Commissioner Richard Glick Dissent Regarding Jordan Cove Energy Project L.P.

Commissioner Richard Glick Statement
March 19, 2020
Docket No. CP17-495-000

Dissent Regarding Jordan Cove Energy Project L.P.

I dissent from today’s order because it violates both the Natural Gas Act 1 (NGA) and the National Environmental Policy Act 2 (NEPA).  Rather than wrestling with the Project’s 3 significant adverse impacts, today’s order makes clear that the Commission will not allow these impacts to get in the way of its outcome-oriented desire to approve the Project. 4  

As an initial matter, 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 impact that constructing and operating the LNG Terminal and Pipeline will have on climate change, that is precisely what the Commission is doing here.  In today’s order authorizing the Project, pursuant to both section 3 and section 7 of the NGA, the Commission continues to treat climate change differently than all other environmental impacts.  The Commission steadfastly refuses to assess whether the impact of the Project’s greenhouse gas (GHG) emissions on climate change is significant, even though it quantifies the GHG emissions caused by the Project’s construction and operation. 5   That refusal to assess the significance of the Project’s contribution to the harm caused by climate change is what allows the Commission to perfunctorily conclude that “the environmental impacts associated with the project are “acceptable” 6 and, as a result, conclude that the Project satisfies the NGA’s public interest standards. 7   Claiming that a project’s environmental impacts are acceptable 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.

Moreover, the Commission’s public interest analysis does not adequately wrestle with the Project’s adverse impacts.  The Project will significantly and adversely affect several threatened and endangered species, historic properties, and the supply of short-term housing in the vicinity of the project.  It will also cause elevated noise levels during construction and impair visual character of the local community.  Although the Commission recites those adverse impacts, at no point does it explain how it considered them in making its public interest determination or why it finds that the Project satisfies the relevant public interest standards notwithstanding those substantial impacts.  Simply asserting that the Project is in the public interest without any discussion why is not reasoned decisionmaking.

The Commission’s Public Interest Determinations Are Not the Product of Reasoned Decisionmaking

The NGA’s regulation of LNG import and export facilities “implicate[s] a tangled web of regulatory processes” split between the U.S. Department of Energy (DOE) and the Commission. 8   The NGA establishes a general presumption favoring the import and export of LNG unless there is an affirmative finding that the import or export “will not be consistent with the public interest.” 9   Section 3 of the NGA provides for two independent public interest determinations:  One regarding the import or export of LNG itself and one regarding the facilities used for that import or export. 

DOE determines whether the import or export of LNG is consistent with the public interest, with transactions among free trade countries legislatively deemed to be “consistent with the public interest.” 10   The Commission evaluates whether “an application for the siting, construction, expansion, or operation of an LNG terminal” is itself consistent with the public interest. 11   Pursuant to that authority, the Commission must approve a proposed LNG facility unless the record shows that the facility would be inconsistent with the public interest. 12   Today’s order fails to satisfy that standard in multiple respects.

The Commission’s Public Interest Determination Does Not Adequately Consider Climate Change

In making its public interest determination, the Commission examines a proposed facility’s impact on the environment and public safety.  A facility’s impact on climate change is one of the environmental impacts that must be part of a public interest determination under the NGA. 13   Nevertheless, the Commission maintains that it need not consider whether the Project’s contribution to climate change is significant in this order because it lacks a means to do so—or at least so it claims. 14   However, the most troubling part of the Commission’s rationale is what comes next.  Based on this alleged inability to assess the significance of the Project’s impact on climate change, the Commission still concludes that all of the Project’s environmental impacts would be “acceptable. 15  Think about that.  The Commission is simultaneously stating that it cannot assess the significance of the Project’s impact on climate change 16 while concluding that all environmental impacts are acceptable to the public interest. 17   That is unreasoned and an abdication of our responsibility to give climate change the “hard look” that the law demands. 18

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 have a significant environmental impact 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 failure to meaningfully consider the Project’s GHG emissions is all-the-more indefensible given the volume of GHG emissions at issue in this proceeding.  The Project will directly release over 2 million tons of GHG emissions per year. 19  The Commission recognizes that climate change is “driven by accumulation of GHG in the atmosphere through combustion of fossil fuels (coal, petroleum, and natural gas), combined with agriculture, clearing of forests, and other natural sources” 20 and that the “GHG emissions from the construction and operation of the projects will contribute incrementally to climate change.” 21   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 when determining whether the Project is consistent with the public interest—a task that it entirely fails to accomplish in today’s order.

