14104 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices 

1 Intergovernmental Panel on Climate Change, 

United Nations, Summary for Policymakers of 

Climate Change 2021: The Physical Science Basis 

SPM–5 (Valerie Masson-Delmotte et al. eds.) (2021), 

https://www.ipcc.ch/report/ar6/wg1/downloads/ 

report/IPCC_AR6_WGI_SPM.pdf (IPCC Report). 

2See Sierra Club v. FERC, 867 F.3d 1357, 1374 

(D.C. Cir. 2017) (Sabal Trail) (requiring the 

Commission to consider the reasonably foreseeable 

GHG emissions resulting from natural gas projects). 

3Carbon dioxide equivalent is the combination of 

the emissions that contribute to climate change 

adjusted using each pollutant’s global warming 

potential. This allows the Commission to aggregate 

all GHG emissions into a single value that accounts 

for each chemical’s specific potential to trap heat 

in the atmosphere. 

4See, e.g., Grand Canyon Trust v. FAA, 290 F.3d 

339, 340 (D.C. Cir. 2002) (‘‘If any ‘significant’ 

environmental impacts might result from the 

proposed agency action[,] then an EIS must be 

prepared before agency action is taken.’’ (quoting 

Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. 

Cir. 1983))); Found. for N. Am. Wild Sheep v. U.S. 

Dep’t of Agr., 681 F.2d 1172, 1178 (9th Cir. 1982) 

(‘‘If substantial questions are raised whether a 

project may have a significant effect upon the 

human environment, an EIS must be prepared.’’). 

5See 42 U.S.C. 4331(a); 4332(c). 

6Commissioner Danly’s dissent claims that 

today’s interim policy statement is ‘‘a substantive, 

binding rule that is subject to judicial review.’’ 

Danly Dissent at P 46. This interim document is 

intended to provide all interested entities with 

guidance as to how the Commission will approach 

application under NGA sections 3 and 7. It does not 

‘‘impose[] an obligation, den[y] a right, or fix[] some 

legal relationship.’’ Reliable Automatic Sprinkler 

Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 

726, 731 (D.C. Cir. 2003). Parties that disagree with 

the approach outlined in the statement retain their 

full rights to litigate their concerns in any 

individual proceeding. Cf. id. (‘‘Final agency action 

‘marks the consummation of the agency’s 

decisionmaking process’ and is ‘one by which rights 

or obligations have been determined, or from which 

legal consequences will flow.’) (quoting Bennett v. 

Spear, 520 U.S. 154, 178 (1997)). In addition, 

Commissioner Danly speculates that ‘‘no project 

sponsor will believe that mitigation is optional or 

that submitting an application exceeding the 

Interim Policy Statement’s 100,000 tpy threshold 

without a mitigation proposal would be anything 

other than a waste of time and money.’’ Danly 

Dissent PP 46–47. In response, we note only that 

the Commission will consider mitigation on a caseby-case basis and that we have not suggested that 

GHG emissions must be mitigated to insignificant 

levels in order for us to conclude that a proposed 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Docket No. PL21–3–000] 

Consideration of Greenhouse Gas 

Emissions in Natural Gas 

Infrastructure Project Reviews 

AGENCY: Federal Energy Regulatory 

Commission. 

ACTION: Interim policy statement. 

SUMMARY: This interim policy statement 

describes Commission procedures for 

evaluating climate impacts under NEPA 

and describes how the Commission will 

integrate climate considerations into its 

public interest determinations under the 

NGA. 

DATES: Public comments are due on or 

before April 4, 2022. Comments on the 

information collection are due May 10, 

2022. 

ADDRESSES: Comments, identified by 

docket number, may be filed 

electronically at http://www.ferc.gov in 

acceptable native applications and 

print-to-PDF, but not in Scanned or 

picture format. For those unable to file 

electronically, comments may be filed 

by mail or hand-delivery to: Federal 

Energy Regulatory Commission, 

Secretary of the Commission, 888 First 

Street NE, Washington, DC 20426. The 

Comment Procedures section of this 

document contains more detailed filing 

procedures. 

FOR FURTHER INFORMATION CONTACT: 

Karin Larson (Legal Information), Office 

of the General Counsel, 888 First 

Street NE, Washington, DC 20426, 

(202) 502–8236, Karin.Larson@

ferc.gov 

Eric Tomasi (Technical Information), 

Office of Energy Projects, Federal 

Energy Regulatory Commission, 888 

First Street NE, Washington, DC 

20426, (202) 502–8097, Eric.Tomasi@

ferc.gov 

SUPPLEMENTARY INFORMATION: 

1. The Commission is issuing this 

interim policy statement to explain how 

the Commission will assess the impacts 

of natural gas infrastructure projects on 

climate change in its reviews under the 

National Environmental Policy Act 

(NEPA) and the Natural Gas Act (NGA). 

We seek comment on all aspects of the 

interim policy statement, including, in 

particular, on the approach to assessing 

the significance of the proposed 

project’s contribution to climate change. 

Although the guidance contained herein 

is subject to revision based on the 

record developed in this proceeding, we 

will begin applying the framework 

established in this policy statement in 

the interim. Doing so will allow the 

Commission to evaluate and act on 

pending applications under sections 3 

and 7 of the NGA without undue delay 

and with an eye toward greater certainty 

and predictability for all stakeholders. 

I. Introduction 

2. Climate change poses a severe 

threat to the nation’s security, economy, 

environment, and to the health of 

individual citizens. Human-made 

greenhouse gas (GHG) emissions, 

including carbon dioxide and methane, 

are the primary cause of climate 

change.1 GHG emissions are released in 

large quantities through the production, 

transportation, and consumption of 

natural gas. Accordingly, to fulfill its 

statutory responsibilities, it is critical 

that the Commission consider and 

document how its authorization of 

infrastructure projects under the NGA, 

particularly natural gas transportation 

facilities, will affect emissions of 

GHGs.2

3. This policy statement describes 

Commission procedures for evaluating 

climate impacts under NEPA, both those 

caused by a project’s contribution to 

climate change and the impacts of 

climate change on the project, and 

describes how the Commission will 

integrate climate considerations into its 

public interest determinations under the 

NGA. For purposes of assessing the 

appropriate level of NEPA review, 

Commission staff will apply the 100% 

utilization or ‘‘full burn’’ rate for the 

proposed project’s emissions to 

determine whether to prepare an 

Environmental Impact Statement (EIS) 

or an environmental assessment (EA). 

Commission staff will proceed with the 

preparation of an EIS, if the proposed 

project may result in 100,000 metric 

tons per year of CO2e or more.3 As 

further described below, the 

Commission believes this estimate is 

appropriate because it captures 

Commission projects that may result in 

incremental GHG emissions that may 

have a significant effect upon the 

human environment.4 This approach is 

consistent with the overall goal of NEPA 

to require a ‘‘hard look’’ at adverse 

environmental impacts and assess 

whether those can be minimized or 

avoided.5 To appropriately assess 

possible mitigation, as further explained 

below, the Commission will determine 

a project’s reasonably foreseeable GHG 

emissions based on a projection of the 

amount of capacity that will be actually 

used (projected utilization rate), as 

opposed to assuming 100% utilization, 

and any other factors impacting the 

quantification of project emissions. The 

Commission’s NEPA analysis will 

examine any proposed measures to 

reduce reasonably foreseeable 

emissions. 

4. When considering under the NGA 

whether a project is in the public 

interest, the Commission considers a 

project’s impacts on climate change, 

and, accordingly, will consider 

proposals by the project sponsor to 

mitigate all or a portion of the project’s 

climate change impacts, and the 

Commission may condition its 

authorization on the project sponsor 

further mitigating those impacts. 

5. This policy statement does not 

establish binding rules and is intended 

to explain how the Commission will 

consider these issues when they arise.6


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project is required by the public convenience and 

necessity or consistent with the public interest. 7 IPCC Report at SPM–5. Other forces contribute 

to climate change, such as agriculture, forest 

clearing, and other anthropogenically driven 

sources. 8The U.S. Global Change Research Program is the 

leading U.S. scientific body on climate change. It 

comprises representatives from 13 federal 

departments and agencies and issues reports every 

4 years that describe the state of the science relating 

to climate change and the effects of climate change 

on different regions of the United States and on 

various societal and environmental sectors, such as 

water resources, agriculture, energy use, and human 

health. 

9U.S. Global Change Research Program, Climate 

Science Special Report, Fourth National Climate 

Assessment | Volume I (Donald J. Wuebbles et al. 

eds) (2017), https://science2017.globalchange.gov/ 

downloads/CSSR2017_FullReport.pdf; U.S. Global 

Change Research Program, Fourth National Climate 

Assessment, Volume II Impacts, Risks, and 

Adaptation in the United States (David Reidmiller 

et al. eds.) (2018), https://nca2018.globalchange.

gov/downloads/NCA4_2018_FullReport.pdf 

(USGCRP Report Volume II). 

10 IPCC Report at SPM–5 to SPM–10. 

11USGCRP Report Volume II at 73–75. 

12See, e.g., USGCRP Report Volume II at 99 

(describing accelerating flooding rates in Atlantic 

and Gulf Coast cities). 

13CEQ, Draft NEPA Guidance on Consideration 

of the Effects of Climate Change and Greenhouse 

Gas Emissions (Feb. 18, 2010), https://ceq.doe.gov/ 

docs/ceq-regulations-and-guidance/20100218-nepaconsideration-effects-ghg-draft-guidance.pdf. 

14Revised Draft Guidance for Federal 

Departments and Agencies on Consideration of 

Greenhouse Gas Emissions and the Effects of 

Climate Change in NEPA Reviews, 79 FR 77802 

(Dec. 24, 2014). 

15CEQ, Final Guidance for Federal Departments 

and Agencies on Consideration of Greenhouse Gas 

Emissions and the Effects of Climate Change in 

National Environmental Policy Act Reviews (Aug. 1, 

2016), https://ceq.doe.gov/docs/ceq-regulationsand-guidance/nepa_final_ghg_guidance.pdf (2016 

CEQ Guidance). 

16 2016 CEQ Guidance at 9–10 (‘‘This guidance 

does not establish any particular quantity of GHG 

emissions as ‘significantly’ affecting the quality of 

the human environment or give greater 

consideration to the effects of GHG emissions and 

climate change over other effects on the human 

environment.’’). 

17Exec. Order No. 13783, 82 FR 16576 (Apr. 5, 

2017). 

18 Draft National Environmental Policy Act 

Guidance on Consideration of Greenhouse Gas 

Emissions, 84 FR 30097 (June 26, 2019). 

19Exec. Order No. 13990, 86 FR 7037 (Jan. 20, 

2021). 

20Notice of Rescission of Draft Guidance, 86 FR 

10252 (Feb. 19, 2021). 

21For details on GHG analysis in the 

Commission’s NEPA documents through April 

2018, see Certification of New Interstate Natural 

Gas Facilities, 83 FR 18020, 163 FERC ¶ 61,042, at 

PP 44–50 (2018) (2018 NOI). 

22See, e.g., Environmental Assessment for the 

Philadelphia Lateral Expansion Project, Docket No. 

CP11–508–000, at 24 (Jan. 18, 2012) (construction 

emissions); Environmental Assessment for the 

Minisink Compressor Project, Docket No. CP11– 

515–000, at 29 (Feb. 29, 2012) (operation 

emissions). 

23See, e.g., Columbia Gas Transmission, LLC, 158 

FERC ¶ 61,046, at P 120 (2017); Tex. E. 

Transmission, LP, 157 FERC ¶ 61,223, at P 41 

(2016), reh’g granted, 161 FERC ¶ 61,226 (2017). 

24See, e.g., Columbia Gas Transmission, LLC, 158 

FERC ¶ 61,046 at PP 116–119. 

25With respect to upstream emissions, the D.C. 

Circuit subsequently noted that the Commission 

does not violate NEPA in not considering upstream 

GHG emissions where there is no evidence to 

predict the number and location of additional wells 

that would be drilled as a result of a project. 

Birckhead v. FERC, 925 F.3d 510, 518 (D.C. Cir. 

2019) (Birckhead). 

26 867 F.3d 1357. 

II. Background 

A. GHG Emissions and Climate Change 

6. Climate change is the variation in 

the Earth’s climate (including 

temperature, precipitation, humidity, 

wind, and other meteorological 

variables) over time. Climate change is 

driven by accumulation of GHGs in the 

atmosphere due to the increased 

consumption of fossil fuels (e.g., coal, 

petroleum, and natural gas) since the 

early beginnings of the industrial age 

and accelerating in the mid- to late-20th 

century.7 The GHGs produced by fossilfuel combustion are carbon dioxide, 

methane, and nitrous oxide. 

7. In 2017 and 2018, the U.S. Global 

Change Research Program 8 issued its 

Climate Science Special Report: Fourth 

National Climate Assessment, Volumes 

I and II.9 This report and the recently 

released report by the Intergovernmental 

Panel on Climate Change, Climate 

Change 2021: The Physical Science 

Basis, state that climate change has 

resulted in a wide range of impacts 

across every region of the country and 

the globe. Those impacts extend beyond 

atmospheric climate change and include 

changes to water resources, agriculture, 

ecosystems, human health, and ocean 

systems.10 According to the Fourth 

Assessment Report, the United States 

and the world are warming, global sea 

level is rising and oceans are acidifying, 

and certain weather events are 

becoming more frequent and more 

severe.11 These impacts have 

accelerated throughout the end of the 

20th century and into the 21st 

century.12

B. Council on Environmental Quality 

Guidance on Climate Change 

8. In 2010, the Council on 

Environmental Quality (CEQ) issued its 

first draft guidance on how federal 

agencies can consider the effects of GHG 

emissions and climate change under 

NEPA.13 CEQ revised the draft guidance 

in 2014,14 and issued final guidance in 

2016.15 Throughout the guidance’s 

evolution, CEQ advised agencies to 

quantify GHG emissions and to consider 

both the extent to which a proposed 

project’s GHG emissions would 

contribute to climate change and how a 

changing climate may impact the 

proposed project. The 2016 guidance, 

however, explicitly declined to establish 

a quantity or threshold of GHGs for 

determining whether a proposed project 

will have a significant impact on 

climate.16

9. CEQ rescinded the 2016 guidance 

in April 2017, as directed by Executive 

Order 13783 Promoting Energy 

Independence and Economic Growth,17

and issued revised draft guidance in 

June 2019.18 In January 2021, Executive 

Order 13990 Protecting Public Health 

and the Environment and Restoring 

Science to Tackle the Climate Crisis 

revoked Executive Order 13783 and 

directed CEQ to rescind the 2019 draft 

guidance and to review, revise, and 

update the 2016 guidance.19 CEQ has 

not yet issued an update to the 2016 

guidance, but, in the interim, has 

directed agencies to consider all 

available tools and resources, including 

the 2016 guidance, in assessing GHG 

emissions and the climate change effects 

of proposed actions.20

C. Previous Commission Policy on 

Consideration of Climate Change Under 

NEPA 

10. Commission staff has addressed 

climate change in some fashion in its 

NEPA documents for at least a decade.21

Commission staff’s NEPA documents 

have included direct GHG emission 

estimates from project construction (e.g., 

tailpipe emissions from construction 

equipment) and/or operation (e.g., fuel 

combustion at compressor stations and 

gas venting and leaks).22 Starting in late 

2016, the Commission began to 

conservatively estimate indirect 

downstream GHG emissions by 

assuming full combustion of the 

maximum annual volume of gas that 

could be transported by the project.23

For indirect upstream, productionrelated GHG emissions, Commission 

orders during that time period relied on 

Department of Energy studies to 

calculate broad estimates.24 For 

upstream impacts, the Commission 

generally indicated that these analyses 

were not required by NEPA because the 

Commission lacked detailed 

information about the precise source of 

the gas to be transported, but provided 

estimates for informational purposes.25

11. In 2017, the United States Court 

of Appeals for the District of Columbia 

Circuit (D.C. Circuit) in Sierra Club v. 

FERC (Sabal Trail) 26 found that 

downstream GHG emissions were an 

indirect effect of the Sabal Trail pipeline 

project and required the Commission to 

give a quantitative estimate of the 

downstream GHG emissions resulting 

from the burning of the natural gas to be 


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27 Id. at 1374. 

28 Fla. Se. Connection, LLC, 164 FERC ¶ 61,099, 

at P 5 (2018). 

29 Id. No party petitioned for judicial review of 

the Commission’s determination on remand. 

30 163 FERC ¶ 61,128 (2018), pet. dismissed, 

Otsego 2000 v. FERC, 767 F.App’x 19 (D.C. Cir. 

2019) (unpublished opinion). 

31 Id. PP 41–44, 61–62. 

32 Id. P 44; see also Tenn. Gas Pipeline Co., LLC, 

163 FERC ¶ 61,190, at PP 61–62 (2018). 

33 Dominion Transmission, Inc., 163 FERC 

¶ 61,128 at PP 67–70. 

34Birckhead, 925 F.3d at 518–19. 

35 Id. at 520. 

36 174 FERC ¶ 61,189, at P 29 (2021). 37 Id. PP 29–36. 38 Vecinos para el Bienestar de la Comunidad 

Costera v. FERC, 6 F.4th 1321, 1328 (D.C. Cir. 2021) 

(Vecinos) (citing 40 CFR 1502.21(c), which requires 

an EIS to include an evaluation of impacts based 

upon theoretical approaches or research methods 

generally accepted in the scientific community 

where the information relevant to the reasonably 

foreseeable significant adverse impacts cannot be 

obtained because the means to obtain it are not 

known). The case is pending on remand with the 

Commission. 

39 2018 NOI, 163 FERC ¶ 61,042. 

40Certification of New Interstate Natural Gas 

Pipeline Facilities, 88 FERC ¶ 61,227 (1999), 

clarified, 90 FERC ¶ 61,128, further clarified, 92 

FERC ¶ 61,094 (2000). The Commission must 

determine whether a proposed natural gas project 

is or will be required by the present or future public 

convenience and necessity, as that standard is 

established in NGA section 7. 15 U.S.C. 717f. 

41 2018 NOI, 163 FERC ¶ 61,042 at PP 5–50. 

42Certification of New Interstate Natural Gas 

Facilities, 174 FERC ¶ 61,125 (2021). 

43 Id. P 17. 

44 Id. (citations omitted). 

45See Notice Extending Time for Comments, 

Docket No. PL18–1–000 (Mar. 31, 2021) (extending 

the original comment deadline from April 26, 2021, 

to May 26, 2021). 

transported by the pipeline or explain 

why the Commission could not do so, 

and to discuss the significance of these 

emissions.27 On remand, the 

Commission compared the estimated 

downstream GHG emissions from the 

project to state and national GHG 

emission inventories.28 However, the 

Commission concluded that it could not 

determine whether those downstream 

GHG emissions were significant and 

rejected the use of the Social Cost of 

Carbon (SCC) tool to inform the 

Commission’s analysis.29

12. In 2018, the Commission stated in 

Dominion Transmission, Inc.30 that end 

use consumption of gas and upstream 

production of gas were generally not 

reasonably foreseeable or causally 

related to the project (no party had 

identified the specific end use of the 

gas) and thus the Commission was not 

required to consider upstream or 

downstream emissions as indirect 

impacts under NEPA.31 The 

Commission stated it would continue to 

‘‘analyze upstream and downstream 

environmental effects when those 

effects are sufficiently causally 

connected to and are reasonably 

foreseeable effects of the proposed 

action.’’ 32 The Commission reiterated 

that without an accepted methodology it 

could not find whether a particular 

quantity of GHG emissions was 

significant.33

13. However, in Birckhead, the D.C. 

Circuit rejected the Commission’s 

position that Sabal Trail is limited to 

the narrow facts of that case. While the 

court in Birckhead acknowledged that 

downstream emissions may not always 

be a foreseeable effect of natural gas 

projects, it rejected the notion that 

downstream GHG emissions are a 

reasonably foreseeable indirect effect of 

a natural gas project only if a specific 

end destination is identified.34 The 

court further noted that the Commission 

should attempt to obtain information on 

downstream uses to determine whether 

downstream GHG emissions are a 

reasonably foreseeable effect of the 

project.35

14. In 2021, in Northern Natural Gas 

Co., the Commission explained that it 

had reconsidered its position that it was 

unable to assess the significance of a 

project’s GHG emissions or those 

emissions’ contribution to climate 

change.36 The Commission found that 

that project’s reasonably foreseeable 

GHG emissions—construction and 

operation emissions only, as the project 

proposed no new capacity—would not 

significantly contribute to climate 

change.37 Later in 2021, the D.C. Circuit 

further criticized the Commission’s 

stance prior to Northern Natural Gas Co. 

that it was unable to assess the 

significance of a project’s GHG 

emissions or those emissions’ 

contribution to climate change, holding 

that the Commission failed to 

appropriately analyze the significance of 

three natural gas projects’ contribution 

to climate change using ‘‘theoretical 

approaches or research methods 

generally accepted in the scientific 

community,’’ such as the SCC tool.38

D. Certificate Policy Statement Notices 

of Inquiry 

15. On April 19, 2018, the 

Commission issued a Notice of Inquiry 

(2018 NOI) 39 seeking information and 

stakeholder perspectives to help the 

Commission explore whether, and if so 

how, it should revise its approach for 

determining whether proposed projects 

are consistent with the public 

convenience and necessity under the 

currently effective policy statement on 

the certification of new interstate 

natural gas transportation facilities 

(Certificate Policy Statement).40 The 

2018 NOI included a background 

section discussing how the legal 

standards and historical context 

informed the creation of the Certificate 

Policy Statement in 1999, how the 

Commission’s evaluations under the 

Certificate Policy Statement and under 

NEPA have evolved, and how changed 

circumstances since 1999 have required 

the present review.41 Notably, the 

Commission sought input on whether, 

and if so how, the Commission should 

adjust its evaluation of the 

environmental impacts of a proposed 

project. 

16. In response to the 2018 NOI, the 

Commission received more than 3,000 

comments from stakeholders including 

landowners; tribal, federal, state, and 

local government officials; nongovernmental organizations; 

consultants, academic institutions, and 

think tanks; natural gas producers, 

Commission-regulated companies, local 

distribution companies, and industry 

trade organizations; electricity 

generators and utilities; and others. 

Many comments addressed GHG 

emissions. 

17. On February 18, 2021, the 

Commission issued a new, refreshed 

Notice of Inquiry (2021 NOI),42 seeking 

comments to build upon the existing 

record established by the 2018 NOI. The 

Commission posed several updated 

questions relating to GHG emissions, 

including asking: How the Commission 

could consider upstream impacts from 

natural gas production and downstream 

end-use impacts; how the Commission 

should determine the significance of a 

project’s GHG emissions’ contribution to 

climate change; whether the NGA, 

NEPA, or another federal statute 

authorize or mandate the use of the SCC 

analysis by the Commission; how the 

Commission could determine whether a 

proposed project’s GHG emissions could 

be offset by reduced GHG emissions 

resulting from the project’s operations; 

and how the Commission could impose 

GHG emission limits or mitigation to 

reduce the significance of impacts from 

a proposed project on climate change.43

18. With respect to determining 

significance, the 2021 NOI sought 

comment on (1) what type of metrics 

and models the Commission should 

consider in determining significance, (2) 

whether any level of emissions should 

be considered de minimis, and (3) how 

the SCC tool or other tools could factor 

into determining significance.44

19. The public comment period for 

the 2021 NOI closed on May 26, 2021.45

The Commission received over 35,000 

comments and approximately 150 


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46 15 U.S.C. 717f. 

47NGA section 1(b) states that Commission 

authority applies to interstate transportation of 

natural gas and sales for resale, ‘‘but shall not apply 

to any other transportation or sale of natural gas or 

to the local distribution of natural gas or to the 

facilities used for such distribution or to the 

production or gathering of natural gas.’’ Id. 717(b). 

48The 1977 Department of Energy Organization 

Act (42 U.S.C. 7151(b)) placed all section 3 

jurisdiction under the Department of Energy. The 

Secretary of Energy subsequently delegated 

authority to the Commission to ‘‘[a]pprove or 

disapprove the construction and operation of 

particular facilities, the site at which such facilities 

shall be located, and with respect to natural gas that 

involves the construction of new domestic facilities, 

the place of entry for imports or exit for exports.’’ 

Department of Energy Delegation Order No. 00– 

004.00A, section 1.21A (May 16, 2006). 

49 In addition to pipelines that cross the 

international border with Canada and Mexico, the 

Commission has also asserted authority over the 

portions of subsea pipelines planned to cross the 

‘‘border’’ of the Exclusive Economic Zone between 

the U.S. and the Bahamas. See, e.g., Tractebel 

Calypso Pipeline, LLC, 106 FERC ¶ 61,273 (2004), 

vacated, Calypso U.S. Pipeline, LLC, 137 FERC 

¶ 61,098 (2011). 

50 15 U.S.C. 717b(e)(1). 

