Commissioner Richard Glick Dissent Regarding Tennessee Gas Pipeline Company, L.L.C.

Commissioner Richard Glick Statement
February 21, 2020
Docket No. CP19-7-001

Dissent Regarding Tennessee Gas Pipeline Company, L.L.C.

I dissent in part from today’s order on rehearing because I continue to believe that the Commission’s action violates both the Natural Gas Act1 (NGA) and the National Environmental Policy Act2 (NEPA). 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 affirming the decision to authorize Tennessee Gas Pipeline Company, L.L.C.’s (Tennessee Gas) proposed Compressor Station 261 upgrade project (Project),3 the Commission continues to treat greenhouse gas (GHG) emissions and climate change differently than all other environmental impacts. The Commission again refuses to consider whether the Project’s contribution to climate change from GHG emissions would be significant, even though it quantifies the direct GHG emissions from the Project’s construction and operation.4 That failure forms an integral part of the Commission’s decisionmaking: The refusal to assess the significance of the Project’s contribution to the harm caused by climate change is what allows the Commission to state that approval of the Project “would not constitute a major federal action significantly affecting the quality of the human environment”5 and, as a result, conclude that the Project is in the public interest and required by the public convenience and necessity.6 Claiming that a project has no significant environmental impacts while at the same time refusing to assess the significance of the project’s impact on the most important environmental issue of our time is not reasoned decisionmaking.

Making matters worse, the Commission again refuses to make a serious effort to assess the indirect effects of the Project—despite the fact that the record plainly provides that the Project’s only remaining shipper, Bay State Gas Company d/b/a Columbia Gas of Massachusetts (CMA), plans to use the expansion capacity to serve its residential, commercial, and industrial customers in Massachusetts.7 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.

I. The Commission’s Public Interest Determination Is Not the Product of Reasoned Decisionmaking

We know with certainty what causes climate change: It is the result of GHG emissions, including carbon dioxide and methane, released in large quantities through the production, transportation, and consumption of fossil fuels, including natural gas. The Commission recognizes this relationship, finding, as it must, that “(GHGs) occur . . . as a result of human activities, such as the burning of fossil fuels”8 and that GHG emissions from the Project’s construction and operation, in combination with emissions from other sources, would “contribute incrementally to future climate change impacts.” 9 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, both in order to fulfill NEPA’s requirements and to determine whether the Project is in the public interest and required by the public convenience and necessity.10-

Today’s order on rehearing falls short of that standard. As part of its public interest determination, the Commission must examine the Project’s impact on the environment and public safety, which includes the facility’s impact on climate change.10 That is now clearly established D.C. Circuit precedent.11 The Commission, however, insists that it need not consider whether the Project’s contribution to climate change is significant because there is no “universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment to the Project’s incremental contribution to GHGs.”12 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 Project will have no significant environmental impact.13 Think about that. The Commission is saying out of one side of its mouth that it need not assess the significance of the Project’s impact on climate change while, out of the other side of its mouth, assuring us that all environmental impacts are insignificant. That is ludicrous, unreasoned, and an abdication of our responsibility to give climate change the “hard look” that the law demands. 14

It also means that the volume of emissions caused by the Project does not play a meaningful role in the Commission’s public interest determination, no matter how many times the Commission assures us otherwise. Using the approach in today’s order, the Commission will always be able to conclude that a project will not have any significant environmental impact irrespective of the project’s actual GHG emissions or those emissions’ impact on climate change. So long as that is the case, a project’s impact on climate change cannot, as a logical matter, play a meaningful role in the Commission’s public interest determination. A public interest determination that systematically excludes the most important environmental consideration of our time is contrary to law, arbitrary and capricious, and not the product of reasoned decisionmaking.

II. The Commission’s NEPA Analysis of the Project’s 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.15 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.16 While the Commission does quantify the direct GHG emissions related to Project’s construction and operation,17 it fails to consider the indirect GHG emissions resulting from the incremental natural gas capacity facilitated by the Project. Once again 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.18

I remain baffled by the Commission’s continued refusal to take any step towards considering indirect downstream emissions and their impact on climate change unless specifically and expressly directed to do so by the courts (and even that does not always seem to be the case 19 ). Here there are plenty of steps that the Commission could take to consider the GHGs associated with the Project’s incremental capacity if the Commission were actually inclined to take a ‘hard look’ at climate change. At a minimum, we know that the vast majority, 97 percent, of all natural gas consumed in the United States is combusted20 —a fact that, on its own might be sufficient to make downstream emissions reasonably foreseeable, at least absent contrary evidence. After all, the D.C. Circuit has recognized that NEPA does not require absolute certainty and that “some educated assumptions are inevitable in the NEPA process.”21 Moreover, the record here makes this a relatively easy case: In comments in support of the project application, CMA states that it needs the additional transportation capacity to provide natural gas to its approximately 321,000 residential, commercial, and industrial customers in Massachusetts.22 That would seem to be more-than-sufficient to confirm that the gas is highly likely to be combusted, making the resulting GHG emissions reasonably foreseeable.

