Commissioner Richard Glick
July 16, 2020
Docket Nos. CP19-491-000 and CP19-494-000
Order: C-1
I dissent from today’s order because I believe that the Commission’s action violates both the Natural Gas Act[1] (NGA) and the National Environmental Policy Act[2] (NEPA). First, I disagree with the Commission’s finding that the Leidy South Project and the related upgrades to the FM100 Project are needed. The Commission relies primarily on the existence of an affiliate precedent agreement to make its determination. Without more to support the market demand behind this contract, the Commission cannot rely on this evidence to find need. Second and third, 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 authorizes National Fuel’s proposed FM100 Project to modernize existing facilities on its system and to upgrade certain of these facilities to create 330,000 dekatherms per day (Dth/d) of incremental firm transportation capacity that National Fuel would abandon by lease (Capacity Lease) to Transcontinental Gas Pipe Line Company, LLC (Transco). Further, the Commission authorizes Transco’s proposed Leidy South Project, which, coupled with the Capacity Lease, will allow Transco to provide 582,400 Dth/d of firm transportation service from natural gas production areas in northern and western Pennsylvania to markets in Transco’s Zones 5 and 6.[3]
In approving these Projects,[4] the Commission continues to treat greenhouse gas (GHG) emissions and climate change differently than all other environmental impacts.[5] The Commission again refuses to consider whether the Projects’ contribution to climate change from GHG emissions would be significant, even though it quantified the direct GHG emissions from the Projects’ construction and operation.[6] That failure forms an integral part of the Commission’s decisionmaking: 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 “does not constitute a major federal action significantly affecting the quality of the human environment”[7] and, as a result, conclude that the Projects are required by the public convenience and necessity.[8] Claiming that the projects have no significant environmental impacts while at the same time refusing to assess the significance of the projects’ 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 Projects’ indirect effects. 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.
The Commission Has Not Demonstrated that the Leidy South Project, and FM100 Project Upgrades Are Needed
Section 7 of the NGA requires that, prior to issuing a certificate for new pipeline construction, the Commission must find both a need for the project, and that, on balance, the project’s benefits outweigh its harms.[9] In today’s order, the Commission relies primarily on the existence of a precedent agreement with National Fuel’s exploration and production affiliate, Seneca Resources Corporation, to conclude that the Leidy South Project, and by extension, the FM100 Project’s upgrade components, are needed.[10] While I agree that precedent and service agreements are one of several measures for assessing the market demand for a pipeline,[11] contracts among affiliates are less probative of that need because they are not necessarily the result of an arms-length negotiation.[12] As a result, the Commission cannot rely on precedent agreements between a pipeline developer and its affiliate to carry the developer’s burden to show that the pipeline expansion is needed.
Under these circumstances, I believe that the Commission must consider additional evidence regarding the need for a pipeline. As the Commission explained in the Certificate Policy Statement, this additional evidence might include, among other things, projections of the demand for natural gas, analyses of the available pipeline capacity, and an assessment of the cost savings that the proposed pipeline would provide to consumers.[13] The Commission, however, does not consider any such evidence in finding that there is a need for the Leidy South and FM100 Projects, instead relying entirely on the existence of precedent agreements, including an affiliate precedent agreement representing over 56% of the Leidy South Project capacity. Accordingly, I do not believe that today’s order properly concludes that these projects are needed.
