Commissioner Richard Glick Dissent Regarding the Rio Grande LNG Terminal and Rio Bravo Pipeline Projects

Commissioner Richard Glick Statement
January 23, 2020
Docket Nos. CP16-454-001 and CP16-455-001
Order: C-2

Dissent Regarding the Rio Grande LNG Terminal and Rio Bravo Pipeline Projects

I dissent from today’s order because it violates both the Natural Gas Act1 (NGA) and the National Environmental Policy Act2 (NEPA).  Rather than wrestling with the Project’s3 adverse impacts on the environment and the surrounding community, today’s order makes clear that those impacts are little more than a bump in the road to approving the Project.4

As an initial matter, 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.  Claiming that the Project is “environmentally acceptable” while simultaneously refusing to assess its impact on the most important environmental issue of our time is arbitrary and capricious and not the product of reasoned decisionmaking.5  

In addition, I am also deeply troubled by the environmental justice implications of today’s order.  All three of the Brownsville LNG facilities6 are located in Cameron County, Texas—a region of the country where roughly one third of the population is below the poverty line and the majority is made up of minority groups.7   I fully appreciate that the jobs and economic stimulus that a facility like the Project can provide may be especially important in a community facing economic challenges.  But we cannot lose sight of the cumulative environmental toll that new industrial development can take on communities such as Cameron County.  Far from seriously considering those impacts, today’s order shrugs them off, reasoning that because they fall almost entirely on low-income or minority communities, those impacts do not fall disproportionately on those communities.  That conclusion is both unreasoned and an abdication of our responsibility to the public interest. 

Finally, I am concerned about the Commission’s cursory analysis and consideration of the Project’s impacts on local air quality and endangered species as well as how to mitigate those impacts.  Collectively, the Brownsville LNG facilities will have significant adverse consequences on the surrounding region that, in my view, demand a more thorough analysis under both NEPA and the NGA than they receive in today’s order. 

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 consistent.10   Separately, 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, among other things.  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 concludes that the Project’s environmental impacts would generally be reduced to “less-than-significant” levels and the Project is “environmentally acceptable.15   Think about that.  The Commission is saying out of one side of its mouth that it cannot assess the significance of the Project’s impact on climate change16 while, out of the other side of its mouth, assuring us that its environmental impacts are generally not significant and the Project is environmentally acceptable.17   That is ludicrous, 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.19   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 9 million tons of GHG emissions per year,20 which is equivalent to the annual GHG emissions of roughly 2 million automobiles.21   The Commission acknowledges that “GHGs emissions due to human activity are the primary cause of increased levels of all GHG [sic] since the industrial age,”22 a result that the Commission has previously acknowledged (although notably not in the EIS accompanying today’s order) will “threaten the public health and welfare of current and future generations through climate change.”23   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

As I explained in my dissent from the underlying order, the Commission “cannot turn a blind eye to the incremental impact that increased pollution will have on economically disadvantaged communities.”24   And while I “fully appreciate that the jobs and economic stimulus that a facility like the Project can provide may be especially important in a community facing economic challenges,”25 a reasoned application of the public interest cannot recognize those benefits and at the same time fail to wrestle with the Project’s adverse consequences for vulnerable communities.  Carefully considering those adverse impacts is important both because vulnerable communities often lack the means to retain high-priced counsel to vindicate their interests and because of the long history in which these communities have “frequently experience[d] a disproportionate toll from the development of new industrial facilities.”26   Especially in a case such as this one, where the adverse impacts include the type of potentially serious impacts on human health that can have cascading consequences in economically disadvantaged areas, the failure to seriously wrestle with those adverse effects is both profoundly unfair and inimical to the public interest.

