Commissioner Mark C. Christie Statement
March 18, 2021
Docket No. CP20-466-000
Order: C-2
I concur in today’s order finding that New Fortress Energy LLC’s (New Fortress) liquified natural gas (LNG) handling facility located at the Port of San Juan in Puerto Rico is subject to the Commission’s jurisdiction under section 3 of the Natural Gas Act (NGA). I write separately to explain my decision.
First, the order reasonably and consistently applies the Commission’s existing Shell precedent[1] without expanding or, conversely, overturning it. The order makes clear, consistent with Shell, that an LNG facility that does not receive or send out gas to an end-user via a pipeline will not be subject to the Commission’s jurisdiction under NGA section 3. The order also declines to further interpret the statutory text of NGA section 3, or the Commission’s interpretation of that text in Shell, to arbitrarily define what a “pipeline” may or may not be. Thus facilities, existing or planned, that relied on Shell’s criteria for an LNG facility for purposes of this Commission’s section 3 jurisdiction will not and should not be affected by this order.[2]
I regard the facility at issue here as so functionally similar to the facility in Aguirre, which was issued after Shell, as to be essentially indistinguishable.[3] That facility was considered to be a jurisdictional LNG terminal under NGA section 3.
Finally, I recognize that PREPA, the public-power load-serving utility in Puerto Rico, has made it abundantly clear that the continued operation of the New Fortress facility is essential to PREPA’s ability to provide a reliable supply of electrical power to Puerto Rico and its people.[4] I would not join this order absent its pledge that the New Fortress facility will be allowed to continue operating throughout the process of obtaining all necessary authorizations from this Commission. Given this facility’s critically important role in providing power to Puerto Rico, shutting it down, directly or indirectly, through the imposition of unreasonable regulatory burdens and costs, should not be part of this Commission’s exercise of jurisdiction. As the order makes clear, there is no “regulatory gap” that needs to be filled, as this facility is already regulated by several federal and state agencies.[5]
For these reasons, I respectfully concur.
[1] Shell U.S. Gas & Power, LLC, 148 FERC ¶ 61,163 (2014).
[2] As a practical matter there is little doubt that substantial investments and plans likely have been made in reliance on Shell and the Commission’s subsequent orders applying it. Consequently, overturning or expanding the Commission’s original reasoning in Shell here would be an exercise in changing a significant legal precedent that has been in place for years and that has been relied on by many. To the extent the Commission may choose to re-examine Shell, as advocated in the joint concurrence in this proceeding of Chairman Glick and Commissioner Clements, I would strongly encourage that such re-examination be conducted through a general proceeding in which all interested persons, companies and groups are provided the opportunity to express their views.
[3] Aguirre Offshore GasPort, LLC, 152 FERC ¶ 61,071 (2015). See also Order at P 20 n. 49.
[4] See, e.g., PREPA’s Statement in Support for Continued Operation of New Fortress Energy’s San Juan Harbor LNG Receiving Facility, Docket No. CP20-466-000 (filed March 16, 2021).
[5] Order at PP 31-32.