In any case, even where the Commission quantifies the Project’s construction and operational GHG emissions, it still fails to “evaluate the ‘incremental impact’ that [those emissions] will have on climate change or the environment more generally.”23 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.24 That makes sense. Identifying and evaluating the consequences that the 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.25 But neither the Commission’s orders in this proceeding nor the accompanying EA provide that discussion or even attempt to assess the significance of the Project’s GHG emissions.

Instead, the Commission insists that it need not assess the significance of the Project’s GHG emissions because it lacks a “universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment to the Project’s incremental contribution to GHGs.”26 But that does not excuse the Commission’s failure to evaluate these emissions let alone to determine the significance of the Project’s 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 past27 but inexplicably fails to undertake here. As rehearing parties point out,28 and the Commission acknowledges, the State of Massachusetts “has set GHG emission reduction requirements” to achieve GHG reduction of up to 25 percent below 1990 levels by 2020, and 80 percent below 1990 levels by 2050, and created a framework for reducing such emissions.29 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.30 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.”31 Instead of doing so here, the Commission disregards its prior position and asserts that “[w]ithout the ability to determine discrete resource impacts, we are unable to determine the significance of the Project’s contribution to climate change.”32 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.33 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 Project’s contribution to climate change, including, for example, the Social Cost of Carbon. By measuring the long-term damage done by a ton of carbon dioxide, the Social Cost of Carbon links GHG emissions to actual environmental effects from climate change, thereby facilitating the necessary “hard look” at the Project’s environmental impacts that NEPA requires.

Especially when it comes to a global problem like climate change, a measure for translating a single project’s climate change impacts into concrete and comprehensible terms plays a useful role in the NEPA process by putting the 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.34

Regardless of the tools, methodologies, or targets available, the Commission can use its expertise to consider all factors and determine, quantitatively or qualitatively, whether the Project’s GHG emissions have a significant impact on climate change. That is precisely what the Commission does in other aspects of its environmental review. Consider, for example, the Commission’s findings that the Project will not have a significant effect on issues as diverse as “geologic resources”35 , “soils,”36 and “migratory birds.”37 Notwithstanding the lack of any “universally accepted methods” to assess these impacts, the Commission managed to use its judgment to conduct a qualitative review and assess the significance of the Project’s effect on those considerations.38 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.39

That refusal is even more mystifying because NEPA “does not dictate particular decisional outcomes.”40 NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’”41 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 or required by the public convenience and necessity. 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.42 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.43 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,44 which could encompass measures to mitigate a project’s GHG emissions.

Furthermore, a rigorous examination and determination of significance regarding climate change impacts would bolster any finding of public interest by providing the Commission a more complete set of information necessary to weigh benefits against adverse effects. By refusing to assess significance, however, the Commission short circuits any discussion of mitigation measures for the Project’s GHG emissions, eliminating a potential pathway for us to achieve consensus on whether the Project is consistent with the public interest.

The Commission’s orders in this proceeding are not the product of reasoned decisionmaking. Its analysis of the Project’s contribution to climate change is shoddy and evasive and its conclusion that the Project will not have any significant environmental impacts is illogical. After all, the Commission itself acknowledges that the Project will contribute to climate change, but refuses to consider whether that contribution might be significant before proclaiming that the Project 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 Project’s consequences for climate change does not represent the “hard look” that the law requires.

For these reasons, I respectfully dissent in part.
 