Nevertheless, the Commission barely bats an eye at the impacts its order will have on environmental justice27 communities.  Instead, today’s order dismisses environmental justice concerns because, get this, no environmental justice communities are “disproportionately affected” by the Project since almost all the communities affected—96 percent of the relevant census tracts28 —are either low-income or minority communities.29   In other words, the Commission concludes that because the Project basically affects only low-income or minority populations, its effects do not fall disproportionately on those communities.30  Similarly, the Commission rejects the Sierra Club’s arguments,31 reasoning that, because the communities affected by the Project are all almost entirely environmental justice communities, those communities do not bear a disproportionate share of the Project’s total adverse impacts.32  

But those observations only underscore my point.  Concerns about environmental justice are rooted in the fact that low-income and minority populations often bear the brunt of the environmental and human health impacts of new industrial development.33   The Commission’s observation that functionally all the areas adversely affected by the Project are home to those communities ought to be a reason to take a harder look at the Project’s environmental justice implications, not to brush them off.34   The Commission’s position misses that point entirely.  Arguing that environmental justice is relevant to the public interest only when a fraction of a Project’s adverse impacts fall on environmental justice communities and not when substantively all of those impacts fall on environmental justice communities is both arbitrary and capricious and, frankly, hard to fathom.35   After all, the upshot of the Commission’s approach is to signal to developers that they can side step environmental justice concerns so long as they ensure that all, or substantially all, of a project’s adverse impacts fall on low-income or minority communities. 

Moreover, in the one instance in which the Commission delves into a specific environmental justice concern, its dismissal of that concern is equally unreasoned.  On rehearing, the Commission for the first time recognizes the potential for the cumulative effects of the Project and other sources in the region to contribute to a violation of the 8-hour National Ambient Air Quality Standards (NAAQS) for Ozone.36   Ozone is linked to a number of serious health problems, such as asthma and respiratory disease, including chronic obstructive pulmonary disorder (COPD).37   After reciting a string of general statistics about the incidence of asthma and respiratory disease among different racial and age groups in Texas, the Commission concludes that those numbers do not indicate that “the anticipated exposure to ozone in minority and low-income communities [around the Project] would result in a disproportionately high and adverse impact to these communities.”38  

But it is not at all clear from today’s order how the Commission reaches that conclusion.  As best I can tell, the Commission is suggesting that, because Hispanic and Latino populations are not more susceptible than the general population to asthma or respiratory disease, exposing the predominately Hispanic and Latino population surrounding the project to ozone levels that the U.S. Environmental Protection Agency (EPA) has deemed unsafe will not disproportionately affect those individuals.39   In other words, the Commission is taking the position that there are no environmental justice concerns with a project that exclusively pollutes poor or minority communities unless the residents of those communities have a predisposition to suffer from those pollutants. 

That is nonsense.  Unsafe levels of ozone can sicken healthy people, even if those effects are not as severe as for individuals with asthma or other respiratory illnesses.  The fact that Hispanic or Latino populations within Texas as a whole are relatively less likely to suffer from asthma or to die from respiratory disease than other racial groups40 tells us nothing about the actual impacts that the elevated ozone levels caused by the Project will have on minority and low-income groups in the affected areas.  For example, assume for the sake of argument that the ozone exposure caused by the Project doubles the incidence of COPD in the affected communities.  The population-wide incidence of respiratory disease does nothing to help us assess whether and how this Project will disproportionately affect the environmental justice communities in the surrounding area or what that means for the public interest.41 That cursory and dismissive analysis is the perfect window into how seriously the Commission takes environmental justice concerns.

In addition, the cumulative effects of the Brownsville LNG facilities will have a significant adverse impact on endangered species, including the ocelot, the jaguarundi, and the aplomado falcon.42   Although the Commission reports those impacts in its EIS43 and mentions them briefly in the original order and in passing in today’s order on rehearing,44 it is far from clear whether and how they factor into the Commission’s public interest analysis.  Given the extent of those adverse impacts on endangered species—which appear to be more extensive than those caused by other energy infrastructure projects that the Commission has approved under NGA section 3 and section 7 in recent years45 —we ought to do more than simply recite the potential harm and then proceed, post haste, to make a public interest determination without any further discussion.