The Commission’s Consideration of the Project’s Other Adverse Impacts Is Also Arbitrary and Capricious

In addition, the Project is expected to have a significant adverse effect on threatened and endangered species, including whale, fish, and bird species, 22 historic properties along the pipeline route, 23 and short-term housing in Coos County. 24   Indeed, the Project will adversely affect more than 20 different Federally-listed threatened or endangered species. 25   It will also cause harmful noise levels in the area 26 and impair the visual character of the surrounding community. 27   Although the Commission discloses the adverse impacts throughout the EIS and mentions them in today’s order, 28 it does not appear that they meaningfully factor into the Commission’s public interest analysis. 

The Commission notes that the Project may provide various benefits, such as jobs and economic stimulus for the region, and weighs those benefits against adverse economic interests. 29   I certainly recognize that public benefits should be considered in the public interest determination.  But reasoned decisionmaking requires that the Commission do more than simply point to the benefits of the Project and assert that the Project satisfies the relevant public interest standard, especially where, as here, the Project will also have considerable adverse impacts.  Instead, the Commission must weigh the Project’s benefits and all adverse impacts, including those on the environment, if it is to reach a reasoned decision. 30  

The Sierra Club’s protest makes this very point, contending that environmental impacts “must be incorporated into the balancing . . . of the public interest.” 31  In response, the Commission asserts its “balancing of adverse impacts and public benefits is not an environmental analysis process, but rather an economic test.” 32  Given that statement, and the absence of any effort in today’s order to explain why the Project satisfies the relevant public interest standards despite the significant environmental impacts, 33 the only rational conclusion is that those substantial environmental impacts do not meaningfully factor into the Commission’s application of the public interest.  The courts, however, have been clear that the Commission must consider “all factors bearing on the public interest.” 34   Accordingly, the Commission’s refusal to consider environmental impacts as part of its public interest analysis is inconsistent with the NGA and arbitrary and capricious. 

The Commission Fails to Satisfy Its Obligations under NEPA

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 and “evaluate the ‘incremental impact’ that those emissions will have on climate change or the environment more generally.” 35  As noted, the operation of the Project will emit more than 2 million tons of GHG emissions per year. 36  Although quantifying the Project’s GHG emissions is a necessary step toward meeting the Commission’s NEPA obligations, listing the volume of emissions alone is insufficient. 37   As an initial matter, 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.  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.” 38   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. 39   An environmental review document must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts. 40   “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, meaning that an examination of possible mitigation measures is necessary to ensure that the agency has taken a “hard look” at the environmental consequences of the action at issue. 41  
The Commission responds that it need not determine whether the Project’s contribution to climate change is significant because “[t]here is no universally accepted methodology” for assessing the harms caused by the Project’s contribution to climate change. 42   But the lack of a single consensus methodology does not prevent the Commission from adopting a methodology, even if it is not universally accepted.  The Commission could, for example, select one methodology to inform its reasoning while also disclosing its potential limitations or the Commission could employ multiple methodologies to identify a range of potential impacts on climate change.  In refusing to assess a project’s climate impacts without a perfect model for doing so, the Commission sets a standard for its climate analysis that is higher than it requires for any other environmental impact. 

