Commissioner Richard Glick Statement
March 25, 2020

Docket No. CP17-80-001 PDF

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Dissent in Part Regarding Columbia Gas Transmission, LLC, Eastern Panhandle Expansion Project

I dissent in part from today’s order on rehearing because I believe that the Commission’s action violates both the Natural Gas Act 1 (NGA) and the National Environmental Policy Act 2 (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) Eastern Panhandle Expansion Project (Project), and continues to treat greenhouse gas (GHG) emissions and climate change differently than all other environmental impacts. 3  Even though it quantifies the direct GHG emissions from the Project’s construction and operation, 4 as well as some of the Project’s indirect GHG emissions, 5 the Commission nonetheless insists that upstream emissions are not reasonably foreseeable and again refuses to consider whether the Project’s contribution to climate change from GHG emissions would be significant. 6   That failure forms an integral part of the Commission’s decisionmaking:  The refusal to assess the significance of the Project’s contribution to the harm caused by climate change is what allows the Commission to misleadingly state that the Project “would not constitute a major federal action significantly affecting the quality of the human environment” 7 and, as a result, conclude that the Project is in the public interest and required by the public convenience and necessity. 8   Claiming that the Project’s environmental impacts would not be significant while at the same time refusing to assess the significance of the Project’s 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 Project’s indirect GHG emissions, in particular the GHG emissions from upstream production of the natural gas transported over the Project’s incremental transportation capacity.  Rather than estimate these indirect emissions or ask applicants for more information, the Commission instead assumes that the “project is not expected to induce future upstream natural gas development.” 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 climate change is “driven by accumulation of GHG in the atmosphere through combustion of fossil fuels (coal, petroleum, and natural gas), combined with agriculture and clearing of forests.” 10   In light of this undisputed relationship between anthropogenic GHG emissions and climate change, the Commission must carefully consider the Project’s contribution to climate change, both in order to fulfill NEPA’s requirements and to determine whether the Project is 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 Project’s 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 that it cannot consider whether the Project’s contribution to climate change is significant due to the lack of a “standard methodology” to evaluated significance. 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 Project’s impacts will generally be not “significant.” 15   Think about that.  The Commission is simultaneously stating that it cannot assess the significance of the Project’s 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 Project’s 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 above 18 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 Project’s Contribution to Climate Change Is Deficient

The Commission’s NEPA analysis is similarly flawed.  In order to evaluate the environmental consequences of the Project under NEPA, the Commission must consider the harm caused by the Project’s 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 Project’s operation and construction, as well as some of the Project’s 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 Project’s upstream GHG emissions as indirect effects, instead adopting an overly narrow and circular definition of indirect effects 24 and disregarding the Project’s central purpose—to 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. 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 Project’s 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 Project’s direct and indirect 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 Project’s 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 Project’s GHG emissions because it lacks a “standard methodology” to “determine whether, and to what extent, a project’s incremental contribution to greenhouse gas emissions would result in 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 Project’s 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 Project’s 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

As the rehearing parties argue, 36 regardless of tools or methodologies available, the Commission also can use its expertise to consider all factors and determine, quantitatively or qualitatively, whether the Project’s 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 Project will not have a significant effect on issues as diverse as “groundwater,” 37 “forest land,” 38 and “waterbodies.” 39   Notwithstanding the lack of any “standard methodology” to assess these impacts, the Commission managed to use its judgment to conduct a qualitative review, and assess the significance of the Project’s 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. 40

That refusal is even more mystifying because NEPA “does not dictate particular decisional outcomes.” 41   NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’” 42   In other words, taking the matter seriously—and rigorously examining a project’s impacts on climate change—does 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 or required by the public convenience and necessity.  Instead, the Commission could require mitigation—as 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. 43   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. 44   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, 45 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 Project’s GHG emissions, eliminating a potential pathway for us to achieve consensus on whether the Project is consistent with the public interest.

Today’s order on rehearing is not the product of reasoned decisionmaking.  Its analysis of the Project’s contribution to climate change is shoddy and its conclusion that the Project will not have any significant environmental impacts is illogical.  After all, the Commission itself acknowledges that the Project will contribute to climate change, but refuses to consider whether that contribution might be significant before proclaiming that the Project 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 Project’s consequences for climate change does not represent the “hard look” that the law requires.

For these reasons, I respectfully dissent in part.






                                               

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