The Commission Fails to Satisfy Its Obligations under NEPA

The Commission’s NEPA analysis of the Project’s GHG emissions is similarly flawed.  As an initial matter, to seriously 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.”46  As noted, the operation of the Project will emit more than 9 million tons of GHG emissions per year.47  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.48   Identifying the potential 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.”49   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.50   An environmental review document must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts.51   “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.52

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.53   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. 

In any case, the Commission has several tools to assess the harm from the Project’s contribution to climate change.  For example, by measuring the long-term damage done by a ton of carbon dioxide, the Social Cost of Carbon links GHG emissions to the harm caused by climate change, thereby facilitating the necessary “hard look” at the Project’s environmental impacts that NEPA requires.  Especially when it comes to a global problem like climate change, a measure for translating a single project’s climate change impacts into concrete and comprehensible terms plays a useful role in the NEPA process by putting the harm in terms that are readily accessible for both agency decisionmakers and the public at large.  Yet, the Commission continues to ignore the Social Cost of Carbon, relying instead on deeply flawed reasoning that I have previously critiqued at length.54

Furthermore, 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 without the tools it claims it needs to assess the significance of the Project’s impact on climate change.55   The Commission’s refusal to similarly analyze the Project’s impact on climate change is arbitrary and capricious.

The Commission responds that it lacks an “objective” basis for assessing the significance of GHG emissions.56   New adjective, same problem.  Nothing in today’s order explains why assessing the significance of a project’s impact on wetlands or vegetation based on the number of acres affected57 is any different from assessing the significance of a project’s impact on climate change based on the quantity of GHGs emitted.  Simply labeling one inquiry “objective” and the other not is reasoned decisionmaking.  In any case, even the recent Council on Environmental Quality draft NEPA guidance on consideration of GHG emissions—hardly a radical environmental manifesto—recognizes that the quantity of GHG emissions “may be used as a proxy for assessing potential climate effects.”58   And yet, contrary to even that guidance, today’s order insists that a quantity of GHG emissions does not tell us anything about a project’s effects on climate change or the significance thereof.59   That proposition makes sense only if you do not believe that there is a direct relationship between GHG emissions and climate change. 

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.60   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.”61   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.62   And throughout today’s order, the Commission uses its conditioning authority under section 3 and section 7 of the NGA63 to implement these mitigation measures, which support its public interest finding.64   Once again, however, the Project’s climate impacts are 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. 

The Commission responds that it cannot possibly have any authority to mitigate GHG emissions because Congress assigned that responsibility to EPA and the states through the Clean Air Act (CAA).65   And it is true that EPA and the states have that authority.  But neither that fact nor the Commission’s summary of the CAA can carry the weight that today’s order would have them bear.  As noted, the courts have repeatedly made clear that environmental considerations, including climate change, are relevant to the Commission’s application of the NGA’s sitting provisions and that they may be a basis for denying approval for a project66 —a fact that my colleagues at least purport not to contest.  It is illogical to conclude that the Commission can deny a proposed project based on its environmental impacts, but that it cannot condition approval of a project based on steps to avoid or lessen those same environmental impacts.  After all, the Commission does not force developers to go ahead with a project if they do not believe it is worth it based on the Commission’s conditions. 

In addition, the CAA applies to all air pollutants, not just GHGs.  And yet the Commission does not throw up its hands when faced with the prospect of mitigating the effects of those other pollutants.  Indeed, as discussed further below, in this very order the Commission claims that it considered whether to impose additional mitigation measures for ozone beyond what Texas imposed, but elected not to do because Texas imposed mitigation that the Commission claims to find sufficient.67   The order notably does not take the position that the Commission lacks the authority to mitigate the effects of ozone because only EPA and the states have that authority under the CAA.  Taking the Commission’s position seriously would mean that we lack any authority to impose mitigation of air pollutants beyond that imposed in the requisite state or federal permit—a position at odds with both today’s order and past practice.  Once again, the Commission is treating GHG emissions differently than all other air pollutants.  And I think we all know why.

