Commissioner Richard Glick Statement
October 15, 2020
Docket No. CP19-495-000
Order: C-4
I dissent from today’s order[1] issuing a new certificate to the Double E Pipeline, LLC (Double E) for the Double E Pipeline Project (Project) because I believe that the Commission continues to violate both the Natural Gas Act[2] (NGA) and the National Environmental Policy Act[3] (NEPA). Once again, the Commission has failed to seriously consider the need for the pipeline, as well as the consequences it will have for climate change. In addition, the Commission unjustly blocked would-be intervenors in what would appear to be yet another effort to insulate its review of the Project from serious public scrutiny.
As an initial matter, the Commission has failed to show that the Project is needed. Section 7 of the NGA requires that, prior to issuing a certificate for new pipeline construction, the Commission must find both a need for the project, and that, on balance, the project’s benefits outweigh its harms.[4] In today’s order, the Commission finds that the Project is needed based almost entirely on the existence of a precedent agreement between Double E and XTO Energy, Inc., both of which are subsidiaries of Exxon Mobil Corporation.[5] Although precedent and service agreements can serve as one measure for assessing the need for a pipeline,[6] agreements among affiliates are less probative of that need because they are not necessarily the result of an arms-length negotiation.[7] As a result, I do not believe that agreements among affiliates can, by themselves, constitute substantial evidence supporting the need for a new section 7 certificate.
Under these circumstances, I believe that the Commission must consider additional evidence regarding the need for a pipeline. As the Commission explained in the Certificate Policy Statement, that additional evidence might include, among other things, projections of the demand for natural gas, analyses of the available pipeline capacity, and an assessment of the cost savings that the proposed pipeline would provide to consumers.[8] The Commission, however, does not consider any such evidence in finding that there is a need for the Project, instead relying entirely on the existence of precedent agreements, including an affiliate precedent agreement representing more than half of the total capacity on the Double E Pipeline Project.[9] That is not, in my view, sufficient to show that the Project is needed.
In addition, 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 quantified the direct GHG emissions from the Project’s construction and operation.[10] 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 misleadingly state that approval of the Project “would not constitute a major federal action significantly affecting the quality of the human environment”[11] and, as a result, conclude that the Project is required by the public convenience and necessity.[12] Claiming that the 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.
Finally, I disagree with the Commission’s decision to deny rehearing of the decision to reject the late intervention of WildEarth Guardians, Sierra Club, and Western Environmental Law Center’s (collectively, Conservation Groups).[13] In noticing the availability of the EA, the Commission told commenters that it would consider late interventions filed in response to the EA.[14] The Commission stated it “may grant affected landowners and others with environmental concerns intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which no other party can adequately represent.”[15] The Conservation Groups, taking the Commission at its word, filed a late intervention, detailing their specific interests, how their members will be affected by the Double E Pipeline Project, and raising concerns from the EA on air quality, GHG emissions, water quality and karst formations, and the construction of a pipeline during the Coronavirus (COVID-19) pandemic.[16] That should have been enough to support their intervention in this proceeding.
Nevertheless, the Commission relies on technicalities to prevent these groups from having even the opportunity to vindicate their interests. This time, the Commission argues that since staff prepared an EA instead of an Environmental Impact Statement (EIS), the Commission’s regulations do not present the same opportunities for intervention at this point in the proceeding.[17] That is nonsense. Commission staff prepared a 255-page environmental document that details a litany of potentially serious adverse environmental impacts from the Project. Preventing the Conservation Groups from intervening to address those issues on the basis that the document is an EA, not an EIS, elevates form over substance in a way that does not serve any underlying interest.
The bottom line is that I fail see any serious justification for why a federal agency would be so bound and determined to limit stakeholders’ opportunities to participate in its proceedings. At the end of the day, our job is to serve the public interest. Going out of our way to ignore arguments raised by groups with an obvious interest in this proceeding is, in my view, inimical to that responsibility.
For these reasons, I respectfully dissent.
[1] Double E Pipeline, LLC, 173 FERC ¶ 61,074 (2020) (Certificate Order).
[2] 15 U.S.C. § 717f (2018).
[3] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.
[4] See Pub. Utils. Comm’n of Cal. v. FERC, 900 F.2d 269, 281 (D.C. Cir. 1990) (The public interest standard under the NGA includes factors such as the environment and conservation, particularly as decisions concerning the construction, operation, and transportation of natural gas in interstate commerce “necessarily and typically have dramatic natural resource impacts.”).
[5] Certificate Order, 173 FERC ¶ 61,074 at P 3 nn.5 & 7; id. P 34 (explaining that “it is current Commission policy to not look beyond precedent or service agreements to ‘determine whether customer commitments represent genuine growth in market demand’” (quoting Certification of New Interstate Nat. Gas Pipeline Facilities, 88 FERC ¶ 61,227, at 61,744 (1999) (Certificate Policy Statement));
[6] Certificate Policy Statement, 88 FERC at 61,747 (“[T]he Commission will consider all relevant factors reflecting on the need for the project. These might include, but would not be limited to, precedent agreements, demand projections, potential cost savings to consumers, or a comparison of projected demand with the amount of capacity currently serving the market.”).
[7] Id. at 61,744.
[8] Id. at 61,747.
[9] Certificate Order, 173 FERC ¶ 61,074 at P 35 (finding “we are satisfied that the 10-year, firm precedent agreements for approximately 74% of the project’s capacity adequately demonstrates that the project it needed”).
[10] Double E Pipeline Project Environmental Assessment (EA) at 115 & tbls. B-11, B-12; see Certificate Order, 173 FERC ¶ 61,074 at P 101.
[11] Certificate Order, 173 FERC ¶ 61,074 at P 148; EA at 142.
[12] Certificate Order, 173 FERC ¶ 61,074 at P 149.
[13] The Conservations Groups’ filed a late motion to intervene on April 23, 2020, during the comment period for the Double E Pipeline EA. On May 22, 2020, the Commission issued a notice denying the motion.
[14] Notice of Availability of the Environmental Assessment for the Proposed Double E Pipeline Project, Docket No. CP19-495-000, at 3 (filed Mar. 24, 2020).
[15] Id.
[16] Conservation Groups Motion for Late Intervention at 14-21.
[17] Certificate Order, 173 FERC ¶ 61,074 at P 24.