51 Id. 717f(e) (‘‘The Commission shall have the 

power to attach to the issuance of the certificate and 

to the exercise of the rights granted thereunder such 

reasonable terms and conditions as the public 

convenience and necessity may require.’’); see also 

id. 717b(a) (stating that the Commission may ‘‘grant 

such application, in whole or in part, with such 

modification and upon such terms and conditions 

as the Commission may find necessary or 

appropriate’’); id. 717b(e)(3)(A) (providing the 

authority to approve an application for an LNG 

Terminal, ‘‘in whole or part, with such 

modifications and upon such terms and conditions 

as the Commission find[s] necessary or 

appropriate’’). 

52See Twp. of Bordentown v. FERC, 903 F.3d 234, 

261 n.15 (3d Cir. 2018) (concluding that the 

Commission’s authority to enforce any required 

remediation is amply supported by provisions of 

the NGA); Sabal Trail, 867 F.3d at 1374 (holding 

that the Commission has legal authority to mitigate 

reasonably foreseeable indirect effects). 

53See, e.g., Atl. Coast Pipeline, LLC, 161 FERC 

¶ 61,042, at app. A (2017), on reh’g, 164 FERC 

¶ 61,100 (2018). 

54 42 U.S.C. 4332(2)(C); 40 CFR 1502.3; see Balt. 

Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 

U.S. 87, 97 (1983) (discussing the twin aims of 

NEPA). 

55 40 CFR 1501.5, 1508.1(h). 

56 40 CFR 1508.1(l) (defining a finding of no 

significant impact as a document that briefly 

presents the reasons why an action that is not 

otherwise categorically excluded under § 1501.4 

will not have a significant effect on the human 

environment and for which an EIS will therefore 

not be prepared). 

57 Vieux Carre Prop. Owners, Residents & Assocs., 

Inc. v. Pierce, 719 F.2d 1272, 1279 (5th Cir. 1983) 

(stating there is ‘‘no hard and fast definition of 

‘significant’ ’’ but considering the proposed project’s 

context in assessing whether a finding of no 

significance impact was reasonable). The 

regulations implementing NEPA previously 

addressed the term ‘‘significantly,’’ but that 

provision was removed by amendments effective 

September 14, 2020 and replaced with 40 CFR 

1501.3(b). ‘‘Whether a project has significant 

environmental impacts, thus triggering the need to 

produce an EIS, depends on its ‘context’ (region, 

locality) and ‘intensity’ (‘severity of impact’).’’ Nat’l 

Parks Conservation Ass’n v. Semonite, 916 F.3d 

1075, 1082 (D.C. Cir.) (quoting 40 CFR 1508.27 

(2018)), amended in part by 925 F.3d 500 (D.C. Cir. 

2019). The new 40 CFR 1501.3(b) calls for agencies 

to consider the ‘‘potentially affected environment 

and degree of the effects of the action’’ and to 

consider the short-term, long-term, beneficial, and 

adverse effects, and effects on public safety and 

those that would violate laws. 

58See, e.g. Final EIS for the Alaska LNG Project, 

Docket No. CP17–178–000, at 4–1. 

59See Sabal Trail, 867 F.3d at 1371 (‘‘The EIS 

also gave the public and agency decisionmakers the 

qualitative and quantitative tools they needed to 

make an informed choice for themselves. NEPA 

requires nothing more.’’). 

60See, e.g., Transcon. Gas Pipe Line Co., LLC, 158 

FERC ¶ 61,125, at P 79 (describing how the final EIS 

for the Atlantic Sunrise Project concluded that the 

project would result in adverse impacts that would 

be mitigated to less than significant levels), order 

on reh’g, 161 FERC ¶ 61,250 (2017), petition denied 

sub nom., Allegheny Def. Project v. FERC, 964 F.3d 

1 (D.C. Cir. 2020); see also infra note 61; see also 

Magnum Gas Storage, LLC, 134 FERC ¶ 61,197, at 

P 115 (2011) (explaining that ‘‘‘significantly,’ as 

used in NEPA, requires considerations of both 

context and intensity, which varies with the setting 

of each proposed action.’’). 

61N. Nat. Gas Co., 174 FERC ¶ 61,189, at P 32 

(citing Magnum Gas Storage, LLC, 134 FERC 

¶ 61,197 at P 114 (‘‘[A]n impact was considered to 

be significant if it would result in a substantial 

adverse change in the physical environment or 

natural condition and could not be mitigated to 

less-than-significant level.’’)). 

62See, e.g., Tex. LNG Brownsville LLC, 169 FERC 

¶ 61,130, at P 56 (2019) (‘‘Due to the relatively 

undeveloped nature of the project area, the visual 

sensitivity of nearby recreation areas, and the lack 

of feasible visual screening measures, the Final EIS 

concluded that the project would result in a 

Continued 

unique comment letters from a wide 

range of stakeholders, as noted above. 

20. Comments relevant to this policy 

statement are addressed in Section III 

below. 

III. Statutory Authority/Obligations 

A. NGA 

21. Section 7 of the NGA authorizes 

the Commission to issue certificates of 

public convenience and necessity for 

the construction and operation of 

facilities transporting natural gas in 

interstate commerce.46 The Commission 

does not have authority to regulate 

intrastate transportation facilities or 

other facilities that affect interstate 

transportation, such as those used for 

the production, gathering, or local 

distribution of natural gas. Congress did 

not displace state authority over such 

subjects.47

22. Section 3(a) of the NGA provides 

for federal jurisdiction over the siting, 

construction, and operation of facilities 

used to import or export gas.48 To date, 

the Commission has exercised section 3 

authority to authorize: (1) LNG 

terminals located at the site of import or 

export and (2) the site and facilities at 

the place of import/export where a 

pipeline crosses an international 

border.49 Additionally, NGA section 

3(e) states that ‘‘[t]he Commission shall 

have the exclusive authority to approve 

or deny an application for the siting, 

construction, expansion, or operation of 

an LNG terminal.’’ 50

23. Both NGA sections 7 and 3 

authorize the Commission to attach 

terms and conditions to its 

authorization.51 Courts have interpreted 

these provisions broadly and given the 

Commission latitude in deciding what 

types of mitigation to require.52 In 

issuing authorizations, the Commission 

has required project sponsors to comply 

with conditions to prevent or mitigate 

project impacts on environmental 

resources.53

B. NEPA 

24. NEPA and its implementing 

regulations require agencies, before 

taking or authorizing a major federal 

action that may significantly affect the 

quality of the human environment, to 

take a ‘‘hard look’’ at the environmental 

consequences of the proposed action 

and disclose their analyses to the public 

by preparing an EIS.54 Alternatively, 

agencies can first prepare an 

Environmental Assessment (EA) for a 

proposed action that is not likely to 

have significant effects or when the 

significance is unknown, to determine 

whether an EIS is necessary for a 

particular action.55 Depending on the 

outcome of the EA, agencies can either 

prepare an EIS or issue a finding of no 

significant impact.56

25. Previous CEQ regulations and 

court cases have examined a proposed 

project’s ‘‘context’’ and ‘‘intensity’’ or 

the severity of the impact as factors for 

determining what constitutes a 

significant effect.57 In assessing 

significance, Commission staff 

considers, for each resource, the 

duration of the impact as well as the 

geographic, biological, or social context 

in which the effects would occur, and 

the intensity (e.g. severity) of the 

impact.58 This analysis may draw on 

both qualitative and quantitative 

information.59 Using both types of data, 

the Commission routinely makes 

significance determinations for impacts 

to various resources from natural gas 

projects.60

26. In evaluating whether an impact is 

significant, the Commission determines 

whether ‘‘it would result in a substantial 

adverse change in the physical 

environment.’’ 61 In making that 

determination, the Commission 

considers available evidence, giving that 

evidence such weight as it deems 

appropriate using its experience, 

judgment, and expertise.62 Notably, 


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significant impact on visual resources when viewed 

from the adjacent Laguna Atascosa National 

Wildlife Refuge.’’), order on reh’g, 170 FERC 

¶ 61,139, at P 32 (2020), remanded on other 

grounds, Vecinos, 6 F.4th 1321; Final EIS for the 

Alaska LNG Project, Docket No. CP17–178–000, at 

ES–4 (Mar. 2020) (explaining the significant, longterm to permanent project impacts from the loss of 

thousands of acres of permafrost from construction 

that would permanently alter hydrology and 

vegetation within and past the project footprint). 

63Sierra Club v. U.S. Dep’t of Transp., 753 F.2d 

120, 128 (D.C. Cir. 1985) (‘‘It is clearly within the 

expertise and discretion of the agency to determine 

proper testing methods.’’); see also Hughes River 

Watershed Conservancy v. Johnson, 165 F.3d 283, 

289 (4th Cir. 1999) (‘‘Agencies are entitled to select 

their own methodology as long as that methodology 

is reasonable. The reviewing court must give 

deference to an agency’s decision.’’). 

64See Spiller v. White, 352 F.3d 235, 244 n.5 (5th 

Cir. 2003) (rejecting petitioner’s contention that the 

significance determination must be objective, 

factual, and quantitative and should not involve 

any qualitative judgment calls). 

65See La. Crawfish Producers Ass’n-W. v. Rowan, 

463 F.3d 352, 355 (5th Cir. 2006) (NEPA-related 

decisions are accorded a considerable degree of 

deference); Spiller v. White, 352 F.3d at 244 n.5 

(‘‘We should note that our deference to the [l]ead 

[a]gencies[’] fact-finding and conclusions includes 

deference to their judgment as to whether any 

particular environmental impact of the proposed 

pipeline rises to the level of significance’’); Powder 

River Basin Res. Council v. U.S. Bureau of Land 

Mgmt., 37 F.Supp. 3d 59, 74 (D.D.C. 2014) (agencies 

are afforded discretion to use their expertise to 

determine the best method to evaluate the 

significance of an impact to a particular resource, 

so long as that method is reasonable). 

66Robertson v. Methow Valley Citizens Council, 

490 U.S. 332, 351 (1989) (‘‘To be sure, one 

important ingredient of an EIS is the discussion of 

steps that can be taken to mitigate adverse 

environmental consequences.’’). 

67 Id. at 352 (‘‘There is a fundamental distinction, 

however, between a requirement that mitigation be 

discussed in sufficient detail to ensure that 

environmental consequences have been fairly 

evaluated, on the one hand, and a substantive 

requirement that a complete mitigation plan be 

actually formulated and adopted, on the other.’’). 

68 Final Guidance for Federal Departments and 

Agencies on the Appropriate Use of Mitigation and 

Monitoring and Clarifying the Appropriate use of 

Mitigated Findings of No Significant Impact, 76 FR 

3843, 3848 (Jan. 21, 2011). 

69See, e.g., Columbia Gas Transmission, LLC, 170 

FERC ¶ 61,045, at P 66, app. (2020) (conditioning 

certificate authority on site-specific mitigation 

measures when crossing abandoned mine lands, 

including the management and disposal of 

contaminated groundwater, and mitigation 

measures for acid mine drainage); PennEast 

Pipeline Co., LLC, 170 FERC ¶ 61,198, at PP 29–30, 

app. A (2020) (conditioning certificate authority on 

mitigation of construction impacts on karst 

features); Atl. Coast Pipeline, LLC, 161 FERC 

¶ 61,042 at app. A (conditioning certificate 

authority on the mitigation of construction impacts 

on karst features and on a nearby inn and mitigation 

of impacts from the discovery of invasive aquatic 

species during construction); Port Arthur LNG, LP, 

115 FERC ¶ 61,344, at PP 68–71, app. A 

(conditioning sections 3 and 7 authority on the 

mitigation of construction impacts on aquatic 

resources and wetlands), order on reh’g, 117 FERC 

¶ 61,213 (2006), vacated, 136 FERC ¶ 61,196 (2011). 

70 40 CFR 1508.1(g) (defining the effects or 

impacts that must be considered when conducting 

a review under NEPA). 

71Emissions quantification also includes loss of 

carbon storage/sinks through land use conversions, 

forest clearing, wetland conversions, etc. 

72As discussed below, the vast majority of all 

natural gas consumed in the United States is 

combusted. See infra note 101. 

73Additionally, the Commission will consider 

evidence regarding whether certain emissions 

associated with a proposed project, such as 

upstream and downstream emissions, are 

reasonably foreseeable. 

74See Certification of New Interstate Natural Gas 

Pipeline Facilities, 178 FERC ¶ 61,107, at P 55 

(2022) (explaining that project sponsors are 

encouraged to provide the Commission with 

information on estimated utilization rates and the 

intended end use of gas to demonstrate project 

need). 75 40 CFR 1508.1(g). 76 Id. § 1508.1(g)(2); see also U.S. Dep’t of Transp. 

v. Pub. Citizen, 541 U.S. 752, 767 (2004) (Pub. 

Citizen) (finding that ‘‘NEPA requires ‘a reasonably 

close causal relationship’ between the 

environmental effect and the alleged cause’’ in 

order ‘‘to make an agency responsible for a 

particular effect under NEPA’’ (quoting Metro. 

Edison Co. v. People Against Nuclear Energy, 460 

U.S. 766, 774 (1983) (Metro. Edison Co.))). 

77 40 CFR 1508.1(g)(2); see also Metro. Edison Co., 

460 U.S. at 774 (finding that ‘‘[s]ome effects that are 

‘caused by’ a change in the physical environment 

in the sense of ‘but for’ causation,’’ will not fall 

within NEPA if ‘‘the causal chain is too 

attenuated’’). 78 40 CFR 1508.1(g)(2); see also Pub. Citizen, 541 

U.S. at 770 (‘‘[W]here an agency has no ability to 

prevent a certain effect due to its limited statutory 

authority over the relevant actions, the agency 

cannot be considered a legally relevant ‘cause’ of 

the effect.’’). 79EarthReports, Inc. v. FERC, 828 F.3d 949, 955 

(DC Cir. 2016) (citations omitted); see also Sierra 

Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992). 80N. Plains Res. Council, Inc. v. Surface Transp. 

Bd., 668 F.3d 1067, 1079 (9th Cir. 2011) (quoting 

Selkirk Conservation All. v. Forsgren, 336 F.3d 944, 

962 (9th Cir. 2003)). 

81 Id. at 1078. 

NEPA does not require that the studies, 

metrics, and models on which an 

agency relies be universally accepted or 

otherwise uncontested.63 Instead, NEPA 

permits agencies to rely on the best 

available evidence, quantitative and 

qualitative, even where that evidence 

has certain limitations when assessing 

the significance of their actions,64 and 

an agency’s determination is entitled to 

deference.65

27. In addition to determining 

whether its actions may significantly 

affect the quality of the human 

environment, NEPA requires the 

Commission to consider whether there 

are steps that could be taken to mitigate 

any adverse environmental 

consequences.66 While NEPA is a 

procedural statute and does not require 

a federal agency to reject a proposed 

project with significant adverse effects 

or take action to mitigate adverse 

effects,67 an agency may require 

mitigation of impacts as a condition of 

its permitting or approval,68 and the 

Commission routinely does so.69

IV. Discussion 

A. Quantifying GHG Emissions and 

Determining Significance 

28. Consistent with CEQ 

regulations,70 the Commission will 

quantify a project’s GHG emissions that 

are reasonably foreseeable and have a 

reasonably close causal relationship to 

the proposed action, including those 

effects that occur at the same time and 

place as the proposed action and effects 

that are later in time or farther removed 

in distance from the proposed action. 

This will include GHG emissions 

resulting from construction and 

operation of the project 71 as well as, in 

most cases, GHG emissions resulting 

from the downstream combustion of 

transported gas.72

29. The Commission will consider all 

evidence in the record relating to a 

project’s estimated GHG emissions,73

utilization rate, or offsets: Estimates 

presented by project sponsors, as well as 

opposing evidence from other parties. 

Going forward, in determining the level 

of GHG emissions attributed to a project, 

the Commission will estimate a project’s 

GHG emissions based on a projection of 

what amount of project capacity will be 

actually used (projected utilization rate), 

as opposed to assuming 100% 

utilization.74 The Commission will also 

consider evidence of factors expected to 

reduce or offset the estimated direct or 

reasonably foreseeable downstream 

emissions of the project. 

1. Categories of Emissions 

30. CEQ regulations implementing 

NEPA require agencies to consider 

effects or impacts that ‘‘are reasonably 

foreseeable and have a reasonably close 

causal relationship to the proposed 

action . . . including those effects that 

occur at the same time and place as the 

proposed action . . . and may include 

effects that are later in time or farther 

removed in distance for the proposed 

action . . . .’’ 75 A ‘‘but for’’ causal 

relationship is insufficient to make an 

agency responsible for a particular 

effect,76 and effects should not be 

considered if they are the ‘‘product of a 

lengthy causal chain.’’ 77 Further, effects 

to be considered do not include those 

that the agency has no ability to prevent 

due to its limited statutory authority or 

would occur regardless of the proposed 

action.78 Regarding reasonable 

foreseeability, courts have found that an 

impact is reasonably foreseeable if it is 

‘‘sufficiently likely to occur that a 

person of ordinary prudence would take 

it into account in reaching a 

decision.’’ 79 Although courts have held 

that NEPA requires ‘‘reasonable 

forecasting,’’ 80 an agency ‘‘is not 

required to engage in speculative 

analysis’’ 81 or ‘‘to do the impractical, if 


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82 Id. (quoting Envtl. Prot. Info. Ctr. v. U.S. Forest 

Serv., 451 F.3d 1005, 1014 (9th Cir. 2006)). 

83EarthReports, Inc. v. FERC, 828 F.3d at 955 

(citing Sierra Club v. FERC, 827 F.3d 36, 47, 59, 68 

(D.C. Cir. 2016) (Freeport). 

84See, e.g., Egan Millard 2021 Comments at 3; 

New Jersey Conservation Foundation 2021 

Comments at 21; Shayna Gleason 2021 Comments 

at 2. 

85New Jersey Conservation Foundation 2021 

Comments at 21. 

86Construction emissions include emissions from 

gasoline- and diesel-powered construction 

equipment. 

87Operational emissions include emissions from 

combustion units at compressor stations and 

fugitive leaks from compressor stations, meter/valve 

stations, and the pipeline. 

88The project sponsor provides emissions 

information in Resource Report No. 9. 18 CFR 

380.12(k). Operational emissions are also estimated 

in the project’s air permit application, which is 

typically submitted to the state agency with 

delegated Clean Air Act authority. Further, the 

Commission’s guidance manual for NGA certificate 

applications instructs project sponsors to provide 

the GHGs in tons per year for the construction and 

operation of the proposed project. See Guidance 

Manual for Environmental Report Preparation for 

Applications Filed under the NGA, Volume I, at 4– 

123, 4–125 to 4–127 (Guidance Manual). 

89See, e.g., Food and Water Watch 2021 

Comments at 1; New Jersey Conservation 

Foundation 2021 Comments at 19; Attorneys 

General of Massachusetts, Illinois, Maryland, New 

Jersey, Rhode Island, Washington, and the District 

of Columbia (Attorneys General of Massachusetts et 

al.) 2018 Comments at 12–17. 90For example, the Massachusetts PipeLine 

Awareness Network states that the Commission 

should consider fugitive emissions from the 

distribution and burning of transported gas. 

Massachusetts PipeLine Awareness Network 2021 

Comments at 2; see also, e.g., Egan Millard 2021 

Comments at 3; Shayna Gleason 2021 Comments at 

2. 91See, e.g., American Petroleum Institute (API) 

Technical Conference Comments at 3–5 (stating the 

Commission and developers cannot accurately 

forecast downstream emissions due to lack of 

knowledge of the end use of the gas, variability in 

utilization rates and regulatory requirements, and 

unpredictable changes in supply and demand, 

among other factors); Boardwalk Pipeline Partners 

LP (Boardwalk) Technical Conference Comments at 

21; Enbridge Gas Pipelines (Enbridge) Technical 

Conference Comments at 11, 25–26; Interstate 

Natural Gas Association of America (INGAA) 2021 

Comments at 58–60; The Williams Companies, Inc. 

(Williams) 2021 Comments at 37–38; Natural Gas 

Supply Association (NGSA) 2018 Comments at 15– 

16. 

92The court concluded ‘‘that the EIS for the 

Southeast Market Project should have either given 

a quantitative estimate of the downstream 

greenhouse emissions that will result from burning 

the natural gas that the pipelines will transport or 

explained more specifically why it could not have 

done so.’’ Sabal Trail, 867 F.3d at 1374. 

93Birckhead, 925 F.3d at 518–20 (criticizing the 

Commission for not attempting to obtain data on 

downstream uses). 

94 932 F.3d 940 (DC Cir. 2019). 

95 Id. at 945–46. 

96See, e.g., INGAA 2021 Comments at 50–51. 

97 INGAA 2021 Comments at 49–51, 57; see also 

INGAA Technical Conference Comments at 14 

(adding that NEPA’s requirements would exclude 

downstream emissions occurring after a ‘‘long and 

attenuated chain of intermediate causal factors, as 

when natural gas is transported to an interconnect 

for further shipment on the interstate grid, 

eventually reaching end-use consumers only 

through a long intermediate path’’). 

98 941 F.3d 1288 (11th Cir. 2019) (Center for 

Biological Diversity). 

99 Id. at 1300 (citing Pub. Citizen, 541 U.S. 752 

and Metro. Edison Co., 460 U.S. 766). 

100U.S. Energy Info. Admin., December 2021 

Monthly Energy Review 24, 101 (2021) (reporting 

Continued 

not enough information is available to 

permit meaningful consideration.’’ 82

31. As discussed below, the 

Commission proposes to: 

• Consider direct emissions of a 

project a reasonably foreseeable effect; 

• Find that an NGA section 3 export 

facility project is not the legally relevant 

cause of upstream and downstream 

emissions; 83

• Consider on a case-by-case basis 

whether downstream emissions are a 

reasonably foreseeable effect of an NGA 

section 7 interstate project; and 

• Consider on a case-by-case basis 

whether upstream emissions are a 

reasonably foreseeable effect of an NGA 

7 project. 

a. Direct Emissions 

32. Several commenters assert that the 

Commission must consider fugitive 

emissions from the transportation of 

gas.84 New Jersey Conservation 

Foundation, Sabin Center for Climate 

Change Law (Sabin Center), The 

Watershed Institute, Clean Air Council, 

PennFuture, and New Jersey League of 

Conservation Voters (collectively, New 

Jersey Conservation Foundation) argue 

that natural gas leakage from both 

pipeline operation and natural gas 

production is worse than combustion 

because methane has a higher global 

warming potential than carbon 

dioxide.85

33. As the Commission has long held, 

direct GHG emissions from the project’s 

short-term construction 86 and long-term 

operational activities 87 are an effect of 

the proposed project. Under current 

Commission regulations, the project 

sponsor provides an estimate of 

construction emissions and an estimate 

of the project’s potential operational 

emissions, including fugitive emissions 

from both pipeline and aboveground 

facilities, in its application for 

Commission authorization.88

b. Downstream Emissions 

34. Some commenters argue that the 

Commission must consider the 

downstream emissions of natural gas 

projects,89 including fugitive 

emissions.90 In contrast, other 

commenters generally assert that the 

Commission should not consider 

downstream emissions, or at most, 

should only do a qualitative assessment 

of downstream emissions, because they 

are not reasonably foreseeable impacts 

or do not have a close causal 

relationship under NEPA to gas 

transportation.91

35. As discussed above, in August 

2017, the D.C. Circuit issued Sabal 

Trail, which involved a greenfield 

pipeline project that would deliver all 

gas transported by the project to specific 

gas-fired generating plants. The D.C. 

Circuit found that downstream 

emissions from the use of the 

transported natural gas were an indirect, 

reasonably foreseeable effect of the 

proposed pipeline and that in the 

circumstances of that case—where the 

vast majority of throughput on the 

proposed project was destined for a 

limited number of specifically identified 

electric generation facilities—the 

downstream GHG emissions could be 

reasonably quantified by the 

Commission.92

36. The D.C. Circuit reiterated this 

determination in two subsequent cases. 

First, in Birckhead, the court rejected 

the claim that downstream emissions 

are only a foreseeable effect in factual 

circumstances akin to Sabal Trail, i.e., 

where all transported gas will be burned 

at specifically identified destinations, 

but also rejected the argument that 

downstream emissions are always a 

foreseeable effect of a natural gas 

certificate project.93 Then, in Allegheny 

Defense Project v. FERC,94 the court 

stated that the downstream emissions of 

a project designed to deliver gas into 

large interstate pipeline systems, which 

in turn deliver gas to 16 states, are an 

indirect effect of the project.95

37. INGAA and others read the 

Supreme Court’s Public Citizen decision 

as requiring an agency to consider an 

environmental effect only when the 

agency has the authority to control the 

outcome and note that the Commission 

has no authority to regulate the end use 

(or production) of natural gas.96 INGAA 

states that attempting to regulate 

downstream (or upstream) activities 

would invade the jurisdiction of other 

regulators, that most projects will not 

result in reasonably foreseeable 

downstream GHG emissions like those 

in Sabal Trail, and thus, downstream 

emissions should only be considered on 

a case-by-case basis.97 INGAA suggests 

the Commission look for guidance to 

Center for Biological Diversity v. U.S. 