The Project’s GHG emissions are not the only flawed aspect of the Commission’s NEPA review.  As noted, for the first time on rehearing the Commission concludes that the Project, in conjunction with other developments in the area, would cause a violation of the 8-hour NAAQS for ozone.68   That cumulative impact would significantly exceed permissible levels by as much as 10 percent.69  

Nevertheless, the Commission does not seriously revisit its determination not to require further mitigation of the Project’s contribution to ozone levels.70   Given the new finding regarding the impact of ozone in the area, and its potentially serious implications for human health,71 I would think that reasoned decisionmaking requires, at the very least, that the Commission explicitly compare the current suite of mitigation measures with other options to determine the feasibility of avoiding a violation of the 8-hour ozone NAAQS or reducing the extent of that violation.  Instead, today’s order notes only that the Project developers “assessed Best Available Control Technologies . . . for all of the terminal’s emissions sources” and received the requisite permits from the relevant Texas agencies.72

But it does not appear that Texas considered the 8-hour ozone NAAQS violation caused by the cumulative effect of the three Brownsville LNG facilities or whether any additional mitigation steps were appropriate in light of that violation.73   Nor does it appear that any entity involved in selecting the proposed pollution control technologies was aware of these cumulative impacts on human health and the environment when making those selections.  In light of those facts, I do not believe that such a perfunctory response to a serious NAAQS violation—one with real potential to make people sick—is consistent with the Commission’s responsibility to take a hard look under NEPA or to ensure the public interest under the NGA.  After all, what is the point of doing the required cumulative impacts analysis on rehearing if the Commission is simply going to shrug its shoulders and point to state permits that did not consider those cumulative impacts?

