Commissioner Richard Glick Dissent Regarding Cheyenne Connector, LLC and Rockies Express Pipeline LLC

Commissioner Richard Glick Statement

September 19, 2019

Docket Nos. CP18-102-000 and CP18-103-000

I dissent from today’s order because it violates both the Natural Gas Act1 (NGA) and the National Environmental Policy Act2 (NEPA). The Commission again refuses to consider the consequences its actions have for climate change. Neither the NGA nor NEPA permit the Commission to assume away the climate change implications of constructing and operating these projects. Yet that is precisely what the Commission is doing here.

In today’s order authorizing Cheyenne Connector, LLC’s proposed Cheyenne Connector Pipeline (Cheyenne Connector) and Rockies Express Pipeline LLC’s proposed Cheyenne Hub Enhancement (collectively, the Projects), the Commission continues to treat greenhouse gas (GHG) emissions and climate change differently than all other environmental impacts. The Commission steadfastly refuses to assess whether the impact of the Projects’ GHG emissions is significant, even after quantifying at least some of those emissions.3 That failure forms an integral part of the Commission’s decisionmaking in today’s order: The refusal to assess the significance of the Projects’ contribution to the harm caused by climate change is what allows the Commission to misleadingly state that “approval of the Projects would not constitute a major action significantly affecting the quality of the human environment”4 and, as a result, conclude that the Projects satisfy 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.

In addition, the Commission fails to adequately consider what could be a viable alternative to the Cheyenne Connector. The Commission’s own EA concludes that the proposed alternatives appears to be meet the objectives of the Cheyenne Connector as well as be technically and economically feasible and likely to have dramatically fewer adverse impacts. The Commission, however, largely brushes off those conclusions so as to put on blinders and evaluate only the project in front of it. We can and should do better. So long as the Commission all but ignores feasible alternative proposals, it will fall short of its responsibility under NEPA and the NGA to protect landowners, communities, the environment, and the public interest more generally.

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 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 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 Projects’ contribution to climate change, both in order to fulfill NEPA’s requirements and to determine whether the Projects are in the public interest under the NGA.7

Today’s order falls short of that standard. As part of its public interest determination, the Commission must examine the Projects’ impact on the environment and public safety, which includes the facility’s impact on climate change.8 Nevertheless, the Commission insists that it need not consider whether the Projects’ contribution to climate change is significant because it lacks “generally accepted” means to do so, or so it claims.9 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 Projects will have no significant environmental impact.10 Think about that. The Commission is saying out of one side of its mouth that it cannot assess the significance of the Projects’ impact on climate change11 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 Projects 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.

II. The Commission’s NEPA Analysis of the Projects’ Contribution to Climate Change Is Deficient

The Commission’s NEPA analysis of the Projects’ 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 that the GHGs emitted by 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 Projects’ indirect impacts, reporting only the GHG emissions from the Projects’ construction and operation.15 The EA brusquely concludes that there is no need to consider downstream GHG emissions unless the specific end use for the natural gas is known, noting, for example, that the gas could displace fossil fuels that tend to have higher GHG emissions, such as coal or oil.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 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 Projects will meet the growing demands of retail utility customers, domestic industry, and natural gas-fired power plants.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 Projects, to develop ranges of likely GHG emissions, which could then inform its decisionmaking process.21

The Commission also gives no consideration to whether the Projects 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 Projects’ direct GHG emissions is itself flawed because it fails to adequately consider the harm caused by the these emissions and “evaluate the ‘incremental impact’ that [they] will have on climate change or the environment more generally.”24 Identifying the consequences that those 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, where it states the volume of GHG emissions as shares of national and state emissions and describes climate change generally, tells us nothing about the “‘incremental impact’ that these emissions will have on climate change.” 25

As discussed above, the Commission’s refusal to even assess the significance of the Projects’ GHG emissions during the environmental review process relegates climate change to a negligible role, at best, in its NEPA analysis. The Commission argues that it need not determine whether the Projects’ contribution to climate change is significant because “[t]here 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 the Projects’ impacts on climate change, either locally or nationally.” 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 Projects’ 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 Projects’ 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 Projects’ 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 Cheyenne Connector will not have a significant effect on issues as diverse as “ephemeral and intermittent waterbodies,”28 traffic,29 or the 981.1 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 Projects’ 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
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 Projects’ 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 Cheyenne Connector will not have a significant effect on issues as diverse as “ephemeral and intermittent waterbodies,”28 traffic,29 or the 981.1 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 Projects’ 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 Projects’ GHG emissions, eliminating a potential pathway for us to achieve consensus on whether the Projects are consistent with the public interest.

