Commissioner Richard Glick Statement
March 25, 2020
Docket No. CP16-357-001
Dissent in Part Regarding Columbia Gas Transmission, LLC, and Columbia Gulf Transmission, LLC
I dissent in part from today’s order on rehearing because I believe that the Commission’s action violates both the Natural Gas Act1 (NGA) and the National Environmental Policy Act2(NEPA). The Commission once again refuses to consider the consequences its actions have for climate change. Although neither the NGA nor NEPA permit the Commission to assume away the climate change implications of constructing and operating this project, that is precisely what the Commission is doing here.
In today’s order, the Commission denies rehearing of its order authorizing Columbia Gas Transmission, LLC’s (Columbia Gas) Mountaineer Xpress and Gulf Xpress Projects (Projects), and refuses to consider whether the Projects’ contribution to climate change from GHG emissions would be significant.3 Even though it quantifies the direct GHG emissions from the Projects’ construction and operation,4 as well as some of the Projects’ indirect GHG emissions,5 the Commission nonetheless insists that these emissions are not reasonably foreseeable and that it is not obligated to determine whether the resulting harm from climate change is significant.6 That failure forms an integral part of the Commission’s decisionmaking: The refusal to assess the significance of the Projects’ contribution to the harm caused by climate change is what allows the Commission to misleadingly state that, with certain exceptions, the Projects’ environmental impacts “will be reduced to less-than-significant levels,” 7 and, as a result, conclude that the Projects’ are required by the public convenience and necessity.8 Claiming that the Projects’ environmental impacts will be “less-than-significant” while at the same time refusing to assess the significance of the Projects’ impact on the most important environmental issue of our time is not reasoned decisionmaking.
Making matters worse, the Commission refuses to make a serious effort to assess the full scope of the Projects’ indirect GHG emissions, in particular the GHG emissions from upstream production of the natural gas transported over the Projects’ incremental transportation capacity. Rather than estimate these emissions or ask applicants for more information, the Commission instead points to the fact that the record simply “does not have” this information.9 Unlike many of the challenges that our society faces, we know with certainty what causes climate change: It is the result of GHG emissions, including carbon dioxide and methane, which can be released in large quantities through the production and the consumption of natural gas. The Commission recognizes this relationship, finding, as it must, that the Projects’ GHG emissions “would increase the atmospheric concentration of GHGs, in combination with past and future emission from all other sources, and contribute incrementally to climate change.”10 In light of this undisputed relationship between anthropogenic GHG emissions and climate change, the Commission must carefully consider the Projects’ contribution to climate change, both in order to fulfill NEPA’s requirements and to determine whether the Projects are required by the public convenience and necessity under the NGA.11
The Commission’s Public Interest Determination Is Not the Product of Reasoned Decisionmaking
As part of its public interest determination, the Commission must examine the Projects’ impact on the environment and public safety, which includes the facilities’ impact on climate change.12 That is now clearly established D.C. Circuit precedent.13 In today’s order on rehearing, the Commission falls short of that standard, insisting instead that it need not consider whether the Projects’ contribution to climate change is significant because, simply put, it “cannot.”14 However, the most troubling part of the Commission’s rationale is what comes next. Based on this alleged inability to assess significance, the Commission concludes that the Projects’ impacts will generally be reduced to “less-than-significant” levels.15 Think about that. The Commission is simultaneously stating that it cannot assess the significance of the Projects’ impact on climate change, while concluding that all environmental impacts are acceptable to the public interest.16 That is unreasoned and an abdication of our responsibility to give climate change the “hard look” that the law demands.17
It also means that the Projects’ impact on climate change does not play a meaningful role in the Commission’s public interest determination, no matter how often the Commission assures us that it does. Using the approach in today’s order, the Commission will always conclude that a project will not have a significant environmental impact irrespective of that project’s actual GHG emissions or those emissions’ impact on climate change. If the Commission’s conclusion will not change no matter how many GHG emissions a project causes, those emissions cannot, as a logical matter, play a meaningful role in the Commission’s public interest determination. A public interest determination that systematically excludes the most important environmental consideration of our time is contrary to law, arbitrary and capricious, and not the product of reasoned decisionmaking.