Finally, the Commission’s failure to consider the significance of the impact of the Project’s GHG emissions is particularly mystifying because NEPA “does not dictate particular decisional outcomes.”74 NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’”75   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.  That is, after all, exactly what today’s order does with the finding that the Project may cause a violation of the ozone NAAQS, but is nevertheless consistent with the public interest.  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 denies rehearing of the Commission’s order authorizing both the Rio Grande LNG, LLC’s (Rio Grande) LNG export facility and associated natural gas pipeline facilities (collectively, the Project) pursuant to section 3 and section 7 of the NGA, respectively.
• 44 Rio Grande LNG, LLC, 170 FERC ¶ 61,046, at PP 108-109 (2020) (Rehearing Order); Rio Grande LNG, LLC, 169 FERC ¶ 61,131, at PP 104-105 (2019) (Certificate Order); Final Environmental Impact Statement at 4-256 – 4-288 (EIS).
• 55 Rehearing Order, 170 FERC ¶ 61,046 at P 109.
• 66 In addition to Rio Grand LNG, the Commission also simultaneously approved the Annova LNG facility, Annova LNG Common Infrastructure, LLC, 169 FERC ¶ 61,132 (2019), and the Texas Brownsville LNG facility, Texas LNG Brownsville LLC, 169 FERC ¶ 61,130 (2019). I will refer to these collectively as the Brownsville LNG facilities.
• 77 Rehearing Order, 170 FERC ¶ 61,046 at P 64 (“Commission staff concluded that within the census block groups intersected by a two-mile radius around the pipeline facilities and LNG terminal site, the minority population percentages in 24 of the 25 affected tracts exceed the EPA’s categorical thresholds to be minority populations or low-income populations, or in most cases both.”); id. P 66 (similar); EIS at 4-235 (noting that the poverty rate in Cameron County is roughly a third); EIS at4-236 (noting that three out of the four blocks of land that was studied around the LNG facility were made up of more than 50 percent minority populations).
• 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 15 U.S.C. §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 Rehearing Order, 170 FERC ¶ 61,046 at P 100 (claiming that the Commission cannot assess the significance of emissions because there are “industry sector or regional emission targets or budgets with which to compare project emissions”); see also Certificate Order, 169 FERC ¶ 61,131 at PP 105-106 (similar); EIS at 4-481 – 4-482 (similar).
• 1515 Rehearing Order, 170 FERC ¶ 61,046 at P 109 (asserting that the Project is environmentally acceptable even without determining whether its GHG emissions are significant or whether it will have a significant impact on climate change); Certificate Order, 169 FERC ¶ 61,131 at P 56 (concluding that the Project “would result in adverse environmental impacts, but that these impacts would be reduced to less-than-significant levels with the implementation of applicants’ proposed, and Commission staff’s recommended, avoidance, minimization, and mitigation measures”); EIS at ES-19.
• 1616 See, e.g., Rehearing Order, 170 FERC ¶ 61,046 at PP 108-109; Certificate Order, 169 FERC ¶ 61,131 at PP 105-106; EIS 4-482 (“[W]e are unable to determine the significance of the Project’s contribution to climate change.”).”
• 1717 Rehearing Order, 170 FERC ¶ 61,046 at P 109; Certificate Order, 169 FERC ¶ 61,131 at P 56 (stating that, with few exceptions and not considering cumulative impacts, the Project’s environmental impact will be “reduced to less-than-significant levels”).
• 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 Cf. Rehearing Order, 170 FERC ¶ 61,046 at P 109 (claiming that the Commission relied on “GHG emissions analysis” in certificating the Project even though, by its own admission, it did not assess the impact that the GHG emissions might have).
• 2020 Certificate Order, 169 FERC ¶ 61,131 at P 105; EIS at 4-262 & Table 4.11.1-7 (estimating the Project’s emissions from routine operation).
• 2121 This figure was calculated using the U.S. Environmental Protection Agency’s (EPA) Greenhouse Gas Equivalencies Calculator. See U.S. Envtl. Prot. Agency, Greenhouse Gas Equivalencies Calculator, https://www.epa.gov/energy/greenhouse-gas-equivalencies-calculator (last visited Jan. 22, 2020).
• 2222 EIS at 4-243.
• 2323 Environmental Assessment, Docket No. CP18-512-000 at 112 (Mar. 29, 2019); see also id. at 235 (“Construction and operation of the Project would increase the atmospheric concentration of GHGs in combination with past and future emissions from all other sources and contribute incrementally to future climate change impacts.”).
