Commissioner Richard Glick Dissent in Part Regarding Natural Gas Pipeline Sabine Pass Compressor

Commissioner Richard Glick Statement

September 30, 2019

Docket No. CP18-487

I dissent in part from today’s order because it violates both the Natural Gas Act 1 (NGA) and the National Environmental Policy Act 2 (NEPA).  The Commission is again refusing to consider the consequences its actions have for climate change.  Neither the NGA nor NEPA permit the Commission to assume away the climate change implications of constructing and operating this gas infrastructure facility.  Yet that is the unmistakable result of today’s order.

In authorizing Natural Gas Pipeline Company’s Sabine Pass Compression Project (Project) pursuant to NGA section 7 to provide increased transportation service to an existing liquefied natural gas facility (Sabine Pass LNG terminal) in Louisiana, the Commission treats climate change differently than all other environmental impacts.  The Commission steadfastly refuses to assess whether the impact of the Project’s greenhouse gas (GHG) emissions on climate change is significant, even though it quantifies the GHG emissions directly caused by the Project. 3   This refusal to assess the significance of the Project’s contribution to the harm caused by climate change allows the Commission to misleadingly state that “approval of this proposal would not constitute a major federal action significantly affecting the quality of the human environment”, 4 and, as a result, conclude that the Project satisfies the NGA’s section 7 public interest standard. 5   Claiming that a project would not significantly affect the quality of human environment 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.

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, which can be released in large quantities through the production, transportation, and the consumption of natural gas and other fossil fuels.  The Commission has repeatedly recognized that “GHG emissions due to human activity are the primary cause of increased atmospheric concentration of GHGs since the industrial age and are the primary contributor to climate change.” 6  In light of this undisputed relationship between anthropogenic GHG emissions and climate change, it is critical that the Commission 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 under the NGA. 7

Today’s order falls short of that standard.  As part of its public interest determination under the NGA, the Commission must examine the proposed Project’s impact on the environment and public safety, which includes the facility’s impact on climate change. 8  Yet, the record here offers scant mention of the Project’s contribution to climate change.  The Environmental Assessment merely notes that it has already considered the impact of the Sabine Pass LNG terminal on climate change in “previous environmental reviews” and then recites the Commission standard’s claim that it cannot assess the significance of the Project’s incremental impact on climate change. 9 However, the most troubling part of the Commission’s rationale is what comes next.  Notwithstanding this alleged inability to assess significance, the Commission concludes that the Project will not significantly affect the quality of the human environment. 10  Think about that. The Commission is saying out of one side of its mouth that it cannot assess the significance of the Project’s impact on climate change 11 while, out of the other side of its mouth, assuring us that all environmental impacts would not be significant. 12   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 Project’s impact on climate change cannot play a meaningful role in the Commission’s public interest determination, no matter how many times 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 any significant environmental impact irrespective of the 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.

The Commission Fails to Satisfy its Obligations under NEPA.

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.” 14   Disclosing the volume of emissions, as the Commission does here, 15 is a necessary step toward meeting the Commission’s NEPA obligations.  But merely listing a set of figures—without any real attempt to assess the significance of their incremental impact on the natural and human environment as a result of the Project’s GHG emissions—is not enough to satisfy NEPA. 16

The Commission’s reliance on its previous finding that it cannot determine whether the Project will have significant impacts misses the point.  The lack of any single “standard” methodology 17 does not prevent the Commission from adopting a methodology to assess significance, even if others are available.  The Commission could, for example, select one methodology to inform its reasoning while also disclosing the potential limitations of that methodology or it could employ multiple methodologies to identify a range of potential impacts on climate change.  In refusing to assess a project’s climate impacts without a perfect model for doing so, the Commission sets a standard for its climate analysis that is higher than it requires for any other environmental impact.

In any case, the Commission has several tools to assess the harm from the Project’s contribution to climate change.  For example, by measuring the long-term damage done by a ton of carbon dioxide, the Social Cost of Carbon links GHG emissions to environmental harm caused by 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 harm in terms that are readily accessible for both agency decisionmakers and the public at large. 18  The Commission, however, continues to ignore the tools at its disposal, relying on deeply flawed reasoning that I have previously critiqued at length. 19

Furthermore, even without a formal tool or methodology, the Commission can use its expertise and discretion to consider all factors and determine, quantitatively or qualitatively, whether the Project’s GHG emissions will have a significant impact on climate change.  Indeed, the Commission routinely makes qualitative judgments in its consideration of other environmental impacts, even if it lacks any particular or well-defined criteria for judging the “significance” of such impacts. 20   The Commission’s refusal to apply similar judgment when it comes to the Project’s impact on climate change is arbitrary and capricious. 

