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

Commissioner Richard Glick Statement

October 17, 2019

Docket No. CP18-186-000

Dissent in Part Regarding Transcontinental Gas Pipe Line Company, LLC

I dissent from today’s order because it violates both the Natural Gas Act 1 (NGA) and the National Environmental Policy Act 2 (NEPA).  The Commission again refuses 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 project.  Yet that is precisely what the Commission is doing here.

In today’s order authorizing Transcontinental Gas Pipe Line Company, LLC’s proposed Southeastern Trail Project (Project), the Commission continues to treat greenhouse gas (GHG) emissions and climate change differently than all other environmental impacts.  The Commission 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. 3  That failure forms an integral part of the Commission’s decisionmaking in today’s order:  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 the Project “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 public interest standard. 5   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 the consumption of fossil fuels, including natural gas.  The Commission recognizes this fact, acknowledging “GHG emissions due to human activity are the primary cause of increased atmospheric concentration of GHGs since the industrial age.” 6 “These elevated levels of GHGs are the primary cause of warming of the climatic system” and “unless significantly curtailed, will cause further warming and changes to the local, regional and global climate systems.” 7   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. 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 Nevertheless, the Commission fails to determine whether the Project’s contribution to climate change is significant, claiming instead that the Project’s impact would not be “discernible.” 10   However, the most troubling part of the Commission’s rationale is what comes next.  Relying on this alleged inability to discern the Project’s impact on climate change, the Commission concludes that the Project will have no significant environmental impact. 11   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. 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 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 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.  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.
 

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

The Commission’s NEPA analysis of the Project’s impact on climate change is similarly flawed.  NEPA requires the Commission to examine the reasonably foreseeable upstream and downstream emissions that will result from an interstate pipeline.  The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has now multiple times instructed the Commission thatthe GHGs emitted by the reasonably foreseeable combustion of natural gas transported through a pipeline is an indirect effect. 14   Yet today’s order fails to consider any of the Project’s indirect impacts, reporting only the GHG emissions from the Project’s construction and operation. 15   The EA brusquely concludes that there is no need to consider downstream GHG emissions because “[n]o downstream uses for the gas that would be transported by this Project are known at this time.” 16  

That response reflects the Commission’s argument that Sabal Trail “is narrowly limited to the facts of that case”—an argument that the D.C. Circuit rejected emphatically in Birckhead. 17  Indeed, Birckhead explicitly rejected as a “total non-sequitur” the argument that the potential for increased natural gas transportation capacity to reduce GHG emissions by displacing more GHG-intensive forms of electricity generation somehow renders the downstream GHG indirect emissions from a natural gas pipeline not reasonably foreseeable. 18  Even in the face of some uncertainty, the courts have required the Commission to use its “best efforts” to identify and consider the full scope of a project’s environmental impact, an exercise which may require using educated assumptions.19

In this case, we know from the section 7 application that the natural gas transported via the Project will meet the growing demands of residential and commercial utility customers and domestic industry. 20   It is no stretch to assume that, given those purposes, the vast majority, if not all, of that natural gas will be combusted.  In addition, the Commission could consider the fact that, according to the U.S. Energy Information Administration, more than 97 percent of the natural gas consumed in the United States is combusted and use that number, along with the evidence in the record, such as the precedent agreements that the Commission relies on to show the need for the Project, to develop ranges of likely GHG emissions, which could then inform its decisionmaking process. 21

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. 22   Indeed, if a proposed pipeline neither increases the supply of natural gas available to consumers nor decreases the price that those consumers will pay, it is hard to imagine why that pipeline is “needed” in the first place.  As a result, the Commission must at least examine the effects that an expansion of pipeline capacity might have on consumption and production. 23