Army Corps of Engineers,98 which 

criticizes Sabal Trail as ‘‘breezing past 

. . . statutory limits and precedents 

. . . clarifying what effects are 

cognizable under NEPA.’’ 99

38. Given that data show that the vast 

majority of consumed gas is ultimately 

combusted,100 there appears to be a 


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that, in 2020, 1,036 Bcf of natural gas had a noncombustion use compared to 30,476 Bcf of total 

consumption), https://www.eia.gov/totalenergy/ 

data/monthly/pdf/mer.pdf; see also Jayni Hein et 

al., Institute for Policy Integrity, Pipeline Approvals 

and Greenhouse Gas Emissions 25 (2019) 

(explaining that, in 2017, 97% of all natural gas 

consumed was combusted). 

101See Birckhead, 925 F.3d at 518; Sabal Trail, 

867 F.3d at 1371–72. 

102Birckhead, 925 F.3d at 518–19 (rejecting, in 

dicta, that downstream emissions are always a 

foreseeable effect of a proposed certificate project). 

103Sabal Trail, 867 F.3d at 1372–73 (emphasis in 

original) (explaining Pub. Citizen, 541 U.S. 752). 

104See id. at 1373 (‘‘Because FERC could deny a 

pipeline certificate on the ground that the pipeline 

would be too harmful to the environment, the 

agency is a ‘legally relevant cause’ of the direct and 

indirect environmental effects of pipelines it 

approves.’’ (quoting Freeport, 827 F.3d at 47). 

105 Freeport, 827 F.3d at 47. 

106Pub. Citizen, 541 U.S. at 767 (quoting Metro. 

Edison Co., 460 U.S. at 774). 107See Center for Biological Diversity, 941 F.3d at 

1292 (describing whether the U.S. Army Corps of 

Engineers legally declined to address, in issuing 

discharge permits for phosphate mining, the effects 

of a radioactive byproduct of fertilizer production 

(phosphogypsum), where the phosphogypsum is 

neither a byproduct of dredging and filling or 

phosphate mining or beneficiation). The court 

criticized the reasoning in Sabal Trail but also 

observed that the ‘‘causal relationship between the 

agency action and the putative downstream effect 

was much closer [in Sabal Trail] than it is here’’ 

and that the Commission’s scope of statutory 

authority is ‘‘much broader’’ than that of the U.S. 

Army Corps of Engineers. Id. at 1299–1300. 

108 Freeport, 827 F.3d at 47 (holding that the 

Commission does not have to address the indirect 

effects of the anticipated export of natural gas 

because the Department of Energy, not the 

Commission, has sole authority to license and 

consider the environmental impacts of the export of 

any natural gas going through LNG facilities); 

Freeport, 827 F.3d at 62–63 (same); EarthReports, 

Inc. v. FERC, 828 F.3d at 956 (same); Sabal Trail, 

867 F.3d at 1372 (explaining Freeport). 

109 Freeport, 827 F.3d at 48. 110See, e.g., Egan Millard 2021 Comments at 3; 

Shayna Gleason 2021 Comments at 2. 111See, e.g., Institute for Policy Integrity at New 

York University School of Law (Policy Integrity) 

Technical Conference Comments at 17; Food and 

Water Watch 2021 Comments at 1; New Jersey 

Conservation Foundation 2021 Comments at 19. 

112See, e.g., Boardwalk Technical Conference 

Comments at 21; Enbridge Technical Conference 

Comments at 11, 25–26; TC Energy Corporation (TC 

Energy) Technical Conference Comments at 5; 

Williams Technical Conference Comments at 4; 

INGAA 2021 Comments at 56–57; Williams 2021 

Comments at 37–38. 

113EPA 2021 Comments at 5. 

114See Birckhead, 925 F.3d at 516–18. See, e.g., 

Double E Pipeline, LLC, 173 FERC ¶ 61,074, at P 97 

(2020); Cent. N.Y. Oil & Gas Co., LLC, 137 FERC 

¶ 61,121, at PP 81–101 (2011), order on reh’g, 138 

FERC ¶ 61,104, at PP 33–49 (2012), petition for 

review dismissed sub nom., Coal. for Responsible 

Growth v. FERC, 485 F.App’x 472, 474–75 (2d Cir. 

2012) (unpublished opinion); see also Adelphia 

Gateway, LLC, 169 FERC ¶ 61,220, at P 243 (2019), 

order on reh’g, 171 FERC ¶ 61,049, at P 89 (2020). 

substantial likelihood of GHG emissions 

from the end-use combustion of 

transported gas as a result of a natural 

gas project proposed under NGA section 

7.101 However, as contemplated by the 

court in Birckhead, there may be 

circumstances where downstream 

emissions are not a foreseeable effect of 

an authorized project, and the court 

stated that each project must be 

analyzed on a case-by-case basis.102

Accordingly, project sponsors may 

submit any evidence they believe 

indicates that downstream emissions are 

not a reasonably foreseeable effect of a 

proposed project. 

39. We disagree with commenters’

assertions that Public Citizen prohibits 

the Commission from considering 

downstream GHG emissions. The 

question is not whether the Commission 

has regulatory authority over 

downstream emissions. Rather, as the 

Sabal Trail court reasoned in applying 

Public Citizen, the Commission ‘‘has no 

obligation to gather or consider 

environmental information [only] if it 

has no statutory authority to act on that 

information.’’ 103 Because the 

Commission can reject a section 7 

certificate based on the project’s 

environmental impacts, including GHG 

emissions, the court held that the 

Commission was required to consider 

downstream emissions resulting from 

the Sabal Trail project’s construction.104

For section 7 projects—unlike section 3 

projects, described below—there is no 

independent decision, such as the DOE 

authorization critical in Freeport, to 

‘‘break the NEPA causal’’ chain.105

Accordingly, the Commission’s 

authorization for section 7 projects is a 

‘‘legally relevant cause’’ of the 

emissions, meeting Public Citizen’s 

direction that ‘‘NEPA requires ‘a 

reasonably close causal relationship’ 

between the environmental effect and 

the alleged cause,’’ analogous to the 

‘‘familiar doctrine of proximate cause 

from tort law.’’ 106

40. The Commission finds this and

subsequent direction from the D.C. 

Circuit more instructive than Center for 

Biological Diversity, which determined 

that a specific effect was too tenuous to 

be considered in analysis of a U.S. Army 

Corps of Engineers discharge permit for 

mining activities under the Clean Water 

Act.107

41. However, for proposed export

projects under NGA section 3, the 

Commission will not consider 

downstream GHG emissions an effect 

requiring analysis under NEPA 

regulations. The Department of Energy, 

not the Commission, has sole authority 

to license and consider the 

environmental impacts of the export of 

any natural gas.108 As courts have 

explained, the Commission need not 

consider the effects of downstream 

transportation, consumption, or 

combustion of exported gas because the 

Department of Energy’s ‘‘independent 

decision to allow exports . . . breaks 

the NEPA causal chain and absolves the 

Commission of responsibility to include 

[these considerations] in its NEPA 

analysis.’’ 109

c. Upstream Emissions

42. Some commenters state that the

Commission must consider the 

upstream GHG emissions of natural gas 

projects, including fugitive emissions 

from production,110 to assess the 

project’s total impact on climate 

change.111 Other commenters argue that 

upstream emissions are not a reasonably 

foreseeable effect of a natural gas 

transportation project, and therefore 

should not be considered by the 

Commission.112 Some commenters 

focus on how to obtain sufficient 

information to account for upstream 

GHG emissions. For example, EPA 

recommends that the Commission 

require project sponsors to provide 

available information on reasonably 

foreseeable induced production 

demand. EPA states that environmental 

documents under NEPA should disclose 

this information as well as items such 

as the proposal’s regionally known 

hydrocarbon accumulations and a 

decline curve analysis to allow for 

appropriate regional and local impact 

analysis.113

43. In various NGA section 7

proceedings, the Commission has 

considered upstream emissions on a 

case-by-case basis—sometimes 

acknowledging it is difficult to quantify 

upstream emissions due to several 

unknown factors, including the location 

of the supply source and whether 

transported gas will come from new or 

existing production.114 The Commission 

will continue to consider on a case-bycase basis whether the environmental 

effects resulting from natural gas 

production are either likely caused by a 

proposed NGA section 7 project or 

reasonably foreseeable consequences of 

our approval of such projects. To the 

extent known, project sponsors are 

encouraged to submit information on 

the reasonably foreseeable upstream 

impacts caused by the project or an 

explanation as to why there are none for 

Commission consideration. 

2. Calculating GHG Emissions

44. To calculate operational

emissions, project sponsors should 

continue to follow the existing guidance 

outlined in section 4.9.1.3 of the 

Commission’s Guidance Manual for 

Environmental Report Preparation for 


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115We note that thresholds for Clean Air Act and 

state air permits are typically based on the regulated 

source’s potential to emit, or the maximum capacity 

of a stationary source to emit any air pollutant 

under its physical and operational design, rather 

than its actual emissions, and that air permits 

themselves are expressed in potential to emit. See 

40 CFR 70.2. This policy statement does not apply 

to any other air pollutants than GHGs. For all other 

air pollutants, we will continue to evaluate a 

project’s air quality impacts based on its potential 

to emit. 

116See infra section III.A.2.a. 

117See, e.g., American Gas Association (AGA) 

Technical Conference Comments at 28, 40; API 

Technical Conference Comments at 3; Boardwalk 

Technical Conference Comments at 23 (stating that 

the Commission should rely on local distribution 

companies’ air permits to determine GHG 

emissions); Enbridge Technical Conference 

Comments at 31–34; Hon. Joseph T. Kelliher 

Technical Conference Comments at 5–6 

(Commissioner Kelliher, Principal at Three Acorns, 

was a panelist at the GHG Technical Conference on 

Panel 1.); INGAA Technical Conference Comments 

at 17–18 (suggesting the net emissions analysis 

must be undertaken on a global level); Kinder 

Morgan Entities (Kinder Morgan) Technical 

Conference Comments at 12–15; National Grid Gas 

Companies Technical Conference Comments at 3– 

7 (describing the Distributed Infrastructure Solution 

that it has developed in coordination with the State 

of New York); Williams Technical Conference 

Comments at 7–8; Charles River Associates 2021 

Comments at 4–5; Ohio Environmental Council 

2021 Comments at 3. See Environmental 

Assessment for the Iroquois Gas Transmission 

System, L.P. (Iroquois) Enhancement by 

Compression Project, Docket No. CP20–48–000, at 

B–110 (Sept. 30, 2020) (citing Iroquois’ end-use 

GHG analysis that projected greater GHG emissions 

if the project was not built under scenarios where 

the energy needs of all new buildings are met by 

fuel oil as opposed to gas supplied by the project). 

One industrial end user expresses concern about 

the potential of integrating renewable natural gas 

due to concerns about pipeline integrity or 

increased costs. American Forest and Paper 

Association and Process Gas Consumers Group 

(collectively, American Forest) Technical 

Conference Comments at 13–14. 

118 INGAA Technical Conference Comments at 

19. 

119See, e.g., New Jersey Conservation Foundation 

2021 Comments at 23. 

120See, e.g., Enbridge Technical Conference 

Comments at 12, 29–30; Hon. Joseph T. Kelliher 

Technical Conference Comments at 5–6; INGAA 

Technical Conference Comments at 15–16 

(describing an analysis it commissioned concluding 

that in 2020, the maximum utilization on an 

average annual basis for any of the pipeline 

‘‘corridors’’ between different regions is not higher 

than 65% and it is over 50% only for 7 of the 30 

regional corridors); TC Energy Technical 

Conference Comments at 18; Charles River 

Associates 2021 Comments at 6; INGAA 2021 

Comments at 58; see also Boardwalk Technical 

Conference Comments at 3, 23; Williams Technical 

Conference Comments at 7. API, on the other hand, 

asserts that use of utilization estimates or emissions 

data forces the Commission to pick winners among 

competing pipeline projects and asserts that such 

decisions are best made by market forces after the 

Commission authorizes a project. API Technical 

Conference Comments at 3–4. 

121See, e.g., New Jersey Conservation Foundation 

2021 Comments at 21–22; Public Interest 

Organizations 2018 Comments at 91; Washington 

State Department of Commerce and Washington 

State Department of Ecology 2018 Comments at 6. 

Public Interest Organizations’ 2018 comments 

represent 63 entities including Natural Resources 

Defense Council. 

122See, e.g., Charles River Associates 2021 

Comments at 6–8 (proposing a regional analysis to 

estimate downstream emissions of a gas project). 

123New Jersey Conservation Foundation 2021 

Comments at 22. 

124See, e.g., Berkshire Environmental Action 

Team 2021 Comments at 3; North Carolina 

Department of Environmental Quality 2018 

Comments at 5–8. 

125 Dr. Susan F. Tierney, Senior Advisor with the 

Analysis Group, Inc., was a panelist at the GHG 

Technical Conference on Panel 1. Dr. Susan F. 

Tierney Technical Conference Statement at 4–10. 

The applicant could supplement its estimate with 

an alternative estimate, and intervenors could also 

submit estimates. 

126See Environmental Assessment for the Lake 

City 1st Branch Line Abandonment and Capacity 

Replacement Project, Docket No. CP20–504–000, at 

51–53 (Feb. 2021); see also Environmental 

Assessment for the Philadelphia Lateral Expansion 

Project, Docket No. CP11–508–000, at 24 (Jan. 18, 

2012) (construction emissions); Environmental 

Assessment for the Minisink Compressor Project, 

Continued 

Applications Filed under the NGA.115

However, under this policy statement, 

for purposes of assessing the impact of 

a project’s GHG emissions on climate 

change, the Commission will consider 

operational GHG emissions calculated 

based on a projected utilization rate for 

the project, as described below.116

45. Additionally, the Commission 

recognizes that there may be other 

factors that might serve to reduce a 

proposed project’s climate impacts. For 

example, the installation of emissionreduction technology or purchase of 

offsets by downstream users would 

reduce the impacts. Thus, to enable the 

Commission’s use of the best estimate of 

a project’s GHG emissions, project 

sponsors are encouraged to calculate 

project GHG emissions using a projected 

utilization rate and submit evidence of 

any other factors that might impact a 

project’s net emissions such as the 

factors identified by commenters below. 

46. Commenters recommend that the 

Commission consider factors that might 

impact a project’s net emissions, such as 

(1) whether the transported gas will 

phase out use of a more carbonintensive energy source, like coal or fuel 

oil, and will prevent the use of more 

carbon-intensive energy sources in the 

future; (2) whether the pipeline will 

transport gas that would otherwise be 

transported by vehicles, thereby 

reducing the emissions from 

transporting the gas; (3) whether the 

proposed project will transport gas 

volumes that would have otherwise 

been delivered to the same consumers 

through a different pipeline or may 

ultimately end up transporting fuel 

blends including renewable natural gas 

or hydrogen; (4) whether the project 

sponsor will purchase offsets to counter 

project emissions; or (5) whether the 

project may be backed by a local 

distribution company serving customer 

demand in states with established 

emissions caps.117 INGAA states that in 

the absence of reliable and verifiable 

predictive models to the contrary, the 

requirement of reasonable foreseeability 

arguably dictates that the Commission 

cannot adopt any default assumption 

that a natural gas infrastructure project 

will increase (rather than decrease, or 

leave unchanged) net global GHG 

emissions, and that at minimum, the 

Commission would have to provide a 

rational justification for any such 

assumption.118 By contrast, New Jersey 

Conservation Foundation and others 

contend that the Commission should 

consider whether the project may be 

displacing renewable energy sources, 

thereby increasing GHG emissions.119

47. INGAA and other commenters 

strongly urge the Commission to 

calculate a project’s downstream 

emissions, if at all, based on the likely 

utilization rate of the proposed project, 

instead of relying on a full-burn 

estimate.120

48. Conversely, New Jersey 

Conservation Foundation and others 

argue the Commission must calculate 

direct, downstream, and upstream GHG 

emissions by assuming the maximum 

authorized operating conditions, unless, 

some add, the project sponsor can 

demonstrate otherwise.121 Further, other 

commenters propose their own methods 

of how to calculate the downstream 

emissions of a proposed project.122 New 

Jersey Conservation Foundation urges 

the Commission to recommend or 

require the use of specified emissions 

factors to calculate project emissions.123

Some commenters argue that the 

Commission must, beyond asking 

project sponsors, require certain 

information to be provided, conduct 

independent research, or otherwise 

compile missing information.124 Dr. 

Susan F. Tierney states that the 

Commission should articulate a default 

methodology, set of assumptions, and 

sources of data (suggesting multiple 

sources including data from the U.S. 

Department of Energy’s National Energy 

Technology Laboratory’s 2019 life-cycle 

estimates of GHG emissions for the 

natural gas supply chain) to establish a 

default maximum emissions rate, which 

could then be supplemented by an 

applicant’s own estimate or an 

intervenor’s alternative estimate.125

a. Projected Utilization Rate 

49. In previous environmental 

documents and certificate orders, the 

Commission has disclosed a project’s 

operational emissions 126 and estimates 


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Docket No. CP11–515–000, at 29 (Feb. 29, 2012) 

(operation emissions). 

127See Atl. Coast Pipeline, LLC, 161 FERC 

¶ 61,042 at P 305. 

128Some commenters point out that daily 

pipeline load factors vary significantly based on 

seasonal trends. See, e.g., Charles River Associates 

2021 Comments at 3; Williams 2021 Comments at 

46. 

129We note that for a greenfield pipeline project, 

historic data will not be available. In those cases, 

the project sponsor could use data from other 

similar projects or regional data. 

130For instance, in a downstream end-use 

analysis, Iroquois projected that its Enhancement by 

Compression project could result in net GHG 

reductions when considering the alternative fuel 

that may be used (e.g., fuel oil for heating) by the 

end use customer in the event that gas is not 

available. Iroquois Gas Transmission, LP, 

Downstream GHG Report, Docket No. CP20–48–000 

(filed May 19, 2020). 131For example, the Commission may consider 

evidence that a downstream user purchases credits 

to offset its GHG emissions from the consumption 

of transported gas. The Commission will consider 

downstream user’s mitigation measures according 

to the criteria outlined in infra section III.C.3 for 

applicant-proposed mitigation measures. With 

regards to construction and operational emissions, 

project sponsors should continue to provide 

evidence of measures that minimize emissions, 

such as using low-sulfur diesel fuel and limiting 

equipment idling during construction, as outlined 

in the Guidance Manual. Guidance Manual at 4– 

124. However, as described supra section III.A.2.a, 

operational emissions should now be calculated 

based on the project’s projected utilization rate. 

132See, e.g., Standards of Performance for New, 

Reconstructed, and Modified Sources and 

Emissions Guidelines for Existing Sources: Oil and 

Natural Gas Sector Climate Review, 86 FR 63,110 

(Nov. 15, 2020). 

133 42 U.S.C. 4332(C); 40 CFR 1502.3. 

134 40 CFR 1501.5, 1508.1(h). 

135See 40 CFR 1501.3, 1501.5, 1501.6, 1508.1(h), 

(l). 

136See Magnum Gas Storage, LLC, 134 FERC 

¶ 61,197 at P 114 (‘‘[A]n impact was considered to 

be significant if it would result in a substantial 

adverse change in the physical environment or 

natural condition and could not be mitigated to 

less-than-significant level.’’). 

137For example, for an impact where there are no 

established federal standards, the Commission 

makes qualitative assessments to determine 

whether a proposed project would have a 

significant impact on a particular resource. See, e.g., 

Tex. LNG Brownsville LLC, 169 FERC ¶ 61,130 at P 

56 (‘‘Due to the relatively undeveloped nature of the 

project area, the visual sensitivity of nearby 

recreation areas, and the lack of feasible visual 

screening measures, the Final EIS concluded that 

the project would result in a significant impact on 

visual resources when viewed from the adjacent 

Laguna Atascosa National Wildlife Refuge.’’); 

Alaska Gasline Dev. Corp., 171 FERC ¶ 61,134, at 

PP 25, 89 (describing how the final EIS for the 

Alaska LNG Project found that construction and 

operation of the project would have significant 

impacts on resources such as permafrost, wetlands, 

forests, and caribou, but less than significant 

impacts on resources such as scrub and herbaceous 

plant communities), order on reh’g, 172 FERC 

¶ 61,214 (2020); Transcon. Gas Pipe Line Co., LLC, 

158 FERC ¶ 61,125 at P 79 (describing how the final 

EIS for the Atlantic Sunrise Project concluded that 

the project would result in adverse impacts that 

would be mitigated to less than significant levels). 

138N. Nat. Gas Co., 174 FERC ¶ 61,189 at P 32. 

139 174 FERC ¶ 61,189 at P 30 (citations omitted). 

of downstream emissions 127 by 

assuming a 100% utilization rate 

estimate of the project (e.g., the 

maximum capacity is transported 365 

days per year, 24 hours a day and fully 

combusted downstream). This 

represents the maximum potential 

downstream GHG emissions. However, 

most projects do not operate at 100% 

utilization at all times. In fact, many 

projects are designed to address peak 

demand. For example, traditionally, in 

the Northeast, demand for gas is highest 

in the winter months, resulting in high 

utilization rates during those months 

due to heating needs, but lower in the 

summer, resulting in low annual 

utilization rates.128

50. Because in most instances a 100% 

utilization rate estimate does not 

accurately capture the project’s climate 

impacts, estimated emissions that reflect 

a projected utilization rate will provide 

more useful information. The project’s 

projected utilization rate may be 

calculated using, for example: 

• Expected utilization data from 

project shippers; 

• Historical usage data; 129

• Demand projections; 

• An estimate of how much capacity 

will be used on an interruptible basis. 

51. The project sponsor is encouraged 

to file its projected utilization rate, as 

well as its justification for the rate and 

any supporting evidence, in its 

application for authorization under 

NGA section 3 or 7. The Commission 

will also consider evidence submitted 

by commenters and protesters in 

support of or opposition to the projected 

utilization rate. 

b. Other Evidence Considered 

52. Further, the Commission will 

consider any other evidence in the 

record that impacts the quantification of 

the project’s reasonably foreseeable 

emissions. For example, the 

Commission will consider: Evidence of 

a net-reduction in GHG emissions where 

the use of transported gas displaces the 

use of a higher emitting alternative 

fuel; 130 evidence of anticipated changes 

in downstream usage rates over time; 

evidence of any real, verifiable, and 

measurable reduction efforts taken by 

the pipeline or downstream users to 

reduce their GHG emissions or offset 

their impacts; 131 and evidence that a 

project would displace zero-emissions 

electric generation. Further, other 

agencies, notably the EPA, have 

proposed regulations that may impact 

the emission of methane from 

Commission-regulated facilities.132 If 

such regulations are adopted, the 

Commission will consider them when 

examining project GHG emissions. 

Similarly, the Commission will consider 

evidence from commenters and 

protestors supporting or challenging 

such estimates and assumptions. 

B. Level of Review and Significance 

53. Under NEPA, an agency must 

prepare an EIS for every ‘‘major [f]ederal 

action[ ] significantly affecting the 

quality of the human environment.’’ 133

To determine whether an EIS is 

necessary for a particular action, the 

agency may prepare an EA,134 described 

as a ‘‘concise public document’’ 

providing ‘‘sufficient evidence and 

analysis,’’ to determine whether to 

prepare an EIS or issue a finding of no 

significant impact.135

54. To assess significance, the 

Commission determines whether the 

impact ‘‘would result in a substantial 

adverse change in the physical 

environment,’’ 136 which, as discussed, 

is based on considerations of the 

severity of adverse environmental 

impacts. In making that determination, 

the Commission uses its experience, 

judgment, and expertise to give record 

evidence appropriate weight.137 The 

Commission found that ‘‘there is 

nothing about GHG emissions or their 

resulting contribution to climate change 

that prevents us from making that same 

type of significance determination.’’ 138

55. Specifically, in Northern Natural 

Gas Co., the Commission explained that: 

The U.S. Court of Appeals for the District 

of Columbia Circuit has explained that a 

proposed interstate natural gas pipeline’s 

reasonably foreseeable GHG emissions are 

relevant to whether the pipeline is required 

by the public convenience and necessity. A 

rigorous review of a project’s reasonably 

foreseeable GHG emissions is also an 

essential part of the Commission’s 

responsibility under NEPA to take a ‘‘hard 

look’’ at a project’s environmental impacts. 

Determining the significance of the impacts 

from a proposed project’s GHG emissions 

informs the Commission’s review in a 

number of important respects, including its 

decision whether to prepare an 

environmental impact statement.139

56. To date, no federal agency, 

including the Commission, has 

established a threshold for determining 

what level of project-induced GHG 

emissions is significant. The 

Commission received a number of 

comments, discussed below, offering 

perspectives on whether and at what 

level it should assess the significance of 

a proposed project’s GHG emissions. 