III. The Commission Fails to Adequately Consider Alternatives

The Commission must consider viable alternatives to a proposed project. “[T]he duty imposed upon the Commission by Section 7 of the Natural Gas Act is not merely to determine which of the submitted applications is most in the public interest, but also to give proper consideration to logical alternatives which might serve the public interest better than any of the projects outlined in the applications.”37 Similarly, under NEPA, the Commission must “‘identify the reasonable alternatives to the contemplated action’ and ‘look hard at the environmental effects of its decision.’” 38

The record here presents a potentially viable alternative to the Cheyenne Connector. Colorado Interstate Gas Company, L.L.C. (CIG) submitted to the record a proposal to re-engineer some of its existing facilities and take advantage of available capacity to provide the 600,000 dekatherms/day of transportation capacity between Anadarko Energy Services Company’s (Anadarko) and DCP Midstream Marketing, LLC’s (DCP Midstream) processing facilities and the Cheyenne Hub—the exact purpose of the Cheyenne Connector.39 The EA analyzed the CIG alternative and concluded that it would satisfy the purpose of the Cheyenne Connector and did not present any major technical or economic concerns. In addition, the EA noted that the CIG alternative would, in many respects, have a small fraction of the Cheyenne Connector’s adverse impacts. It noted, for example, that the CIG alternative would disturb roughly one-tenth as much land, one-tenth as many acres of wetlands, and cross about one-tenth as many waterbodies as the Cheyenne Connector. It would, in other words, reduce the adverse environmental impacts by an order of magnitude. The opportunity to so significantly reduce the harm that a project causes individuals, landowners, and the environment is one that the Commission ought to seriously consider.

Unfortunately, today’s order dismisses the CIG alternative, largely adopting the arguments advanced by the potential shippers on the Cheyenne Connector, without a serious discussion of the relative merits of the two projects.40 The Commission chides CIG for not having provided certain documents and for not providing others immediately.41 As noted, those factors did not prevent the EA from finding that the CIG alternative appears to meet the Cheyenne Connector’s objectives and, in any case, the Commission could always have issued a data request, as it did four other times in this proceeding,42 seeking that information. Indeed, one might think that gathering such information would be a Commission priority just a few months after the D.C. Circuit criticized its “decidedly less-than-dogged efforts to obtain the information it says it would need” in a not dissimilar context.43 Alternatively, the Commission could have granted CIG’s request to hold a technical conference or workshop to discuss the proposal and address its claimed concerns about the viability of the CIG alternative.44 But the Commission declines to do so, saying it has all the information it needs before it.45 It is hard to believe that the Commission has seriously considered the CIG alternative when it simultaneously declines CIG’s request to develop the record on its proposal while at the same criticizing CIG for not having sufficiently developed the record.

For my part, I believe that the record here makes a compelling case that the CIG alternative could satisfy the purpose of the Cheyenne Connector with dramatically fewer adverse effects. That is exactly the type of alternative that the Commission must take seriously if it is truly concerned about minimizing the adverse impacts of a new pipeline on landowners, communities, and the environment. If there is a serious suggestion that existing resources could be used more effectively, we should explore that option before rushing to approve any new application in front of us.46 At the very least, I would have granted CIG’s request for a technical conference to further explore the viability and relative merits of the CIG alternative.

The Commission also notes that it is not required to select the option with the fewest environmental harms and that, in any case, CIG has not filed a section 7 application to develop the CIG alternative. Both responses are beside the point. First, my point is not that NEPA requires the Commission to select the CIG alternative because it has fewer adverse impacts, but rather that the potential for reduced environmental impacts should have caused the Commission to seriously consider a technically and economically feasible means of satisfying the Cheyenne Connector’s purpose. Second, I see no reason why our public interest obligation to consider alternatives is limited to deciding among pending section 7 applications filed with the Commission (and today’s order cites to none). Indeed, under NEPA, the Commission’s consideration of alternatives is not even limited to options within its jurisdiction47 and the Commission cites no authority suggesting that CIG’s decision not to file a formal section 7 application somehow relieves the Commission of its obligation to take the CIG alternative seriously.
* * *

Today’s order is not the product of reasoned decisionmaking. Its analysis of the Projects’ contribution to climate change is shoddy and its conclusion that the Projects will not have any significant environmental impacts is illogical. After all, the Commission itself acknowledges the Projects’ 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 Projects’ consequences for climate change do not represent the “hard look” that the law requires.