Commissioner McNamee argues that the D.C. Circuit cases cited above18 were wrongly decided.19 Although that is his prerogative, it is irrelevant to the task before us. As he has explained, we are called on to apply the law and the facts, not our personal policy preferences. But surely, implicit in that statement, is a recognition that we must apply the law as it is, not as we wish it were. The D.C. Circuit has unambiguously interpreted the “public convenience and necessity” standard in section 7 of the NGA to encompass the authority to consider and, if appropriate, act upon “the direct and indirect environmental effects” of a proposed pipeline.20 As Commissioners, our job is to apply that law, not to attack binding judicial precedent in favor of an interpretation that was, in fact, expressly rejected by the court.21
The Commission’s NEPA Analysis of the Projects’ Contribution to Climate Change Is Deficient
The Commission’s NEPA analysis is similarly flawed. In order to evaluate the environmental consequences of the Projects under NEPA, the Commission must consider the harm caused by the Projects’ GHG emissions and “evaluate the ‘incremental impact’ that these emissions will have on climate change or the environment more generally.”22 Today’s order quantifies the GHG emissions caused by the Projects’ operation and construction, as well as some of the Projects’ indirect GHG emissions caused by the downstream consumption of natural gas transported over the project facilities.23 But the Commission nevertheless refuses to consider the Projects’ upstream and downstream GHG emissions as indirect effects, instead adopting an overly narrow and circular definition of indirect effects24 and disregarding the Projects’ central purposeto facilitate natural gas production and consumption.25 The Commission cannot ignore the fact that adding transportation capacity is likely to “spur demand,”26 and, for that reason, it must examine the effects adding incremental transportation capacity might have on production and consumption.27 Indeed, if a proposed pipeline neither increases the supply of natural gas available to consumers nor decreases the price that those consumers would pay, it is hard to imagine why that pipeline would be “needed” in the first place.
Although quantifying the Projects’ GHG emissions is a necessary step toward meeting the Commission’s NEPA obligations, simply reporting the volume of emissions is insufficient.28 In Sabal Trail, the court explained that the Commission was required “to include a discussion of the ‘significance’ of” the indirect effects of the Project, including its GHG emissions.29 That makes sense. Identifying and evaluating the consequences that a project’s GHG emissions may have for climate change is essential if NEPA is to play the disclosure and good government roles for which it was designed.30 But in today’s order on rehearing, the Commission refuses to provide that discussion or even attempt to assess the significance of the Projects’ GHG emissions or how they contribute to climate change. It is hard to see how hiding the ball by refusing to assess the significance of the Projects’ climate impacts is consistent with either of those purposes.
In addition, under NEPA, a finding of significance informs the Commission’s inquiry into potential ways of mitigating environmental impacts.31 An environmental review document must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts.32 “Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects” of a project, making an examination of possible mitigation measures necessary to ensure that the agency has taken a “hard look” at the environmental consequences of the action at issue.33
Instead, the Commission continues to insist that it need not assess the significance of the Projects’ GHG emissions because it lacks a “standard methodology” to “determine how a specific project’s contribution to [GHG] emissions would translate into physical effects on the environment.”34 But that does not excuse the Commission’s failure to evaluate these emissions. As an initial matter, the lack of a single methodology does not prevent the Commission from adopting a methodology, even if that methodology is not universally accepted. The Commission has several tools to assess the harm from the Projects’ contribution to climate change, including, for example, the Social Cost of Carbon. By measuring the long-term damage done by a ton of carbon dioxide, the Social Cost of Carbon links GHG emissions to actual environmental effects from climate change, thereby facilitating the necessary “hard look” at the Projects’ environmental impacts that NEPA requires. Especially when it comes to a global problem like climate change, a measure for translating a project’s climate change impacts into concrete and comprehensible terms plays a useful role in the NEPA process by putting the harms from climate change in terms that are readily accessible for both agency decisionmakers and the public at large. The Commission, however, continues to ignore the tools at its disposal, relying on deeply flawed reasoning that I have previously critiqued at length.35
Regardless of tools or methodologies available, the Commission also can use its expertise to consider all factors and determine, quantitatively or qualitatively, whether the Projects’ GHG emissions have a significant impact on climate change. That is precisely what the Commission does in other aspects of its environmental review. Consider, for example, the Commission’s findings that the Projects will not have a significant effect on issues as diverse as “land use,”36 “visual resources,”37 and “socioeconomics.”38 Notwithstanding the lack of any standard or “universally accepted methodology” to assess these impacts, the Commission managed to use its judgment to conduct a qualitative review, and assess the significance of the Projects’ effect on those considerations. The Commission’s refusal to, at the very least, exercise similar qualitative judgment to assess the significance of GHG emissions here is arbitrary and capricious.39
That refusal is even more mystifying because NEPA “does not dictate particular decisional outcomes.”40 NEPA “‘merely prohibits uninformedrather than unwiseagency action.’”41 In other words, taking the matter seriouslyand rigorously examining a project’s impacts on climate changedoes not necessarily prevent any Commissioner from ultimately concluding that a project meets the public interest standard.
