Commissioner Richard Glick Dissent in Part Regarding Transcontinental Gas Pipe Line Company, LLC, Gateway Expansion Project

Commissioner Richard Glick Statement
April 16, 2020
Docket No. CP18-18-001
Order: C-4

Dissent in Part Regarding Transcontinental Gas Pipe Line Company, LLC, Gateway Expansion Project

I dissent in part from today’s order on rehearing because I believe that the Commission’s action 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, the Commission denies rehearing of its order authorizing Transcontinental Gas Pipe Line Company’s (Transco) proposed Gateway Expansion Project (Project),3 and 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.

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 consumption of fossil fuels, including natural gas. The Commission recognizes this relationship, finding, as it must, that GHG emissions “occur in the atmosphere both naturally and as a result of human activities, such as the burning of fossil fuels” and that these GHG emissions “endanger public health and welfare by contributing to human-induced global 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 on rehearing 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 does not have a “standard methodology” to consider the impacts.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.

Commissioner McNamee argues that the D.C. Circuit cases cited above15 were wrongly decided.16 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.17 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.18

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 consideration.19 While the Commission quantifies the direct GHG emissions related to Project’s construction and operation,20 it fails to consider the indirect GHG emissions resulting from the incremental natural gas capacity facilitated by the Project.21 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 are an indirect effect and must, therefore, be included within the Commission’s NEPA analysis.22 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.23 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).24 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.25 Since Birckhead, the court has continued to turn aside the Commission’s efforts to ignore reasonably foreseeable downstream GHG emissions.26

Nevertheless, the Commission refuses to calculate or consider the downstream GHG emissions that will likely result from natural gas transported by the Project. Instead, the Commission takes the position that if it does not know the specific volume and end-use of the natural gas, any associated downstream GHG emissions are not reasonably foreseeable.27 That is nothing more than a warmed-over version of the policy that the D.C. Circuit rejected in Birckhead—i.e., that the Commission will ignore downstream GHG emissions “without . . . more detailed information on exactly how the gas would be used.”28 Today’s holding means that, almost by definition, the Commission will never consider the GHG emissions resulting from the downstream gas consumption by customers of distribution utilities, even when the record indicates that the gas will be used in combustion, as it does here.29

Under the current set of fact presented in today’s record, there are plenty of steps that the Commission could take to consider the GHGs associated with the Project’s incremental capacity if it were actually inclined to take a ‘hard look’ at climate change. At a minimum, we know that the vast majority, 97 percent, of all natural gas consumed in the United States is combusted30 —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 Project’s expansion capacity is to serve shippers’ growing market demand31 and enable their customers to receive an incremental supply of natural gas at three delivery points in New Jersey.32 Specifically, the two shippers that subscribed to the Project’s entire capacity “intend to use capacity created by the project for incremental heating needs beginning with the 2020-2021 heating season.”33 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.34 It is hard to imagine what would cause the Commission to try so hard to ignore these reasonably foreseeable downstream GHG 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. Until the majority starts taking the D.C. Circuit’s holding seriously, I will have no choice but to continue to dissent from Commission orders that ignore reasonably GHG emissions.

In addition, even where the Commission quantifies the Project’s direct GHG emissions,35 it fails to “evaluate the ‘incremental impact’ that [those emissions] will have on climate change or the environment more generally.”36 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.37 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.38 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 GHG emissions, let alone indirect emission, or how they contribute to climate change.39 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.40 An environmental review document must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts.41 “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. 42

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 how the Project’s “contribution to GHGs would translate into physical effects on the global environment.”43 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.44

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,”45 “groundwater,”46 and “surface waters.”47 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.48 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.49