The Commission’s Public Interest Determination Is Not the Product of Reasoned Decisionmaking
We know with certainty what causes climate change: It is the result of GHG emissions, including carbon dioxide and methane, released in large quantities through the production, transportation, and consumption of fossil fuels, including natural gas. The Commission recognizes this relationship, finding, as it must, that “GHG emissions, such as those emitted from the project’s operation, will contribute incrementally to climate change.”[14] In light of this undisputed relationship between anthropogenic GHG emissions and climate change, the Commission must carefully consider the Projects’ contribution to climate change, both in order to fulfill NEPA’s requirements and to determine whether the Projects are required by the public convenience and necessity.[15]
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 facilities’ impact on climate change.[16] That is now clearly established D.C. Circuit precedent.[17] And yet the Commission continues to insist that it need not consider whether the Projects’ contribution to climate change is significant because, without a “universally accepted standard,” it—simply put—“cannot.”[18] 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 not “significantly affect” the environment.[19] Think about that. The Commission is simultaneously stating that it cannot assess the significance of the Projects’ impact on climate change, while concluding that all environmental impacts are acceptable to the public interest.[20] That is unreasoned and an abdication of our responsibility to give climate change the “hard look” that the law demands.[21]
It also means that the Projects’ 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.
Commissioner McNamee argues that the D.C. Circuit cases cited above[22] were wrongly decided.[23] 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.[24] 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.[25]
The Commission’s NEPA Analysis of the Projects’ 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.[26] While the Commission quantifies the GHG emissions related to Projects’ construction and operation,[27] it fails to consider the indirect GHG emissions resulting from the incremental natural gas capacity that the Projects facilitate. 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.[28] 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.[29] 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).[30] 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.[31] Since Birckhead, the court has continued to turn aside the Commission’s efforts to ignore reasonably foreseeable downstream GHG emissions.[32]
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 GHG emissions are categorically not reasonably foreseeable.[33] 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.[34] Today’s holding means that, almost by definition, the Commission will never consider the GHG emissions resulting from the gas consumption by customers of local distribution companies, even when the record indicates that the gas will be used in combustion, as it does here.[35]
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 Projects’ incremental capacity if it were actually inclined to take the ‘hard look’ at climate change that NEPA requires. At a minimum, we know that the vast majority, 97 percent, of all natural gas consumed in the United States is combusted[36]—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 expansion capacity is to “serve various local distribution companies, power plant conversions from coal and oil, and new natural gas power generation plants, all in Transco’s Zone 5 and Zone 6.”[37] 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 Projects.[38]
Although quantifying the Projects’ GHG emissions is a necessary step toward meeting the Commission’s NEPA obligations, simply reporting the volume of emissions is insufficient.[39] 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.[40] 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.[41] But in today’s order on rehearing, the Commission refuses to provide that discussion or even attempt to assess the significance of the Projects’ GHG emissions or how they contribute to climate change.[42] It is hard to see how hiding the ball by refusing to assess the significance of the Projects’ 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.[43] An environmental review document must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts.[44] “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.[45]
Instead, the Commission continues to insist that it need not assess the significance of the Projects’ GHG emissions because it lacks a “universally accepted standard for evaluating the [Projects’] impacts on climate change.”[46] But that does not excuse the Commission’s failure to evaluate these emissions let alone to determine the significance of the Projects’ environmental impact from 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. One possible methodology endorsed by the courts is comparing a project’s GHG emissions against a known benchmark, such as a state emission reduction requirement, an approach the Commission has relied on in the past[47] but inexplicably fails to undertake here, even though the Commission recognizes that Pennsylvania has established GHG emissions reduction targets.[48] Armed with a known target, the Commission has all the information necessary to “compare the emissions from this project to emissions from other projects, to total emissions from the state” and make a determination about significance.[49] As the D.C. Circuit stated in Sabal Trail, “[w]ithout such comparisons, it is difficult to see how [the Commission] could engage in ‘informed decision making’ with respect to the greenhouse-gas effects of this project, or how ‘informed public comment’ could be possible.”[50] Instead of doing so here, the Commission disregards its prior position and asserts that “[w]ithout the ability to determine discrete resource impacts, or a widely accepted standard to determine the significance of the Project’s[sic] GHG emissions, we are unable to determine the significance of the Projects’ contribution to climate change.”[51] This defies logic. The Commission cannot simultaneously argue an established benchmark is necessary to determine significance and, then, when a benchmark is provided, argue the relevant comparison is not useful. Moreover, the Commission often relies on percentage comparisons when it comes to other environmental impacts as the basis for determining significance.[52] Refusing to apply the same consideration when it comes to GHG emissions and climate change is arbitrary and capricious.