1. Comments 

57. The Commission received relevant 

comments in response to both the 2018 

and 2021 NOIs on whether the 

Commission should: Determine 


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140See, e.g., Sabin Center 2018 Comments at 8– 

9. 

141See, e.g., INGAA 2021 Comments at 58–64. 

INGAA’s 2021 comments update its 2018 position 

that the Commission should not presume that all 

GHG emissions are significant and should instead 

make a reasoned judgment whether: (1) A 

meaningful assessment can be made with 

reasonable effort based upon available information 

and (2) if so, whether a meaningful judgment can 

be formed regarding if the contribution of GHGs is 

likely to have a significant impact on the resource 

as a whole. INGAA 2018 Comments at 81–84. 

142Boardwalk 2021 Comments at 77–78, 86–90, 

92–93. These comments are generally echoed by the 

Energy Infrastructure Council. Energy Infrastructure 

Council 2021 Comments at 15–16, 22–27. 

143See, e.g., Enbridge 2021 Comments at 103. 

144See, e.g., U.S. Chamber of Commerce 2021 

Comments at 9. 

145See, e.g., API 2021 Comments at 29–32; NGSA 

2021 Comments at 21–22; TC Energy 2021 

Comments at 52–56; U.S. Chamber of Commerce 

2021 Comments at 9. 

146See, e.g., Cheniere Energy Inc. 2021 Comments 

at 14–16; Enbridge 2021 Comments at 104; Williams 

2021 Comments at 35–38. Energy Transfer LP and 

the NGSA also cite CEQ’s recent NEPA regulatory 

update and direction to agencies to propose 

revisions to their NEPA procedures by September 

14, 2023. Energy Transfer LP 2021 Comments at 14; 

NGSA 2021 Comments at 19–20. The Commission’s 

current regulations provide that the Commission 

will comply with CEQ’s regulations except where 

those regulations are inconsistent with the statutory 

requirements of the Commission. 18 CFR 380.1. 

Therefore, any action taken by the Commission in 

a future rulemaking pursuant to CEQ’s regulatory 

update does not prevent the Commission from 

issuing this policy statement. 

147See, e.g., BHE Pipeline Group 2021 Comments 

at 8–10; Cheniere Energy Inc. 2021 Comments at 

17–18. 

148Ohio Environmental Council 2021 Comments 

at 3. 

149Attorneys General of Massachusetts et al. 2021 

Comments at 6–11. The 2021 commenters are made 

up of a slightly different group of state attorneys 

general than those filing comments in 2018. 

150Sabin Center 2018 Comments at 8–9. 

151Environmental Defense Fund, Food & Water 

Watch, Policy Integrity, Montana Environmental 

Information Center, Natural Resources Defense 

Council, Sierra Club, Union of Concerned 

Scientists, and Western Environmental Law Center 

(EDF) 2021 Comments at 14–15. 

152See, e.g., Competitive Enterprise Institute 2021 

Comments at 4, 6. 

153See, e.g., Enbridge 2021 Comments at 108; 

Russo on Energy 2021 Comments at 17–18. 

154 Driftwood Pipeline LLC 2021 Comments at 3. 

155CEQ 2021 Comments at 1. 

significance at all; set a specific 

significance threshold and at what level; 

and/or use various inventories, goals, 

and tools to set the threshold. 

a. Whether the Commission Should 

Determine Significance 

58. Numerous commenters (Delaware 

Riverkeeper, Food and Water Watch, 

North Carolina Department of 

Environmental Quality, Sabin Center, 

and others) argue that the Commission 

should make a significant impact 

determination based on a project’s GHG 

emissions, which they argue would 

include the project’s associated 

upstream and downstream emissions. 

Some commenters, for example the 

Sabin Center in 2018, direct the 

Commission to the NEPA regulation at 

40 CFR 1508.27 (that was removed by 

amendments effective September 14, 

2020), which provides that 

‘‘significantly’’ as used in NEPA 

requires considerations of both the 

context of the action and the intensity 

of the impacts associated with any 

proposal.140

59. In contrast, some regulated 

entities and other commenters express 

concern about the Commission 

determining the significance of a 

project’s impacts on the basis of GHG 

emissions, especially upstream and 

downstream emissions. For example, 

INGAA and others (Energy 

Infrastructure Council, Williams, etc.) 

argue that the Commission should, at 

most, engage in a qualitative discussion 

of downstream GHG emissions because 

net GHG emissions are not reasonably 

foreseeable, and that the Commission 

should not assess the significance of 

upstream or downstream emissions.141

Commenters such as Boardwalk state 

that the Commission cannot reject a 

project because of downstream GHG 

emissions or consider upstream GHG 

emissions, may only include a general 

disclosure of downstream emissions in 

limited circumstances (such as where 

all end use is known), and should 

generally decline to assess significance 

and only engage in a qualitative 

discussion.142

60. Commenters argue that the 

Commission lacks the ability to make a 

significance determination and has no 

objective basis upon which to evaluate 

the impacts of GHG emissions 

associated with any specific proposed 

project.143 Other commenters state that 

setting any significance threshold would 

be arbitrary 144 and potentially outside 

of the Commission’s authority or 

jurisdiction.145

61. Finally, commenters state that the 

Commission should defer to other 

agencies, such as CEQ or EPA, in setting 

a significance threshold, citing: The lack 

of a national energy policy or federal 

GHG limits; the EPA’s existing authority 

to regulate GHG emissions under the 

Clean Air Act; the direction of Executive 

Orders 13990 and 14008, which 

commenters say direct EPA to examine 

its own GHG emissions standards; and 

the ongoing Interagency Work Group 

efforts on the SCC.146 A few industry 

commenters also caution against 

creating uncertainty or a moving target 

for industry while waiting for a 

significance threshold to be 

established.147

b. What the Threshold Should Be 

62. Some commenters argue that the 

Commission should consider any net 

increase in GHG emissions as 

significant.148 Attorneys General of 

Massachusetts, Connecticut, Maryland, 

Minnesota, New Jersey, New York, 

Oregon, Rhode Island, and the District 

of Columbia (Attorneys General of 

Massachusetts et al.) argues that any 

investment in pipeline infrastructure is 

inconsistent with new national 

emissions reductions targets and thus, 

project emissions can be significant on 

that basis alone, even if they represent 

a small share of national emissions, or 

that emissions are significant if they 

impede the ability of a state to meet its 

clean energy goals.149

63. A few commenters suggest 

specific numerical thresholds. The 

Sabin Center recommends that the 

Commission assess the magnitude of 

GHG emissions impacts using EPA’s 

quantification threshold of 25,000 tons 

per year of CO2e to identify major 

emitters under the Clean Air Act, social 

cost of GHG tools to assign a dollar 

value to the potential impacts of the 

emissions, and EPA’s GHG 

Equivalencies Calculator as a 

comparison tool.150 One commenter 

cites to EIS examples where the 

Commission stated that monetized 

benefits of $8 million and $28 million 

would be ‘‘significant’’ for local 

economies and suggests that gross 

climate damages between roughly $8 

and $20 million should be considered 

significant.151

64. Conversely, a few commenters 

state that emissions from all individual 

projects could be considered de minimis 

and individually too small to impact 

climate change.152 Others urge the 

Commission away from taking a bright 

line approach to determining 

significance,153 while Driftwood 

Pipeline LLC urges that significance, if 

appropriate, requires the Commission to 

disclose a clear threshold.154

65. CEQ points the Commission to its 

2016 guidance as an existing resource to 

help agencies assess GHG emissions and 

the effects of climate change in NEPA 

reviews.155

c. Use of Inventories, Climate Goals, 

Programmatic Analyses, Etc. in 

Determining Significance 

66. Some commenters recommend 

that the Commission use state, regional, 

and global GHG reduction goals to 

provide context and/or define 


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156See, e.g., Delaware Riverkeeper Network & 

Berks Gas Truth 2021 Comments at 62; Ron Schaaf 

and Deb Evans 2021 Comments at 8; California 

Public Utilities Commission 2018 Comments at 11– 

12. 

157Attorneys General of Massachusetts et al. 2018 

Comments at 17–20. 

158See, e.g., Attorneys General of Massachusetts 

et al. 2018 Comments at 17–20; Franklin 

Governments 2018 Comments at 2. 

159Ohio Environment Council 2018 Comments at 

12–13. 

160Natural Resources Defense Council (NRDC) 

also suggests the Commission use its forthcoming 

‘‘Climate Test,’’ which is a tool being developed by 

NRDC to quantify the consistency of individual 

infrastructure projects with climate goals. NRDC 

2021 Comments at 6. However, NRDC has not filed 

additional information on its ‘‘Climate Test.’’ 

161Healthy Gulf 2021 Comments at 14. 

162E.g., Attorneys General of Massachusetts et al. 

2021 Comments at 8–11; EPA 2021 Comments at 1; 

Attorneys General of Massachusetts et al. 2018 

Comments at 12–17. 

163EDF 2021 Comments at 9–12, 16. 164See, e.g., Boardwalk 2021 Comments at 82–83; 

NGSA 2021 Comments at 15. Enbridge states that 

comparison to these inventories would be arbitrary, 

but that such an approach could help contextualize 

the GHG emissions for the Commission and the 

public. Enbridge 2021 Comments at 105, 108–109. 165Williams 2021 Comments at 38. 166See, e.g., Competitive Enterprise Institute 2021 

Comments at 3–4. 167The SC–GHG collectively includes the values 

for the SCC, the social cost of methane (SCM), and 

social cost of nitrous oxide (SCN). 168See, e.g., Policy Integrity Technical 

Conference Comments at 22–26; EPA 2021 

Comments at 6; Ohio Environmental Council 2021 

Comments at 2; Public Interest Organizations 2021 

Comments at 43–45; Attorneys General of 

Massachusetts et al. 2018 Comments at 17–22; EDF 

2018 Comments at 8–11. The 2018 EDF comments 

were filed by a slightly different set of entities than 

in 2021. Public Interest Organizations’ 2021 

comments represent 53 entities including Natural 

Resources Defense Council. 

169EDF 2021 Comments at 14–16. 

170Public Interest Organizations 2021 Comments 

at 43–45, 50–53, 60. 

171EDF 2021 Comments at 9. 

172See, e.g., Kinder Morgan 2021 Comments at 

32–40 (stating the Commission should use the SCC 

tool only as a qualitative comparison tool). 

173See, e.g., American Forest Technical 

Conference Comments at 9; Competitive Enterprise 

Institute Technical Conference Comments at 1–2, 7– 

35; Enbridge 2021 Comments at 111; Energy 

Infrastructure Council 2021 Comments at 24–25; 

Williams 2021 Comments 41–43. 

174Attorneys General of Missouri et al. 2021 

Comments at 2–7. A similar group, consisting of the 

Attorneys General of Missouri, Alabama, Alaska, 

Arizona, Arkansas, Georgia, Indiana, Kansas, 

Kentucky, Mississippi, Montana, Nebraska, Ohio, 

Oklahoma, South Carolina, Texas, Utah, West 

Virginia, and Wyoming (Attorneys General of 

Missouri et al.), also submitted comments in 

response to the Commission’s technical conference, 

see infra section III.C.1, extensively critiquing 

potential use of the SCC. Attorneys General of 

Missouri et al. Technical Conference Comments at 

3–15. Mr. Kirk Frost also provided comments on 

use of the SCC, urging the Commission to use the 

tool to assess GHG emissions impacts. Kirk Frost 

December 23, 2021 Technical Conference 

Comments at 4. 

175Public Interest Organizations 2021 Comments 

at 58. 

176New Jersey Conservation Foundation 2021 

Comments at 23–24 (citing Exec. Order No. 13990, 

86 FR 7037, 7040 (Jan. 25, 2021)). 

177New Jersey Conservation Foundation 2021 

Comments at 24. 

significance of GHG emissions.156 For 

example, Attorneys General of 

Massachusetts et al. comments that the 

Commission already analyzes whether a 

proposed pipeline project is consistent 

with various energy and climate policies 

and goals and that this can be used as 

a metric for evaluating significance.157

Others argue that the Commission’s 

analysis of a proposed project’s public 

benefits should weigh the effect of 

project GHG emissions on states’ and 

the nation’s abilities to comply with 

climate and clean energy laws and 

policies, such as specific energy and 

climate change action plans and 

policies.158 The Ohio Environmental 

Council recommends that the 

Commission consider the total proposed 

upstream and downstream GHG 

emissions of all gas projects pending in 

any given year, giving weight to the total 

possible GHG emissions that could be 

locked in by those projects and 

comparing this total with international 

goals.159

67. Other commenters suggest 

alternative means or tools for assessing 

significance. For example, commenters 

suggest that the Commission should use 

a ‘‘Climate Test.’’ 160 Patricia Weber 

comments that the Commission should 

use such a test to determine if a project 

is viable in a scenario where the climate 

goals of the Paris agreement are met 

using climate and global energy market 

models. One commenter urges the 

Commission to examine acres of 

wetlands that will be lost due to climate 

impacts of proposed projects as a proxy 

for significance.161 Some commenters 

suggest the Commission consider a 

programmatic or regional analysis of 

pipelines.162

68. EDF comments that a comparison 

of a project’s emissions to international, 

state, or regional carbon budgets, or 

assessing geophysical impacts such as 

increases in carbon dioxide levels, 

global temperatures, or sea levels can be 

misleading and trivialize the project’s 

impacts.163

69. Some industry commenters state 

that any comparison of direct or indirect 

emissions should be made to global 

GHG inventories, not national or state 

inventories.164 However, Williams states 

that, while the Commission should 

consider only direct construction and 

operation emissions, the Commission 

should compare those emissions against 

national GHG inventories and not 

against international agreements or 

regional targets.165 Others oppose use of 

a regional analysis of GHG emissions 

from pipeline projects.166

d. Use of the Social Cost of Greenhouse 

Gases 

70. Several commenters generally 

argue for a monetization of climate 

damages using the Social Cost of 

Greenhouse Gas (SC–GHG) tools 167 to 

determine significance.168 EDF 

recommends that the approach should 

be consistent with the Commission’s 

practices for determining the 

significance of other monetized effects, 

such as economic impacts.169 Public 

Interest Organizations comment that an 

established numerical significance 

threshold is not necessary, but if one is 

established, it should be used in tandem 

with the SCC tool and should not be 

based solely on one metric, especially 

not on a comparison to global 

emissions. Rather, they urge a holistic 

review of how a proposed project’s 

impacts weigh against any benefits.170

EDF states that if the climate damages 

exceeded monetized project benefits, 

the Commission could reject the 

project.171

71. Conversely, other commenters 

oppose use of the SCC tool in 

determining significance 172 or of using 

the SCC tool at all.173 The Attorneys 

General of Missouri, Alabama, Alaska, 

Arizona, Arkansas, Georgia, Indiana, 

Kansas, Kentucky, Louisiana, 

Mississippi, Montana, Nebraska, Ohio, 

Oklahoma, South Carolina, South 

Dakota, Tennessee, Texas, Utah, and 

West Virginia (Attorneys General of 

Missouri et al.) contends that the NGA 

does not allow use of the SCC tool to 

calculate speculative damages and that 

its use is contrary to the Commission’s 

public interest responsibilities. Further, 

they argue that NEPA does not permit 

the use of the SCC because NEPA does 

not allow agencies to rely on 

conclusions that are speculative or 

reflect substandard or outdated 

science.174

72. Public Interest Organizations state 

that, while neither the NGA nor NEPA 

explicitly reference the SCC tool, there 

is nothing in these or other federal 

statutes that would prohibit its use.175

New Jersey Conservation Foundation 

notes that President Biden’s Executive 

Order 13990 supports the use of the SC– 

GHG tools by agencies to capture the 

full costs of GHG emissions as 

accurately as possible.176 New Jersey 

Conservation Foundation states that 

following issuance of Executive Order 

13990, the Interagency Working Group 

on the Social Cost of Greenhouse Gases 

(GHG IWG) published interim SC–GHG 

values, which the Commission should 

use.177


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178CEQ 2021 Comments at 2. C.f. Louisiana v. 

Biden, No. 21–cv–1074–JDC–KK (W.D. La.) Order 

Granting Preliminary Injunction (Feb. 11, 2022). 179API 2021 Comment at 24–25; NGSA 2021 

Comments at 20–21. 180NGSA 2021 Comments at 20–21. 181API 2021 Comment at 25, 27–28. 182EPA 2021 Comments at 2–3. 183Public Interest Organizations 2021 Comments 

at 58. 184 Kinder Morgan 2021 Comments at 34–35. 185Attorneys General of Missouri et al. 2021 

Comments at 9. 186EDF 2021 Comments at 21. 

187 INGAA 2021 Comments at 67. 

188 INGAA 2021 Comments at 70–73. 

189New Jersey Conservation Foundation 2021 

Comments at 24; see also EDF 2021 Comments at 

6–7. 

190Boardwalk 2021 Comments at 103; Kinder 

Morgan 2021 Comments at 32–33. 

191 Kinder Morgan 2021 Comments at 32–33; 

Williams 2021 Comments at 44–45. 

192Energy Infrastructure Council 2021 Comments 

at 26–27. 

193 Kinder Morgan 2021 Comments at 42. 

194 Id. 

195Seneca Resources Corp. 2018 Comments at 9; 

Spectra Energy Partners, LP 2018 Comments at 87. 

196 Kinder Morgan 2021 Comments at 42. 

73. CEQ notes that it was working 

with representatives on the GHG IWG to 

develop additional guidance regarding 

the application of the SC–GHG tools in 

decision-making processes, including 

NEPA analysis.178 NGSA and API urge 

the Commission to wait for this review 

to be completed.179 NGSA further states 

that it would be inappropriate for the 

Commission to develop a likely 

conflicting approach for utilizing the 

SCC tool.180 API states that it would 

violate principles of consistency for the 

Commission to apply the interim SC– 

GHG values to current proposals (i.e., 

for the remainder of this year), knowing 

that these values may change and lead 

to different treatment for future 

proposals.181 EPA states that in cases 

where the Commission determines that 

a monetary comparison between 

benefits and costs is appropriate, the 

Commission should take into account 

established practices for benefit-cost 

analyses (e.g., the Office of Management 

and Budget’s Circular A–4 and 

references therein). If the Commission 

chooses to use the SC–GHG tools, EPA 

states that it should disclose all 

assumptions and levels of uncertainty 

associated with the analysis.182

74. The Public Interest Organizations 

state that monetizing impacts using the 

SCC tool provides the public and 

decisionmakers with accessible figures 

useful in determining whether a project 

is in the public interest and allows the 

Commission to easily compare project 

harms and economic benefits, whereas 

other metrics can misleadingly 

minimize climate impacts due to 

inadequate contextualization.183

75. Kinder Morgan asserts that the 

SCC tool relies on inputs or 

assumptions that introduce too much 

uncertainty.184 Similarly, Attorneys 

General of Missouri et al. contends that 

the SCC tool is too speculative and 

arbitrary to hold up to the hard-look 

requirement under NEPA.185 Rebutting 

this, EDF emphasizes that the GHG 

IWG’s methodology is rigorous and 

based on the best available data and 

economic practices, such as utilizing a 

300-year time horizon.186 INGAA states 

that the significant variation in output 

among GHG IWG’s interim values shows 

that discount rates reflect a high level of 

uncertainty in the models and that an 

agency’s chosen discount rate wields an 

outsized influence on the end result.187

INGAA states that the Commission 

should: (1) Only use the SCC tool within 

the NEPA evaluation, not the NGA 

evaluation; (2) use the SCC tool as a 

relative, but not absolute, measure; (3) 

use the SCC tool only as a threshold 

indicator; and (4) place any SCC 

estimates in the proper context.188

76. New Jersey Conservation 

Foundation recommends that the 

Commission use all of the GHG IWG’s 

interim values provided for the SC–GHG 

tools (GHG IWG recommends using a 

discount rate of 3%, but also provides 

values associated with discount rates of 

2.5% and 5%).189

77. Boardwalk and Kinder Morgan 

argue that the Commission should only 

use the SCC tool as a qualitative tool.190

Boardwalk further asserts that there 

should not be any triggering levels that 

would result in adverse action by the 

Commission or a significance 

determination. Boardwalk contends that 

the use of trigger levels would create 

substantial regulatory uncertainty. 

Kinder Morgan and Williams also 

express concern that the SCC tool yields 

inherently one-sided GHG data if it is 

applied to a project in a manner that 

monetizes only the project’s GHG costs 

and not the corresponding project 

benefits.191 Energy Infrastructure 

Council asserts that the SCC tool is 

meaningless without a standard or 

threshold for significance and its use 

requires a monetized cost-benefit 

analysis of an entire project.192

78. Kinder Morgan states that the SCC 

tool was not designed for projectspecific analysis but could be used as a 

screening tool in a qualitative analysis. 

If the Commission uses the SCC tool, 

Kinder Morgan recommends that it 

should explain why and how it was 

used.193 This explanation should 

include information about the SCC’s 

function, its mechanism, its embedded 

limitations and assumptions, and the 

specific reason for its application in a 

given circumstance. Kinder Morgan 

states that this type of explanation is 

vital to avoid misleading the public 

about the purpose of the SCC 

calculation and the meaning of its 

results.194 Spectra Energy Partners, LP 

and Seneca Resources Corporation 

contend that the Commission has no 

basis to designate a particular SCC 

dollar amount as significant, and any 

such designation would be arbitrary and 

could not meaningfully inform the 

Commission’s decision making or the 

public.195 Additionally, Kinder Morgan 

states that the Commission should not 

use the SCC tool to determine mitigation 

measures or conditions because no 

statute requires that the Commission 

implement mitigation based on 

calculations from such a tool.196

2. Appropriate Level of NEPA Review 

and Significance Determination 

79. To determine the appropriate level 

of NEPA review, the Commission is 

establishing a significance threshold of 

100,000 metric tons or more per year of 

CO2e. In calculating this emissions 

estimate, Commission staff will apply 

the 100% utilization or ‘‘full burn’’ rate 

for natural gas supplies delivered by the 

proposed project and will prepare an 

EIS if the estimated emissions from the 

proposed project may exceed the 

100,000 metric tons per year threshold. 

80. An emissions threshold of 100,000 

metric tons per year of CO2e captures 

the majority of annual emissions 

generated by Commission authorized 

projects, including those that may result 

in incremental GHG emissions over a 

long duration that may have a 

significant effect upon the human 

environment. Establishing a threshold 

for NEPA purposes also provides 

Commission staff, industry, and other 

stakeholders clarity regarding whether a 

particular project will result in the 

preparation of either an EA or an EIS. 

We believe that such clarity ultimately 

benefits both the regulated community 

and public by ensuring certainty 

regarding the Commission’s process for 

reviewing applications for natural gas 

infrastructure. 

81. In its NEPA document, staff will 

estimate the proposed project’s GHG 

emissions based on all relevant 

evidence submitted in the record— 

including the project’s utilization rate, 

offsets, and mitigation. A project with 

estimated emissions of 100,000 metric 

tons per year of CO2e or greater will be 

presumed to have a significant effect, 

unless record evidence refutes that 


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197When examining a project’s GHG emissions, 

the Commission will consider record evidence of 

the construction, operational, and, where 

determined to be reasonably foreseeable, 

downstream and upstream GHG emissions that 

reoccur annually over the life of the project. 

198 15 U.S.C. 717b(a). 

199 Id. 717f(c), (e). 

200 Distrigas Corp. v. FPC, 495 F.2d 1057, 1065 

(D.C. Cir.). 

201Atl. Ref. Co. v. Pub. Serv. Comm’n of State of 

N.Y., 360 U.S. 378, 391 (1959). 

202See, e.g., Hope Nat. Gas Co., 4 FPC 59, 59, 66– 

67 (1944) (stating that ‘‘considerations of 

conservation are material to the issuance of 

certificates of public convenience and necessity 

under section 7’’ and authorizing a project in large 

part because of the particular end use of the gas); 

see N. Nat. Gas Co., 15 FPC 1634, 1641 (1956) 

(Connole, Comm’r, dissenting) (contending that the 

Commission has ‘‘long held that considerations of 

conservation, inferior and superior uses, and related 

matters are relevant to determining whether the 

public convenience and necessity require the 

issuance of a certificate’’). 

203Transwestern Pipeline Co., 36 FPC 176, 185– 

186, 189–191 (1966) (citing FPC v. Transcon. Gas 

Pipe Line Corp., 365 U.S. 1 (1961) (Transco), for the 

proposition that the ‘‘end use of gas was properly 

of concern to [the Commission], and made it clear 

that air pollution was a relevant consideration’’). Cf. 

Am. La. Pipe Line Co., 16 FPC 897, 899–900 (1956) 

(‘‘[T]here is a public need for and will be a public 

benefit from [the proposed] natural-gas service 

. . . . This need and benefit arise from the facts, 

among others, . . . that natural gas is a clean, 

convenient and efficient fuel.’’). 

204See supra PP 34–37. 

205See supra P 42. 

