Commissioner Richard Glick Dissenting in Part Regarding Gulf South Pipeline Company, LP

Commissioner Richard Glick Statement

July 18, 2019

Docket No. CP18-525-000

Order Item: C-1

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

In today’s order authorizing Gulf South Pipeline Company’s (Gulf South) proposed Willis Lateral Project (Project)3 , the Commission continues to treat greenhouse gas (GHG) emissions differently than all other environmental impacts. By refusing to assess the significance of the impact of the Project’s GHG emissions, even after quantifying them, the Commission neglects its obligation to assess the environmental impacts. This systematic failure to consider the Project’s impact on climate change allows the Commission to misleadingly state that approving the Project “would not constitute a major federal action significantly affecting the quality of the human environment”4 and, as a result, conclude that the Project satisfies the NGA’s public interest standard.5

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

We know with certainty what causes climate change: It is the result of GHG emissions, including carbon dioxide and methane, released in large quantities through the production, transportation, and the consumption of natural gas and other fossil fuels. The Commission recognizes this relationship in the record before us today, acknowledging that climate change is “driven by accumulation of GHG in the atmosphere” and that emissions from the Project’s construction and operation, in combination with emissions from other sources, would “contribute incrementally to future climate change impacts.”6 It is therefore critical that the Commission 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 under the NGA. 7

Unfortunately, in today’s order, the Commission again misses the mark. As part of its public interest determination, the Commission must examine the proposed Project’s impact on the environment and public safety, which includes the facility’s impact on climate change.8 Nevertheless, the Commission maintains that it need not consider whether the Project’s contribution to climate change is significant – it claims - because it lacks a means to do so.9 However, the most troubling part of the Commission’s rationale is what comes next. Based on this alleged inability to assess significance, the Commission concludes that the Project will have no significant environmental impact.10 That is the equivalent of concluding that an action known to be dangerous11 is actually safe because the majority claims not to know exactly how dangerous it is.12 In addition to being ludicrous, that reasoning fails to give climate change the serious consideration it deserves and that the law demands.

The implications of the Commission’s approach to evaluating the impacts of GHG emissions extend beyond this proceeding. Taking the Commission’s approach to its logical conclusion, the Commission would approve any project regardless of the amount of GHGs emitted without ever determining the significance of their environmental impact. If the Commission continues to assume that a project will not have a significant environmental impact no matter the volume of GHG emissions it causes, those emissions and their consequences cannot meaningfully factor into the public-interest determination. Approving a project that may significantly contribute to the harms caused by climate change without evaluating the significance of that impact or considering it as part of the public-interest determination is contrary to law, arbitrary and capricious, and not the product of reasoned decisionmaking. 13

The Commission Fails to Satisfy Its Obligation under NEPA

Under NEPA and D.C. Circuit precedent, the Commission must examine the reasonably foreseeable upstream and downstream emissions that will result from an interstate pipeline. Sabal Trail held that the reasonably foreseeable combustion of gas transported through a pipeline was an indirect effect.14 There is no real question here that the natural gas to be transported by the Project will be combusted. The very purpose of the Project is to provide natural gas to Entergy’s Montgomery Power Station.15 The EA acknowledges the downstream indirect effect and calculates the Project’s indirect downstream GHG emissions of more than 2.7 million tons annually.16

While quantification of the Project’s indirect GHG emissions is a necessary step toward meeting the Commission’s NEPA obligations, listing the volume of emissions alone is insufficient. In order to examine the environmental consequences of the Project’s indirect impacts under NEPA, the Commission must consider the harm caused by the Project’s indirect GHG emissions and “evaluate the ‘incremental impact’ that these emissions will have on climate change or the environment more generally.”17 There is no real question here that the natural gas to be transported by the Project will be combusted. The very purpose of the Project is to provide natural gas to Entergy’s Montgomery

Identifying the consequences that those emissions will have for climate change is essential if NEPA is to play the disclosure and good government roles for which it was designed. By contrast, the Commission’s approach in this order, where it states the volume of emissions as shares of national and state emissions and describes climate change generally, tells us nothing about the “‘incremental impact’ that these emissions will have on climate change.” 18

In refusing to even assess the significance of the Project’s GHG emissions during the environmental review process, the Commission relegates climate change to a negligible role, at best, in its NEPA analysis. The Commission argues that it need not determine whether the Project’s contribution to climate change is significant because “[t]here is no standard methodology” to determine whether the indirect GHG emissions “would result in physical effects on the environment for the purposes of evaluating the Project’s impact on climate change, either locally or nationally.”19 As a logical matter, the argument that there is no single standard methodology for evaluating the significance of GHG emissions does not excuse the Commission from assessing the Project’s environmental impacts under NEPA. The claimed absence of a standard methodology is no justification for effectively ignoring those emissions.

Moreover, the lack of a single methodology does not prevent the Commission from adopting a methodology. The Commission has several tools to assess the harm from the Project’s contribution to climate change, including 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 harm in terms that are readily accessible for both agency decisionmakers and the public at large. The Commission, however, continues to ignore the tools at its disposal, relying on deeply flawed reasoning that I have previously critiqued at length. 20

Regardless of tools or methodologies available, the Commission also can use its expertise and discretion to consider all factors and determine, quantitatively or qualitatively, whether the 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. Take, for example, the Commission’s evaluation of the Project’s impact on land use. The EA determined that approximately 150 acres of land would be required for operation of the Project, but the Commission deemed this a “minimal adverse impact” on landowners and communities. 21 Notwithstanding the lack of any “generally accepted” criteria as to this particular environmental impact, the Commission still uses its judgment to conduct a qualitative review of the Project’s impact on land use and to assess the significance of that impact. The Commission’s refusal to exercise similar qualitative discretion and judgment on the significance of GHG emissions is certainly arbitrary and capricious.

