Commissioner Richard Glick Dissent in Part Regarding Texas Eastern Transmission, LP (Texas Eastern)

Commissioner Richard Glick Statement
April 30, 2020
Docket Nos. CP19-509-000, CP19-509-001

Dissent in Part Regarding Texas Eastern Transmission, LP (Texas Eastern)

I dissent in part from today’s order 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 authorizing Texas Eastern Transmission, LP’s (Texas Eastern) proposed Marshall County Mine Panels 19E and 20E Project (Project), 3 the Commission continues to treat greenhouse gas (GHG) emissions and climate change differently than all other environmental impacts.  The Commission again refuses to consider whether the Project’s contribution to climate change from GHG emissions would be significant, even though it quantified 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 misleadingly state that “approval of this proposal 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 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.

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 consumption of fossil fuels, including natural gas.  The Commission recognizes this relationship, finding, as it must, that “GHG emissions, such as those emitted from the project’s construction-related activities, will contribute incrementally to climate change.” 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 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 Project’s impact on climate change. 9   That is now clearly established D.C. Circuit precedent. 10   And yet the Commission continues to insist that it need not consider whether the Project’s contribution to climate change is significant because it, simply put, “cannot.” 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 not “significantly affect” the environment. 12   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. 13   That is unreasoned and an abdication of our responsibility to give climate change the “hard look” that the law demands. 14  

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 significantly affect the environment 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.

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

The Commission’s NEPA analysis of the Project’s GHG emissions is similarly flawed.  In order to evaluate the environmental consequences of the Project under NEPA, the Commission must consider the harm caused by its GHG emissions 15 and “evaluate the ‘incremental impact’ that [those emissions] will have on climate change or the environment more generally.” 16

Although quantifying the Project’s direct GHG emissions 17 is a necessary step toward meeting the Commission’s NEPA obligations, simply reciting the emissions without considering their significance is insufficient.  In Sabal Trail, the court explained that the Commission was required “to include a discussion of the ‘significance’ of” the Project’s GHG emissions. 18   That makes sense.  Identifying and actually 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. 19   The Supreme Court has explained that NEPA’s purpose is to “ensure[] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts” and to “guarantee[] that the 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.” 20   But in today’s order, the Commission refuses to even attempt to assess the significance of the Project’s direct GHG emissions or how they contribute to climate change. 21   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. 22   An environmental review document must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts. 23   “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. 24

Instead, the Commission continues to insist that it need not assess the significance of the Project’s GHG emissions because it has simply determined that it “cannot.” 25   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. 26

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 such as “farmland,” 27 “surface water,” 28 and “migratory birds.” 29   Notwithstanding the lack of any “standard methodology” to assess these impacts, the Commission uses 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. 30

That refusal is even more mystifying because NEPA “does not dictate particular decisional outcomes.” 31   NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’” 32   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.  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. 33   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. 34   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, 35 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 GHG emissions contribute to climate change, but refuses to consider whether the Project’s 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 Projects’ 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 Texas Eastern Transmission, LP, 171 FERC ¶ 61,081 (2020) (Certificate Order).
• 44 Certificate Order, 171 FERC ¶ 61,081 at P 24; Marshall County Mine Panels 19E and 20E Project Environmental Assessment (EA) at 47 Table 11.
• 55 Certificate Order, 171 FERC ¶ 61,081 at P 26; see also EA at 61.
• 66 Certificate Order, 171 FERC ¶ 61,081 at P 27.
• 77 Id. P 25; EA at 44.
• 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)). Commissioner McNamee argues that the Commission can consider a project’s direct GHG emissions under NEPA and in its public convenience and necessity determination without actually determining whether the GHG emissions are significant. Certificate Order, 171 FERC ¶ 61,081 (McNamee, Comm’r, concurring at P 2). No matter how many times he says so, the Commission did not consider the impact of the project’s GHG emissions. It defies logic and reason in a proceeding that is so plainly devoid of even the affectation that the Commission is factoring the Project’s GHG emissions in its decisionmaking. The argument is particularly problematic in this proceeding given the Commission’s conclusion that the Project will not have any significant impact on the environment. Certificate Order, 171 FERC ¶ 61,081 at P 26. How the Commission can rationally conclude that a project has no significant impacts, refuse to assess the significance of what might be the project’s most significant impact, and then claim to have adequately considered that impact is beyond me. C.f. infra nn. 12-13 and accompanying text.
• 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), 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.
• 1111 See Certificate Order, 171 FERC ¶ 61,081 at P 25; see id. (“[T]he Commission has previously concluded[] it cannot determine a project’s incremental physical impacts on the environment caused by GHG emissions.”); EA at 45 (“There are no . . . significance thresholds for GHGs.”).
• 1212 See, e.g., Certificate Order, 171 FERC ¶ 61,081 at P 26; EA at 61.
• 1313 Certificate Order, 171 FERC ¶ 61,081 at P 27.
• 1414 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”).
• 1515 When conducting a NEPA review, an agency must consider both the direct and the indirect effects of the project under consideration. 40 C.F.R. §§ 1502.16(b), 1508.8(b); Sabal Trail, 867 F.3d at 1371.
• 1616 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.”).
• 1717 See supra note 4.
• 1818 Sabal Trail, 867 F.3d at 1374.
• 1919 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.”).
• 2020 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004) (citing Robertson v. Methow Valley Citizens Coun., 490 U.S. 332, 349 (1989)).
• 2121 Certificate Order, 171 FERC ¶ 61,081 at PP 24-26 (omitting any consideration of the significance of the environmental impact from the Project’s GHG emissions); see also EA at 44-48 (same).
• 2222 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.”).
• 2323 Robertson, 490 U.S. at 351
• 2424 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 61. 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.”).
• 2525 See supra note 11.
• 2626 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).
• 2727 EA at 17, 51.
• 2828 Id. at 20-22, 51.
• 2929 Id. at 28.
• 3030 After all, the standard the Commission uses for evaluating significance is whether the adverse impact would result in a substantial adverse change in the physical environment. EA at 14. 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 some environmental impacts, but not climate change.
• 3131 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 3232 Id. (quoting Robertson, 490 U.S. at 351).
• 3333 Robertson,490 U.S. at 351.
• 3434 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).
• 3535 15 U.S.C. § 717f(e); Certificate Order, 171 FERC ¶ 61,081 at P 28 (“[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 . . . .”).