Even if the Commission were to determine that a project’s GHG emissions are significant, that would not be the end of the inquiry nor would it mean that the project is not in the public interest. Instead, the Commission could require mitigationas the Commission often does with regard to other environmental impacts. The Supreme Court has held that, when a project may cause potentially significant environmental impacts, the relevant environmental impact statement must “contain a detailed discussion of possible mitigation measures” to address adverse environmental impacts.42 The Court explained that, “[w]ithout such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects” of a project, making an examination of possible mitigation measures necessary to ensure that the agency has taken a “hard look” at the environmental consequences of the action at issue.43 The Commission not only has the obligation to discuss mitigation of adverse environmental impacts under NEPA, but also the authority to condition certificates under section 7 of the NGA,44 which could encompass measures to mitigate a project’s GHG emissions.
Furthermore, a rigorous examination and determination of significance regarding climate change impacts would bolster any finding of public interest by providing the Commission a more complete set of information necessary to weigh benefits against adverse effects. By refusing to assess significance, however, the Commission short circuits any discussion of mitigation measures for the Projects’ GHG emissions, eliminating a potential pathway for us to achieve consensus on whether the Projects are consistent with the public interest.
Today’s order on rehearing is not the product of reasoned decisionmaking. Its analysis of the Projects’ contribution to climate change is shoddy and its conclusion that the Projects will not have any significant environmental impacts is illogical. After all, the Commission itself acknowledges that the Projects will contribute to climate change, but refuses to consider whether that contribution might be significant before proclaiming that the Projects will have no significant environmental impacts. So long as that is the case, the record simply cannot support the Commission’s conclusion that there will be no significant environmental impacts. Simply put, the Commission’s analysis of the Projects’ consequences for climate change does not represent the “hard look” that the law requires.
For these reasons, I respectfully dissent in part.
- 1 15 U.S.C. § 717f (2018).
- 2 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.
- 3 Columbia Gulf Transmission, LLC, 170 FERC ¶ 61,246, at P 53 (2020) (Rehearing Order); see also id. PP 47, 51. While I supported the Commission’s original decision to authorize this certificate, the Commission has since changed its policy, refusing to consider the significance of the environmental harm caused by a pipeline’s contribution to climate change in its public interest determination. Accordingly, I have no choice but to dissent from today’s order on rehearing.
- 4 See Columbia Gulf Transmission, LLC, 161 FERC ¶ 61,314, at P 114 (2017) (Certificate Order); Mountaineer Xpress Project and Gulf Xpress Project Environmental Impact Statement at § 18.104.22.168 Tables 4.11-44.11.9 (EIS).
- 5 Certificate Order, 161 FERC ¶ 61,314 at P 115 (“recogniz[ing] the availability of a reasonable EPA-developed methodology to estimate the downstream GHG emissions from a project, assuming all of the gas is eventually combusted” and estimating the “total annual downstream emissions of GHG” “from the end-use combustion of the natural gas to be transported by the projects” to be 52.3 million metric tons per year of CO2); EIS at 4-3744-375 (estimating that the “downstream end-use could result in about 52.3 million metric tons of carbon dioxide per year”). In the Certificate Order, the Commission explained that “[t]he 52.3 million metric tons of GHG emissions would result in about a 3 percent increase in GHG emissions from fossil fuel combustion in states served by the systems at the delivery points, and a 1 percent increase in national emissions. Certificate Order, 161 FERC ¶ 61,314 atP 115 & n.125 (relying on data obtained from the U.S. Energy Information Administration, State Carbon Dioxide Emissions Data (October, 2017), https://www.eia.gov/environment/emissions/state/).