The Commission’s refusal to seriously consider the significance of the impact of the Project’s GHG emissions is even more mystifying because NEPA “does not dictate particular decisional outcomes.” 21   NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’” 22 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. 

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 the 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.  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.  The decision to exclude GHG emissions from playing any role in the Commission’s public interest determination is indefensible, especially given the undisputed fact that the Project’s GHG emissions will contribute to climate change. 23   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 climate change. 

For these reasons, I respectfully dissent in part.

• 11 15 U.S.C. § 717f (2012).
• 22 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.
• 33 Environmental Assessment at 51-54 & Tables 12-13 (EA).
• 44 Natural Gas Pipeline Company of America, LLC, 168 FERC ¶ 61,205, at P 31 (2019) (Certificate Order); see also EA at 92.
• 55 Certificate Order, 168 FERC ¶ 61,205 at P 15.
• 66 See, e.g., Environmental Assessment, CP18-102-000, at 78 (2018); see also Environmental Assessment, CP18-18-000, at 40 (2018) (recognizing that that an “increase in emissions of these gasses has been determined by the EPA to endanger public health and welfare by contributing to human-induced global climate change”).
• 77 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. 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); 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”).
• 88 See Sabal Trail, 867 F.3d at 1373 (explaining that the Commission must consider a pipeline’s direct and indirect GHG emissions because 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”).
• 99 EA at 53.
• 1010 Certificate Order, 168 FERC 61,205 at P 31; EA at 92.
• 1111 EA at 53.
• 1212 Id. at 92.
• 1313 See, 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 also 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); Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (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 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th Cir. 2008) (Ctr. for Biological Diversity); see also WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 51 (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”).
• 1515 EA at 51-54 & Tables 12-13 (disclosing the direct GHG emissions from project construction and operations). The courts have explained that, because the authority to authorize LNG exports rests with the Department of Energy, NEPA does not require the Commission to consider the upstream or downstream GHG emissions that may be indirect effects of the export itself when determining whether the related LNG export facility satisfies section 3 of the NGA. See Sierra Club v. FERC, 827 F.3d 36, 46-47 (D.C. Cir. 2016) (Freeport); see also Sabal Trail, 867 F.3d at 1373 (discussing Freeport). NEPA still requires, however, that the Commission consider the direct GHG emissions associated with a proposed LNG export facility. See Freeport, 827 F.3d at 41, 46.
• 1616 See, e.g., Am. Rivers v. FERC, 895 F.3d 32, 49 (D.C. Cir. 2018) (NEPA requires an agency relying on a “finding of no significant impact” to “make a convincing case” for that finding.) (emphasis added); id. (the Commission’s EA “will pass muster only if it undertook a ‘well-considered’ and ‘fully-informed’ analysis of the relevant issues and opposing viewpoints.”) (quoting Myersville, 783 F.3d at 1324-25).
• 1717 EA at 53 (referencing Environmental Assessment, CP11-72-000, at 2-99 (2011) which stated “there is no standard methodology to determine how the Project’s incremental contribution to GHGs would translate into physical effects on the global environment”).
• 1818 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,” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). The relevant information includes not only the volume of emissions, but also the adverse impact caused by such volumes of GHG emissions. 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.”). The Social Cost of Carbon provides an accessible measure that puts the climate impact of a ton of GHGs in context and allows the agency and the public to consider those impacts in the decisionmaking process.
• 1919 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).
• 2020 See, e.g., Transcontinental Gas Pipe Line Co., LLC, 167 FERC ¶ 61,110 at P 29 (finding that proposed project’s environmental impacts would be reduced to less-than-significant levels as a result of certain mitigation measures, notwithstanding the record evidence that the project’s construction would permanently affect nearly 240 acres).
• 2121 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 2222 Id. (quoting Robertson, 490 U.S. at 351).
• 2323 See Environmental Assessment, Docket No. CP11-72-000, at 2-98 (2011) (“[c]ombustion of fossil fuels (coal, petroleum, and natural gas), combined with agriculture and clearing of forests is primarily responsible for the accumulation of GHG”); id. at 2-99 (“the emissions would increase the atmospheric concentration of GHGs, in combination with past and future emissions from all other sources, and contribute incrementally to climate change”).