206The Commission notes that CEQ and EPA are 

undertaking initiatives that may culminate in the 

establishment of a significance threshold for GHG 

emissions or that may further impact the 

Commission’s determination of GHG significance in 

its NEPA analysis. If CEQ or EPA issues any future 

guidance regarding the evaluation of GHG 

emissions, the Commission may adjust its methods 

for determining the significance of GHG emissions 

consistent with that guidance. 

207EPA 2021 Comments at 6. 208See supra PP 23–25. 209Spiller v. White, 352 F.3d at 244 n.5. 210 IPCC Report at SPM–5. 211See IPCC Report at SPM–17. 212 IPCC Report at SPM–23. 213 IPCC Report at SPM–23. 214 IPCC Report at SPM–19. 

presumption.197 While the 100,000 

metric ton presumption will serve as a 

guidepost, facilitating transparent, 

predictable analysis of a proposed 

project’s contribution to climate change, 

our analysis will continue to consider 

all evidence in the record on a case-bycase basis. As part of that analysis, the 

Commission will continue to consider 

any emerging tools as well as any 

forthcoming frameworks or analysis 

issued by CEQ or other agencies on this 

issue. Finally, as noted at the outset, we 

encourage commenters to address this 

approach to assessing significance— 

including the 100,000 metric ton CO2e 

threshold. 

a. Commission Authority To Establish a 

Threshold 

82. Section 3 of the NGA requires the 

Commission to approve an application 

for the exportation or importation of 

natural gas unless the proposal ‘‘will not 

be consistent with the public 

interest.’’ 198 Similarly, under section 7, 

the Commission must find a proposed 

project is or will be required by the 

present or future public convenience 

and necessity.199 The Commission has 

long regarded section 3’s ‘‘public 

interest’’ standard and section 7’s 

‘‘public convenience and necessity’’ 

standard as substantially equivalent.200

In considering applications under 

section 3 or section 7, the Commission 

must ‘‘evaluate all factors bearing on the 

public interest.’’ 201 The Commission 

has recognized from its earliest 

decisions that it may consider the end 

use of gas as a factor in assessing the 

public interest 202 and has long 

considered the impact of natural gas 

combustion on air pollution.203

83. As discussed above, the courts 

have interpreted the Commission’s 

obligations under NEPA to require 

analysis of downstream GHG emissions 

for NGA section 7 certificate projects, 

but do not require an analysis of either 

downstream or upstream GHG 

emissions for section 3 export 

projects.204 As also discussed above, the 

Commission has previously 

acknowledged that upstream emissions 

for NGA section 7 certificate projects 

may be difficult to quantify. However, 

as noted, the Commission will continue 

to consider on a case-by-case basis 

whether GHG emissions from upstream 

production activities are a reasonably 

foreseeable and causally connected 

result of a proposed project.205

84. Contrary to the suggestion of some 

commenters, the Commission would not 

intrude into another agency’s domain by 

establishing a significance threshold. 

The Commission does not propose to set 

an emissions standard that projects will 

be expected to meet; rather, the 

threshold would be an indication of 

potential significance for purposes of 

the Commission’s review of a project’s 

environmental impacts under NEPA and 

trigger the preparation of an EIS.206

85. As discussed above, NEPA 

requires the Commission to take a ‘‘hard 

look’’ at the environmental 

consequences of a proposed action and 

to prepare an EIS disclosing its analysis 

to the public where its action may 

significantly affect the quality of the 

human environment, or to prepare an 

EA for a proposed action that is not 

likely to have significant effects or when 

the significance is unknown to 

determine if an EIS is necessary. We 

note that neither EPA nor CEQ raise 

objections to the Commission 

determining the significance of GHG 

emissions; in fact, EPA points to 

Executive Order 14008, which directs 

the federal government to prioritize 

assessment, disclosure, and mitigation 

of climate pollution and climate-related 

risks, in response to the Commission’s 

query on how it could determine the 

significance of a project’s GHG 

emissions.207

86. As discussed above, NEPA 

requires the Commission to determine 

whether a project would have any 

significant effects on the environment, 

including the effects of GHG emissions 

on the climate.208 Moreover, courts have 

rejected the claim that under the NEPA 

framework, the determination of 

whether an impact is significant must 

not involve any subjective judgment 

calls.209

87. We are establishing a uniform 

GHG emissions threshold because GHG 

emissions affect climate to the same 

degree, regardless of the location or 

specifics of a particular project. 

Establishing such a threshold will 

provide the Commission a workable and 

consistent path forward to analyze 

proposed projects. Further, a numerical 

threshold is a clear, consistent standard 

that can be easily understood and 

applied by the regulated community 

and interested stakeholders. 

b. Rationale for an Emissions Threshold 

of 100,000 Metric Tons per Year 

88. Human impact on the warming of 

the global climate system is 

unequivocal.210 Even if deep reductions 

in GHG emissions are achieved, the 

planet is projected to warm by at least 

1.5 degrees Celsius (°C) by 2050.211 This 

level of warming will present major 

global consequences. For example, 

extreme temperature events that may 

have occurred once in 10 years on 

average in a climate without human 

influence will occur 4.1 times as 

frequently and be 1.9 °C hotter.212

Agricultural and ecological drought 

events that may have occurred once in 

10 years on average across drying 

regions in a climate without human 

influence will occur twice as 

frequently.213 Warming beyond 1.5 °C 

presents even more severe 

consequences. The Intergovernmental 

Panel on Climate Change states that 

‘‘[w]ith every additional increment of 

global warming, changes in extremes 

continue to become larger.’’ 214 For 

example, every subsequent 0.5 °C of 

warming ‘‘causes clearly discernible 

increases in the intensity and frequency 

of hot extremes, including heatwaves 

(very likely), and heavy precipitation 


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215 IPCC Report at SPM–19 (emphasis in original). 

216The PSD permitting program is part of the 

New Source Review program, which requires new 

stationary sources and major modifications to 

existing major sources to obtain preconstruction 

permits. PSD is designed to prevent air quality 

deterioration in regions that are attaining the 

National Ambient Air Quality Standards by 

requiring major sources or major modifications to 

install the Best Available Control Technology 

(BACT). Major sources under the PSD program are 

defined as facilities that emit or have the potential 

to emit 250 tons per year of any criteria air 

pollutant or 100 tons per year of any criteria air 

pollutant for specific types of facilities listed in the 

statute. 42 U.S.C. 7479(1). The six criteria 

pollutants are carbon monoxide, ground-level 

ozone, lead, nitrogen dioxide, particulate matter, 

and sulfur dioxide. 40 CFR pt. 50. 

217The Title V program requires major stationary 

sources to obtain a single operating permit that 

consolidates all of the permitting requirements in 

the Clean Air Act into a single permit, including 

PSD, New Source Performance Standards, and 

National Emission Standards for Hazardous Air 

Pollutants. Major sources under the Title V program 

are defined as any stationary facility that emits or 

has the potential to emit 100 tons per year of any 

hazardous air pollutant, except GHGs. 42 U.S.C. 

7602(j). The Clean Air Act Amendments of 1990 

originally designated over 180 chemicals as 

hazardous air pollutants, and EPA has the authority 

to modify the list through rulemaking. 42 U.S.C. 

7412(b)–(c). 

218Prevention of Significant Deterioration and the 

Title V Greenhouse Gas Tailoring Rule, 75 FR 31514 

(June 3, 2010) (Tailoring Rule). 

219BACT is used to minimize emissions based on 

the maximum degree of control that the facility can 

achieve as determined by the permitting authority 

on a case-by-case basis. BACT may be a design, 

equipment, work practice, or operational standard, 

such as add-on control equipment, fuel cleaning or 

treatment, or innovative fuel combustion 

techniques. Note that BACT for minimizing GHG 

emissions at natural gas facilities is limited. 

220EPA also planned a Step 3 to further reduce 

the threshold, although not below 50,000 tons per 

year of CO2e. The Supreme Court struck down 

relevant portions of the Tailoring Rule before EPA 

finalized Step 3. 

221Tailoring Rule, 75 FR at 31533–80. 

222Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 

(2014). 

223California ARB, Preliminary Draft Staff 

Proposal, Recommended Approaches for Setting 

Interim Thresholds for Greenhouse Gases under the 

California Environmental Quality Act (Oct. 24, 

2008) (CEQA Proposed Interim Thresholds). In 

addition, California ARB proposed to require these 

projects to meet performance standards for 

construction-related emissions and transportation 

to support a finding of less than significant impacts. 

CEQA Proposed Interim Thresholds at attach. A. 

(high confidence), as well as agricultural 

and ecological droughts in some regions 

(high confidence).’’ 215 Because of the 

dire effects at stake, even relatively 

minor GHG emissions pose a significant 

threat, 100,000 metric tons per year of 

project GHG emissions will capture all 

natural gas projects that have what we 

believe to be the potential for causing 

significant impacts on climate, given the 

typical lifespans of authorized projects. 

For a single natural gas project with a 

lifespan of 30 years, this threshold 

represents a total of three million metric 

tons of GHG emissions. 

89. Based on an internal review of 

natural gas projects from 2008 to 2021, 

a 100,000 metric tons per year threshold 

will cover the vast majority of potential 

GHG emissions from natural gas projects 

authorized by the Commission. For 

context, projects that likely have 

100,000 metric tons per year or more of 

GHG emissions include projects 

transporting an average of 5,200 

dekatherms per day and projects 

involving the operation of one or more 

compressor stations or LNG facilities. 

90. Outside the NEPA context, other 

federal and state agencies that have 

established thresholds to evaluate or 

regulate GHG emissions from an 

analysis of the emissions from regulated 

sources. Most notably, in 2012, EPA 

issued the Tailoring Rule to regulate 

GHG emissions from stationary sources 

of air pollution under the Prevention of 

Significant Deterioration (PSD) 216 and 

Title V 217 permitting programs 218 and 

proposed to phase in the regulation of 

GHG emissions in two steps. Under Step 

1, sources already subject to the PSD 

permitting program for at least one nonGHG pollutant (‘‘anyway’’ sources) were 

required to utilize best available control 

technology (BACT) for GHG 

emissions 219 if they increased net GHG 

emissions by at least 75,000 tons per 

year of CO2e. 

91. Under Step 2, EPA expanded the 

Tailoring Rule by requiring a new 

source or a major modification to an 

existing source to obtain PSD and/or 

Title V permits based on GHG emissions 

alone. Sources that had the potential to 

emit at least 100,000 tons per year of 

CO2e would become newly subject to 

the PSD and/or Title V requirements, 

even if they did not exceed the statutory 

threshold for any other pollutant. 

Additionally, modifications to an 

existing source already subject to PSD 

and/or Title V that increased net GHG 

emissions by at least 75,000 tons per 

year of CO2e would be subject to PSD 

requirements regardless of whether 

there was an increase in the emissions 

of any other pollutant.220

92. In setting the 75,000 tons and 

100,000 tons per year of GHGs 

thresholds, EPA considered the 

administrative burden of permitting the 

estimated number of additional facilities 

under each threshold and the 

percentage of total national stationary 

source GHG emissions that would be 

covered under the threshold.221 For 

example, under Step 1, EPA estimated 

a 5% increase in the total annual cost 

to run the permitting programs and that 

approximately 65% of GHG emissions 

would be covered. Under Step 2, EPA 

estimated that approximately 550 new 

sources would become subject to the 

PSD and Title V programs, increasing 

total annual costs to run the programs 

by 42% and covering 67% of GHG 

emissions. EPA further found that 

lowering the threshold to 50,000 or 

25,000 tons per year of CO2e would 

drastically increase both the number of 

new facilities requiring permits and the 

cost of administering the programs but 

would only marginally increase the 

percentage of GHG emissions covered to 

70% and 75%, respectively. 

93. In 2014, the Supreme Court 

invalidated portions of the Tailoring 

Rule, holding that EPA may not use 

GHG emissions as the sole basis for 

determining whether a source is subject 

to a PSD or Title V permitting 

requirements.222 While the Supreme 

Court’s ruling struck down Step 2 of the 

Tailoring Rule, it upheld Step 1 and 

allowed EPA to continue to regulate 

GHG emissions from ‘‘anyway’’ sources. 

Notably, the decision did not discuss 

EPA’s methodology for establishing the 

thresholds; it only ruled that deviating 

from the 100 and 250 tons per year 

statutory thresholds in the Clean Air Act 

when requiring sources to newly obtain 

PSD or Title V permits based solely on 

GHG emissions under Step 2 was 

impermissible. 

94. Further, at least two agencies in 

California that are directed to determine 

the significance of GHG emissions and 

climate impacts of proposed projects 

under the California Environmental 

Quality Act have also proposed or 

established thresholds of significance 

based on an analysis of regulated 

sources. First, in 2008, the California 

Air Resources Board (California ARB) 

proposed finding a less than significant 

impact for a proposed industrial project 

that, with mitigation, emits no more 

than 7,000 metric tons per year of CO2e 

from non-transportation sources, 

including combustion and fugitive 

emissions.223 Second, the South Coast 

Air Quality Management District (South 

Coast AQMD) adopted an interim GHG 

significance threshold of 10,000 metric 

tons of CO2e per year for stationary 


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224South Coast AQMD, Interim CEQA GHG 

Significance Threshold for Stationary Sources, 

Rules and Plans (Dec. 5, 2008), http://

www.aqmd.gov/docs/default-source/ceqa/ 

handbook/greenhouse-gases-(ghg)-ceqasignificance-thresholds/ghgboardsynopsis.

pdf?sfvrsn=2. 

225 Id. at 4; CEQA Proposed Interim Thresholds at 

attach. A. 

226Currently, two pending court cases challenge 

use of the IWG’s interim values by federal agencies. 

Mo. v. Biden, —— F. Supp. 3d ——, 2021 WL 

3885590 (E.D. Mo. Aug. 31, 2021), appeal filed, No. 

21–3013 (8th Cir.); La. v. Biden, No. 21–cv–1074– 

JDC–KK (W.D. La). 

227Mitigation is measures that avoid, minimize, 

or counterbalance effects caused by a proposed 

action by: (1) Avoiding the impact altogether by not 

taking a certain action or parts of an action; (2) 

minimizing impacts by limiting the degree or 

magnitude of the action and its implementation; (3) 

rectifying the impact by repairing, rehabilitating, or 

restoring the affected environment; (4) reducing or 

eliminating the impact over time by preservation 

and maintenance operations during the life of the 

action; and/or (5) compensating for the impact by 

replacing or providing substitute resources or 

environments. 40 CFR 1508.1. 

228As discussed supra P 26, NEPA contains no 

substantive requirement that environmental 

impacts be mitigated or avoided, however, the 

environmental document must include a mitigation 

discussion that provides ‘‘sufficient detail’’ to 

indicate that environmental impacts have been 

fairly evaluated. S. Fork Band Couns. of W. 

Shoshone of Nev. v. U.S. Dep’t of Interior, 588 F.3d 

718, 727 (9th Cir. 2009); see also Nat’l Parks & 

Conservation Ass’n v. U.S. Dep’t of Transp., 222 

F.3d 677, 681 n.5 (9th Cir. 2000) (stating that 

mitigation measures proposed in an EIS ‘‘need not 

be legally enforceable, funded, or even in final form 

to comply with NEPA’s procedural requirements’’). 

229See supra P 22; see also 15 U.S.C. 

717b(e)(3)(A) (providing the authority to approve an 

application for an LNG Terminal, ‘‘in whole or part, 

with such modifications and upon such terms and 

conditions as the Commission find[s] necessary or 

appropriate’’). 

230See Transcript of Greenhouse Gas Mitigation: 

Natural Gas Act Sections 3 and 7 Authorizations, 

Docket No. PL21–3–000 (issued Dec. 22, 2021) 

(Technical Conference Transcript). 

231See, e.g., Policy Integrity Technical 

Conference Comments at 2; Policy Integrity 2021 

Comments at 14–15, 21; Public Interest 

Organizations 2021 Comments at 71–72; see also 

American Forest Technical Conference Comments 

at 4–5, 7–10 (stating that to the extent the courts 

have clarified the Commission’s duty to consider 

GHG emissions and require mitigation for such 

impacts, that it supports the Commission 

considering mitigation on a case-by-case basis to 

avoid the uncertainty posed by the threat of 

litigation and the possibility of a court vacating the 

project’s certificate). 

232See, e.g., Boardwalk Technical Conference 

Comments at 7; Dr. Jason Scott Johnston Technical 

Conference Comments at 1; TC Energy Technical 

Conference Comments at 4; API 2021 Comments at 

sources of air pollution in 2008.224 Both 

California ARB and South Coast AQMD 

found that their thresholds would 

capture approximately 90% of 

emissions from their respective 

regulated sources.225

95. Like EPA and the California 

agencies, we are basing our threshold on 

an analysis of regulated sources. 

Although we are adopting a 

conceptually similar methodology in 

establishing our threshold, we note that 

our approach will cover a larger number 

of emissions than the threshold 

established by EPA in the Tailoring 

Rule. EPA’s thresholds of 75,000 and 

100,000 tons per year accounted for 

only 65% and 67% of emissions from 

EPA-regulated sources, respectively, 

whereas our proposed threshold of 

100,000 metric tons per year would 

deem nearly three-quarters of 

Commission-regulated natural gas 

project, which collectively account for 

roughly 99% of GHG emissions from 

Commission-regulated natural gas 

projects, to have a significant impact on 

climate change. 

3. Other Metrics 

96. As noted above, commenters argue 

for and against the use of various 

existing GHG inventories or goals as a 

comparison tool to determine 

significance. Comparison to an existing 

GHG inventory or goal presents 

substantially different percentages based 

on the chosen goal (international, state, 

regional, or local). Because different 

projects may have different potential 

purposes and the purpose of a project 

may be characterized to support or 

oppose a particular viewpoint, we do 

not believe that tying the Commission’s 

significance determination for a 

proposed project’s GHG emissions to a 

particular inventory or goal is 

appropriate. However, we recognize that 

this type of comparison can be helpful 

to inform the Commission’s analysis 

and the public, especially when 

presented using a consistent metric 

across proposed projects under 

consideration by the Commission. We 

note that many commenters reference 

the SC–GHG as one tool. To the extent 

permitted by law,226 the Commission 

could consider the SC–GHG in the 

future. 

C. Mitigation 

97. Federal agencies can use 

mitigation to minimize the potential 

adverse environmental effects of their 

actions,227 and mitigation is used by the 

Commission in reviewing NGA sections 

3 and 7 proposals.228

98. The NGA grants the Commission 

broad authority to attach reasonable 

terms and conditions to NGA section 7 

certificates of public convenience and 

necessity and NGA section 3 

authorizations.229 The Commission has 

consistently exercised this authority to 

attach environmental conditions that 

mitigate the adverse environmental 

impacts of a proposed project, and the 

Commission is not precluded from 

utilizing this authority to require a 

project sponsor to mitigate all, or a 

portion of, the impacts related to a 

proposed project’s GHG emissions. 

Therefore, consistent with the 

discussion provided herein, going 

forward project proponents are 

encouraged to propose mitigation that 

will minimize climate impacts. The 

Commission will consider any 

mitigation measures proposed by the 

project sponsor on a case-by-case basis 

when balancing the need for a project 

against its adverse environmental 

impacts and may require additional 

mitigation as a condition of an NGA 

section 3 authorization or section 7 

certificate. 

1. Technical Conference on GHG 

Mitigation 

99. On November 19, 2021, the 

Commission held a Commission staffled technical conference to discuss 

methods project sponsors may use to 

mitigate the effects of direct and indirect 

greenhouse gas emissions resulting from 

Natural Gas Act sections 3 and 7 

authorizations.230 Representatives from 

industry, academia, non-governmental 

organizations, and state regulatory 

commissions participated as panelists, 

with discussion topics including: How 

the Commission could determine the 

quantity of reasonably foreseeable GHG 

emissions resulting from a project 

proposed under section 3 or 7 of the 

NGA and the appropriate level of 

mitigation for such emissions; types of 

mitigation measures a project sponsor 

could employ to reduce the amount of 

GHG emissions associated with a 

proposed project; and methods for the 

continued verification and accounting 

of GHG mitigation during project 

operation, as well as cost impacts to the 

industry from implementing GHG 

mitigation measures and how project 

sponsors might recover those costs. 

100. In addition to the panelists’ 

written statements, the Commission 

received over 20 comments in response 

to the technical conference. The 

Commission considered these 

statements and comments in developing 

the mitigation policy described below. 

2. Authority To Require Mitigation 

101. Some commenters state that the 

Commission has broad authority under 

the NGA to place conditions in 

certificate authorizations requiring 

pipeline companies to mitigate GHG 

impacts,231 while others argue that the 

Commission does not have authority 

under the NGA or NEPA to impose 

mitigation measures,232 especially 


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29–30; see also Williams Technical Conference 

Comments at 17 (claiming that there is no 

reasonable basis for the Commission to require 

project sponsors to submit mitigation proposals 

with their applications because the technical 

conference demonstrated a lack of evidentiary 

support for any specific mitigation methods, offered 

no specific proposals regarding the levels of fees, 

offsets, or caps, and proposed no concrete and costeffective means to mitigate emissions). 

233API Technical Conference Comments at 5; 

Boardwalk Technical Conference Comments at 10; 

Consolidated Edison Company of New York, Inc. 

and Orange and Rockland Utilities, Inc. 

(collectively, Con Edison) Technical Conference 

Comments at 5; Hon. Joseph T. Kelliher Technical 

Conference Comments at 1; INGAA Technical 

Conference Comments at 6–7; TC Energy Technical 

Conference Comments at 8; API 2021 Comments at 

31; INGAA 2021 Comments at 74–83; TC Energy 

2021 Comments at 56–58. 

234See, e.g., Hon. Joseph T. Kelliher Technical 

Conference Comments at 1 (citing NAACP v. FPC, 

425 U.S. 662, 669–70 (1976)); id. at 8–9 (asserting 

that the proper place to consider GHG emissions 

(direct only) is under the Commission’s balancing 

test, where a project sponsor may choose to 

voluntarily offset emissions); TC Energy Technical 

Conference Comments at 8; INGAA 2021 Comments 

at 74–76. 

235See, e.g., Boardwalk Technical Conference 

Comments at 11–13 (arguing that Transco does not 

authorize the Commission to indirectly regulate 

upstream and downstream emissions); Enbridge 

Technical Conference Comments at 5, 16, 21; Hon. 

Joseph T. Kelliher Technical Conference Comments 

at 4; INGAA 2021 Comments at 76–77. 

236See, e.g., API Technical Conference Comments 

at 2, 4; Edison Electric Institute (EEI) Technical 

Conference Comments at 9–10; Enbridge Technical 

Conference Comments at 18–19, 23–24; Hon. Joseph 

T. Kelliher Technical Conference Comments at 5; 

Attorneys General of Missouri et al. Technical 

Conference Comments at 3 (citing S. Coast Air 

Quality Mgmt. Dist. v. FERC, 621 F.3d 1085, 1092 

(9th Cir, 2010)); TC Energy Technical Conference 

Comments at 6–7; Boardwalk 2021 Comments at 10. 

Commenters further argue that the NGA was not 

enacted to comprehensively regulate the natural gas 

industry, but instead to fill a regulatory gap over 

interstate gas transportation and sales; therefore, 

Congress left the regulation of upstream production 

and downstream consumption to the states. 

Enbridge Technical Conference Comments at 16–17; 

Hon. Joseph T. Kelliher Technical Conference 

Comments at 2 (citing NAACP v. FPC, 425 U.S. at 

669–70; State of Cal. v. Southland Royalty Co., 436 

U.S. 519, 523 (1989); ONEOK, Inc. v. Learjet, Inc., 

575 U.S. 373, 378, 384–85 (2015); ANR Pipeline Co. 

v. FERC, 876 F.2d 124, 132–33 (D.C. Cir. 1989)). 

237 INGAA Technical Conference Comments at 8; 

Boardwalk 2021 Comments at 107; Con Edison 

Technical Conference Comments at 6–7 (stating that 

the state regulators are the best positioned to 

determine and impose mitigation measures for 

upstream and downstream GHG emissions); INGAA 

2021 Comments at 77–79. 

238American Public Gas Association (APGA) 

Technical Conference Comments at 5–6; EEI 

Technical Conference Comments at 9–10; Enbridge 

Technical Conference Comments at 23–24; TC 

Energy Technical Conference Comments at 9–10. 

239Specifically, commenters argue that the 

Commission should rely on Center for Biological 

Diversity, which states that ‘‘the legal analysis in 

Sabal Trail is questionable at best’’ and that ‘‘[i]t 

fails to take seriously the rule of reason announced 

in Public Citizen or to account for the untenable 

consequences of its decision.’’ Center for Biological 

Diversity, 941 F.3d at 1300; see also AGA Technical 

Conference Comments at 13–14; Boardwalk 

Technical Conference Comments at 16–17; Hon. 

Joseph T. Kelliher Technical Conference Comments 

at 3; INGAA Technical Conference Comments at 

12–13; TC Energy Technical Conference Comments 

at 13–14. 

240API Technical Conference Comments at 4; EEI 

Technical Conference Comments at 6; INGAA 

Technical Conference Comments at 14; Williams 

Technical Conference Comments at 5. 