- 6 Rehearing Order, 170 FERC ¶ 61,246 at PP 49, 51, 53.
- 7 Certificate Order, 169 FERC ¶ 61,230 at P 64 (determining that the Projects’ impacts on the majority of environmental resources will be “less-than-significant,” while recognizing that the Projects will have significant impacts to core forest areas and forest habitats).
- 8 Certificate Order, 169 FERC ¶ 61,230 at PP 41, 125; see also Rehearing Order, 170 FERC ¶ 61,246 at P 1.
- 9 Rehearing Order, 170 FERC ¶ 61,246 at P 47.
- 10 EIS at 4-375.
- 11 Section 7 of the NGA requires that, before issuing a certificate for new pipeline construction, the Commission must find both a need for the pipeline and that, on balance, the pipeline’s benefits outweigh its harms. 15 U.S.C. § 717f. Furthermore, NEPA requires the Commission to take a “hard look” at the environmental impacts of its decisions. See 42 U.S.C. § 4332(2)(C)(iii); Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). This means that the Commission must consider and discuss the significance of the harm from a pipeline’s contribution to climate change by actually evaluating the magnitude of the pipeline’s environmental impact. Doing so enables the Commission to compare the environment before and after the proposed federal action and factor the changes into its decisionmaking process. See Sierra Club v. FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sabal Trail) (“The [FEIS] needed to include a discussion of the ‘significance’ of this indirect effect.”); 40 C.F.R. § 1502.16 (a)(b) (An agency’s environmental review must “include the environmental impacts of the alternatives including the proposed action,” as well as a discussion of direct and indirect effects and their significance. (emphasis added)).
- 12 See Sabal Trail, 867 F.3d at 1373 (explaining that the Commission must consider a pipeline’s direct and indirect GHG emissions because the Commission may “deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment”); see also Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959) (holding that the NGA requires the Commission to consider “all factors bearing on the public interest”).
- 13 See Allegheny Def. Project v. FERC, 932 F.3d 940, 945-46 (D.C. Cir. 2019), reh’g en banc granted, judgment vacated, 2019 WL 6605464 (D.C. Cir. Dec. 5, 2019); Birckhead v. FERC, 925 F.3d 510, 518-19 (D.C. Cir. 2019); Sabal Trail, 867 F.3d at 1371-72.
- 14 EIS at 4-3744-375; see also Rehearing Order, 170 FERC ¶ 61,246 at PP 53-55.
- 15 Certificate Order, 161 FERC ¶ 61,314 at P 64; EIS at ES-19ES-20.
- 16 Certificate Order, 161 FERC ¶ 61,314 at P 125.
- 17 E.g., Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015) (“[A]gencies cannot overlook a single environmental consequence if it is even “arguably significant.”); see Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (“Not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” (internal quotation marks omitted)); see also Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (explaining that agency action is “arbitrary and capricious if the agency has . . . entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency”).
- 18 Supra notes 12-13.
- 19 See Rehearing Order, 170 FERC ¶ 61,246 (McNamee, Comm’r, concurring at PP 13-14).
- 20 E.g., Sabal Trail, 867 F.3d at 1373.
- 21 Id.; see Birckhead, 925 F.3d at 519 (explaining that in “the pipeline certification context the Commission does have statutory authority to act” on the reasonably foreseeable GHG emissions caused by the pipeline (citing Sabal Trail, 867 F.3d at 1373)).
- 22 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th Cir. 2008); WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 51 (D.D.C. 2019) (explaining that the agency was required to “provide the information necessary for the public and agency decisionmakers to understand the degree to which [its] decisions at issue would contribute” to the “impacts of climate change in the state, the region, and across the country”).