Indeed, the record in this proceeding provides exactly the type of methodology that the Commission has previously suggested would permit it to make a significance determination.  Throughout the course of the last year, the Commission has justified its refusal to consider the significance of a project’s GHG emissions on the basis that it could not “find any GHG emission reduction goals established either at the federal level or by the [state].” 43   As the Commission explained in discussing the LNG export facility it most recently approved:  “Without either the ability to determine discrete resource impacts or an established target to compare GHG emissions against, we are unable to determine the significance of the Project’s contribution to climate change.” 44

But Oregon has an “established target to compare GHG emissions against.”  The State has a legislative goal of reducing GHG emissions 10 percent below 1990 levels by 2020 and 75 percent below 1990 levels by 2050. 45   That is exactly the type of goal that the Commission has previously suggested would provide a framework for establishing significance.  Today’s order recognizes the state’s reduction goals and acknowledges that the Project’s GHG emissions would “represent 4.2 percent and 15.3 percent of Oregon’s 2020 and 2050 GHG goals, respectively” 46 —i.e., the Project alone would account for almost an eighth of the total state-wide emissions permissible under Oregon law in 2050. 

But today’s order then moves the goal posts once again.  Notwithstanding its previous statements that a federal or state climate goal could provide a benchmark to evaluate GHG emissions, the Commission now takes the position that those benchmarks are insufficient because they are not “objective.” 47   The Commission, however, provides no justification for its change of heart or its newest excuse for ignoring the significance of the Project’s contribution to climate change.  As I have previously explained, simply adding the word “objective” does not provide a reasoned basis for refusing to assess significance. 48  

It is clear what is going on.  The Commission is at pains to avoid having to say that a project’s GHG emissions or the impact of those emissions on climate change is significant.  After all, it is only when it comes to climate change (and, as noted, only now) that the Commission claims to need an “objective” measure to evaluate significance.  The Commission often relies on percentage comparisons when assessing the significance of other environmental impacts.  It is only when it comes to climate change that the Commission suddenly gets cold feet about using percentages to determine significance and demands the type of “objective” standard that it does not require anywhere else.

In any case, even without a formal tool or methodology, the Commission can consider all factors and determine, quantitatively or qualitatively, whether the Project’s GHG emissions will have a significant impact on climate change.  After all, that is precisely what the Commission does in other aspects of its environmental review, where the Commission makes several significance determinations based on subjective assessments of the extent of the Project’s impact on the environment. 49   The Commission’s refusal to similarly analyze the Project’s impact on climate change is arbitrary and capricious.

And even if the Commission were to determine that the Project’s GHG emissions are significant, that is not the end of the analysis.  Instead, as noted above, the Commission could blunt those impacts through mitigation—as the Commission often does with regard to other environmental impacts.  The Supreme Court has held that an environmental review must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts. 50   As noted above, “[w]ithout such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects.” 51  

Consistent with this obligation, the EIS discusses mitigation measures to ensure that the Project’s adverse environmental impacts (other than its GHG emissions) are reduced to less-than-significant levels. 52   And throughout today’s order, the Commissions uses its broad conditioning authority under section 3 and section 7 of the NGA 53 to implement these mitigation measures, which support its public interest finding. 54   For example, the Commission uses this broad conditioning authority to mitigate the impact on short-term housing in Coos County caused by the influx of workers during construction of the LNG Terminal and Pipeline.  The Commission concludes that the influx of workers will not only create a short-term rental shortage during the peak tourist season, but this impact would be acutely felt by low-income households. 55   To mitigate this significant impact, the Commission requires Jordan Cove to designate a Construction Housing Coordinator to address these housing concerns.  Despite this use of our conditioning authority to mitigate adverse impacts, the Project’s climate impacts continue to be treated differently, as the Commission refuses to identify any potential climate mitigation measures or discuss how such measures might affect the magnitude of the Project’s impact on climate change. 56  

Finally, the Commission’s refusal to seriously consider the significance of the impact of the Project’s GHG emissions is even more mystifying because NEPA “does not dictate particular decisional outcomes.” 57   NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’” 58   The Commission could find that a project contributes significantly to climate change, but that it is nevertheless in the public interest because its benefits outweigh its adverse impacts, including on climate change.  In other words, taking the matter seriously—and rigorously examining a project’s impacts on climate change—does not necessarily prevent any of my colleagues from ultimately concluding that a project satisfies the relevant public interest standard.  