241See AGA Technical Conference Comments at 

12–13 (arguing that the Commission should not rely 

on this statement of dicta because the issue of 

mandatory mitigation was not at issue in this case; 

rather, the court only addressed whether the 

Commission is, in some circumstances, required by 

NEPA to include a discussion of downstream GHG 

emissions when conducting its environmental 

review); Boardwalk Technical Conference 

Comments at 16 (same); Enbridge Technical 

Conference Comments at 20 (same); Hon. Joseph T. 

Kelliher Technical Conference Comments at 3–4 

(same); TC Energy Technical Conference Comments 

at 12 (same). 

242Sabal Trail, 867 F.3d at 1374. 

243Transco, 365 U.S. at 17; see also NAACP v. 

FPC, 425 U.S. at n.6 (stating that the Commission 

has the authority to consider conservation and 

environmental issues under the NGA’s public 

interest determination). See Certification of New 

Interstate Natural Gas Pipeline Facilities, 178 FERC 

¶ 61,107 at PP 71–72. 

244 15 U.S.C. 717f(e); see also id. 717b(e)(3)(A) 

(providing the authority to approve an application 

for an LNG Terminal, ‘‘in whole or part, with such 

modifications and upon such terms and conditions 

as the Commission find[s] necessary or 

appropriate.’’). 

245For examples where the Commission has 

conditioned approval of natural gas projects on 

mitigation of adverse impacts, see supra note 69. 

246See Twp. of Bordentown v. FERC, 903 F.3d at 

261 n.15 (concluding that the Commission’s 

authority to enforce any required remediation is 

amply supported by provisions of the NGA); Sabal 

Trail, 867 F.3d at 1374 (holding that the 

Commission has legal authority to mitigate 

reasonably foreseeable indirect effects). 

247See generally Tex. Pipeline Ass’n v. FERC, 661 

F.3d 258, 260 (5th Cir. 2011) (holding that the 

Commission lacked authority to require ‘‘major 

non-interstate pipelines’’ to post certain flow 

information). 

measures to mitigate upstream or 

downstream GHG emissions.233

Specifically, commenters argue that the 

Commission’s authority under NGA 

section 7(e) to place conditions on a 

certificate is limited by the statutory 

purpose to regulate interstate 

transportation to ensure reliable access 

to plentiful natural gas at reasonable 

prices.234 Commenters further assert 

that the Commission has no authority to 

establish environmental policy and that 

the Commission cannot use its 

conditioning authority to indirectly 

mitigate an effect that it has no authority 

to directly mitigate.235

102. Commenters also claim that any 

attempt to mitigate indirect GHG 

emissions would infringe on the 

regulatory authority of other federal and 

state agencies and result in back-door 

regulation of energy policy.236

Specifically, commenters state that any 

attempt by the Commission to mitigate 

upstream or downstream GHG 

emissions would interfere with state 

resource decisions and usurp issues of 

national energy and environmental 

policy that Congress vested in other 

federal authorities.237 For example, 

commenters argue that Congress has 

delegated authority to the EPA and state 

agencies to regulate GHGs under the 

CAA.238 Even if the Commission had 

the authority to impose mitigation 

measures for upstream or downstream 

GHG emissions, commenters argue that 

the Commission must first establish that 

those GHG emissions are reasonably 

foreseeable and have a sufficiently close 

causal connection (akin to proximate 

causation under tort law) 239 to the 

authorization of a project under NEPA, 

and if not, should not be considered for 

mitigation purposes.240 Lastly, 

commenters question reliance on Sabal 

Trail to support the Commission’s 

authority to impose mitigation.241

103. We disagree with contentions 

that the Commission does not have the 

authority under the NGA or NEPA to 

require mitigation of GHG emissions by 

a project sponsor. The D.C. Circuit 

stated in Sabal Trail, that ‘‘the 

[Commission] has legal authority to 

mitigate’’ greenhouse-gas emissions that 

are an indirect effect of authorizing a 

pipeline project.242 And, as early as 

1961, the Supreme Court recognized 

that the Commission’s predecessor, the 

Federal Power Commission, had the 

authority to consider downstream uses, 

and specifically, the impact of end-users 

combusting transported gas on air 

quality, as part of its public convenience 

and necessity determination under the 

NGA.243 Both NGA sections 3 and 7 

authorize the Commission to attach 

‘‘such reasonable terms and conditions 

as the public convenience and necessity 

may require.’’ 244 Pursuant to this 

authority, the Commission has 

conditioned NGA section 7 certificates 

and section 3 authorizations on 

mitigation of impacts of the proposed 

project.245 Moreover, courts have 

interpreted this provision broadly and 

given the Commission latitude in 

deciding what types of mitigation to 

require.246

104. Regarding claims that the 

Commission cannot mandate mitigation 

of downstream emissions because those 

emissions are outside the Commission’s 

jurisdiction, we recognize, as many 

commenters assert, that the Commission 

does not have the statutory authority to 

impose conditions on downstream users 

or other entities outside the 

Commission’s jurisdiction, such as 

production, gathering, and local 

distribution entities.247 Rather, the 

Commission encourages each project 

sponsor to propose measures to mitigate 

the impacts of reasonably foreseeable 


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248As described supra in section III.A.2.b, the 

Commission will consider GHG emission mitigation 

and reduction efforts taken by non-jurisdictional 

entities, including downstream users, when 

quantifying the reasonably foreseeable project GHG 

emissions. However, the project sponsor’s GHG 

mitigation plan should only include its own 

proposed mitigation efforts. 

249See supra section III.A.1.b. 

250Pub. Citizen, 541 U.S. at 767, 770 (quoting 

Metro. Edison Co., 460 U.S. at 774); see Sabal Trail, 

867 F.3d at 1372. 

251Pub. Citizen, 541 U.S. at 767 (quoting Metro. 

Edison Co., 460 U.S. at 774 n.7). 

252Sabal Trail, 867 F.3d at 1373 (citing Minisink 

Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 

97, 101–02 (D.C. Cir. 2014); Myersville Citizens for 

a Rural Cmty. v. FERC, 783 F.3d 1301, 1309 (D.C. 

Cir. 2015)). 

253See supra P 97. 

254Robertson v. Methow Valley Citizens Council, 

490 U.S. at 351 (‘‘To be sure, one important 

ingredient of an EIS is the discussion of steps that 

can be taken to mitigate adverse environmental 

consequences.’’). 

255 Id. at 352 (‘‘There is a fundamental 

distinction, however, between a requirement that 

mitigation be discussed in sufficient detail to 

ensure that environmental consequences have been 

fairly evaluated, on the one hand, and a substantive 

requirement that a complete mitigation plan be 

actually formulated and adopted, on the other.’’); S. 

Fork Band Couns. of W. Shoshone of Nev. v. U.S. 

Dep’t of Interior, 588 F.3d at 727 (NEPA does not 

require that agencies mitigate significant 

environmental harms). 

256 Final Guidance for Federal Departments and 

Agencies on the Appropriate Use of Mitigation and 

Monitoring and Clarifying the Appropriate use of 

Mitigated Findings of No Significant Impact, 76 FR 

3843, 3848. 

257Sabal Trail, 867 F.3d at 1373 (distinguishing 

Public Citizen). 

258See supra P 80. 

259The Attorneys General of Massachusetts, 

Delaware, Maryland, Michigan, Minnesota, New 

Jersey, Rhode Island, and the District of Columbia 

(Attorneys General of Massachusetts et al.) 

recommends that the Commission include 

reasonable, binding mitigation measures that 

incorporate any applicable state or federal 

regulations or permit conditions. Attorneys General 

of Massachusetts et al. Technical Conference 

Comments at 6. The technical conference 

commenters are made up of a slightly different 

group of state attorneys general than those filing 

comments in 2018 or 2021. As explained below, the 

Commission is only considering mitigation 

measures that reduce emissions beyond those 

associated with regulatory requirements in this 

policy statement. 

260 INGAA Technical Conference Comments at 

21–27; see also Enbridge Technical Conference 

Comments at 12–13, 35–38 (recommending the 

Commission await direction from Congress in 

choosing a mitigation level, especially if requiring 

project sponsors to mitigate to less than significant 

levels and noting that mitigation to zero is not 

practicable if downstream or upstream emissions 

are included). 

261Attorneys General of Massachusetts et al. 

urges the Commission to consider the impacts of 

any mitigation measures on environmental justice 

communities. Attorneys General of Massachusetts 

et al. Technical Conference Comments at 5–6. 

262 Jennifer Danis, Senior Fellow with the Sabin 

Center for Climate Change Law and a panelist at the 

GHG Technical Conference on Panel 1, 

recommends that the Commission should not 

consider the effect of any mitigation measures in its 

public interest determination but should only 

consider mitigation measures once the Commission 

has determined that public convenience and 

necessity absolutely requires the project. Jennifer 

Danis Technical Conference Statement at 8–11. As 

explained in the Certificate Policy Statement, the 

Commission considers all factors, including the 

extent to which adverse impacts are mitigated, to 

determine whether a project is in the public 

convenience and necessity. Certification of New 

Interstate Natural Gas Pipeline Facilities, 178 FERC 

¶ 61,107 at PP 70, 93–95. 

263See supra section II.B. 

GHG emissions associated with its 

proposed project, and will consider 

such mitigation proposals in assessing 

the extent of a project’s adverse 

impacts.248

105. We note that the Supreme 

Court’s ruling in Public Citizen does not 

preclude the Commission from 

requiring project sponsors to mitigate 

reasonably foreseeable upstream or 

downstream emissions. As discussed 

previously,249 the Commission may 

consider downstream GHG emissions 

under Public Citizen, which states that 

‘‘NEPA requires ‘a reasonably close 

causal relationship’ between [an] 

environmental effect and the alleged 

cause,’’ analogous to the ‘‘familiar 

doctrine of proximate cause from tort 

law’’ and does not require an agency to 

gather or consider information regarding 

environmental harms if it lacks 

authority to act on that information.250

As directed by Public Citizen, 

decisionmakers should ‘‘look to the 

underlying policies or legislative intent 

in order to draw a manageable line 

between those causal changes that may 

make an actor responsible for an effect 

and those that do not.’’ 251 Here, the 

NGA ‘‘broadly instruct[s]’’ the 

Commission to consider ‘‘the public 

convenience and necessity’’ when 

evaluating proposed interstate pipeline 

applications, balancing public benefits 

against adverse effects, including 

adverse environmental effects,252 and 

we have noted that the Commission has 

consistently exercised its broad 

conditioning authority under the NGA 

to attach environmental conditions that 

mitigate the adverse environmental 

impacts of a proposed project.253 NEPA 

requires an agency to consider the 

environmental impacts of its actions, 

including steps that could be taken to 

mitigate adverse environmental 

consequences,254 although it does not 

require a federal agency to take action 

to mitigate those adverse effects.255 As 

CEQ recognizes, an agency may, 

however, require mitigation of impacts 

under its authority as a condition of its 

permitting or approval.256 Thus, as the 

D.C. Circuit held in Sabal Trail, the 

Commission can deny a pipeline 

certificate on the ground that the 

pipeline would be too harmful to the 

environment, because the agency is the 

‘‘legally relevant cause’’ of the direct 

and reasonably foreseeable 

environmental effects of the pipelines it 

approves.257 Accordingly, the 

Commission may consider the end use 

of gas and the impact of natural gas 

combustion on air pollution as a factor 

in assessing the public interest.258

However, as detailed below, the 

Commission’s priority is for project 

sponsors to mitigate, to the greatest 

extent possible, a project’s direct GHG 

emissions. The Commission also 

encourages project sponsors to propose 

mitigation of reasonably foreseeable 

indirect emissions, and will take such 

proposals into account in assessing the 

extent of a project’s adverse impacts. 

3. Mitigation Measures 

106. The Commission encourages the 

project sponsor to propose measures to 

mitigate the direct GHG emissions of its 

proposed project to the extent these 

emissions have a significant adverse 

environmental impact.259 INGAA 

describes three possible levels of 

mitigation—to zero, to a level of below 

significance, and to an amount to be 

determined by use of the SCC—but 

dismisses each as unworkable, 

improperly adopting broad policy 

judgements, and reliant on a one-sided 

and imprecise methodology, 

respectively.260 The Commission plans 

to evaluate proposed mitigation plans 

on a case-by-case basis and is not 

mandating a standard level of 

mitigation. We also encourage project 

sponsors to proposed measures to 

mitigate the reasonably foreseeable 

upstream or downstream emissions 

associated with their projects. 

107. The Commission will consider 

the project’s impact on climate change, 

including the project sponsor’s 

mitigation proposal, as part of its public 

interest determination under NGA 

section 3 or 7.261 When making the 

public interest determination, the 

Commission will assess the adequacy of 

the project sponsor’s proposed 

mitigation on a case-by-case basis and 

will consider the project’s impact on 

climate change as one of many 

factors.262 Further, the Commission may 

require additional mitigation of a 

project’s direct GHG emissions as a 

condition of the authorization, should 

the Commission deem a project 

sponsor’s proposed mitigation 

inadequate to support the public 

interest determination. 

108. Also we note that NEPA does not 

preclude the Commission from 

approving a project with significant 

adverse impacts.263 If a project’s 

emissions equal or exceed the 100,000 


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264Commenters emphasize the need for flexibility 

in assessing mitigation measures. See, e.g., Enbridge 

Pre-Conference Comments at 9; Enbridge Technical 

Conference Comments at 46–47 (suggesting that, 

depending on a variety of factors, the applicant may 

or may not be able to propose appropriate 

mitigation at the time of the project application); 

Hon. Joseph T. Kelliher Technical Conference 

Comments at 11 (recommending alternatives to 

imposing mitigation requirements such as revising 

the Commission’s 2015 Modernization Policy 

Statement, issuing a new GHG policy statement that 

either allows limited section 4 rate filings to recover 

costs or clarifies the level of shipper support 

required to support establishment of a tracker 

surcharge and recommending that such a policy 

address lost and unaccounted-for fuel, or 

implementing a fast track certificate process for 

project sponsors that voluntarily commit to mitigate 

direct GHG emissions); INGAA Technical 

Conference Comments at 30; Magnolia LNG LLC 

Technical Conference Comments at 2; TC Energy 

Technical Conference Comments at 5, 21 (arguing 

against the Commission requiring marked-based 

mitigation measures). A few commenters either 

oppose use of the SCC in determining a required 

level of mitigation for project emissions, Enbridge 

Technical Conference Comments at 6, 38–39, or 

urge the Commission to use the SCC to monetize 

the impacts of any GHGs that are not able to be 

mitigated, Attorneys General of Massachusetts et al. 

Technical Conference Comments at 7. As described 

above, the Commission does not propose to 

mandate any particular level or type of mitigation. 

265For example, Mountain Valley Pipeline, LLC, 

proposed to offset the operational emissions of the 

Mountain Valley Pipeline Project by purchasing 

carbon offset credits equivalent to 90% of GHG 

emissions associated with the project’s operations 

in its first 10 years of service from a new methane 

abatement project located at a mine in southwest 

Virginia. Mountain Valley Pipeline, LLC, Carbon 

Offset Commitment for Mountain Valley Pipeline 

Project Operations, Docket No. CP21–57–000 (filed 

July 12, 2021). 

266Regulatory requirements include those 

imposed by the Commission and other federal and 

state regulatory agencies. However, project sponsors 

may include participation in voluntary regulatory 

programs that reduce GHG emissions. 

267See, e.g., INGAA Technical Conference 

Comments at 38–39. Dr. Carl Pechman, Director of 

the National Regulatory Research Institute and a 

panelist at the GHG Technical Conference on Panel 

3, provides extensive comments on how the 

Commission could establish accounting protocols 

and offset tracking. Dr. Carl Pechman Technical 

Conference Statement at 1–15. 

268APGA Technical Conference Comments at 8– 

9; Enbridge Technical Conference Comments at 48– 

49; INGAA Technical Conference Comments at 40– 

41; TC Energy Technical Conference Comments at 

5–6, 22–23. Similarly, commenters state that the 

Commission should defer to other agencies, such as 

the EPA and state environmental agencies, that are 

already taking regulatory action regarding 

emissions, express concern over the potential for 

inconsistent mitigation requirements between 

agencies, and/or point to EPA’s methane regulation 

proposal to reduce GHG emissions from new, 

reconstructed, modified, and existing facilities in 

the oil and gas source category under section 111 

of the Clean Air Act. APGA Technical Conference 

Comments at 5; EEI Technical Conference 

Comments at 10–11; INGAA Technical Conference 

Comments at 30–32; NGSA Technical Conference 

Comments at 6–7. Conversely, one commenter 

encourages the Commission to use resources from 

the EPA’s pending rulemaking. Attorneys General 

of Massachusetts et al. Technical Conference 

Comments at 6–7 (referencing Standards of 

Performance for New, Reconstructed, and Modified 

Sources and Emissions Guidelines for Existing 

Sources: Oil and Natural Gas Sector Climate 

Review, 86 FR 63110 (Nov. 15, 2021)). 

269EEI Technical Conference Comments at 12–14. 

270 INGAA Technical Conference Comments at 

40–41. 

271See, e.g., Standards of Performance for New, 

Reconstructed, and Modified Sources and 

Emissions Guidelines for Existing Sources: Oil and 

Natural Gas Sector Climate Review, 86 FR 63110 

(Nov. 15, 2020). 

metric tons per year significance 

threshold and the project sponsor’s 

proposed mitigation will reduce the 

project’s GHG emissions below that 

threshold, the Commission will 

consider that mitigation in determining 

whether it can make a finding of no 

significant impact. 

109. While the Commission has broad 

authority to require mitigation of GHG 

emissions by a project sponsor, we are 

not mandating here any particular form 

of mitigation.264 A project sponsor is 

free to propose any mechanism to 

mitigate the project’s GHG emissions.265

However, in order to ensure that any 

GHG emissions reduction mechanisms 

achieve real, verifiable, and measurable 

reductions, any proposed mechanisms 

should: 

a. Be both real and additional—the 

emissions reductions would not have 

otherwise happened unless the proposed 

reduction mechanism was implemented, and 

the associated reductions occur beyond 

regulatory requirements; 266

b. be quantifiable—any emissions 

reductions must be calculated using a 

transparent and replicable methodology; 

c. be unencumbered—seller has clear 

ownership of or exclusive rights to the 

benefits of the GHG reduction; and 

d. be trackable—the project sponsor must 

also propose means for the Commission to 

monitor and track compliance with the 

proposed mitigation measures for the life of 

the project. 

110. Commenters express concerns 

with how the Commission will 

determine whether mitigation measures 

are verifiable or how the Commission 

will monitor or track compliance with 

mitigation measures in a way that 

avoids double counting emissions 

reductions.267 Commenters point out 

that other federal agencies and states are 

already monitoring GHG emissions from 

certificated projects, such as EPA’s GHG 

Reporting Rule, so a Commissiondesigned monitoring scheme would be 

duplicative and unnecessary.268 EEI 

recommends that the Commission 

explore interagency agreements or 

memorandums of understanding (MOU) 

with agencies like EPA and PHMSA to 

avoid redundancies and clarify 

mitigation responsibilities,269 while 

INGAA states that such agreements or 

MOUs would be insufficient.270

111. We believe it best not to mandate 

mitigation based on a specific volume or 

proportion of emissions. Encouraging 

project sponsors to submit proposed 

mitigation measures as opposed to 

mandating a certain level of mitigation 

for all projects allows the Commission 

to consider a project sponsor’s proposed 

mitigation plan in comparison to the 

project’s benefits, such as fuel switching 

or providing reliable gas service, when 

making a public interest determination 

and allows project sponsors the 

flexibility to choose what mitigation 

measures work best for their individual 

project. Moreover, we recognize that 

determining an appropriate amount of 

mitigation, particularly for downstream 

uses, depends on a variety of complex 

factors, some of which may not be 

known at the time of an application, 

such as state and local climate change 

policies, the interconnected nature of 

the natural gas pipeline system, longterm changes in natural gas supply 

sources, changes in demand for natural 

gas over time, individual companies’ 

long-term goals to reduce GHG 

emissions, the availability of renewable 

energy credits or other carbon offsets, 

and the potential for future action by 

other federal agencies.271

112. Similarly, we believe it best to 

allow project sponsors to demonstrate 

that their proposed mitigation measures 

are verifiable and propose means for the 

Commission to monitor or track the 

proposed measures through the life of 

the project. This approach allows 

project sponsors to take advantage of 

existing monitoring programs and tailor 

verification and tracking to their chosen 

mitigation proposals and prevents the 

Commission from needing to establish a 

new monitoring program. 

4. Opportunities for Mitigation 

113. While project sponsors are free to 

propose any type of mitigation 

mechanism, the following are examples 

of mitigation mechanisms project 

sponsors may consider. 

a. Market-Based Mitigation 

114. Project sponsors may mitigate the 

GHG emissions of a proposed project 

through participation in one (or more) of 

the various types of carbon offset 

markets. Sponsors could, for example, 

purchase renewable energy credits, 

participate in a mandatory compliance 

market (if located in a state that requires 

participation in such a market), or 

participate in a voluntary carbon 

market. 

i. Renewable Energy Credits 

115. Renewable energy credits (REC) 

are tradeable, market-based 


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272For more information, see EPA Green Power 

Partnership, Offsets and RECs: What’s the 

Difference (Feb. 2018), https://www.epa.gov/sites/ 

default/files/2018-03/documents/gpp_guide_recs_

offsets.pdf. 

273Enbridge Pre-Conference Comments at 6–7; 

Enbridge Technical Conference Comments at 42–46; 

Enbridge 2021 Comments at 145–148; INGAA 

Technical Conference Comments at 33. 

274Enbridge 2021 Comments at 23, 148 n. 406 

(stating that the lack of a federal REC program 

coupled with the patchwork of state and regional, 

as well as voluntary and mandatory, REC programs 

brings into question whether project sponsors could 

participate in these existing programs). 

275RGGI includes: Connecticut, Delaware, Maine, 

Maryland, Massachusetts, New Hampshire, New 

Jersey, New York, Rhode Island, Vermont, and 

Virginia. 

276Any entity is eligible to participate in CO2

allowance auctions including, but not limited, to 

corporations, individuals, non-profit corporations, 

environmental organizations, brokers, and other 

interested parties. The Regional Greenhouse Gas 

Initiative, CO2 Allowance Auctions, Frequently 

Asked Questions 1 (Apr. 6, 2021), https://

www.rggi.org/sites/default/files/Uploads/AuctionMaterials/54/FAQS_Apr_6_2021.pdf. 

277 23.5 million CO2 allowances (short tons) sold 

at RGGI auction in March 2021 at clearing price of 

$7.60/allowance. 

278 54.7 million CO2 allowances (metric tons) sold 

at settlement price of $17.8/allowance during a 

February 2021 auction. 

279EPA Green Power Partnership, supra note 272. 

280 In 2019, 104 million metric tons of CO2e 

offsets were sold and the price per metric ton CO2e 

was $1.40 to $4.30, depending on type of project 

(renewable energy and forestry/land use, 

respectively). S&P Global Platts, Voluntary Carbon 

Market Grows 6% on Year in 2019: Ecosystem 

Marketplace (Sep. 22, 2020), https://

www.spglobal.com/platts/en/market-insights/latestnews/coal/092220-voluntary-carbon-market-grows6-on-year-in-2019-ecosystem-marketplace. 

281Typical offset projects include ozone depleting 

substances destruction, landfill gas capture/ 

combustion, livestock gas capture/combustion, 

improved forest management, avoided grassland 

conversion, and improved forest management, 

among others. For more information, see generally 

https://www.climateactionreserve.org/. 

282Typical offset projects include renewable 

energy, forest and wetland conservation and 

restoration, transport efficiency improvement, 

nitrous oxide abatement, clean cookstoves, methane 

capture and use/combustion, and waste heat 

recovery. For more information, see generally 

https://verra.org/. 

283Typical offset projects include ozone depleting 

substances destruction, industrial process 

emissions, fuel switching, livestock waste 

management, transport fleet efficiency, landfill gas 

capture and combustion, wetland restoration, forest 

management, and coal mine methane capture. For 

more information, see generally https://

americancarbonregistry.org/. 

commodities that provide proof that one 

megawatt hour of electricity was 

generated from a renewable source and 

delivered to the grid. RECs legally 

convey the attributes of renewable 

electricity generation to their owner. 