- 23 See supra notes 4-5.
- 24 See San Juan Citizens All. et al. v. U.S. Bureau of Land Mgmt., No. 16-CV-376-MCA-JHR, 2018 WL 2994406, at *10 (D.N.M. June 14, 2018) (holding that it was arbitrary for the Bureau of Land Management to conclude “that consumption is not ‘an indirect effect of oil and gas production because production is not a proximate cause of GHG emissions resulting from consumption’” as “this statement is circular and worded as though it is a legal conclusion”). The Commission must use its “best efforts” to identify and quantify the full scope of the environmental impacts and, as the U.S. Court of Appeals for the District of Columbia found in Sierra Club v. FERC, educated assumptions are inevitable in the process of emission quantification. See Sabal Trail, 867 F.3d at 1374.
- 25 Columbia Gas Transmission, LLC, Application for Certificate of Public Convenience and Necessity, Docket No. CP16-357-000, at 30 (“Recent development of natural gas in the Appalachian basin has outpaced the capability of the current natural gas infrastructure to transport these new gas supplies. Significant quantities of immediately available natural gas cannot be delivered to interstate markets as a result of inadequate interstate pipeline capacity. The Mountaineer XPress Project will help alleviate this serious supply area constraint and ensure that consumers will continue to have access to affordable, reliable supplies of natural gas.”); Columbia Gulf Transmission, LLC, Application for Certificate of Public Convenience and Necessity, Docket No. CP16-361-000, at 21 (The Gulf Xpress Project will “provide natural gas consumers access to prolific, low-cost, domestically-produced natural gas supplies and Columbia Gulf’s customers to new and expanding natural gas consumption markets in the southeast and Gulf Coast.”).
- 26 Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1138-39 (9th Cir. 2011) (holding that it “is completely inadequate” for an agency to ignore a project’s “growth inducing effects” where the project has a unique potential to spur demand).
- 27 As the United States Court of Appeals for the Eighth Circuit explained in Mid States Coal. for Progress v. Surface Transp. Bd.a case that also involved the downstream emissions from new infrastructure for transporting fossil fuelswhen the “nature of the effect” (end-use emissions) is reasonably foreseeable, but “its extent is not” (specific consumption activity producing emissions), an agency may not simply ignore the effect. 345 F.3d 520, 549 (8th Cir. 2003). Even where exact information regarding the source of the gas to be transported is not available to the pipeline developer, the Commission will often be able to produce comparably useful information based on reasonable forecasts of the GHG emissions associated with production. Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1310 (2014) (quoting Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C. Cir. 1973)); see Sierra Club v. U.S. Dep’t of Energy, 867 F.3d 189, 198 (“In determining what effects are ‘reasonably foreseeable,’ an agency must engage in ‘reasonable forecasting and speculation.’”) (quoting Del. Riverkeeper, 753 F.3d at 1310). Forecasting environmental impacts is a regular component of NEPA reviews and a reasonable estimate may inform the federal decisionmaking process even where the agency is not completely confident in the results of its forecast. In determining what constitutes reasonable forecasting, it is relevant to consider the “usefulness of any new potential information to the decisionmaking process.” Sabal Trail, 867 F.3d at 198 (citing Pub. Citizen, 541 U.S. at 767). Similar forecasts can play a useful role in the Commission’s evaluation of the public interest, even in those instances when the Commission must make a number of assumptions in its forecasting process.
In comments submitted in the Commission’s pending review of the natural gas certification process, the Environmental Protection Agency identified a number of tools the Commission can use to quantify the reasonably foreseeable “upstream and downstream GHG emissions associated with a proposed natural gas pipeline.” These include “economic modeling tools” that can aid in determining the “reasonably foreseeable energy market impacts of a proposed project.” U.S. Environmental Protection Agency, Comments, Docket No. PL18-1-000, at 34 (filed June 21, 2018) (explaining that the “EPA has emission factors and methods” available to estimate GHG emissionsfrom activities upstream and downstream of a proposed natural gas pipelinethrough the U.S. Greenhouse Gas Inventory and the Greenhouse Gas Reporting Program); see Certification of New Interstate Natural Gas Facilities, Notice of Inquiry, 163 FERC ¶ 61,042 (2018).