For these reasons, I respectfully dissent.






















 

• 11 15 U.S.C. §§ 717b, 717f (2018).
• 22 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.
• 33 Today’s order authorizes the construction and operation of the Jordan Cove LNG export terminal (LNG Terminal) pursuant to NGA section 3, 15 U.S.C. § 717b (2018), and the new Pacific Connector interstate natural gas pipeline (Pipeline) pursuant to NGA section 7, id. § 717f. I will refer to those projects collectively as the Project.
• 44 The Commission previously denied Pacific Connector Gas Pipeline, L.P. an NGA section 7 certificate because it did not show that the Pipeline was needed and, at the same time, denied Jordan Cove an NGA section 3 certificate because it had no natural gas supply without the Pacific Connector pipeline. See Jordan Cove Energy Project, L.P., 154 FERC ¶ 61,190 (2016).
• 55 Jordan Cove Energy Project L.P., 170 FERC ¶ 61,202, at P 259 (2020) (Certificate Order); Final Environmental Impact Statement at Tables 4.12.1.3-1, 4.12.1.3-2, 4.12.1.4-1 & 4.12.1.4-2 (EIS).
• 66 Certificate Order, 170 FERC ¶ 61,202 at P 294; EIS at ES-19. But see Certificate Order, 169 FERC ¶ 61,131 at PP 155, 220-223, 237, 242, 253, 256 (noting that the environmental impacts of the Project would be significant with respect to several federally listed threatened and endangered species, visual character in the vicinity of the LNG Terminal, short-term housing in Coos County, historic properties along the Pipeline route, and noise levels in Coos County).
• 77 Certificate Order, 170 FERC ¶ 61,202 at P 294.
• 88 Sierra Club v. FERC, 827 F.3d 36, 40 (D.C. Cir. 2016) (Freeport).
• 99 15 U.S.C. § 717b(a); see EarthReports, Inc. v. FERC, 828 F.3d 949, 953(D.C. Cir. 2016)(citing W. Va. Pub. Servs. Comm’n v. Dep’t of Energy, 681 F.2d 847, 856 (D.C. Cir. 1982) (“NGA [section] 3, unlike [section] 7, ‘sets out a general presumption favoring such authorization.’”)). Under section 7 of the NGA, the Commission approves a proposed pipeline if it is shown to be consistent with the public interest, while under section 3, the Commission approves a proposed LNG import or export facility unless it is shown to be inconsistent with the public interest. Compare 15 U.S.C. § 717b(a) with id. § 717f(a), (e).
• 1010 15 U.S.C. § 717b(c). The courts have explained that, because the authority to authorize the LNG exports rests with DOE, NEPA does not require the Commission to consider the upstream or downstream GHG emissions that may be indirect effects of the export itself when determining whether the related LNG export facility satisfies section 3 of the NGA. See Freeport, 827 F.3d at 46-47; see also Sierra Club v. FERC, 867 F.3d 1357, 1373 (D.C. Cir. 2017) (Sabal Trail) (discussing Freeport). Nevertheless, NEPA requires that the Commission consider the direct GHG emissions associated with a proposed LNG export facility. See Freeport, 827 F.3d at 41, 46.
• 1111 15 U.S.C. § 717b(e). In 1977, Congress transferred the regulatory functions of NGA section 3 to DOE. DOE, however, subsequently delegated to the Commission authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal, while retaining the authority to determine whether the import or export of LNG to non-free trade countries is in the public interest. See EarthReports, 828 F.3d at 952-53.
• 1212 See Freeport, 827 F.3d at 40-41.
• 1313 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”).
• 1414 Certificate Order, 170 FERC ¶ 61,202 at P 262; EIS at 4-4-850.
• 1515 Certificate Order, 170 FERC ¶ 61,202 at P 294.
• 1616 Id. P 262; EIS at 4-4-850 (“[W]e are unable to determine the significance of the Project’s contribution to climate change.”).
• 1717 Certificate Order, 170 FERC ¶ 61,202 at P 294 (stating that the environmental impacts are acceptable and further concluding that the Jordan Cove LNG Terminal is not inconsistent with the public interest and that the Pacific Connector Pipeline is required by the public convenience and necessity.)
