Statement of Commissioner James P. Danly
December 1, 2022
CP17-458-019
I concur with today’s Order on Remand.[1] I write separately for the specific purpose of drawing attention to the decision of the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit),[2] which accords with my dissents to the underlying orders.[3]
The Fifth Circuit’s decision is timely. The Commission has been sorely in need of a reminder that its authorities are strictly limited to those conferred by its statute. In this proceeding, the Fifth Circuit vacated a portion of the Commission’s order that was ultra vires because the Commission acted outside its statutory authority.[4] It was not a close call, we earned the court’s rebuke, and we should bear it in mind going forward. I hope that the Fifth Circuit’s Midship decision, especially when read in light of the Supreme Court’s decision in West Virginia,[5] will remind the Commission that we must exercise caution when we contemplate regulating subjects that have not been clearly placed within our jurisdiction by Congress. We have recently attempted to establish a significance threshold for greenhouse gas (GHG) emissions in certificate proceedings,[6] we are conducting rulemakings that, if finalized in its current form, would impose cumbersome and invasive planning processes across the entire country,[7] and are considering a duty of candor rule that would create vague standards gravely impairing the public’s First Amendment rights through threat of civil penalties.[8] All of these actions are significant; none of them are supported by clear statutory authority. The Commission would do well to exercise caution. Blundering ahead invites further reversals. It is really quite simple: “Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’”[9]
For these reasons, I respectfully concur.
[1] Midship Pipeline Co., LLC, 181 FERC ¶ 61,169 (2022) (Order on Remand).
[2] Midship Pipeline Co., LLC v. FERC, 45 F.4th 867 (5th Cir. 2022) (Midship).
[3] See Midship Pipeline Co., LLC, 177 FERC ¶ 61,186 (2021) (December 2021 Order) (Danly, Comm’r, dissenting at P 2) (disagreeing with the majority’s determination that an “[Administrative Law Judge (ALJ)] proceeding is necessary to . . . ‘develop[] a record as to the necessary measures and their cost [to] assist [the Commission] in evaluating what further remediation is required and what further steps to take to resolve the issues here’”) (emphasis added) (citations omitted); see also Midship Pipeline Co., LLC, 179 FERC ¶ 61,096 (2022) (Danly, Comm’r, dissenting at P 2) (“I am . . . convinced that the Commission’s December 2021 Order was not only misguided, but was ultra vires and that partial stay of that proceeding is warranted”); id. (Danly, Comm’r, dissenting at P 4) (“Putting aside that the majority’s tepid declaration that information on restoration costs simply ‘may be relevant,’ in my view, the majority has not—nor do I believe can—explain why determining cost is necessary or proper to then determining whether Midship has violated or is about to violate its certificate.”); id. (Danly, Comm’r, dissenting at P 7) (“[W]hile the Commission oversees the restoration to ensure compliance, the cost of completing such compliance tasks, or for that matter the specific method by which those tasks are completed (so long as the pipeline company complies with the FERC Plan), are irrelevant.”) (citations omitted).
[4] See Midship, 45 F.4th at 877 (vacating part of the Commission’s order and remanding the remainder because “[t]he FERC’s interpretation of the [Natural Gas Act (NGA)] to give the agency power to determine ‘the reasonable cost’ of remediation efforts ‘change[d] the plot line’ of its enabling legislation, . . . and was therefore erroneous” and “[t]he FERC lacks such authority under the NGA, and it likewise lacked authority to order an ALJ to make such a determination indirectly”) (quoting West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (West Virginia)).
[5] 142 S. Ct. 2587.
[6] See Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Revs., 178 FERC ¶ 61,108, at PP 79-81 (2022) (establishing a significance threshold of 100,000 metric tons per year (tpy) of CO2e) (Interim GHG Policy Statement); id. (Danly, Comm’r, dissenting at PP 32-36) (explaining why the majority’s presumptive significance threshold is illogical); see also N. Nat. Gas Co., 174 FERC ¶ 61,189 (2021) (Northern) (Danly, Comm’r, concurring in part & dissenting in part at P 16) (comparing the Northern test to “like posting a speed limit sign with a question mark instead of a number, leaving it to the police officer to decide arbitrarily whether you were speeding”). The Interim GHG Policy Statement was converted to a draft on March 24, 2022. Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,197, at P 2 (2022) (converting the two policy statements issued on February 18, 2022, Certification of New Interstate Nat. Gas Facilities, 178 FERC ¶ 61,107 (2022) and Interim GHG Policy Statement, 178 FERC ¶ 61,108 to “draft” policy statements).
[7] See Bldg. for the Future Through Elec. Reg’l Transmission Plan. & Cost Allocation & Generator Interconnection, 179 FERC ¶ 61,028 (2022); see also id. (Danly, Comm’r, dissenting at P 2) (stating that the Notice of Proposed Rulemaking “contemplates a Federal Power Act section 206 finding that existing transmission planning across the nation—in every region, for every utility and market—is so unjust and unreasonable that it must be replaced with mandatory, pervasive, and invasive ‘reforms’”) (citations omitted).
[8] See Duty of Candor, 180 FERC ¶ 61,052 (2022); see also id. (Danly, Comm’r, dissenting at P 1) (“The powers we propose to grant ourselves in this rulemaking are so broad and the standards so vague that, if finalized, it would be a simple proposition for the Commission to ‘find’ that any factually untrue statement, regardless of context, violates the duty of candor, exposing the speaker to sanctions. And rather than establish guard rails or explicit limits to our powers, we instead say ‘just trust us.’ This proposal is chillingly broad in its scope and, by its plain terms, would encompass constitutionally protected speech.”).
[9] West Virginia, 142 S. Ct. at 2609 (citation omitted).