- 28 See Ctr. for Biological Diversity, 538 F.3d at 1216 (“While the [environmental document] quantifies the expected amount of CO2 emitted . . . , it does not evaluate the ‘incremental impact’ that these emissions will have on climate change or on the environment more generally . . . .”); Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 995 (9th Cir. 2004) (“A calculation of the total number of acres to be harvested in the watershed is a necessary component . . . , but it is not a sufficient description of the actual environmental effects that can be expected from logging those acres.”). The Commission points to the D.C. Circuit’s judgment in an unpublished opinion upholding the Commission’s action in Appalachian Voices v. FERC,2019 WL 847199, at *2(D.C. Cir. Feb 2019), to buttress its claim that the Commission need not evaluate and consider the significance of the harm from the Projects’ contribution to climate change. But this effort is unavailing here, where the Commission refuses, without explanation, to qualitatively assess the significance of the Projects’ GHG emissions. The Commission’s refusal to evaluate the Projects’ potential harm due to climate change with the type of qualitative judgment it routinely applies in other similar aspects of its environmental review is arbitrary and capricious. See supra paragraphs 9-10. It also flies in the face of the D.C. Circuit’s admonition in Sabal Trail that the Commission must “discuss the ‘significance’” of the project’s indirect effects. 867 F.3d 1357 at 1374.
- 29 Id.
- 30 See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (explaining that one of NEPA’s purposes is to ensure that “relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision”); Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008) (“The idea behind NEPA is that if the agency’s eyes are open to the environmental consequences of its actions and if it considers options that entail less environmental damage, it may be persuaded to alter what it proposed.”).
- 31 40 C.F.R. § 1502.16 (2018) (NEPA requires an implementing agency to form a “scientific and analytic basis for the comparisons” of the environmental consequences of its action in its environmental review, which “shall include discussions of . . . [d]irect effects and their significance.”).
- 32 Robertson, 490 U.S. at 351
- 33 Id. at 352.
- 34 EIS at 4-375.
- 35 See, e.g.,Transcontinental Gas Pipe Line Co., LLC, 167 FERC ¶ 61,110 (2019) (Glick, Comm’r, dissenting in part at P 6 & n.11) (noting that the Social Cost of Carbon “gives both the Commission and the public a means to translate a discrete project’s climate impacts into concrete and comprehensible terms”); Fla. Se. Connection, LLC, 164 FERC ¶ 61,099 (2018) (Glick, Comm’r, dissenting).
- 36 EIS at 4-358 (The Mountaineer Xpress Project’s “contribution towards cumulative impact on land use, when combined with oil and gas wells, would be noticeable, but not significant.”).
- 37 Id. at 4-361 (The Gulf Xpress Project’s “contribution to cumulative impact on the viewshed would be noticeable, but not significant.”).
- 38 Id. at 5-18 (Construction of the Projects “would not have significant adverse impacts on local populations, housing, employment, or the provision of community services.”).
- 39 After all, the standard the Commission typically uses for evaluating significance is whether the adverse impact would result in a substantial adverse change in the physical environment. See e.g. Adelphia Gateway Project Environmental Assessment, Docket No. CP18-46-000 at 33 (Jan 1, 2019). Surely that standard is open to some subjective interpretation by each Commissioner. What today’s order does not explain is why it is appropriate to exercise subjective interpretation and judgment when it comes to impacts such as land use, visual resources, and socioeconomics effects including employment and public services, but not climate change.
- 40 Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015).
- 41 Id. (quoting Robertson, 490 U.S. at 351).
- 42 Robertson,490 U.S. at 351.
- 43 Id. at 352; see also 40 C.F.R. §§ 1508.20 (defining mitigation), 1508.25 (including in the scope of an environmental impact statement mitigation measures).
- 44 15 U.S.C. § 717f(e); Certificate Order, 170 FERC ¶ 61,199 at P 30 (“[T]he Commission has the authority to take whatever steps are necessary to ensure the protection of environmental resources . . . , including authority to impose any additional measures deemed necessary . . . .”).
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