• 1818 See, e.g., Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015) (explaining that 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) (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”).
• 1919 Certificate Order, 170 FERC ¶ 61,202 at P 259; EIS at Tables 4.12.1.3-1, 4.12.1.3-2, 4.12.1.4-1 & 4.12.1.4-2 (estimating the Project’s direct and indirect emissions from construction and operation, including vessel traffic).
• 2020 EIS at 4-849.
• 2121 Certificate Order, 170 FERC ¶ 61,202 at P 262.
• 2222 Id. PP 220-223.
• 2323 Id. P 253;EIS at 4-683. Following the completion of some land surveys, the Commission states that at least 20 sites along the Pipeline route are eligible historic properties and cannot be avoided. EIS at 5-9 (“Constructing and operating the Project would have adverse effects on historic properties under Section 106 of the [National Historic Preservation Act].”).
• 2424 Certificate Order, 170 FERC ¶ 61,202 at PP 242; EIS at 4-631? 4-635 (finding that the construction of the Project may have significant effects on short-term housing in Coos County, Oregon, which could include potential displacement of existing and potential residents, as well as tourists and other visitors); see also Certificate Order, 170 FERC ¶ 61,202 at P 279 (further concluding that these impacts would more acutely impact low-income households).
• 2525 Certificate Order, 170 FERC ¶ 61,202 atPP 222-223.
  Furthermore, the Commission asserts that it would authorize the Project to proceed on the basis of its adverse impact on threatened and endangered species only if that impact would jeopardize the continued existence of the specific. EIS at 4-378. As a logical matter, if the Commission will not consider denying a certificate unless it causes the relevant species to extinct, then any sub-extinction level adverse impacts cannot meaningfully factor into the Commission’s public interest determination.
• 2626 EIS at 4-717? 4-721. The Commission finds that pile driving associated with LNG Terminal construction occurring 20 hours per day for two years would result in a significant impact on the local community.
• 2727 Certificate Order, 170 FERC ¶ 61,202 at P 237.
• 2828 Id. PP 155, 220-223, 237, 242, 253, 256 (noting that the environmental impacts of the Project would be significant with respect to several federal-listed threatened and endangered species, visual character in the vicinity of the LNG Terminal, short-term housing in Coos County, historic properties along the Pipeline route, and noise levels in Coos County). .
• 2929 Id. P 94 (concluding that “benefits the Pacific Connector Pipeline will provide outweigh the adverse effects on economic interests.”).
• 3030 That is particularly important when it comes to the Commission’s section 7 authorization of the Pipeline because it conveys eminent domain authority, 15 U.S.C. § 717f(h) (2018), and roughly a quarter of the private landowners have not reached easement agreements, meaning that, upon issuance of the certificate, they may be subject to condemnation proceedings.
• 3131 Sierra Club’s October 26, 2017 Protest at 6.
• 3232 Certificate Order, 170 FERC ¶ 61,202 at P 92.
• 3333 Although today’s order identifies several significant adverse environmental impacts, the Commission concludes that these environmental impacts are “acceptable considering the public benefits” without any explanation of how the benefits outweigh the substantial adverse impacts. See id. P 294.
• 3434 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”); see also Atl. Ref. Co., 360 U.S. at 391 (holding that the NGA requires the Commission to consider “all factors bearing on the public interest”).
• 3535 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th Cir. 2008); WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 51 (D.D.C. 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”).