While state or regional RECs may be 

traded on financial exchanges that 

typically meet state or regional 

guidelines, they are not limited by 

geographic boundaries—RECs can be 

purchased independently from 

electricity and can be matched with 

energy consumption.272

116. Commenters argue that the 

Commission may not require RECs 

because unlike offsets, RECs pertain 

only to the use of electric power and are 

therefore not appropriate for upstream 

or downstream mitigation, do not 

mitigate or compensate for GHG 

emissions, and are not denominated in 

carbon dioxide (CO2) or CO2e, thus, they 

cannot represent any specific amount of 

avoided or reduced emissions.273

Enbridge also states that in most 

instances, project sponsors will not 

qualify to purchase RECs under existing 

state programs.274 While RECs may not 

represent a 100% offset per unit of GHG 

emitted, RECs do represent a decrease in 

GHG emissions from overall energy use 

and production, and we will consider 

them. 

ii. Mandatory Compliance Market 

Participation 

117. The compliance market is a 

mandatory offset program regulated by 

national, regional, or provincial law and 

mandates CO2 and GHG emission 

reduction requirements. Under this 

framework an allowance, which is an 

authorization for an entity to emit GHG 

emissions, is created. Allowances are 

generated and traded for regulatory 

compliance and are priced as a 

commodity based on supply and 

demand, regardless of project type. 

118. A prime example of an existing, 

domestic compliance market is the 

Regional Greenhouse Gas Initiative 

(RGGI). RGGI is a cooperative effort by 

eleven Northeast and Mid-Atlantic 

states 275 to limit CO2 emissions at 

certain electric power generators. Each 

region involved in RGGI has an 

established emissions budget (cap) and 

each electric power generator holds 

allowances covering their GHG 

emissions. If a generator is below its 

established cap, it may trade an 

allowance to other entities 276 that 

exceed their cap. RGGI has an 

established emissions-based auction and 

trading system where allowances are 

bought, sold, and traded.277 In addition 

to allowances, offsets may be used for 

compliance purposes, which requires a 

third-party certification of that offset for 

use. RGGI strictly regulates the quantity 

and types of offsets. There are five predetermined types of RGGI offsets: 

a. Landfill gas (methane) capture/burning; 

b. sulfur hexafluoride capture/recycling; 

c. afforestation (the establishment of a 

forest in an area where there was no previous 

tree cover); 

d. energy efficiency (end use); and 

e. agricultural manure management 

operations (avoided emissions). 

119. In addition to RGGI, California 

participates in the Western Climate 

Initiative with Quebec and Nova 

Scotia,278 covering industrial 

production, electricity generation, 

residential, commercial, and small 

industrial combustion, and 

transportation fuel combustion. 

120. If an applicant proposes any 

method of market-based mitigation of 

GHG emissions, such as those described 

in this section, we encourage the 

applicant to inform the Commission of 

any state or regional compliance goals 

or initiatives that may be relevant to our 

consideration of such mitigation 

proposal. 

iii. Voluntary Carbon Market 

Participation 

121. If a project sponsor is not located 

in a state that participates in a 

mandatory compliance market, the 

voluntary carbon market offers an 

opportunity to mitigate project 

emissions. The voluntary carbon market 

transacts with offsets, which are the 

instrument representing the reduction, 

avoidance, or sequestration of one 

metric ton of GHG.279 The voluntary 

market funds additional, external 

projects that avoid or reduce GHG 

emissions.280 The voluntary carbon 

market is open to project sponsors 

regardless of location and is more 

flexible than compliance markets, 

although each market has its own 

standards, registries, and project types. 

Offset allowances are issued to project 

sponsors of qualifying CO2 emissions 

offset projects. 

122. Typically, an independent third 

party qualifies offset projects and 

establishes standards to verify offsets; 

however, not all offsets available in the 

voluntary market are certified by a third 

party. In order to ensure the 

additionality and permanence of offsets, 

the use of unverified offsets is 

discouraged. If a project sponsor 

proposes to mitigate project emissions 

through participation in a voluntary 

carbon market, the sponsor is 

encouraged to seek Commission 

approval of the third party that would 

verify the offsets prior to participation. 

Examples of existing, acceptable thirdparty certifiers include: 

a. Climate Action Reserve; 281

b. Verified Carbon Standard; 282 and 

c. American Carbon Registry.283

123. Some commenters support 

allowing project sponsors to purchase 

emissions offsets while others oppose it 

as a mitigation method. For example, 

Policy Integrity recommends that the 


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284Policy Integrity 2021 Comments at 14–15, 19. 

285Policy Integrity 2021 Comments at 23–26 

(citing 40 CFR 1508.1(s)(5)). 

286Policy Integrity 2021 Comments at 20. 

287Enbridge Pre-Conference Comments at 7–8; 

INGAA 2021 Comments at 79–82. 

288 INGAA Technical Conference Comments at 

34–36; INGAA 2021 Comments at 79–82; see also 

Enbridge Pre-Conference Comments at 8–9; 

Enbridge Technical Conference Comments at 46–47. 

289Hon. Joseph T. Kelliher Technical Conference 

Comments at 7; see also id. (asserting that this 

process would be complicated because credits 

could originate outside the U.S. and the 

Commission has no verification expertise). 

290E.g., AGA Technical Conference Comments at 

28–30; API Technical Conference Comments at 6– 

8; Boardwalk Technical Conference Comments at 5– 

6; Con Edison Technical Conference Comments at 

7–10 (detailing other efforts reduce emissions using 

renewable natural gas, certified natural gas, and 

hydrogen); Enbridge Pre-Conference Comments at 5; 

Enbridge Technical Conference Comments at 13–14, 

39–41; INGAA Technical Conference Comments at 

28–30 (citing its 2021 Climate Report); Magnolia 

LNG LLC Technical Conference Comments at 2 

(describing its proprietary technology to reduce 

emissions during the liquefaction process); Scott A. 

Hallam Technical Conference Statement at 2 (Scott 

A. Hallam, Senior Vice President of Transmission 

and Gulf of Mexico at Williams, was a panelist at 

the GHG Technical Conference on Panel 1.); 

Stephen Mayfield Technical Conference Statement 

at 1–2 (Stephen Mayfield, AGM of Gas Operations 

at City of Tallahassee, was a panelist at the GHG 

Technical Conference on Panel 3.); Texas LNG 

Brownsville LLC Technical Conference Comments 

at 6; William F. Donahue Technical Conference 

Statement at 3 (William F. Donahue, Manager of 

Natural Gas Resources at Puget Sound Energy, was 

a panelist at the GHG Technical Conference on 

Panel 2.); INGAA 2021 Comments at 79–82. Some 

commenters note, however, that use of electric 

compressors may increase indirect emissions 

depending on the generation mix and existing 

infrastructure or cite concerns about the impact to 

the reliability of gas service during power outages. 

E.g., American Forest Technical Conference 

Comments at 13; Enbridge Pre-Conference 

Comments at 5–6; Enbridge Technical Conference 

Comments at 41; Kinder Morgan Technical 

Conference Comments at 22–23. 

291 Delaware Riverkeeper 2021 Comments at 66; 

Kirk Frost 2021 Comments at 11. 

292 Delaware Riverkeeper 2021 Comments at 66. 

293Rachel Dawn Davis, the Public Policy and 

Justice Organizer at Waterspirit, was a panelist at 

the GHG Technical Conference on Panel 3. Rachel 

Dawn Davis Technical Conference Statement at 1; 

Waterspirit Technical Conference Comments at 1– 

2; see also Technical Conference Transcript at 106– 

107 (transcribing remarks made by Dr. Nicky 

Sheats, Director of the Center for Urban 

Environment at the John S. Watson Institute for 

Public Policy and panelist on Panel 2). 

294E.g., TC Energy Technical Conference 

Comments at 20. 

295 Dr. Anna Scott, Co-Founder and Chief Science 

Officer of Project Canary, was a panelist at the GHG 

Technical Conference on Panel 2. Dr. Anna Scott 

Technical Conference Statement at 1–2, 5 

(mentioning key engineering components such as 

operational venting or flaring, electrification of 

facilities and equipment, low bleed and/or zero 

bleed process controls, leak detection and repair 

programs, produced water treatment and reuse, and 

infrastructure and facility efficiency investments 

and describing how the company uses on-site 

sensors and algorithm technology to provide 

continuous monitoring). Along with pursuing 

carbon capture and storage solutions, Ivan Van der 

Walt, Chief Operating Officer at NextDecade 

Corporation and a panelist at the GHG Technical 

Conference on Panel 2, describes the joint pilot 

Continued 

Commission require certificate holders 

to purchase emission offsets from a 

third party.284 Policy Integrity states 

that carbon offsets are: (1) Consistent 

with compensatory mitigation 

requirements employed by other federal 

agencies, such as the Bureau of Land 

Management, U.S. Fish and Wildlife 

Service, and EPA; and (2) included and 

supported in CEQ’s NEPA regulations 

and guidance.285 Policy Integrity also 

recommends that the Commission 

develop a carbon offset program as 

opposed to relying on third-party 

programs; 286 however, the Commission 

lacks statutory authority to create such 

a program and believes that the existing 

programs and certifiers mentioned 

above are sufficient. 

124. Conversely, some commenters 

oppose the Commission requiring 

project sponsors to purchase offsets 

from third parties because it is difficult 

to ensure that carbon offsets have the 

necessary traits of additionality (the 

reduction would not have happened but 

for the purchased offset), permanence 

(the reduction persists for the entire 

certification period of the offset), 

absence of leakage (the offset does not 

trigger some other activity elsewhere 

that adds GHG emissions), and rigorous 

third-party verification.287 INGAA 

further comments that it would be 

difficult or impossible for the 

Commission to choose an appropriate 

level of offsetting because of the 

variability in emissions over the life of 

a project and the risk of over-counting 

for a given quantity of gas that might 

move over multiple jurisdictional 

transportation projects, and that not 

enough high-qualify offsets are 

available.288 Commissioner Kelliher 

cautions that the Commission would 

have to verify offsets given concerns 

about fraud and environmental and 

accounting integrity.289 As previously 

stated, the Commission is not requiring 

project sponsors to purchase offsets or 

mandating a certain level of offsetting, 

and while the Commission 

acknowledges the challenges with thirdparty offsets, we believe the certifiers 

mentioned above will sufficiently 

account for them. 

b. Physical Mitigation 

125. In addition to purchasing RECs 

or emissions offsets, project sponsors 

could also propose to mitigate and/or 

offset GHG emissions through the use of 

physical, on- or off-site mitigation 

measures. Physical mitigation measures 

could include smaller-scale efforts 

including reducing a project’s fugitive 

methane emissions or incorporating 

renewable energy or other energy 

efficient technologies to reduce a 

project’s GHG emissions from 

compressor stations, or larger-scale 

undertakings such as carbon capture 

and storage, or direct air CO2 capture. 

Project sponsors could also propose 

environmentally based measures, such 

as planting trees along the right-of-way 

or in other locations to offset carbon 

emissions or restoring wetlands to 

provide additional carbon storage; 

however, the scale needed for such 

measures to meaningfully mitigate GHG 

emissions may render them impractical. 

In addition, project sponsors could 

propose to reduce GHG emissions from 

their existing facilities, including those 

with no direct connection to the 

proposed project, as mitigation for 

project-related emissions. 

126. Commenters detail a host of 

mitigation measures they are currently 

undertaking or propose to implement to 

reduce direct project emissions, such as: 

Installing vent gas recovery systems and 

optimizing operations to reduce venting 

and blowdowns, replacing cast iron/ 

unprotected steel pipes with 

polyethylene or protected steel pipes to 

minimize leaks, employing a variety of 

technologies and methods to identify 

and reduce leaks, and replacing natural 

gas-fired horsepower at compressor 

stations.290 Other commenters echo 

some of those suggestions 291 and 

recommend operational limits on 

construction equipment, such as limited 

idle time when engines are not in 

use.292 Other commenters criticize any 

mitigation measures, especially carbon 

capture and sequestration and offsets, 

and recommend that the Commission 

achieve ‘‘real zero’’ emissions that 

accounts for air and water pollution and 

focuses on environmental justice 

communities and workers impacted by 

the negative externalities associated 

with project operation and jobs that are 

being phased out.293 Some commenters 

assert that direct emissions are already 

substantially mitigated pursuant to the 

regulatory authority exercised by other 

agencies.294 With regard to methane 

leaks, Dr. Anna Scott explains that its 

independent certification and 

measurement program verifies that a 

company’s operations meet regulatory 

standards and incentivize companies to 

go beyond the standards by using an 

engineering-based review process that 

assesses development through to 

operations, as well as continuous 

monitoring of emissions along the 

supply chain.295 On a policy level, Gary 


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project NextDecade has formed with Project Canary 

for measuring and certifying the GHG intensity of 

LNG sold from the Rio Grande LNG Project export 

facility. Ivan Van der Walt Technical Conference 

Statement at 2–3. 

296 Gary Choquette, Executive Director of 

Research and IT at PRCI, was a panelist at the GHG 

Technical Conference on Panel 2. Gary Choquette 

Technical Conference Statement at 3–4. 

297See, e.g., AGA Technical Conference 

Comments at 17–20; API Technical Conference 

Comments at 7–8; Boardwalk Technical Conference 

Comments at 5–6; NGSA Technical Conference 

Comments at 5; Scott A. Hallam Technical 

Conference Statement at 2–3; Stephen Mayfield 

Technical Conference Statement at 1; William F. 

Donahue Technical Conference Statement at 3–4; 

BHE Pipeline Group 2021 Comments at 12–14; 

Cheniere Energy Inc. 2021 Comments at 17. 

298Boardwalk Technical Conference Comments at 

3; Enbridge Technical Conference Comments at 15, 

49; INGAA Technical Conference Comments at 42– 

45; TC Energy Technical Conference Comments at 

6. 

299Enbridge Technical Conference Comments at 

15, 49; INGAA Technical Conference Comments at 

45 (noting that the Commission should be clear that 

‘‘recovery of costs related to an ongoing obligation 

to purchase market-based mitigation is akin to a 

fuel tracker and would not be subject to the 

modernization cost recovery tracker policy or the 

Commission’s policy against cost recovery trackers 

for regulatory compliance costs,’’ and incremental 

operating costs to reduce GHG emissions should 

also be recoverable through a tracker); see also Hon. 

Joseph T. Kelliher Technical Conference Comments 

at 7 (suggesting that, while burdensome to 

stakeholders, the Commission could adopt a trueup mechanism requiring project sponsors to deposit 

offsets, which would later be compared to actual 

emissions). 

300American Forest Technical Conference 

Comments at 15–16; APGA Technical Conference 

Comments at 6–8 (urging the Commission to 

consider the effects of cost-recovery on end-users, 

particularly low-income communities, who may not 

directly reap any local environmental benefits); 

American Forest and Paper Association et al. 2021 

Comments at 26. 

301American Forest Technical Conference 

Comments at 14 (asserting that there is little 

transparency for customers with respect to Lost and 

Unaccounted for Fuel Charges, which are 

recoverable by shippers). 

302Ruby Pipeline, LLC, 131 FERC ¶ 61,007, at P 

34 (2010). 

303Unless required by law or regulation, the 

Commission will not apply a presumptive 

significance threshold below 100,000 metric tons of 

CO2e to applications filed prior to issuance of a 

final policy statement. If the Commission adopts a 

new lower threshold in a final policy statement, 

that threshold will only apply to applications filed 

after issuance of that statement. 

304Certification of New Interstate Natural Gas 

Pipeline Facilities, 178 FERC ¶ 61,107 at PP 70–72, 

93–95. 

Choquette of Pipeline Research Council 

International (PRCI) argues for a 

centralized funding mechanism for 

pipeline research to establish gas quality 

requirements with the aim of 

maximizing supply and reducing 

emissions and notes that PRCI has 

developed a tool that provides a method 

for prioritizing alternatives to reduce 

emissions based on effectiveness and 

associated capital and operating 

costs.296

127. Commenters also recommend 

that the Commission consider a project 

sponsor’s participation in programs that 

help shippers voluntarily reduce 

emissions and other voluntary 

emissions reductions programs when 

evaluating mitigation measures, such as 

the ONE Future Coalition, Oil and Gas 

Climate Initiative, Climate and Clean 

Air Coalition Oil and Gas Methane 

Partnership, EPA Natural Gas STAR 

Program and Natural Gas STAR 

Methane Challenge Program, Methane 

Guiding Principles, the Natural Gas 

Sustainability Initiative, and The 

Environmental Partnership.297 The 

Commission encourages project 

sponsors to detail their participation in 

such programs and any other voluntary 

measures as part of their mitigation plan 

for the Commission to consider as part 

of its public interest determination. 

c. Cost Recovery 

128. Commenters request that the 

Commission allow full cost recovery for 

any GHG mitigation measures through 

either the section 7 process or a general 

section 4 rate case for capitalized 

mitigation costs but caution the 

Commission to ensure that mitigation 

efforts are verified and the consumer’s 

interest in low prices are balanced with 

a project sponsor’s right to recover costs 

and earn a fair rate of return under the 

NGA.298 Alternatively, for periodic 

purchases of market-based mitigation 

measures specifically, commenters state 

that pipelines could propose a tracker 

through a limited section 4 filing.299

Conversely, other commenters oppose 

passing mitigation costs along to 

shippers, especially if it would increase 

rates for end-users, particularly lowincome communities, who may not 

directly reap any local environmental 

benefits.300 In the event mitigation costs 

are passed to shippers, American Forest 

supports establishing a baseline from 

which to judge emissions reductions 

and supports having an independent 

entity monitor and measure those 

reductions.301 The Commission has 

previously considered and approved a 

proposal by a pipeline proponent to 

recover the costs of purchasing carbon 

offsets. In 2010, Ruby Pipeline, L.L.C., 

proposed to voluntarily purchase GHG 

offsets for the direct emissions 

associated with its compressor units 

(approximately 523,000 metric tons of 

GHG per year).302 Going forward, 

project sponsors wishing to purchase 

offsets or proposing other measures to 

mitigate their project’s GHG emissions 

may propose to recover the costs of 

these measures through their proposed 

rates. Applicants are encouraged to 

submit detailed cost estimates of GHG 

mitigation in their application and to 

clearly state how they propose to 

recover those costs. Pipelines may seek 

to recover GHG emissions mitigation 

costs through their rates, similarly to 

how they seek to recover other costs 

associated with constructing and 

operating a project, such as the cost of 

other construction mitigation 

requirements or the cost of fuel. 

Additionally, the Commission’s process 

for section 7 and section 4 rate cases is 

designed to protect shippers from unjust 

or unreasonable rates and will continue 

to do so with respect to the recovery of 

costs for mitigation measures. 

D. Application of Policy Statement 

129. We will apply this interim policy 

statement to both pending and new 

NGA section 3 and 7 applications.303 As 

noted above, doing so will allow the 

Commission to evaluate and act on such 

applications without undue delay. 

Applicants with pending applications 

will be given the opportunity to 

supplement the record and explain how 

their proposals are consistent with this 

policy statement, and stakeholders will 

have an opportunity to respond to any 

such filings. A project sponsor for any 

new natural gas infrastructure project is 

encouraged to include the following in 

its NGA section 3 or 7 application: 

• The project’s projected utilization 

rate and supporting information; 

• an estimate of reasonably 

foreseeable project GHG emissions; 

• if upstream and downstream 

emissions are not quantified, evidence 

to support why those emissions are not 

reasonably foreseeable project 

emissions; 

• evidence, if any, that impacts the 

quantification of the project’s 

reasonably foreseeable GHG emissions; 

• a description of its proposed GHG 

mitigation measures, including the 

percent of the project’s direct and 

indirect GHG emissions that will be 

mitigated and, if applicable, a tracking 

mechanism for tracking mitigation of 

GHG emissions; and 

• a detailed cost estimate of its 

proposed GHG mitigation and a 

proposal for recovering those costs. 

130. As explained above, the 

Commission will then consider the 

project’s impact on climate change, 

including the project sponsor’s 

mitigation proposal to reduce direct 

GHG emissions and, to the extent 

practicable, to reduce any reasonably 

foreseeable project emissions, as part of 

its determination under NEPA and its 

public interest determination under 

NGA section 3 or 7.304


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305 44 U.S.C. 3507(d). 306 5 CFR 1320. 307This policy statement does not require the 

collection of any information, but rather discusses 

information that entities may elect to provide. The 

Commission is following Paperwork Reduction Act 

procedures to ensure compliance with that act. 

308Burden is defined as the total time, effort, or 

financial resources expended by persons to 

generate, maintain, retain, or disclose or provide 

information to or for a federal agency. See 5 CFR 

1320 for additional information on the definition of 

information collection burden. 

309Commission staff estimates that the industry’s 

average hourly cost for this information collection 

is approximated by the Commission’s average 

hourly cost (for wages and benefits) for 2021, or 

$87.00/hour. 

V. Information Collection Statement 

131. The collection of information 

discussed in the Policy Statement is 

being submitted to the Office of 

Management and Budget (OMB) for 

review under section 3507(d) of the 

Paperwork Reduction Act of 1995 305

and OMB’s implementing 

regulations.306 OMB must approve 

information collection requirements 

imposed by agency rules.307

Respondents will not be subject to any 

penalty for failing to comply with a 

collection of information if the 

collection does not display a valid OMB 

control number. 

132. The Commission solicits 

comments from the public on the 

Commission’s need for this information, 

whether the information will have 

practical utility, the accuracy of the 

burden estimates, recommendations to 

enhance the quality, utility, and clarity 

of the information to be collected, and 

any suggested methods for minimizing 

respondents’ burden, including the use 

of automated information techniques. 

PUBLIC COMMENTS ARE DUE May 10, 

2022. The burden estimates are focused 

on implementing the voluntary 

information collection pursuant to this 

Policy Statement. The Commission asks 

that any revised burden estimates 

submitted by commenters include the 

details and assumptions used to 

generate the estimates. 

133. The following estimate of 

reporting burden is related only to this 

Policy Statement. 

134. Public Reporting Burden: The 

collection of information related to this 

Policy Statement falls under FERC–577 

and impacts the burden estimates 

associated with the ‘‘Gas Pipeline 

Certificates’’ component of FERC–577. 

The Policy Statement will not impact 

the burden estimates related to any 

other component of FERC–577. The 

estimated annual burden 308 and cost 309

follow. 

FERC–577 (NATURAL GAS FACILITIES: ENVIRONMENTAL REVIEW AND COMPLIANCE) AS A RESULT OF PL21–3–000 

Number of 

respondents 

Annual 

number of 

responses per 

respondent 

Total number 

of responses 

Average burden & cost 

($) per response 

Total annual burden 

hours & total annual cost 

($) 

Cost per respondent 

($) 

(1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) (5) ÷ (1) 

Gas Pipeline Certificates .......... 40 1 40 1,520 hrs; $132,240 Increase.60,800 hrs; $5,289,600 

Increase.

$132,240 Increase. 

135. Title: FERC–577, Natural Gas 

Facilities: Environmental Review and 

Compliance 

136. Action: Proposed revisions to an 

existing information collection. 

137. OMB Control No.: 1902–0128 

138. Respondents: Entities proposing 

natural gas projects. 

139. Frequency of Information 

Collection: On occasion. 

140. Necessity of Voluntary 

Information Collection: The 

Commission’s existing FERC–577 

information collection pertains to 

regulations implementing NEPA and 

reporting requirements for landowner 

notifications. The information collected 

pursuant to this Policy Statement 

should help the Commission in 

assessing natural gas infrastructure 

projects. 

141. Internal Review: The opportunity 

to file the information conforms to the 

Commission’s plan for efficient 

information collection, communication, 

and management within the natural gas 

pipeline industry. The Commission has 

assured itself, by means of its internal 

review, that there is specific, objective 

support for the burden estimates 

associated with the opportunity to file 

the information. 

142. Interested persons may provide 

comments on this informationcollection by one of the following 

methods: 

• Electronic Filing (preferred): 

Documents must be filed in acceptable 

native applications and print-to-PDF, 

but not in scanned or picture format. 

• USPS: Federal Energy Regulatory 

Commission, Office of the Secretary, 

888 First Street NE, Washington, DC 

20426 

• Hard copy other than USPS: Federal 

Energy Regulatory Commission, Office 

of the Secretary, 12225 Wilkins Avenue, 

Rockville, Maryland 20852. 

VI. Comment Procedures 

143. The Commission invites 

comments on the interim policy 

statement by April 4, 2022. Comments 

must refer to Docket No. PL21–3–000 

and must include the commenter’s 

name, the organization they represent, if 

applicable, and their address in their 

comments. 

144. The Commission encourages 

comments to be filed electronically via 

the eFiling link on the Commission’s 

website at http://www.ferc.gov. The 

Commission accepts most standard 

word processing formats. Documents 

created electronically using word 

processing software should be filed in 

native applications or print-to-PDF 

format and not in a scanned format. 

Commenters filing electronically do not 

need to make a paper filing. 

145. Commenters that are not able to 

file comments electronically must send 

an original of their comments to: 

Federal Energy Regulatory Commission, 

Secretary of the Commission, 888 First 

Street NE, Washington, DC 20426. 

146. All comments will be placed in 

the Commission’s public files and may 

be viewed, printed, or downloaded 

remotely as described in the Document 

Availability section below. Commenters 

on this proposal are not required to 

serve copies of their comments on other 

commenters. 