Independent of whether there are established GHG reduction targets, 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 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.[53]
Regardless of tools or methodologies available, the Commission also can use its expertise 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 Projects will not have a significant effect on issues as diverse as “wildlife,”[54] “upland forest and woodland,”[55] and “visual resources,”[56] without relying on a specific federal or state benchmark. Notwithstanding the lack of any standard or “universally accepted methodology” 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 judgment to assess the significance of GHG emissions here is arbitrary and capricious.[57]
That refusal is even more mystifying because NEPA “does not dictate particular decisional outcomes.”[58] NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’”[59] 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.[60] 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.[61] 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,[62] which could encompass measures to mitigate a project’s GHG emissions.
My colleague, Commissioner McNamee, seems to relish in constantly reminding us that Congress has failed to enact more than 70 bills proposed to reduce GHG emissions. Somehow that must suggest that climate change is not worthy of consideration and mitigation under the Natural Gas Act’s public interest standard. But as science tells us and, in fact the Commission’s orders admit, increased GHG emissions cause climate change.[63] And, as is the case with regard to numerous other environmental impacts for which Congress has not established regulatory regimes, this Commission has the duty to ensure that impacts attributable to the Projects’ direct and indirect GHG emissions are sufficiently mitigated or, if they cannot be mitigated, that the Projects’ benefits outweigh those impacts. Commissioner McNamee argues that the Commission cannot require mitigation for the Projects’ GHG emissions without a congressionally endorsed mitigation program with established limits.[64] But the absence of such a regime has not stopped the Commission—with Commissioner McNamee’s support—from requiring the mitigation it determined to be necessary in the past.[65] After all, section 7 of the NGA gives the Commission the express “power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.”[66] That climate impacts continue to be treated differently serves only to highlight this Commission’s stubborn refusal to identify any potential climate mitigation measures or discuss how such measures might affect the magnitude of the Projects’ impact on climate change.
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.
Today’s order on rehearing 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 that the Projects will contribute to climate change, but refuses to consider whether that contribution might be significant before proclaiming that the Projects 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.
[1] 15 U.S.C. § 717f (2018).
[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.
[3] National Fuel Gas Supply Corp., 172 FERC ¶ 61,039 (2020) (Certificate Order).
[4] I refer to the FM100 Project, together with the Leidy South Project, as the Projects.
[5] EA at B-109–B-114 (Tables B.8.3-1 & B.8.4-1); see also Certificate Order, 172 FERC ¶ 61,039 at P 103.
[6] Northeast Supply Enhancement Project Final Environmental Impact Statement (EIS) at 4-309 – 4-310 & Tables 4.10.1-4 & 4.10.1-5; see Certificate Order, 161 FERC ¶ 61,314 at P 90.
[7] Certificate Order, 172 FERC ¶ 61,039 at P 140; EA at D-1.
[8] Certificate Order, 172 FERC ¶ 61,039 at P 141.
[9] See Pub. Utils. Comm’n of Cal. v. FERC, 900 F.2d 269, 281 (D.C. Cir. 1990) (The public interest standard under the NGA includes factors such as the environment and conservation, particularly as decisions concerning the construction, operation, and transportation of natural gas in interstate commerce “necessarily and typically have dramatic natural resource impacts.”).
[10] Certificate Order, 172 FERC ¶ 61,039 at P 14; id. P 38 (explaining that “it is current Commission policy to not look beyond precedent or service agreements to make judgments about the needs of individual shippers”).
[11] Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227, at 61,747 (1999) (Certificate Policy Statement) (“[T]he Commission will consider all relevant factors reflecting on the need for the project. These might include, but would not be limited to, precedent agreements, demand projections, potential cost savings to consumers, or a comparison of projected demand with the amount of capacity currently serving the market.”).
[12] Certificate Policy Statement, 88 FERC at 61,744.
[13] Id. at 61,747.