That refusal is even more mystifying because NEPA “does not dictate particular decisional outcomes.”50 NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’”51 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.52 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.53 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,54 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 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 Transcontinental Gas Pipe Line Company, LLC, 165 FERC ¶ 61,221 (2018) (Certificate Order), order on reh’g, 171 FERC ¶ 61,032 (2020) (Rehearing Order).
• 44 Gateway Expansion Project Environmental Assessment (EA) at 43-44 & Tables 6-7; Rehearing Order, 171 FERC ¶ 61,032 at n.46.
• 55 Certificate Order, 165 FERC ¶ 61,221 at P 53; see also EA at 58.
• 66 Certificate Order, 165 FERC ¶ 61,221 at P 23.
• 77 EA at 40.
• 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)). The majority argues that the Commission can consider a project’s direct GHG emissions under NEPA and in its public convenience and necessity determination (while ignoring the project’s indirect GHG emissions) without actually determining whether the GHG emissions are significant. Rehearing Order, 171 FERC ¶ 61,032 at P 14; see also Rehearing Order, 171 FERC ¶ 61,032 (McNamee, Comm’r, concurring at P 15). This argument defies logic and reason and has no basis in a proceeding entirely 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 conclusion that the Project will not have any significant impact on the environment. Certificate Order, 165 FERC ¶ 61,221 at P 53. 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 EA at 55 (“Currently, there is no standard methodology to determine how a project’s relatively small incremental contribution to GHGs would translate into physical effects on the global environment.”).
• 1212 See, e.g., Certificate Order, 165 FERC ¶ 61,221 at P 53; EA at 58.
• 1313 Certificate Order, 165 FERC ¶ 61,221 at P 23.
• 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 Supra notes 9-10.
• 1616 See Rehearing Order, 171 FERC ¶ 61,032 (McNamee, Comm’r, concurring at PP 13-14) (“However, I respectfully disagree with the court’s finding that the Commission can, pursuant to the NGA, deny a pipeline based on environmental effects stemming from the upstream production or downstream use of natural gas, and that the Commission is therefore required to consider such environmental effects under the NGA and NEPA.”).
• 1717 E.g., Sabal Trail, 867 F.3d at 1373.
• 1818 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)).
• 1919 40 C.F.R. §§ 1502.16(b), 1508.8(b); Sabal Trail, 867 F.3d at 1371.
• 2020 See supra note 4.
• 2121 Rehearing Order, 171 FERC ¶ 61,032 at P 1 (“The Gateway Expansion Project will enable Transco to provide an additional 65,000 dekatherms (Dth) per day of firm natural gas transportation service . . . .”).
• 2222 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.
• 2323 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))).
• 2424 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)).
• 2525 Birckhead, 925 F.3d at 519 (citing the Commission’s brief in that case).
• 2626 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”).
• 2727 Rehearing Order, 171 FERC ¶ 61,032 at PP 11-12.
• 2828 Id. P 12. The Commission notes that Birckhead held that downstream GHG emissions are not categorically reasonably foreseeable. Id. P 11. That’s true. But the fact that the Commission does not have to consider downstream GHG emissions in every case hardly explains why it was justified in ignoring those emissions in this particular case. See Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1122 (D.C. Cir. 1971) (“NEPA compels a case-by-case examination . . . of discrete factors.”) (quoted in Birckhead, 925 F.3d at 519).
• 2929 See infra P 11.
• 3030 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; see also Jayni Hein et al., Institute for Policy Integrity, Pipeline Approvals and Greenhouse Gas Emissions 25 (2019) (explaining that, in 2017, 97% of all natural gas consumed was combusted).
• 3131 Transco Application at 4.
• 3232 EA at 1.
• 3333 Rehearing Order, 171 FERC ¶ 61,032 at P 6; see also Transco Application at 1 (“The Project will enable Transco to provide an additional 65,000 dekatherms per day [] of firm transportation service to PSEG Power LLC (PSEG) and UGI Energy Services, LLC (UGI) . . . to serve their incremental supply needs beginning with the 2020/2021 winter heating season.” (internal quotation marks omitted)).
• 3434 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)).
• 3535 See supra note 4.
• 3636 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.”).
• 3737 Sabal Trail, 867 F.3d at 1374.
• 3838 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.”).
• 3939 Rehearing Order, 171 FERC ¶ 61,032 at PP 7-17 (omitting any consideration of the significance of the environmental impact from the Project’s GHG emissions despite a rehearing party’s claim that the EA failed to account for the project’s contribution to climate change from the indirect emissions); see also EA at 55.
• 4040 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.”).
• 4141 Robertson, 490 U.S. at 351
• 4242 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 58. 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.”).
• 4343 See EA at 55 (“Currently, there is no standard methodology to determine how a project’s relatively small incremental contribution to GHGs would translate into physical effects on the global environment.”).
• 4444 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).
• 4545 EA at 17 (“Based on the above analysis, we conclude that permanent impacts to prime and unique farmland would not be significant.”).
• 4646 Id. at 23 (“We find that implementation of the above construction procedures, mitigation measures, and our recommendations would adequately protect groundwater resources and water wells. In conclusion, the Project would not result in any significant long-term or permanent impacts on groundwater.”).
• 4747 Id. at 24 (Although the EA finds that “[p]roject construction could disturb and suspend existing sediments in surface waterbodies, temporarily degrading water quality and redistributing contaminants downstream,” it ultimately concludes that with mitigation measures “the Project would not significantly impact surface waters.”).
• 4848 The Commission directly responds to this argument by countering that it does apply “standard methodologies and established metrics” to assess significance, pointing to wetlands as an example where the project does “not directly impact” the resource. Rehearing Order, 171 FERC ¶ 61,032 at P 16. However, what the Commission fails to explain are the numerous other instances in which there are no established metrics for assessing significance but where the Commission seems to conjure up the ability to make a significance determination such as the referenced environmental impacts on farmland, groundwater, and surface waters. See supra notes 45-47.
• 4949 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 some environmental impacts, but not climate change.
• 5050 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 5151 Id. (quoting Robertson, 490 U.S. at 351).
• 5252 Robertson,490 U.S. at 351.
• 5353 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).
• 5454 15 U.S.C. § 717f(e); Certificate Order, 165 FERC ¶ 61,221 at P 54 (“[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 . . . .”).