In addition, the Commission’s limited analysis of the Project’s direct GHG emissions is itself flawed because it fails to “evaluate the ‘incremental impact’ that [they] will have on climate change or the environment more generally.” 24   Identifying the consequences that the Project’s emissions will have for climate change is essential if NEPA is to play the disclosure and good government roles for which it was designed.  By contrast, the Commission’s approach in this order, simply quantifying the direct GHG emissions, tells us nothing about the “‘incremental impact’ that these emissions will have on climate change.” 25

As discussed above, the Commission’s failure to even assess the significance of the Project’s GHG emissions during the environmental review process relegates climate change to a negligible role, at best, in its NEPA analysis.  While the Commission provides no support for its conclusion today that the Project’s impact on climate change is not “discernible,” the Commission has repeatedly argued that it need not determine whether the Project’s contribution to climate change is significant because there is “no standard methodology” to determine whether a project’s GHG emissions would result in physical effects on the environment for the purposes of evaluating a project’s impacts on climate change. 26

But 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 harm 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. 27

Regardless of tools or methodologies available, the Commission also can use its expertise and discretion 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 “wildlife” and “emergent wetlands,” 28 traffic, 29 or the 166.4 acres of agricultural land it will disturb. 30  Notwithstanding the lack of any “standard methodology” or “generally accepted 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 discretion and judgment on the significance of GHG emissions here is arbitrary and capricious. 31

That refusal is even more mystifying because NEPA “does not dictate particular decisional outcomes.” 32   NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’” 33 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 was necessarily inconsistent with 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 an EIS must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts. 34 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. 35 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. 36   In fact, the Commission often utilizes its conditioning authority to make a finding that a project will be in the public interest. 

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 the Project will contribute to climate change, but refuses to consider whether that contribution is likely to be significant.  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 do not represent the “hard look” that the law requires.