• 2424 Certificate Order, 169 FERC ¶ 61,131 (Glick, Comm’r, dissenting at P 9).
• 2525 Id.; see Rehearing Order, 170 FERC ¶ 61,046 at P 18 (finding a market need for the Project, in part because gas “transportation will provide domestic public benefits, including . . . “supporting domestic jobs in gas production, transportation, and distribution, and domestic jobs in industrial sectors that rely on gas or support the production, transportation, and distribution of gas”).
• 2626 Certificate Order, 169 FERC ¶ 61,131 (Glick, Comm’r, dissenting at P 9); cf., e.g., Friends of Buckingham v. State Air Pollution Control Bd., No. 19-1152, 2020 WL 63295, at *14 (4th Cir. Jan. 7, 2020) (“As Justice Douglas pointed out nearly fifty years ago, as often happens with interstate highways, the route selected was through the poor area of town, not through the area where the politically powerful people live.” (internal quotation marks and alterations omitted)).
• 2727 “The principle of environmental justice encourages agencies to consider whether the projects they sanction will have a disproportionately high and adverse impact on low-income and predominantly minority communities.” Sabal Trail, 867 F.3d at 1368 (internal quotation marks omitted).
• 2828Rehearing Order, 170 FERC ¶ 61,046 at P 64.
• 2929 See, e.g., id. P 66 (“Because here all project-affected populations are minority or low-income populations, or both, it is not possible that impacts will be disproportionately concentrated on minority and low-income populations versus on some other project-affected comparison group.”).
• 3030 See id. P 67 (“Given that all project-affected populations are minority or low-income populations, the EIS objectively concluded that impacts would not be disproportionate but would ‘apply to everyone’ and would ‘not be focused on or targeted to any particular demographic group.’” (quoting EIS at 4-237 and 4-468)).
• 3131 E.g., Sierra Club Rehearing Request at 32 (“FERC only concluded that ‘everyone’ would suffer impacts of the project, not whether the majority-minority or low income communities near the facility would be subject to more adverse impacts given their locale.”).
• 3232 E.g., Rehearing Order, 170 FERC ¶ 61,046 at P 69.
• 3333 See Certificate Order, 169 FERC ¶ 61,131 (Glick, Comm’r, dissenting at P 9); cf., e.g., Friends of Buckingham, No. 19-1152, 2020 WL 63295, at *14 (4th Cir. Jan. 7, 2020) (noting the “‘evidence that a disproportionate number of environmental hazards, polluting facilities, and other unwanted land uses are located in communities of color and low-income communities’” (quoting Nicky Sheats, Achieving Emissions Reductions for Environmental Justice Communities Through Climate Change Mitigation Policy, 41 Wm. & Mary Envtl. L. & Pol’y Rev. 377, 382 (2017)).
• 3434 Certificate Order, 169 FERC ¶ 61,131 (Glick, Comm’r, dissenting at P 9).
• 3535 Note that I am not arguing that the EIS was somehow inherently deficient, cf. Sabal Trail, 867 F.3d at 1368-71, but instead that it is arbitrary and capricious to dismiss environmental justice concerns under the Commission’s public interest analysis on the basis that the Project will adversely affect only environmental justice communities.
• 3636 Rehearing Order, 170 FERC ¶ 61,046 at PP 55, 62. This includes the other Brownsville LNG facilities and the ships that would serve them.
• 3737 See Rehearing Order, 170 FERC ¶ 61,046 at P 61 (discussing health effects ozone exposure); see generally National Ambient Air Quality Standards for Ozone, 80 Fed. Reg. 65,292 (2015) (rule establishing current 8-hour ozone NAAQS).
• 3838 Rehearing Order, 170 FERC ¶ 61,046 atP 76.
• 3939 Id. at n.244.
• 4040 Id. P 76.
• 4141 For example, although asthma can aggravate the effects of ozone exposure, ozone can have serious health effects in non-asthmatics and can lead to other conditions, including COPD. See U.S. Envtl. Prot. Agency, Health Effects of Ozone Pollution, https://www.epa.gov/ground-level-ozone-pollution/health-effects-ozone-pollution (last visited Jan. 22, 2020).
• 4242 See EIS at ES-19, 4-447 – 4-450 (ocelot and jaguarundi); id. at 4-445 (aplomado falcon).
• 4343 See supra note 42.
• 4444 E.g., Rehearing Order, 170 FERC ¶ 61,046 at PP 87-88 (noting that the Commission conditioned approval of the Project on some, but not all, of the conservation measures proposed in the developer’s submission to the Fish and Wildlife Service); Certificate Order, 169 FERC ¶ 61,131 at PP 56, 113, 115.
• 4545 For example, the EIS states “the primary threat to ocelot and jaguarundi populations in the United States is habitat loss, degradation, and fragmentation” noting that for ocelots in particular even “incremental habitat loss could be significant.” EIS at 4-448. To my knowledge, there is no dispute that the Commission’s approval of the Brownsville LNG facilities will result in considerable loss of habitat for those species.
