Richard Glick Statement

October 17, 2019

Docket No. CP19-52-000

Dissent in Part Regarding Natural Gas Pipeline Company of America, 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 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.

Today’s order authorizes Natural Gas Pipeline Company of America, LLC (Natural) to construct and operate the Lockridge Extension Pipeline Project (Project), a 17-mile pipeline that is part of Natural’s Amarillo Line in Texas.3 However, in so doing, the Commission continues to treat greenhouse gas (GHG) emissions and climate change differently than all other environmental impacts. Almost all natural gas produced in this country and transported through the interstate pipeline network is burned.4 The combustion of natural gas releases large quantities of GHGs, including carbon dioxide and methane,5 which, along with other anthropogenic GHG emissions, are the “primary contributor” to climate change. 6

Today’s order, however, does say not a single word about climate change or the impact on climate change from the GHG emissions resulting from the Project. The Environmental Assessment (EA) is similarly silent. Unlike past EAs, which at least recited the harms caused by climate change7 —even as they refused to actually analyze a project’s known impact on climate change—the EA prepared for this proceeding says almost nothing on the matter. Indeed, the EA does not even bother to note that the Project’s GHG emissions will contribute to climate change.8 I fail to see how the Commission can omit any discussion of climate change from its assessment of the environmental effects of a natural gas pipeline and then, with a straight face, conclude that the pipeline “would not constitute a major federal action significantly affecting the quality of the human environment.”9 Claiming that a project has no significant environmental impacts while at the same time failing to examine or assess that project’s impact on the most important environmental issue of our time is not reasoned decisionmaking.

The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has been crystal clear: An interstate natural gas pipeline’s environmental consequences, including its effect on climate change, are relevant to the Commission’s assessment of whether the pipeline is required by the public convenience and necessity.10 In Sabal Trail, the D.C. Circuit held that the Commission had to identify and consider the reasonably foreseeable GHG emissions caused by its decision to approve an NGA section 7 application because the Commission had the authority to act on those emissions when making its substantive determination under the NGA.11 Accordingly, it is arbitrary and capricious for the Commission to entirely ignore a project’s GHG emissions when considering an NGA section 7 application.12 Although the Commission has resisted that conclusion,13 the D.C. Circuit has now multiple times reiterated that Sabal Trail means what it says and that the Commission must consider and evaluate the reasonably foreseeable GHG emissions caused by a pipeline, including downstream GHG emissions.14

With today’s order, however, the Commission again thumbs its nose at the court. This time the Commission does not even bother to discuss the GHG emissions that will be directly caused by constructing and operating the Project. All the EA does is report the number of GHG emissions that will result directly from the Project, without the slightest explanation and devoid of any context for those emissions. There is no discussion of the causal relationship between human activity and climate change. There is no discussion of the likely effects of climate change, either worldwide or in the area that the Project is located. And there is not even a simple acknowledgment that the Project’s GHG emissions will contribute to climate change.

That is a stark contrast even to recent Commission orders, including one issued just last week involving a substantially similar pipeline—the Sendero Gateway Pipeline.15 In that EA, the Commission recognized that that project would contribute to climate change and discussed the effects that climate change will have on the southwestern United States.16 Although I dissented from that order because the Commission made no effort whatsoever to identify the downstream GHG emissions or analyze any of the project’s GHG emissions,17 the Commission at least directly recognized the relationship between GHG emissions caused by human activity—in that case, building and operating the pipeline—and climate change.18 Today’s order and the accompanying EA contain no comparable recognition of that relationship.

In addition, the Commission does even mention the downstream GHG emissions from the Project. As noted, the D.C. Circuit has held repeatedly that, at least in some instances, the downstream GHG emissions caused by a new natural gas pipeline are reasonably foreseeable effects of building and operating that pipeline.19 Accordingly, reasoned decisionmaking requires the Commission to at least consider whether the downstream emissions are reasonably foreseeable, which would mean that the Commission must consider them in its NEPA and NGA analysis. The Commission’s failure to even assess whether the downstream GHG emissions caused by the Project are reasonably foreseeable is arbitrary and capricious.

That failure is particularly surprising in light of the D.C. Circuit’s recent decision in Birckhead, which roundly criticized the Commission’s “less-than-dogged efforts” to build the record needed to assess whether the relevant project’s downstream GHG emissions were reasonably foreseeable. The court noted that the main reason that the Commission purportedly could not answer that question was that it never bothered to gather the information that it claimed it needed to assess whether the GHG emissions were reasonably foreseeable.20 The court strongly suggested that a similar failure to seriously consider downstream GHG emissions—including, at the very least, asking the parties for whatever information the Commission claims it needs to assess the foreseeability of those emissions—would be “unreasonabl[e]” and a sufficient basis to grant a petition for review. 21

Today’s order takes an even more ignorant approach to climate change. As noted, the Commission does not discuss the Project’s downstream GHG emissions or provide any of the Commission’s usual excuses for ignoring those emissions. It is just altogether silent on the issue. I recognize that the GHG emissions released through the downstream consumption of natural gas transported through an interstate pipeline are not, “as a categorical matter,” something that the Commission must evaluate under NEPA. 22 But the Commission must at least consider the possibility that its action will cause reasonably foreseeable downstream GHG emissions and make its “best efforts” to answer that question.23 After all, if failing to ask the right questions is potentially “unreasonabl[e],”24 it is hard to see how ignoring the issue altogether is anything short of patently unreasonable.25

The Commission’s order and the EA speak for themselves: They provide no discussion of climate change or the Project’s contribution to climate change. Under those circumstances, it simply is not credible to argue that the Commission took the “hard look” that the law requires.26 I cannot stand by in silence as the Commission writes climate change out of its environmental analysis and its determination of whether the Project is consistent with the public interest and required by the public convenience and necessity.