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 As discussed further below, the Commission quantified the direct emissions resulting from the construction and operation of the Project, but failed to quantify the reasonably foreseeable indirect impacts caused by the Project. See infra PP 6-9.
• 44 Transcontinental Gas Pipe Line Company, LLC, 169 FERC ¶ 61,051, at P 84 (2019) (Certificate Order); Environmental Assessment at 94 (EA).
• 55 Certificate Order, 169 FERC ¶ 61,051 at PP 19, 84.
• 66 EA at 74.
• 77 Id.
• 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 (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”).
• 99 See Sabal Trail, 867 F.3d at 1373 (explaining that the Commission may “deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment”); Birckhead v. FERC, 925 F.3d 510, 519 (D.C. Cir. 2019) (explaining that, “in the pipeline certification context the Commission does have statutory authority to act” on a project’s environmental consequences, including GHG emissions, and that the Commission, therefore, has a duty to consider the reasonably foreseeable GHG emissions); 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 EA at 88. It is difficult to determine whether this ambiguous statement is a contrived suggestion that the Project’s impact either is so small as to be de minimis or whether it is an alternative approach to say, as the Commission has repeatedly claimed, that the Commission need not consider the Project’s impact because it lacks “generally accepted” means to do so. See Sendero Carlsbad Gateway, LLC, 169 FERC ¶ 61,020 (2019) (Glick, Comm’r dissenting in part, at PP 4-5); Cheyenne Connector, LLC, 168 FERC ¶ 61,180 (2019) (Glick, Comm’r, dissenting in part, at PP 5-6); Empire Pipeline, Inc., 166 FERC ¶ 61,172 (2019) (Glick, Comm’r, dissenting in part, at PP 3-4); Transcontinental Gas Pipe Line Co., LLC, 167 FERC ¶ 61,110 (2019) (Glick, Comm’r, dissenting in part, at PP 4-5); Fla. Se. Connection, LLC, 164 FERC ¶ 61,099 (2018) (Glick, Comm’r, dissenting).
• 1111 Certificate Order, 169 FERC ¶ 61,051 at P 84 (Approval of the Project “would not constitute a major federal action significantly affecting the quality of the human environment.”); EAat 94 (“[A]pproval of the proposed Project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.”).
• 1212 Id.
• 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 See Birckhead, 925 F.3d at 518-19; Sabal Trail, 867 F.3d at 1371-72.
• 1515 See EA at 74-75, Tables 22 & 23.
• 1616 EA at 83.
• 1717 Birckhead, 925 F.3d at 518-19; see also San Juan Citizens All. et al. v. U.S. Bureau of Land Mgmt., No. 16-CV-376-MCA-JHR, 2018 WL 2994406, at *10 (D.N.M. June 14, 2018) (holding that it was arbitrary for the U.S. Bureau of Land Management to conclude “that consumption is not ‘an indirect effect of oil and gas production because production is not a proximate cause of GHG emissions resulting from consumption’” because “this statement is circular and worded as though it is a legal conclusion”).
• 1818 Birckhead, 925 F.3d at 518-19.
• 1919 Sabal Trail,867 F.3d at 1374 (“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)).
• 2020 Application at 5-6; Transcontinental Gas Pipe Line Co., July 23, 2018 Response to FERC July 13, 2018 Data Request.
• 2121 U.S. Energy Info. Admin., August 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); see also Jayni Hein et al., Pipeline Approvals and Greenhouse Gas Emissions, 23-26 (Apr. 2019) (discussing the potential to use this information to develop straightforward estimates of a project’s reasonably foreseeable downstream emissions).
• 2222 Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1138 (9th Cir. 2011) (holding that it “is completely inadequate” for an agency to ignore a project’s “growth inducing effects” where the project has a unique potential to spur demand); id. at 1139(distinguishing City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142 (9th Cir. 1997), which the majority relies on in today’s order) (“[O]ur cases have consistently noted that a new runway has a unique potential to spur demand, which sets it apart from other airport improvements, like changing flight patterns, improving a terminal, or adding a taxiway, which increase demand only marginally, if at all.”); id. at 1139 (“[E]ven if the stated purpose of [a new airport runway project] is to increase safety and efficiency, the agencies must analyze the impacts of the increased demand attributable to the additional runway as growth-inducing effects.”).
• 2323 As the U.S. Court of Appeals for the Eighth Circuit explained in Mid States Coal. for Progress v. Surface Transp. Bd.—a case that also involved the downstream GHG emissions from new infrastructure for transporting fossil fuels—when the “nature of the effect” (end-use emissions) is reasonably foreseeable, but “its extent is not” (specific consumption activity producing emissions), an agency may not simply ignore the effect. 345 F.3d 520, 549 (8th Cir. 2003).
• 2424 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”).
• 2525 See Ctr. for Biological Diversity, 538 F.3d at 1216.
• 2626 See Sendero Carlsbad Gateway, LLC, 169 FERC ¶ 61,020 (2019) (Glick, Comm’r dissenting in part, at PP 4-5); Cheyenne Connector, LLC, 168 FERC ¶ 61,180 (2019) (Glick, Comm’r, dissenting in part, at PP 5-6); Empire Pipeline, Inc., 166 FERC ¶ 61,172 (2019) (Glick, Comm’r, dissenting in part, at PP 3-4); Transcontinental Gas Pipe Line Co., LLC, 167 FERC ¶ 61,110 (2019) (Glick, Comm’r, dissenting in part, at PP 4-5); Fla. Se. Connection, LLC, 164 FERC ¶ 61,099 (2018) (Glick, Comm’r, dissenting).
• 2727 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).
• 2828 EA at 42-50.
• 2929 Id. at 21.
• 3030 Id. at 62-64, Table 21.
• 3131 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. 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 traffic, but not climate change.
• 3232 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 3333 Id. (quoting Robertson, 490 U.S. at 351).
• 3434 Robertson,490 U.S. at 351.
• 3535 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).
• 3636 15 U.S.C. § 717f(e); Certificate Order, 169 FERC ¶ 61,051 at P 84 (“[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 . . . .”).