In addition, today’s order shirks the Commission’s responsibility to seriously consider alternatives to the Projects. The record presents a compelling alternative that appears to satisfy the purpose of the Cheyenne Connector while having dramatically fewer effects on landowners and the environment. That is exactly the type of alternative that the Commission must take seriously if it is truly concerned about minimizing the adverse impacts of a new pipeline.48 Unfortunately, nothing in today’s order suggests that the CIG alternative received the consideration it deserves and that I believe the public interest demands.

For these reasons, I respectfully dissent.
 

• 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 Projects, but failed to quantify the reasonably foreseeable indirect impacts caused by the Projects. See infra PP 7-9.
• 44 Environmental Assessment at 130 (EA).
• 55 Cheyenne Connector, LLC, 168 FERC ¶ 61,180, at PP 30, 35 (2019) (Certificate Order).
• 66 EA at 78.
• 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 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”).
• 99 EA at 120 (“[T]here is no standard methodology to estimate the extent to which a project’s incremental contribution to greenhouse gas emissions would result in physical effects on the environment for the purposes of evaluating the Projects’ impacts on climate change, either locally or nationally, nor are there generally accepted criteria for determining whether a project’s GHG emissions are significant under NEPA.”).
• 1010 Id. at 130 (“[A]pproval of the Projects would not constitute a major action significantly affecting the quality of the human environment.”); id. at 72 (“As described throughout this EA, the Projects would not have a significant adverse impact on the environment.”).
• 1111 Id. at 120 (“[W]e cannot determine whether the Project’s contribution to climate change would be significant.”).
• 1212 Supra note 10.
• 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 84-87.
• 1616 Id. at 87.
• 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 25-26.
• 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 EA at 120.
• 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 26.
• 2929 Id. at 67-68.
• 3030 Id. at 55-57.
• 3131 After all, the standard for evaluating significance laid out in the EA is whether the adverse impact “would result in a substantial adverse change in the physical environment,” id. at 18. 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 “ephemeral and intermittent waterbodies” 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, 168 FERC ¶ 61,180 at P 114 (“[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 . . . .”).
• 3737 Nat. Gas Co. v. FPC, 399 F.2d 953, 973 (D.C. Cir. 1968); Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97, 107 (D.C. Cir. 2014) (explaining that the “the Commission was obligated to consider, as part of its certificating process under the NGA, reasonable alternatives to the project proposed by” the section 7 applicant); see also Citizens for Allegan Cty., Inc. v. FPC, 414 F.2d 1125, 1133 (D.C. Cir. 1969) (noting that “the FPC [the Commission’s predecessor agency] has an active and independent duty to guard the public interest, and that this may require consideration of alternative courses, other than those suggested by the applicant”).
• 3838 Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960, 967 (D.C. Cir. 2000) (quoting Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 374 (D.C. Cir. 1999) (alterations omitted); see 42 U.S.C. § 4332(C) (2018) (providing NEPA’s requirement that an agency include a detailed statement assessing, among other things, the “alternatives to the proposed action”).
• 3939 See EA at 122-25; CIG Comments at 17-18.
• 4040 It is also worth noting that both commenters have the option to invest in the Cheyenne Connector—an option that they presumably would not have for the CIG alternative—which should have made the Commission take a somewhat more critical eye to their opposition to the CIG alternative.
• 4141 Certificate Order, 168 FERC ¶ 61,180 at P 105.
• 4242 According to the docket, the Commission issued data requests on July 5, 2018; July 27, 2018; September 20, 2018; and October 31, 2018.
• 4343 Birckhead, 925 F.3d at 920.
• 4444 Certificate Order, 168 FERC ¶ 61,180 at P 21.
• 4545 Id. P 22 (“We find the merits of these matters can be adequately assessed and addressed based on the information in the record in this proceeding.”).
• 4646 Id. P 22 (“We find the merits of these matters can be adequately assessed and addressed based on the information in the record in this proceeding.”).
• 4747 40 C.F.R. § 1502.14 (2019).
• 4848 See 40 C.F.R. § 1500.2(e)-(f) (2019).