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 Natural Gas Pipeline Company of America, LLC,169 FERC ¶ 61,050, at PP1-3 (2019) (Certificate Order).
• 44 U.S. Energy Info. Admin., August 2019 Monthly Energy Review 22, 99 (2019), https://www.eia.gov/totalenergy/data/monthly/pdf/mer.pdf (reporting that, in 2018, 778 Bcf of natural gas had a non-combustion use compared to 29,956 Bcf of total
• 55 Environmental Assessment at 43 (EA).
• 66 E.g., Environmental Assessment, CP18-102-000, at 78 (2018) (Cheyenne Connector and Cheyenne Hub Enhancement); see U.S. Global Change Research Program, Fourth National Climate Assessment, Summary Findings (2018), https://nca2018.globalchange.gov/ (“Earth’s climate is now changing faster than at any point in the history of modern civilization, primarily as a result of human activities.”)
• 77 See, e.g., Environmental Assessment, Docket No. CP18-538-000, at 52 (2019)(Sendero Gateway Pipeline) (discussing some of the impacts that climate change may have on the southwestern United States).
• 88 Instead, the EA merely describes the primary GHG emissions of the project and explains the concept of CO2 equivalent as a measure of different gases heat-trapping potential. EA at 43-44. The EA does not even link GHG emissions directly to climate change.
• 99 Certificate Order, 169 FERC ¶ 61,050 at P 30; EA at 60.s
• 1010 See Sierra Club v. FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sabal Trail). 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 (2018). Furthermore, NEPA requires the Commission to take a “hard look” at the environmental impacts of its decisions. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983); see 42 U.S.C. § 4332(2)(C)(iii).
• 1111 See Sierra Club v. FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sabal Trail). 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 (2018). Furthermore, NEPA requires the Commission to take a “hard look” at the environmental impacts of its decisions. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983); see 42 U.S.C. § 4332(2)(C)(iii).
• 1212 Id.; see 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, e.g., Birckhead v. FERC, 925 F.3d 510, 519 (D.C. Cir. 2019) (criticizing the Commission’s argument that Sabal Trail “is narrowly limited to the facts of that case”).
• 1414 Id. (“Because the Commission may therefore deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment, the agency is a ‘legally relevant cause’ of the direct and indirect environmental effects of pipelines it approves—even where it lacks jurisdiction over the producer or distributor of the gas transported by the pipeline. Accordingly, the Commission is not excused from considering these indirect effects” in its NEPA analysis” (internal quotation marks, alterations, and citations omitted)); Allegheny Def. Project v. FERC, 932 F.3d 940, 945-46 (D.C. Cir. 2019) (explaining that the petitioners were “correct that customers’ burning of the natural gas that the Project transports will produce greenhouse-gas emissions” and that they were “also 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”).
• 1515 Like the Project, the Sendero Gateway Pipeline is a producer-driven pipeline that will serve the Waha Hub. Sendero Carlsbad Gateway, LLC, 169 FERC ¶ 61,020 (2019); Certificate Order, 169 FERC ¶ 61,050 at P 4.
• 1616 Environmental Assessment, Docket No. CP18-538-000, at 52 (“The construction and operation would increase the atmospheric concentration of GHGs, in combination with past and future emissions from all other sources, and contribute incrementally to future climate change impacts.”); id. (discussing some of the impacts that climate change may have on the southwestern United States).
• 1717 Sendero Carlsbad Gateway, LLC, 169 FERC ¶ 61,020 (Glick, Comm’r, dissenting).
• 1818 Environmental Assessment, Docket No. CP18-538-000, at 52.
• 1919 See Allegheny Def. Project, 932 F.3d at 945-46; Birckhead,925 F.3d at 519-20; Sabal Trail, 867 F.3d at 1373.
• 2020 Birckhead,925 F.3d at 520.
• 2121 Id. at 520-21.
• 2222 Id. at 518-20.
• 2323 Id. at 520.
• 2424 Id. at 520-21.
• 2525 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (explaining that it is arbitrary and capricious for an agency to “entirely fail[] to consider an important aspect of the problem”).
• 2626 Balt. Gas & Elec., 462 U.S. at 97 (NEPA requires “that the agency take a ‘hard look’ at the environmental consequences” of its action); see also Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015) (stating that the Commission cannot overlook a single environmental consequence if it is even “arguably significant”).