• 4646 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”).
• 4747 Certificate Order, 169 FERC ¶ 61,131 at P 105; EIS at 4-262 & Table 4.11.1-7; see Rehearing Order, 170 FERC ¶ 61,046 at n.295 (noting that the Commission quantified the Project’s direct emissions).
• 4848 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.”).
• 4949Dep’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)).
• 5050 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.”).
• 5151 Robertson,490 U.S. at 351.
• 5252 Id. at 352.
• 5353 EIS at 4-481 – 4-482 (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 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”); see Certificate Order, 169 FERC ¶ 61,131 at P 106 (“The Commission has also previously concluded it could not determine whether a project’s contribution to climate change would be significant.”); see also Rehearing Order, 170 FERC ¶ 61,046 at P 100 (stating that the Commission cannot assess significance without “industry sector or regional emission targets or budgets with which to compare project emissions”).
• 5454 See, e.g., Fla. Se. Connection, LLC,164 FERC ¶ 61,099 (2018) (Glick, Comm’r, dissenting).
• 5555 See, e.g.,EIS at 4-191 – 4-198, 4-59 – 4-69, 4-76 – 4-84, 4-86 – 4-103, 4-107 – 4-112 (concluding that there will be no significant impact on recreational and special interest areas, wetlands, vegetation, wildlife, migratory bird populations, pollinator habitat, and aquatic resources due to cooling water intake, among other things).
• 5656 Rehearing Order, 170 FERC ¶ 61,046 at P 105.
• 5757 See id. P 106.
• 5858 Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions, 84 Fed. Reg. 30,097, 30,098 (2019) (“A projection of a proposed action’s direct and reasonably foreseeable indirect GHG emissions may be used as a proxy for assessing potential climate effects.”).
• 5959 Rehearing Order, 170 FERC ¶ 61,046 at P 107 (“To assess a project’s effect on climate change, the Commission can only quantify the amount of project emissions. That calculated number cannot inform the Commission on climate change effects caused by the project.”)
• 6060 Robertson,490 U.S. at 351.
• 6161 Id. at 351-52; see also 40 C.F.R. § 1508.20 (defining mitigation); id. § 1508.25 (including in the scope of an environmental impact statement mitigation measures).
• 6262See, e.g., Certificate Order, 169 FERC ¶ 61,131 at P 107 (discussing mitigation required by the Commission to address reliability and safety impacts from the Project); id. PP 101, 103 (discussing mitigation measures required to address air quality and noise); id. PP 77-78 (discussing mitigation measures required to address impacts on vegetation).
• 6363 15 U.S.C. § 717b(e)(3)(A); id. § 717f(e); Certificate Order, 169 FERC ¶ 61,131 at P 129 (“[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.”).
• 6464 See CertificateOrder, 169 FERC ¶ 61,131 at P 129 (explaining that the environmental conditions ensure that the Project’s environmental impacts are consistent with those anticipated by the environmental analyses, which found that the Project would not significantly affect the quality of the human environment).
• 6565 Rehearing Order, 170 FERC ¶ 61,046 at PP 112-113.
• 6666 See supra P 7 & n.13.
• 6767 Rehearing Order, 170 FERC ¶ 61,046 at P 56.
• 6868 Those developments include the other Brownsville LNG facilities and the ships that would serve them. On its own, the Project would cause ozone levels in the area to increase by more than 20 percent, which represents the majority of the cumulative increase in ozone in the area. See id. PP 52-53, 55.
• 6969 That level exceeds not only the current 8-hour ozone NAAQS, but also the previous 8-hour ozone NAAQS level, which the Environmental Protection Agency deemed insufficient to protect human health. See Murray Energy Corp. v. EPA, 936 F.3d 597, 606 (D.C. Cir. 2019).
• 7070 Rehearing Order, 170 FERC ¶ 61,046 at P 56.
• 7171 Cf. id. P 62 (recognizing that as a result of potential 8-hour ozone NAAQS exceedance, “people in the surrounding communities might experience the health effects of ozone exposure”).
• 7272 Id. P 56.
• 7373 See Rio Grande Supplemental Information, Revision 2 of the Terminal’s Prevention of Significant Deterioration Air Permit Application § 3 & Table 3-1 (Apr. 3, 2017) (including stationary source emissions from routine operation of the Rio Grande LNG Terminal and Compressor Station 3).
• 7474 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 7575 Id. (quoting Robertson, 490 U.S. at 351).