• 11 15 U.S.C. § 717f (2018).
• 22 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.
• 33 Tennessee Gas Pipeline Co., L.L.C., 169 FERC ¶ 61,230, at P 29 (2019) (Certificate Order), order on reh’g, 170 FERC ¶ 61,142 (2020) (Rehearing Order).
• 44 261 Upgrade Project Environmental Assessment at Tables 17?18 (EA); Food and Water Watch Rehearing Request at 8 (“In the Project EA, FERC provided a blatantly inadequate review of the emissions released by this facility.”).
• 55 Certificate Order, 169 FERC ¶ 61,230 at P 84; EA at 74.
• 66 Certificate Order, 169 FERC ¶ 61,230 at P 29; see also Rehearing Order, 170 FERC ¶ 61,142 at P 4.
• 77 CMA November 8, 2018 Comments at 2-3; see infra note 23 and accompanying discussion.
• 88 EA at 53.
• 99 Id. at 68.
• 1011 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”).
• 1112 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. The history of these cases is discussed further below. See infra P 9.
• 1213 See EA at 68?69 (“Currently, there is no universally accepted methodology to attribute discrete, quantifiable, physical effects on the environment to the Project’s incremental contribution to GHGs . . . . Without 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, 169 FERC ¶ 61,230 at P 68.
• 1314 See Certificate Order, 169 FERC ¶ 61,230 at P 84 (“[A]pproval of this proposal would not constitute a major federal action significantly affecting the quality of the human environment.”); Rehearing Order, 170 FERC ¶ 61,142 at P 11; see also EA at 74.
• 1415 E.g., Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015) (Agencies cannot overlook a single environmental consequence if it is even “arguably significant.”); see 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”).
• 1516 40 C.F.R. §§ 1502.16(b), 1508.8(b); Sabal Trail, 867 F.3d at 1371.
• 1617 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.
• 1718 EA at Tables 17?18.
• 1819 Certificate Order, 169 FERC ¶ 61,230 at P 64 (stating that “[b]ecause the specific volume and end-use of the gas which will transported under those contracts, as well as the gas which may ultimately be transported using the uncontracted for capacity, is unknown, any potential greenhouse gas emissions associated with the ultimate combustion of the transported gas are not reasonably foreseeable”); Rehearing Order, 170 FERC ¶ 61,142 at P 20.
• 1920 El Paso Natural Gas Co., L.L.C., 169 FERC ¶ 61,133 (2019) (Glick, Comm’r, dissenting in part at PP 10-11) (criticizing the Commission for failing to follow the D.C.’s guidance in Birckhead and consider GHG emissions associated with natural gas transportation capacity that it was told would be used to serve electricity generation).
• 2021 U.S. Energy Info. Admin., September 2019 Monthly Energy Review 22, 97 (2019) (reporting that, in 2018, 778 Bcf of natural gas had a non-combustion use compared to 29,956 Bcf of total consumption),
• 2122 Sabal Trail, 867 F.3d at 1374; see id. (stating that “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”).
• 2223 CMA November 8, 2018 Comments at 2-3 (“The service contemplated by [CMA’s precedent] agreement is needed in order for CMA to continue providing safe, dependable natural gas service to its customers in Massachusetts.”); EA at 71 (describing the Project’s purpose and need as securing long-term firm transportation service for Project shippers, “alleviat[ing] capacity-strain in the New England gas markets,” and “provid[ing] necessary natural gas capacity to meet existing customer demand in the northeast”); Food and Water Watch Rehearing Request at 8, 13 (“The Commission adopts an overly narrow and circular definition of indirect effects and disregards the Project’s central purpose—to facilitate additional natural gas consumption.” (emphasis in original)).
• 2324 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th Cir. 2008); see also WildEarth Guardians v. Zinke, No. CV 16-1724 (RC), 2019 WL 1273181, at *1 (D.D.C. Mar. 19, 2019) (explaining that the agency was required to “provide the information necessary for the public and agency decisionmakers to understand the degree to which [its] decisions at issue would contribute” to the “impacts of climate change in the state, the region, and across the country”).
• 2425 Sabal Trail, 867 F.3d at 1374.
• 2526 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.”).
• 2627 EA at 68.
• 2728 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.
• 2829 Berkshire Environmental Action Team Rehearing Request at 4, 7.
• 2930 EA at 69; see Global Warming Solutions Act, 2009 Mass. Legis. Serv. Ch. 298 (S.B. 2540) (WEST) (setting GHG emission reduction requirements and establishing a framework for reducing such emissions, including a state GHG emissions inventory).
• 3031 Sabal Trail, 867 F.3d at 1374.
• 3132 Id.
• 3233 EA at 69.
• 3334 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.
• 3435 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).
• 3536 EA at 12.
• 3637 Id. at 16.
• 3738 Id. at 36?37.
• 3839 See also supra note 34 and accompanying discussion describing the Commission’s use of just such a technique regarding impacts to farmland.
• 3940 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. See EA at 10. 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 geologic resources and soils, but not climate change.
• 4041 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 4142 Id. (quoting Robertson, 490 U.S. at 351).
• 4243 Robertson, 490 U.S. at 351.
• 4344 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). The discussion of mitigation is especially critical under today’s circumstances where the Commission prepared an EA instead of an Environmental Impact Statement to satisfy its NEPA obligations. The EA relies on the fact that certain environmental impacts will be mitigated in order to ultimately find that the Project “would not . . . significantly affect[] the quality of the human environment.” See e.g. EA at 12 (geologic resources). Absent these mitigation requirements, the Project’s environmental impacts would require the Commission to develop an Environmental Impact Statement—a much more extensive undertaking. See Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) (“If any ‘significant’ environmental impacts might result from the proposed agency action then an [Environmental Impact Statement] must be prepared before the action is taken.”).
• 4445 15 U.S.C. § 717f(e); Certificate Order, 169 FERC ¶ 61,230 at P 85 (“[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 to ensure continued compliance with the intent of the conditions of the order, as well as the avoidance or mitigation of unforeseen adverse environmental impacts resulting from project construction and operation.”).