Statement of Commissioner James P. Danly
June 9, 2023
CP19-502-002
I agree with today’s order and write separately for two reasons.
First, I draw to the reader’s attention my separate statement to the underlying Authorization Order.[1] While I did not agree with the entirety of the Authorization Order, I agreed on the most important aspect of the order: the decision to grant Commonwealth LNG, LLC’s Natural Gas Act (NGA)[2] authorization to site, construct, and operate a natural gas liquefaction and export facility, including an NGA section 3 natural gas pipeline, in Cameron Parish, Louisiana (Commonwealth LNG Project).[3] In today’s order, “the result [is] sustained”[4]—a decision with which I also agree.
Second, I wish to emphasize the standard under NGA section 3 which is that “[t]he Commission shall issue such order upon application, unless, after opportunity for hearing, it finds that the [proposal] will not be consistent with the public interest.”[5] In applying this standard, “[t]he NGA ‘sets out a general presumption favoring . . . authorization.’”[6] It therefore follows that, to overcome this presumption, such that the application is denied, “there must be ‘an affirmative showing of inconsistency with the public interest.’”[7]
The Supreme Court has explained that the inclusion of the term “public interest” in our statute is not “a broad license to promote the general public welfare”—instead, it “take[s] meaning from the purposes of the regulatory legislation.”[8] As to the “meaning” and “purposes” of the NGA, the Supreme Court has instructed us in unambiguous terms that the purpose of the NGA is “to encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”[9] Moreover, NGA section 3(c) provides that the exportation of gas to Free Trade Agreement nations “shall be deemed to be consistent with the public interest.”[10] The Commission’s application of the foregoing is consistent with the NGA. Simply put, there has been no showing that the Commonwealth LNG Project will “not be consistent with the public interest.”[11] The Commission need not confect complicated rubrics or analytical frameworks to arrive at its determinations; such acrobatics are unnecessary.
For these reasons, I respectfully concur.
[1] Commonwealth LNG, LLC, 181 FERC ¶ 61,143 (2022) (Authorization Order) (Danly, Comm’r, concurring in the judgment).
[2] See 15 U.S.C. § 717b.
[3] Commonwealth LNG, LLC, 181 FERC ¶ 61,143 (Danly, Comm’r, concurring in the judgment at P 1).
[4] Commonwealth LNG, LLC, 183 FERC ¶ 61,173, at Ordering Para. (2023).
[5] 15 U.S.C. § 717b(a) (emphasis added).
[6] Ctr. for Biological Diversity v. FERC, 67 F.4th 1176, 1188 (D.C. Cir. 2023) (quoting W. Va. Pub. Servs. Comm’n v. Dep’t of Energy, 681 F.2d 847, 856 (D.C. Cir. 1982)); accord Sierra Club v. United States Dep’t of Energy, 867 F.3d 189, 203 (D.C. Cir. 2017) (Freeport) (“We have construed this as containing a ‘general presumption favoring . . . authorization.’”) (citation omitted).
[7] Freeport, 867 F.3d at 203.
[8] NAACP v. Fed. Power Comm’n, 425 U.S. 662, 669 (1976) (NAACP).
[9] Id. at 669-70 (citations omitted); accord Myersville Citizens for a Rural Cmty. v. FERC, 783 F.3d 1301, 1307 (D.C. Cir. 2015) (quoting NAACP, 425 U.S. at 669-70). I note that the Supreme Court has also recognized the Commission has authority to consider “other subsidiary purposes,” such as “conservation, environmental, and antitrust questions.” NAACP, 425 U.S. at 670 & n.6 (citations omitted). But all subsidiary purposes are, necessarily, subordinate to the statute’s primary purpose.
[10] 15 U.S.C. § 717b(c).
[11] Id. § 717b(a).