[14] Certificate Order, 172 FERC ¶ 61,039 at P 14; EA at B-155 (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.”).
[15] Under section 7 of the NGA, before issuing a certificate for new pipeline construction, the Commission must find that the pipeline is needed and that, on balance, the pipeline’s benefits outweigh its harms. 15 U.S.C. § 717f. Furthermore, NEPA requires the Commission to take a “hard look” at the environmental impacts of its decisions. See 42 U.S.C. § 4332(2)(C)(iii); Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). This means that the Commission must consider and discuss the significance of the harm from a pipeline’s contribution to climate change by actually evaluating the magnitude of the pipeline’s environmental impact. Doing so enables the Commission to compare the environment before and after the proposed federal action and factor the changes into its decisionmaking process. See Sierra Club v. FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sabal Trail) (“The [FEIS] needed to include a discussion of the ‘significance’ of this indirect effect.”); 40 C.F.R. § 1502.16 (a)–(b) (An agency’s environmental review must “include the environmental impacts of the alternatives including the proposed action,” as well as a discussion of direct and indirect effects and their significance. (emphasis added)). Commissioner McNamee argues that the Commission can consider a project’s direct GHG emissions in its public convenience and necessity determination (while ignoring the project’s indirect GHG emissions) without actually determining whether the GHG emissions are significant. See Certificate Order, 172 FERC ¶ 61,039 (McNamee, Comm’r, concurring at PP 1-2, 14). 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 Projects’ GHG emissions in its decisionmaking. The argument is particularly problematic in this proceeding given the Commission’s conclusion that the Projects will not have any significant impact on the environment. Certificate Order, 172 FERC ¶ 61,039 at P 140. 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.
[16] 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”).
[17] 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.
[18] Certificate Order, 172 FERC ¶ 61,039 at PP 104-105; see also EA at B-156 (“Currently, there is no universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment to the Projects’ incremental contribution to GHGs.”); id. at B-157 (“Without the ability to determine discrete resource impacts, or a widely accepted standard to determine the significance of the Project’s[sic] GHG emissions, we are unable to determine the significance of the Projects’ contribution to climate change.”).
[19] Certificate Order, 172 FERC ¶ 61,039 at P 140.
[20] Id. P 141.
[21] 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”).
[22] Supra notes 16-17.
[23] See Certificate Order, 172 FERC ¶ 61,039 (McNamee, Comm’r, concurring at PP 2-3, 12-14).
[24] E.g., Sabal Trail, 867 F.3d at 1373.
[25] 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)).
[26] 40 C.F.R. §§ 1502.16(b), 1508.8(b); Sabal Trail, 867 F.3d at 1371.
[27] See supra note 6.
[28] 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.
[29] 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))).
[30] 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)).
[31] Id. at 519 (citing the Commission’s brief in that case).
[32] 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”).
[33] Certificate Order, 172 FERC ¶ 61,039 at P 102 (“Because the end-use of this volume of gas is unknown, any potential GHG emissions associated with the ultimate combustion of the transported gas are not reasonably foreseeable, and therefore not an indirect impact of the projects.”).
[34] See id. The Commission notes that Birckhead held that downstream GHG emissions are not categorically reasonably foreseeable. Id. P 101. 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).
[35] See infra P 14.
[36] U.S. Energy Info. Admin., June 2020 Monthly Energy Review 24, 101 (2020) (reporting that, in 2019, 778 Bcf of natural gas had a non-combustion use compared to 31,014 Bcf of total consumption), https://www.eia.gov/totalenergy/data/monthly/pdf/mer.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).
[37] See Certificate Order, 172 FERC ¶ 61,039 at P 102; Transco Application at 4-5 (The Project Shippers have forecasted a need for additional natural gas supply to meet residential and commercial demands beginning in the 2020/2021 heating season.). And, of course, none of the Projects’ alleged benefits—improved reliability and access to economic supplies of natural gas—will occur unless the natural gas is actually used, and that use will largely (if not entirely) entail combustion.
