Commissioner James Danly Statement
March 24, 2022
Docket Nos. CP15-554-004, et al.
I concur with the decision to approve the Restoration Plans filed by Eastern Gas Transmission and Storage, Inc. and Atlantic Coast Pipeline, LLC.[1]
I write to express that I would have departed from Northern Natural Gas Company[2] and reaffirmed the Commission’s prior position that “[w]ithout an accepted methodology, the Commission cannot make a finding whether a particular quantity of greenhouse gas emissions poses a significant impact on the environment, whether directly or cumulatively with other sources, and how that impact would contribute to climate change.”[3] This is because, as the Commission has stated, it is unable to connect a particular project’s greenhouse gas (GHG) emissions to discrete, physical effects on the environment.[4] The Council on Environmental Quality (CEQ) has made a similar statement.[5] And the Commission’s now-draft Interim GHG Policy Statement[6] does not alter these determinations.[7]
Moreover, there is no standard by which the Commission could, consistent with our obligations under the law, ascribe significance to a particular rate or volume of GHG emissions.[8] My colleagues’ failed attempt to unilaterally establish their own significance threshold demonstrates just that. Finding no standard upon which they could properly rely, my colleagues simply picked a number—one which, I understand, was not offered in any of the more than 35,000 comments[9]—and attempted to justify that arbitrary number with rationales that were either irrelevant to the issue of environmental harm or were not supported by the record.[10]
Project sponsors are now left wondering whether the Commission’s departure from Northern is temporary, and if so, for how long. And while it would normally be prudent to plan for its return, how does one plan for a policy that creates a test with no standards?[11] I suppose, given recent issuances, that project sponsors at least now know that the Commission will not assess whether the project has a significant impact on climate change when the project will result in a net reduction of GHG emissions. Nor will the Commission calculate the social cost of carbon from project emissions in those circumstances. I cannot help but wonder if the Commission offers this lone island of certainty in a maneuver to encourage the development of a certain type of project or GHG mitigation plan.
In addition, I write separately to note that this order contains multiple oddities. First, the Commission unilaterally declares “[a]ll intervenors in the previous proceedings for the projects are considered intervenors in this proceeding, regardless of whether they filed an additional motion to intervene.”[12] Can it be that the Commission has such power?[13]
Second, the Commission offers its view on the scope of the eminent domain provision in NGA section 7 “for the information of landowners and perhaps any court presented with the question.”[14] It does so despite having repeatedly declined to weigh in on whether temporary certificates confer eminent domain authority in Spire STL Pipeline LLC[15] because that issue went “to the scope of section 7(h)—a provision that gives courts a particular implementing role—[which is] is an issue better resolved by the courts than the Commission.”[16] I cannot fathom the distinction between these two proceedings or what would have led to the Commission’s abandonment of its earlier circumspection.
For these reasons, I respectfully concur in the judgment.
[1] Atl. Coast Pipeline, LLC, 178 FERC ¶ 61,201 (2022).
[2] N. Nat. Gas Co., 174 FERC ¶ 61,189, at PP 29-36 (2021) (Danly, Comm’r, concurring in part and dissenting in part) (Northern).
[3] Dominion Transmission, Inc., 163 FERC ¶ 61,128, at P 67 (2018) (citation omitted).
[4] See, e.g., Nat. Fuel Gas Supply Corp., 158 FERC ¶ 61,145, at P 188 (2017).
[5] See CEQ, Draft [National Environmental Policy Act (NEPA)] Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions, at P 3 (2010), https://obamawhitehouse.archives.gov/sites/default/files/microsites/ceq/20100218-nepa-consideration-effects-ghg-draft-guidance.pdf (“it is not currently useful for the NEPA analysis to attempt to link specific climatological changes, or the environmental impacts thereof, to the particular project or emissions, as such direct linkage is difficult to isolate and to understand.”).
[6] See Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Reviews (Interim GHG Policy Statement), 178 FERC ¶ 61,108 (2022) (Danly, Comm’r, dissenting at P 22) (“And while it is not acknowledged at all in the Interim Policy Statement’s procedural history, the Commission has repeatedly stated that ‘it cannot determine a project’s incremental physical impacts on the environment caused by GHG emissions,’ and CEQ has made similar statements.”) (citations omitted).
[7] See Certification of New Interstate Natural Gas Facilities, 178 FERC ¶ 61,197 (2022) (order making the Interim GHG Policy Statement and the Updated Certificate Policy Statement [Certification of New Interstate Natural Gas Facilities, 178 FERC ¶ 61,107 (2021) (Updated Certificate Policy Statement)] draft policy statements).
[8] See, e.g., Mountain Valley Pipeline, LLC, 163 FERC ¶ 61,197, at P 292 (2018).
[9] Interim GHG Policy Statement, 178 FERC ¶ 61,108 at P 19.
[10] Id. (Danly, Comm’r, dissenting at PP 33-34).
[11] See Northern, 174 FERC ¶ 61,189 (Danly, Comm’r, concurring in part and dissenting in part at PP 15-16); id. 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”).
[12] Atl. Coast Pipeline, LLC, 178 FERC ¶ 61,201 at P 17.
[13] But see 18 C.F.R. § 385.214(a)(1) (“The Secretary of Energy is a party to any proceeding upon filing a notice of intervention in that proceeding.”) (emphasis added).
[14] Atl. Coast Pipeline, LLC, 178 FERC ¶ 61,201 at P 22.
[15] Spire STL Pipeline LLC, 177 FERC ¶ 61,114, at P 10 (2021) (Danly, Comm’r, dissenting); Spire STL Pipeline LLC, 178 FERC ¶ 61,109, at P 10 (2022) (Danly, Comm’r, concurring in part and dissenting in part).
[16] Spire STL Pipeline LLC, 177 FERC ¶ 61,114 at P 10; see 15 U.S.C. § 717f(h).