The Commission’s refusal to seriously consider the significance of the impact of the Project’s GHG emissions is even more mystifying because NEPA “does not dictate particular decisional outcomes.” 22 NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’” 23 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 the Project’s GHG emissions are significant, that would not be the end of the inquiry nor would it mean that the project was necessarily inconsistent with the public interest. Instead, the Commission could require mitigation—as the Commission often does with regard to other environmental impacts. 24 The Supreme Court has held that an EIS must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts. 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. 25 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. 26 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.

Climate change poses an existential threat to our security, economy, environment, and, ultimately, the health of individual citizens. Unlike many of the challenges that our society faces, we know with certainty what causes climate change: It is the result of GHG emissions, including carbon dioxide and methane—which can be released in large quantities through the production and the consumption of natural gas. Congress determined under the NGA that no entity may transport natural gas interstate, or construct or expand interstate natural gas facilities, without the Commission first determining the activity is in the public interest. This requires the Commission to find, on balance, that a project’s benefits outweigh the harms, including the environmental impacts from climate change that result from authorizing additional pipeline transportation capacity. Accordingly, it is critical that, as an agency of the federal government, the Commission comply with its statutory responsibility to document and consider how its authorization of a natural gas pipeline facility will lead to the emission of GHGs, contributing to climate change.

For these reasons, I respectfully dissent in part.

• 11 15 U.S.C. § 717f (2012).
• 22 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.
• 33 Gulf South Pipeline Co., LP, 168 FERC ¶ 61,036, at P 2 (2019) (Certificate Order).
• 44 Id. P 30.
• 55 Id. P 16.
• 66 Willis Lateral Project Environmental Assessment (EA) at 73, 75.
• 77 Section 7 of the NGA requires that, before issuing a certificate for new pipeline construction, the Commission must find both a need for the pipeline and that, on balance, the pipeline’s benefits outweigh its harms. 15 U.S.C. § 717f (2012). Furthermore, NEPA requires the Commission to take a “hard look” at the environmental impacts of its decisions. See 42 U.S.C. § 4332(2)(C)(iii); Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). This means that the Commission must consider and discuss the significance of the harm from a pipeline’s contribution to climate change by actually evaluating the magnitude of the pipeline’s environmental impact. Doing so enables the Commission to compare the environment before and after the proposed federal action and factor the changes into its decisionmaking process. See Sierra Club v. FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sabal Trail) (“The [FEIS] needed to include a discussion of the ‘significance’ of this indirect effect.”); 40 C.F.R. § 1502.16 (a)–(b) (An agency’s environmental review must “include the environmental impacts of the alternatives including the proposed action,” as well as a discussion of direct and indirect effects and their significance.) (emphasis added)); see also Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959) (holding that the NGA requires the Commission to consider “all factors bearing on the public interest”).
• 88 See Sabal Trail, 867 F.3d at 1373 (explaining that the Commission may “deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment”); see also Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959) (holding that the NGA requires the Commission to consider “all factors bearing on the public interest”).
• 99 EA at 75 (“There is no generally accepted methodology to estimate what extent a project’s incremental contribution to greenhouse gas emissions would result in physical effects on the environment for the purposes of evaluating the Project’s impacts on climate change, either locally or nationally. . . . Because we cannot determine the Project’s incremental physical impacts due to climate change on the environment, we cannot determine whether or not the Project’s contribution to cumulative impacts on climate change would be significant.”).
• 1010 See EA at 78; Certificate Order, 168 FERC ¶ 61,036 at P 30.
• 1111 The EA acknowledges both that climate change is “driven by accumulation of GHG in the atmosphere primarily through combustion of fossil fuels,” and that the Project’s GHG emissions “would increase the atmospheric concentration of GHGs . . . and contribute incrementally to future climate change impacts.” EA at 73, 75.
• 1212 See, e.g., 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) (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.”); cf. Soundboard Ass’n v. FTC, 888 F.3d 1261, 1274 (D.C. Cir. 2018) (Millett, J., dissenting) (“Why let reality get in the way of a good bureaucratic construct?”).
• 1313 See, e.g., Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015) (agencies cannot overlook a single environmental consequence if it is even “arguably significant”).
• 1414 See Sabal Trail, 867 F.3d at 1371-72.
• 1515 Certificate Order, 168 FERC ¶ 61,036 at P 16 (“The proposed project will enable Gulf South to provide 200,000 Dth/d of firm transportation service for Entergy, which will use the expansion capacity to meet the gas requirements of the electric generation plant Entergy is constructing in Montgomery County Texas.”); EA at 1.
• 1616 EA at 45 (estimating over 2.7 million metric tons of GHG per year based on the assumption that the Project’s capacity of up to 200,000 dekatherms per day is combusted at the Project’s destination point, the Montgomery Power Station); supra n.6.
• 1717 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”).
• 1818 See Ctr. for Biological Diversity, 538 F.3d at 1216.
• 1919 EA at 75.
• 2020 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).
• 2121 EA at 8; Certificate Order, 168 FERC ¶ 61,036 at P 15.
• 2223 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
• 2324 Id. (quoting Robertson, 490 U.S. at 351).
• 2425 Robertson,490 U.S. at 351.
• 2526 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).
• 2627 15 U.S.C. § 717f(e); Certificate Order, 168 FERC ¶ 61,036 at P 31 (“[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 . . . .”).