Items C-2, C-3 and C-4: Commissioner Christie’s Concurrence in Columbia Gulf Transmission, Tenn. Gas Pipeline and Iroquois Gas Transmission System

Commissioner Mark C. Christie Statement
March 25, 2022
Docket Nos. CP20-50-000, et. al.
Orders: C-2, C-3 and C-4

I concur with the order.  I am entering essentially the same concurrence in this matter as in two other certificate cases that the Commission approves today.[1]  The fundamental issues I address are substantially the same in all three cases.

“Judges are not policymakers,” says D.C. Circuit Court of Appeals judge and U.S. Supreme Court nominee Ketanji Brown Jackson.[2]  I agree, and would add:  judges should not be policymakers—certainly not on major questions of public policy, which in any liberal democracy worth the name are questions reserved to legislators elected by the people.

The nation’s response to climate change is obviously just such a major policy question.  Reducing greenhouse gas (GHG) emissions because of their climate impact is a compelling national policy goal, but how the goal is pursued will affect the lives of literally all Americans because energy policy is also economic policy and national security policy.  Whichever carbon policies are chosen will forcibly redistribute trillions of dollars, will affect the jobs of tens of millions of American workers, and will impact every American family’s ability to afford to heat their homes and pay their monthly power bills (and whether that power is reliable).  The choice of carbon policies will determine whether thousands of communities in the energy-producing regions of this country are impoverished with no hope of recovering vitality in the lifetimes of their residents or their children.  Carbon policies will affect even the country’s national security, as recent events in Ukraine and Europe illustrate.

So, determining these monumentally important questions of public policy is for elected legislators, not unelected judges, and not for unelected administrative agencies such as this one, unless Congress has unambiguously given the agency clear authority and specific direction to implement a policy regarding GHG emissions and their impact on global climate change.  Suffice it to say, Congress has not given this Commission the requisite specific authority or guidance.

It is highly likely that at least one, if not all, of these three certificates we approve today[3] will be appealed, most likely to the D.C. Circuit, the forum of choice for those seeking to overturn FERC approvals of certificates for pipelines or to have them remanded on procedural grounds, delaying the projects and increasing their costs and already daunting uncertainties.  As I noted in my dissent to the two certificate policy statements approved last month[4] and suspended today,[5] it is undeniable that there is a well-funded national campaign of legal warfare (“lawfare”) that seeks to achieve the policy goal of eliminating the use of natural gas by using administrative agencies and courts to prevent the construction of pipelines and related infrastructure, such as compressor stations, which are essential to transport natural gas from producers to consumers.[6]  This campaign does not need to win all its challenges to gas facilities; simply by challenging permits in every available administrative and judicial forum, whether it wins or loses an individual case, it drives up the costs of even seeking a permit to construct a facility, thus deterring any future projects.[7] 

Citing this national legal campaign against natural gas is relevant because it illustrates that the debates attendant to FERC’s duties and authorities in certificate cases are really about policy, not law.  Groups opposed to the use of natural gas and all fossil fuels certainly have the right under the First Amendment to advocate for such policies, but the decision to ban the use of natural gas or prevent the construction of any new natural gas facilities is a major question of public policy by any measure, and thus is a decision that must be made by the elected legislature.  With that relevant context in mind, let me note the following specific to these cases.

With regard to the Commission’s NEPA duties, in all three cases they have been performed to the standards the courts have set for this Commission.  NEPA, as has been stated many times, is a procedural statute that requires the agency to fully inform itself and the public of the environmental consequences of its decisions.  As the D.C. Circuit itself said in Sabal Trail, NEPA is “primarily information-forcing,” and courts should not “flyspeck” an agency’s environmental analysis.[8]  The Supreme Court has said that it also is “well-settled that NEPA does not mandate particular results, but simply prescribes the necessary process . . .  NEPA merely prohibits uninformed—rather than unwise—agency action.”[9]  In all three cases herein both an Environmental Assessment (EA) and a much more costly and time-consuming Environmental Impact Statement (EIS) was performed.  Regardless of whether conducting an EIS after the EA had already been performed was necessary or appropriate, there is no question here that the Commission has fulfilled its duties under NEPA.  The EIS was done and it was done professionally by Commission staff exercising their special expertise.

In all three cases, the EIS included estimates of the quantity of GHG emissions that would be directly caused by the facility’s construction and operation.[10]  In the two pipeline cases, since both serve LNG export facilities, no estimate of downstream indirect impacts was required.[11]  In the compressor case, the EIS estimated downstream GHG emissions as 2.41 metric tons per year.[12]  

Now we come to one of the fundamental questions which will likely be relevant on appeal.  Should or even can the Commission credibly characterize the impact of estimated GHG emissions from a single facility on global climate change?  And since there is no separate climate for Louisiana, Mississippi or Texas, nor even for the United States, there can only be an impact to consider on global climate.  The answer to this question is self-evidently no, the Commission cannot credibly gauge the impact on the global climate from a single facility.  The Commission can estimate a quantity of GHG emissions in terms of tonnage directly from a facility.  That is within our wheelhouse, and it can and should be used to order mitigation of direct emissions.  And to satisfy the D. C. Circuit’s decision in Appalachian Voices,[13] incorporating the Sabal Trail “reasonably foreseeable” requirement, the Commission can meet its NEPA duties by providing an upper bound estimate of the quantity in tonnage of indirect downstream GHG emissions. 

But estimating a quantity of GHG emissions, direct or indirect, is fundamentally different from predicting the impact of that tonnage on global climate change or making a finding whether the impacts on global climate are “significant” or insignificant.[14]  Any such prediction or finding would have no intellectual rigor whatsoever and certainly should not be used to reject a natural gas facility that would otherwise be found needed to serve the public under the Natural Gas Act.  And let’s be honest:  that is really the end game of those advocating for FERC to characterize a facility’s GHG impacts on global climate.  This is obviously true since FERC has no jurisdiction whatsoever over upstream or downstream actors and has no authority to order mitigation of downstream (or upstream) emissions.  Thus, outright rejection of the facility will have to be among the remedies on the table if global climate impacts are found to be “significant.” 

To illustrate how unhinged from reality rejection of a certificate due to the alleged global climate impacts would be, consider that FERC has, of course, no jurisdiction over other countries which are also affecting climate change. For example, currently the power capacity of China’s massive fleet of coal-fired generating stations is alone roughly equal to the total installed generation capacity of the entire U.S. power system, and China is moving forward with plans to expand that already huge coal fleet by another 25%, many of which are already under construction.[15]  Nor is China alone in continuing to expand, not retire, coal-fired generation.  Other countries, including India, Vietnam and Indonesia, have plans to build more coal generation.[16]  Compared to the volume of climate-impacting GHG emissions continuously being produced by the coal fleets of China, India and other large consumers of power, any purported GHG impacts that can be ascribed to a single natural gas pipeline in the United States is, quite literally, infinitesimal.[17]   

And that brings us to the central issue:  Reading into the Natural Gas Act the power for FERC to reject a natural gas facility otherwise needed to serve the public, based on a purported impact of the facility on the global climate, is a public policy decision of immense magnitude.  Telling FERC it has the authority, even the duty, to do so is a public policy decision of equally immense magnitude.  It will affect the lives and livelihoods of tens of millions of American families and the country’s energy, economic and national security.  As Judge Brown Jackson said, “Judges are not policymakers.”  Nor should they be. 

For these reasons, I respectfully concur.