In Vecinos para el Bienestar de la Comunidad Costera v. FERC, the U.S. Court of Appeals for the District of Columbia Circuit held that “the Commission's analyses of the [Rio Bravo and Texas LNG projects’] impacts on climate change and environmental justice communities were deficient,” and directed the Commission on remand to “revisit its determinations of public interest and convenience under Sections 3 and 7 of the NGA” after adequately considering those issues. With today’s order, we have provided a full response to both deficiencies identified by the Court.
First, with respect to climate change, the Court held that the Commission did not adequately respond to arguments regarding why it should deploy the Social Cost of Carbon. In response, consistent with recent precedent, we have included the Social Cost of Carbon figures in today’s order.
Second, with respect to environmental justice, the Court held that the Commission did not adequately explain its method for identifying environmental justice communities potentially affected by the projects. In response, we have conducted a full review of the projects’ impacts on environmental justice communities. Throughout 2022, Commission staff issued multiple data requests to gather information on the projects’ potential impacts on environmental communities within 50 kilometers of the facilities. In addition, we provided all stakeholders an opportunity to comment on the information submitted in those data requests, including what that information meant for environmental justice communities. While I recognize that certain of my colleagues would have preferred more process or less, I believe that the record assembled throughout the last year is an appropriate middle ground that represents an adequate basis to fully consider the issues the Court remanded to us in Vecinos nearly two years ago.
And we did just that. Today’s order conducts a full environmental justice examination using our current methods, which are consistent with EPA and CEQ guidance. As part of that investigation, and in direct response to the Court, we identified all environmental justice communities within 50 kilometers of the projects, as opposed to just those within the 2-mile radius considered in the initial orders. We then analyzed each project impact on affected EJ communities. As part of that full examination and due to required mitigation, we affirmed our earlier conclusion that the projects’ impacts would be less than significant.
To that point, today’s order takes an unprecedented and bipartisan step to protect environmental justice communities from potential concerns about the projects’ effects on air quality. Because portions of the projects will enter service before construction is entirely completed, there is the potential that those overlapping activities could, in connection with other background emissions, contribute to an exceedance of the National Ambient Air Quality Standards (NAAQS) for certain pollutants. To mitigate that concern, the Commission is, for the first time, sua sponte, requiring the projects’ sponsors to file a plan to ensure that the overlapping construction and operation of project do not cause any exceedance of the NAAQS. That measure allows the Commission to conclude that the projects will not have any significant air quality impacts on environmental justice communities.
In addition, at a broader level, this mitigation illustrates how the Commission is making progress on the critically important issue of cumulative impacts. At the Commission’s March 29, 2022 Roundtable on Environmental Justice and Equity in Infrastructure Permitting, we heard from several stakeholders, including community groups, about the importance of considering cumulative impacts—i.e., not just the air emissions directly caused by a particular project, but also those emissions in conjunction with the emissions from other sources within the region. Today’s order takes a critical step toward addressing that concern by requiring that the project sponsors develop a plan to ensure that incremental emissions impacts associated with these projects, on top of all sources, do not cause a NAAQS exceedance, thereby helping to protect communities, including environmental justice communities, that may venture near the projects.