• 3636 Certificate Order, 170 FERC ¶ 61,202 at P 258; EIS at Tables 4.12.1.3-1, 4.12.1.3-2, 4.12.1.4-1 & 4.12.1.4-2 (estimating the Project’s direct and indirect emissions from the Project’s construction and operation, including vessel traffic associated with the LNG Terminal).
• 3737 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.”).
• 3838 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)).
• 3939 40 C.F.R. § 1502.16 (2019) (requiring 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.”).
• 4040 Robertson,490 U.S. at 351.
• 4141 Id. at 352.
• 4242 EIS at 4-850 (stating that “there is no universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment to Project’s incremental contribution to GHGs” and “[w]ithout the ability to determine discrete resource impacts, we are unable to determine the significance of the Project’s contribution to climate change.”); see also Certificate Order, 170 FERC ¶ 61,202 at P 262 (“The Commission has also previously concluded it could not determine whether a project’s contribution to climate change would be significant.”).
• 4343 See, e.g.,Certificate Order, 170 FERC ¶ 61,202 at P 262 (citing Rio Grande LNG, LLC, 170 FERC ¶ 61,046 (2020)). The Commission’s order in Rio Grande adopted the conclusion that the Commission has “not been able to find any GHG emission reduction goals established either at the federal level or by the [state]. Without either the ability to determine discrete resource impacts or an established target to compare GHG emissions against, we are unable to determine the significance of the Project’s contribution to climate change.”Final Environmental Impact Statement, Docket No. CP16-454-000, at 4-482 (Apr. 26, 2019).
• 4444 Final Environmental Impact Statement, Docket No. CP16-454-000 at 5-22.
• 4545 See Certificate Order, 170 FERC ¶ 61,202 at P 260.
• 4646 Id. P 261.
• 4747 Id. P 262.
• 4848 Rio Grande LNG, LLC, 170 FERC ¶ 61,046 (Glick, Comm’r, dissenting at P 22).
• 4949 See, e.g.,EIS at 4-184, 4-619–4-620, 4-645 (concluding that there will be no significant impact on vegetation, Tribal subsistence practices, and marine vessel traffic).
• 5050 Robertson,490 U.S. at 351.
• 5151 Id. at 351-52; see also 40 C.F.R. § 1508.20 (2019) (defining mitigation); id. § 1508.25 (including in the scope of an environmental impact statement mitigation measures).
• 5252 See, e.g., EIS at 4-656 (discussing mitigation required by the Commission to address motor vehicle traffic impacts from the Project).
• 5353 15 U.S.C. § 717b(e)(3)(A); id. § 717f(e); Certificate Order, 170 FERC ¶ 61,202 at P 293 (“[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.”).
• 5454 See CertificateOrder, 170 FERC ¶ 61,202 at P 293 (explaining that the environmental conditions ensure that the Project’s environmental impacts are consistent with those anticipated by the environmental analysis).
• 5555 Id. P 279.
• 5656 Commissioner McNamee implies that, as part of a mitigation mechanism, I want the Commission to consider imposing a carbon tax or a cap-and-trade like system. CertificateOrder, 170 FERC ¶ 61,202 (McNamee, Comm’r, concurring at P 59). That is a red herring. To my knowledge, no one has suggested that the Commission can impose a carbon tax or something similar under NGA section 3. My point is that the Commission could consider discrete measures that offset the adverse effects of the Project itself, just like it does for a host of other adverse environmental impacts. For example, the project developer could purchase renewable energy credits equal to the Project’s electricity consumption or it could plant trees sufficient to sequester the Project’s GHG emissions. Tailored programs that offset the actual emissions from the Project are a far cry from a comprehensive emissions-trading scheme and have much in common with other forms of mitigation routinely required by the Commission, including the mitigation contained in this order.
• 5757 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 5858 Id. (quoting Robertson, 490 U.S. at 351).