[38] 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)).
[39] 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.”).
[40] Sabal Trail, 867 F.3d at 1374.
[41] 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.”).
[42] Certificate Order, 172 FERC ¶ 61,039 at PP 102-105 (omitting any discussion of the significance of the environmental impact from the Projects’ GHG emissions).
[43] 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.”).
[44] Robertson, 490 U.S. at 351
[45] Id. at 352.
[46] Certificate Order, 172 FERC ¶ 61,039 at P 105.
[47] Fl. Se. Connection, LLC, 164 FERC ¶ 61,099, at PP 19-21 (2018) (Glick, Comm’r, dissenting) (arguing that the Commission’s refusal to assess the significance of a project’s GHG emissions, despite having compared project emissions to state and national emission inventories, is not reasoned decisionmaking); PennEast Pipeline Co., 164 FERC ¶ 61,098, at PP 118-121 (2018) (Glick, Comm’r, dissenting) (same); Venture Global Calcasieu Pass, LLC, 166 FERC ¶ 61,144 (2019) (Glick, Comm’r, dissenting) (same). In each of the orders cited above, the Commission offered reasoning, similar to that advanced in today’s order, in an attempt to justify the Commission’s refusal to determine the significance of the projects’ respective contributions to climate change. And, yet, in each of these cases the Commission compared the project emissions to national, and in some cases state, emission inventories. The Commission offers nothing in today’s order to explain its refusal to similarly disclose and compare project emissions in this case.
[48] EA at B-157.
[49] Sabal Trail, 867 F.3d at 1374.
[50] Id.
[51] EA at B-157.
[52] See, for example, the Commission’s environmental analysis of Columbia Gas Transmission’s Buckeye XPress Project, where the Commission finds that impacts amounting to one percent of the overall prime farmland affected would be “permanent, but not significant.” Buckeye Xpress Project Environmental Assessment, Docket No. CP18-137-000, at B-33; see also Columbia Gas Transmission, LLC, 170 FERC ¶ 61,045, at P 138 (2020). Notwithstanding the fact that there are no universally accepted or objective standards or targets to compare this impact to, the Commission was able to determine that the project’s environmental impact was not significant based on this proportionate effect. It is clear that it is only when it comes to climate change that the Commission suddenly gets cold feet about using percentages to determine significance.
[53] 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).
[54] EA at B-44–B-50, D-1 (describing, inter alia, long-term permanent impacts to wildlife, including the loss of forest habitat due to forest fragmentation, and concluding that these impacts are expected to be “minor” and not significant).
[55] Id. at B-68–B-69. Notwithstanding the lack of any “universally accepted standard” as to this particular environmental impact, the Commission still uses its judgment to conduct a qualitative review of the Projects’ impact and determine that impacts “would be minimized to the extent practical and would not be significant.”
[56] Id. at B-81–B-85 (describing long-term permanent visual impacts to viewsheds, but concluding, based on a qualitative review, that through applicants’ implementation of proposed construction and mitigation measures at aboveground facilities. . . that visual impacts would be minimized and would not be significant”).
[57] 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. EA at B-1. 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, upland forest and woodland, and visual resources, but not climate change.
[58] Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
[59] Id. (quoting Robertson, 490 U.S. at 351).
[60] Robertson, 490 U.S. at 351.
[61] 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).
[62] 15 U.S.C. § 717f(e); Certificate Order, 172 FERC ¶ 61,039 at P 142 (“[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 . . . .”).
[63] See supra note 14 and accompanying text.
[64] See Certificate Order, 172 FERC ¶ 61,039 (McNamee, Comm’r, concurring at PP 53, 57).
[65] See Jordan Cove Energy Project L.P., 170 FERC ¶ 61,202, at PP 139, 279 & envtl. condition 28 (2020) (requiring certificate applicant to mitigate adverse impacts on short-term housing by hiring a professional housing coordinator to address the Commission’s housing concerns).
[66] 15 U.S.C. § 717f(e).