VII. Document Availability 

147. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the internet through the 

Commission’s Home Page (http://

www.ferc.gov). At this time, the 

Commission has suspended access to 

the Commission’s Public Reference 

Room due to the President’s March 13, 

2020 proclamation declaring a National 


lotter on DSK11XQN23PROD with NOTICES2
14126 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices 

1Consideration of Greenhouse Gas Emissions in 

Natural Gas Infrastructure Project Reviews, 178 

FERC ¶ 61,108 (2022) (Interim Policy Statement). 

2But see Chairman Glick September 24, 2021 

Response to Senator Barrasso September 15, 2021 

Letter, Docket Nos. CP17–40–000, et al., at 1 

(‘‘When courts find flaws in the Commission’s 

analysis, it can lead to lengthy delays and cost 

developers substantially more than they originally 

forecasted.’’) (Accession No. 20210927–4003); id. at 

9 (‘‘Ultimately, I believe that performing thorough 

permitting reviews and providing developers with 

legally durable certificates on which they can rely 

will do more than just about anything else to satisfy 

the purposes of the Natural Gas Act.’’); Chairman 

Glick May 21, 2021 Response to Senator Hoeven 

April 29, 2021 Letter, Docket No. PL18–1–000, at 

1 (‘‘I believe we can make changes to the Certificate 

Process that enhance our efficiency in processing 

applications and better address various directives 

we have received from the appellate courts.’’) 

(Accession No. 20210524–4014). 

3Chairman Glick February 2, 2022 Response to 

Senator Barrasso December 15, 2021 Letter at 4 

(Accession No. 20220202–4003); see also 

Commissioner Clements February 2, 2022 Response 

to Senator Barrasso December 15, 2021 Letter at 2 

(Accession No. 20220202–4000) (‘‘I will do my part 

to assure that the updated policy will be a legally 

durable framework for fairly and efficiently 

considering certificate applications—one that serves 

the public interest and increases regulatory 

certainty for all stakeholders.’’). 

4See, e.g., Algonquin Gas Transmission, LLC, 174 

FERC ¶ 61,126 (2021) (Danly and Christie, Comm’rs, 

dissenting) (Briefing Order), terminated, 178 FERC 

¶ 61,029 (2022) (Danly and Christie, Comm’rs, 

concurring in part and dissenting in part); see also 

Commission Staff May 27, 2021 Notice in Tenn. Gas 

Pipeline Co., L.L.C., Docket No. CP20–493–000 

(Accession No. 20210527–3054) (announcing 

schedule for Environmental Impact Statement (EIS) 

for project with previously prepared Environmental 

Assessment (EA)); Commission Staff May 27, 2021 

Notice in North Baja Pipeline, LLC, Docket No. 

CP20–27–000 (Accession No. 20210527–3052) 

(same); Commission Staff May 27, 2021 Notice in 

Columbia Gulf Transmission, LLC, Docket No. 

CP20–527–000 (Accession No. 20210527–3049) 

(same); Commission Staff May 27, 2021 Notice in 

Iroquois Gas Transmission System, L.P., Docket No. 

CP20–48–000 (Accession No. 20210527–3047) 

(same). 

5 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 1. 

6 Id. 

7For example, the D.C. Circuit in Vecinos para 

Bienestar de la Comunidad Costera v. FERC 

(Vecinos) found that the Commission failed to 

‘‘respond to significant opposing viewpoints’’ 

regarding its analysis of GHG emissions. Vecinos, 6 

F.4th 1321, 1329 (D.C. Cir. 2021). It did not find 

‘‘that the Commission failed to appropriately 

analyze the significance of three natural gas 

projects’ contribution to climate change . . . .’’ 

Interim Policy Statement, 178 FERC ¶ 61,108 at P 

14. 

8 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 28. 

9 Id. (emphasis added) (footnotes omitted). I 

interpret ‘‘in most cases’’ as meaning the 

Commission will quantify and consider 

downstream emissions for NGA section 7 projects 

unless it is shown that the gas will not be burned. 

See id. P 28 n.72. 

10See id. P 43. 

11 It should be noted that the majority cites Sierra 

Club v. FERC (Sabal Trail) to argue downstream 

emissions have a reasonably close causal 

relationship to NGA section 7 projects. Id. P 39 & 

Emergency concerning the Novel 

Coronavirus Disease (COVID–19). 

148. From the Commission’s Home 

Page on the internet, this information is 

available on eLibrary. The full text of 

this document is available on eLibrary 

in PDF and Microsoft Word format for 

viewing, printing, and/or downloading. 

To access this document in eLibrary, 

type the docket number excluding the 

last three digits of this document in the 

docket number field. 

149. User assistance is available for 

eLibrary and the Commission’s website 

during normal business hours from the 

Commission’s Online Support at 202– 

502–6652 (toll free at 1–866–208–3676) 

or email at ferconlinesupport@ferc.gov, 

or the Public Reference Room at (202) 

502–8371, TTY (202) 502–8659. Email 

the Public Reference Room at 

public.referenceroom@ferc.gov. 

By the Commission. 

Commissioner Danly is dissenting with a 

separate statement attached. 

Commissioner Christie is dissenting with a 

separate statement attached. 

Issued: February 18, 2022. 

Kimberly D. Bose, 

Secretary. 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory Commission 

Consideration of Greenhouse Gas 

Emissions in Natural Gas Infrastructure 

Project Reviews 

Docket No. PL21–3–000 

DANLY, Commissioner, dissenting: 

1. I dissent in full from today’s 

Interim Greenhouse Gas (GHG) Policy 

Statement which purports to set forth 

the Commission’s procedures to 

evaluate the climate change impacts of 

proposed natural gas projects under the 

National Environmental Policy Act 

(NEPA) and to incorporate climate 

change considerations into the 

Commission’s determinations under 

sections 3 and 7 of the Natural Gas Act 

(NGA).1

2. This policy statement is 

irredeemably flawed. It is practically 

unworkable because it establishes a 

standardless standard. Its universal 

application to all projects, both new and 

pending (some for over two years), is an 

affront to basic fairness and is 

unjustifiable, especially in light of the 

many unnecessary delays already 

suffered by applicants. It is unlawful 

because it is illogical, it arrogates to the 

Commission power it does not have, 

and it violates the NGA, NEPA and the 

Commission’s and the Council on 

Environmental Quality’s (CEQ) 

regulations. It is also deliberately 

drafted so as to evade judicial review. 

Lastly, it will sow confusion throughout 

an industry that already suffers 

profound uncertainty. This issuance 

does not know what it is and neither 

will affected entities: It is immediately 

applicable, but also seeks comments, 

and it is allegedly not a draft policy 

statement, but an ‘‘interim’’ one. How 

can stakeholders have any confidence in 

its contents at all? 2

3. When reading this policy 

statement, it is nearly impossible to 

credit the majority with actually 

believing that ‘‘minimiz[ing] our 

litigation risk,’’ making Commission 

decisions ‘‘legally durable,’’ and 

‘‘increas[ing], not reduc[ing], customer 

and investor confidence,’’ are truly the 

goals of this proceeding.3 Rather, the 

purpose of this Interim Policy 

Statement, like several of the 

Commission’s other recent Natural Gas 

Act issuances, appears to be to actively 

discourage the submission of section 3 

or section 7 applications by 

intentionally making the process more 

expensive, more time-consuming, and 

riskier.4

I. Overview of the Interim Policy 

Statement’s Contents 

4. The Interim Policy Statement 

begins by explaining it will apply upon 

issuance while at the same time being 

subject to comment and revision.5 The 

majority explains this is necessary to 

‘‘act on pending applications under 

sections 3 and 7 of the NGA without 

undue delay and with an eye toward 

greater certainty and predictability for 

all stakeholders.’’ 6

5. Next, it provides a historical 

background on past court, Commission, 

and CEQ issuances. For the sake of 

brevity, I will not describe this 

background discussion other than to 

note it is frequently misleading.7

6. Then the Interim Policy Statement 

announces that ‘‘the Commission will 

quantify a project’s GHG emissions that 

are reasonably foreseeable and have a 

reasonably close causal relationship to 

the proposed action.’’ 8 This, it seems, 

will be fairly broad: the majority goes on 

to say that ‘‘[t]his will include GHG 

emissions resulting from construction 

and operation of the project as well as, 

in most cases, GHG emissions resulting 

from the downstream combustion of 

transported natural gas.’’ 9

7. The majority also states that it will 

continue to consider whether upstream 

emissions are a reasonably foreseeable 

effect for NGA section 7 projects on a 

case-by-case basis.10 Notably missing, 

though, is any discussion of how 

upstream emissions could have a 

reasonably close causal relationship to 

an NGA section 7 project.11


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n.103 (citing 867 F.3d 1357, 1372–73 (D.C. Cir. 

2017) (Brown, J., concurring in part and dissenting 

in part)). Below I explain how Sabal Trail must not 

be given too much weight. 

12 Id. P 45. 

13See id. P 52. 

14See Midship Pipeline Co., LLC (Midship), 177 

FERC ¶ 61,186 (2021) (Danly, Comm’r, dissenting at 

P 5) (‘‘I, for one, am willing to consider the parties’ 

arguments and make a decision.’’). 

15 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 79. 

16See id. P 81. 

17 Despite the fact that CEQ’s regulations no 

longer distinguish between ‘‘direct’’ and ‘‘indirect’’ 

effects, in order to reduce confusion I use the term 

‘‘direct’’ to be consistent with the Interim Policy 

Statement. See Update to the Regulations 

Implementing the Procedural Provisions of the 

National Environmental Policy Act, 85 FR 43304, 

43343 (Jul. 16, 2020). 

18But see 18 CFR. §§ 380.5–380.6 (setting forth 

when the Commission will prepare an EIS). 

19See Interim Policy Statement, 178 FERC 

¶ 61,108 at PP 104–06. 

20 Id. P 107; see also id. (‘‘The Commission plans 

to evaluate proposed mitigation plans on a case-bycase basis . . . .’’). 

21See id. P 108. 

22See id. P 106 (‘‘However, as detailed below, the 

Commission’s priority is for project sponsors to 

mitigate, to the greatest extent possible, a project’s 

direct GHG emissions.’’). 

23 Id. P 110. 

24See id. P 126. 

25See id. 

26See id. PP 115–26; see also id. P 129 (‘‘project 

sponsors wishing to purchase offsets’’) (emphasis 

added). 

27 ‘‘As soon as the coin in the coffer rings, the 

soul from purgatory springs.’’ See Robert King, Only 

in America: Tax Patents and the New Sale of 

Indulgences, 60 Tax Law 761, 761 (2007) (citing 

Ronald H. Bainton, Here I Stand: A Life of Martin 

Luther 60 (1950)). 

28See Interim Policy Statement, 178 FERC 

¶ 61,108 at P 107 (‘‘The Commission plans to 

evaluate proposed mitigation plans on a case-bycase basis and is not mandating a standard level of 

mitigation.’’). 

29For example, the Commission does not explain 

how the construction of a renewable energy or 

energy efficiency project reduces carbon emissions 

unless it could be shown that such construction 

will cause the retirement of, or prevent the 

construction of, a specific carbon emitting 

generation facility. Nor does the Commission 

describe how, in the absence of the identification 

of a specific facility to be displaced, it would be 

possible to determine the amount of mitigation 

provided by renewable energy or energy efficiency 

projects. 

30See Interim Policy Statement, 178 FERC 

¶ 61,108 at P 113 (‘‘[W]e believe it best to allow 

project sponsors to demonstrate that their proposed 

mitigation measures are verifiable and propose 

means for the Commission to monitor or track the 

proposed measures through the life of the project.’’). 

31 Id. P 106. 

32See Certification of New Interstate Nat. Gas 

Facilities, 174 FERC ¶ 61,125, at P 17 (2021) (‘‘C10. 

How could the Commission impose GHG emission 

limits or mitigation to reduce the significance of 

impacts from a proposed project on climate change? 

. . . If the Commission decides to impose GHG 

emission limits, how would the Commission 

determine what limit, if any, is appropriate?’’). 

33See Greenhouse Gas Mitigation, Technical 

Conference Transcript, Docket No. PL21–3–000 

(Nov. 19, 2021). 

34See Commission Staff November 16, 2021 

Notice Inviting Technical Conference Comments, 

Docket No. PL21–3–000. 

35 18 CFR. § 385.2201. 

36 I have anticipated a couple possible questions 

and will hazard answers that may be of interest: 

Will an EIS assess the adequacy of GHG mitigation 

or recommend GHG mitigation measures? My 

understanding is no. The Commission will 

Continued 

8. The Interim Policy Statement then 

describes how the quantity of project’s 

emissions will be determined: By using 

a projected utilization rate for the 

project and considering ‘‘other factors 

that might impact a project’s net 

emissions.’’ 12 This raises more 

questions than it answers. Do these 

other factors include consideration of 

whether the natural gas being 

transported will actually reduce overall 

emissions or simply replace existing 

emissions; for example by powering 

natural gas generation that permits the 

retirement of higher-emitting generation 

or by serving an end use need that will 

turn to a different—and perhaps higher 

emitting—energy source if the pipeline 

is not constructed? 13 What does this 

mean for projects where the end use is 

unknown? Does the Commission have 

the expertise to evaluate a project 

sponsor’s evidence and resolve any 

factual disputes? Will the majority send 

these issues to an Administrative Law 

Judge as it recently did to resolve a 

dispute over what constituted 

appropriate post-construction right-ofway restoration (a subject matter with 

which the Commission presumably has 

some expertise)? 14

9. I would suspect most attentive 

readers would have been interested to 

then learn how, having determined the 

means by which to arrive at these 

numbers, the Commission plans to 

weigh emissions among all of the other 

factors to be considered in its NGA 

determination. But the majority does not 

say. 

10. Next, the Interim Policy Statement 

explains ‘‘the Commission is 

establishing a significance threshold of 

100,000 metric tons or more per year 

[(tpy)] of CO2e’’ 15 and will presume that 

the impact of a proposed project 

exceeding that threshold is significant 

unless refuted by record evidence.16

According to Commission staff, of the 

214 projects with direct 17 and 

downstream emissions authorized from 

January 2017 through June 2021, this 

policy would have applied to 72% of 

them. This means that, as of the 

issuance of this Interim Policy 

Statement, the EIS is now our default 

environmental document.18

11. The Interim Policy Statement says 

the Commission has authority to impose 

GHG mitigation for both direct 

emissions and downstream emissions.19

This is a sweeping claim of jurisdiction 

and one that drastically departs from the 

Commission’s historic employment of 

its conditioning authority. But right on 

the heels of that jurisdictional 

declaration, instead of ordering 

mitigation, the majority ‘‘encourages’’ 

project sponsors to ‘‘propose measures 

to mitigate the direct GHG emissions of 

its proposed project to the extent these 

emissions have a significant adverse 

environmental impact’’ and ‘‘to mitigate 

the reasonably foreseeable upstream or 

downstream emissions associated with 

their projects.’’ 20 The majority states the 

Commission will consider these 

mitigation measures in its public 

interest determinations.21 This whole 

maneuver is odd—how often does one 

declare hitherto unasserted jurisdiction 

and then not employ it? Be warned: this 

is not restraint, it is foreshadowing.22

12. The majority tells project sponsors 

they are ‘‘free to propose any 

mechanism to mitigate the project’s 

GHG emissions’’ 23 and offers some 

suggestions. Plant trees.24 Incorporate 

renewable energy or other energy 

efficiency technologies.25 And, with the 

faint echo of Johann Tetzel, the majority 

also suggests purchasing 26 renewable 

energy offsets.27

13. The majority’s guidance ends 

there, leaving the project sponsor to 

figure out how much they should 

mitigate by these measures,28 some of 

which, it ought be pointed out, do not 

appear to have a discernable connection 

to the reduction of carbon emissions.29

Nor does the majority explain how the 

Commission can verify and track any 

such mitigation throughout the life of 

the project.30 The majority offers no 

general framework but says only that it 

wants project sponsors to mitigate ‘‘to 

the greatest extent possible.’’ 31 One 

wonders why no mechanism is set forth. 

Could it be that we learned nothing of 

value from soliciting comments on GHG 

mitigation,32 holding a technical 

conference on the subject,33 and 

soliciting a second round of comments 

following that technical conference? 34

And think of where this leaves project 

sponsors. Often, they seek guidance 

from Commission staff. But for the 30 

applications that are currently pending, 

such communication is potentially 

barred by the Commission’s ex parte 

rules.35 And even for those who are not 

so disadvantaged, absent direction from 

the Commission, staff can offer no more 

than this: You must roll the dice and 

cross your fingers that the Commission 

will act on, and maybe even grant, the 

requested authorization.36


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determine the adequacy of mitigation on a case-bycase basis in its orders. Will mitigation that was not 

considered in an environmental document require 

the Commission to supplement its environmental 

review? A clear answer was not provided. It is 

worth noting that section 1502.9(d)(1)(i) of CEQ’s 

regulations state ‘‘Agencies . . . [s]hall prepare 

supplements to either draft or final environmental 

impact statements if a major Federal action remains 

to occur, and . . . [t]he agency makes substantial 

changes to the proposed action that are relevant to 

environmental concerns . . . .’’ 40 CFR. 

§ 1502.9(d)(1)(i). 

37 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 99. 

38 Double E Pipeline, LLC, 173 FERC ¶ 61,074, at 

P 32 (2020). 

39 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 110. 

40See, e.g., Algonquin Gas Transmission, LLC, 

174 FERC ¶ 61,126 (2021) (Danly and Christie, 

Comm’rs, dissenting) (order establishing briefing to 

reopen final, non-appealable certificate order); 

Algonquin Gas Transmission, LLC, 178 FERC 

¶ 61,029 (2022) (Danly and Christie, Comm’rs, 

concurring in part and dissenting in part) (order 

terminating briefing order but suggesting can 

reopen certificates to impose new terms). 

41 Id. P 129. 

42 Id. 

43 Id. P 130. 

44 Id. 

45 Id. P 1. 

46But see Voltaire, Candide 125 (J.H. Brumfitt ed., 

Oxford Univ. Press 1968) (1759) (‘‘. . . pour 

encourager les autres.’’). 

47 40 CFR. § 1508.1(g). 

48 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 1. 

49 Id. P 6. 

50 Id. P 7 (citation omitted). 

14. But the mitigation requirements 

may not end there. The majority states 

it ‘‘may require additional mitigation as 

a condition of an NGA section 3 

authorization or section 7 certificate.’’ 37

Using what standard? Not stated. 

Perhaps, it will become a good-behavior 

approach akin to how the Commission 

has considered landowner impacts, 

stating: ‘‘We are satisfied that [project 

sponsor] has taken appropriate steps to 

minimize [GHG emissions].’’ 38 And this 

encumbrance is perpetual: Mitigation, 

the majority says, will span ‘‘the life of 

the project.’’ 39 That is long time. Ample 

opportunity for invasive oversight, 

enforcement actions, and novel, as yet 

unpredictable, employments of the 

Commission’s authority.40

15. Next, we reach the majority’s 

guidance on cost recovery. The majority 

states ‘‘[p]ipelines may seek to recover 

mitigation costs through their rates,’’ 

and are ‘‘encouraged to submit detailed 

cost estimates of GHG mitigation in 

their application and to clearly state 

how they propose to recover those 

costs.’’ 41 Pipelines may recover costs? 

On what possible basis could the 

Commission deny recovery? The 

majority declines to say. Then, 

presumably in response to comments 

about increasing rates for low-income 

communities and requests to balance 

the cost of mitigation with its 

environmental benefit, the majority 

states that ‘‘the Commission’s process 

for section 7 and section 4 rate cases is 

designed to protect shippers from unjust 

or unreasonable rates and will continue 

to do so with respect to the recovery of 

costs for mitigation measures.’’ 42 How 

can that be true when the Commission 

will issue a certificate only when it 

determines that proposed mitigation 

measures are required for a pipeline 

project to be deemed in the public 

convenience and necessity? Is the 

Commission really suggesting that it 

will deny the recovery of costs that it 

determines are necessary to satisfy the 

public interest? 

16. The Interim Policy Statement 

concludes by informing project sponsors 

with pending applications that they 

‘‘will be given the opportunity to 

supplement the record and explain how 

their proposals are consistent with this 

policy statement’’ and that those filings 

will be subject to a reply comment 

period.43 Future applicants are also 

‘‘encouraged’’ to include a list of 

information in their filings.44 What 

happens if a project sponsor 

supplements its record and the 

Commission revises the Interim Policy 

Statement once again before acting on 

that project sponsor’s application? I can 

imagine that occurring as the comment 

deadline is six weeks away. And how 

can future applicants reasonably rely on 

interim guidance that may or may not 

change? What ‘‘certainty and 

predictability’’ 45 does this policy 

provide? 

17. In sum, the Commission will 

weigh direct GHG emissions and, in 

most cases, downstream emissions in its 

NGA determinations. It will not tell you 

how these emissions will be assessed 

other than to say that project sponsors 

are encouraged to mitigate them. It will 

not tell you how project shippers will be 

protected from imprudently incurred 

costs. This is the tyranny of vagueness. 

It is also a threat. Imagine the fear that 

will animate the mitigation 

‘‘voluntarily’’ proposed by those project 

sponsors with pending applications 

who are facing millions of dollars in 

sunk costs and with shippers that have 

relied on projects being placed into 

service and now only have higher cost 

and less reliable options available. This 

policy statement cannot rightly be 

described as ‘‘encouraging’’ anything.46

II. Interim Policy Statement Proposes, 

and Takes, Unlawful Actions 

A. The Interim Policy Statement, in Its 

Entirety, Is Based on the Wrong Premise 

18. It is worth pausing to consider the 

underlying premise of the majority’s 

policy for considering GHG emissions, 

establishing a GHG emission threshold 

for preparing EISs, and requiring GHG 

emission mitigation. All are based on 

the presumption that GHG emissions are 

an ‘‘effect’’ of the proposed action. 

19. In order to constitute an ‘‘effect,’’ 

three elements must be met: (1) There is 

a ‘‘change[ ] in the human 

environment,’’ that change (2) is 

‘‘reasonably foreseeable,’’ and (3) it ‘‘has 

a reasonably close causal relationship to 

the proposed action or alternatives.’’ 47

The majority, however, does not allege 

that the change in the human 

environment at issue is the release of 

GHG emissions themselves. That makes 

sense, given that it would be like the 

Commission saying, in the hydropower 

context, that the flow of water from the 

powerhouse is a change in the human 

environment. While this would be an 

effect, it is not the kind of effect that is 

at issue in an environmental review. 

Instead, the effect we would care about 

would be the change to the quality or 

quantity of the body of water through 

which the water flows and any resultant 

further changes caused to species, 

vegetation, etc. 

20. No, the majority is concerned 

about the changes in the human 

environment caused, not by the 

existence of GHG emissions themselves, 

but by climate change. The Interim 

Policy Statement is absolutely clear that 

this is its animating purpose: ‘‘The 

Commission is issuing this interim 

policy statement to explain how the 

Commission will assess the impacts of 

natural gas infrastructure projects on 

climate change’’; 48 ‘‘Climate change is 

the variation in the Earth’s climate 

(including temperature, humidity, wind, 

and other meteorological variables) over 

time’’; 49 ‘‘[C]limate change has resulted 

in a wide range of impacts across every 

region of the country and the globe. 

Those impacts extend beyond 

atmospheric climate change and include 

changes to water resources, agriculture, 

ecosystems, human health, and ocean 

systems.’’ 50

21. The question therefore is not 

whether GHG emissions are reasonably 

foreseeable but whether climate change 

and its resulting effects are reasonably 

foreseeable and have a reasonably close 

causal relationship to the proposed 

action. And if so, whether those effects 

are significant and can be mitigated by 

the Commission. 

22. While determining the 

environmental impacts of a project is 

done on a case-by-case basis, the 


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51 Id. P 28. It is worth recalling that the Court has 

likened NEPA’s ‘‘reasonably close causal 

relationship’’ requirement to the ‘‘familiar doctrine 

of proximate cause from tort law,’’ Dep’t of Transp. 

v. Pub. Citizen, 541 U.S. 752, 767 (2004) (Public 

Citizen), and that a federal district court has found 

effects of climate change too attenuated for tort 

liability under state law. See Comer v. Murphy Oil 

USA, Inc., 839 F. Supp. 2d 849, 868 (S.D. Miss. 

2012) (‘‘The assertion that the defendants’ 

emissions combined over a period of decades or 

centuries with other natural and man-made gases to 

cause or strengthen a hurricane and damage 

personal property is precisely the type of remote, 

improbable, and extraordinary occurrence that is 

excluded from liability.’’). 

52See, e.g., Trans-Foreland Pipeline Co. LLC, 173 

FERC ¶ 61,253, at P 31 (2020). 

53See CEQ, Draft NEPA Guidance on 

Consideration of the Effects of Climate Change and 

Greenhouse Gas Emissions, at P 3 (2010), https:// 

obamawhitehouse.archives.gov/sites/default/files/ 

microsites/ceq/20100218-nepa-considerationeffects-ghg-draft-guidance.pdf. 

54 15 U.S.C. 717f(e). 55NAACP v. FPC, 425 U.S. 662, 669 (1976). 56Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C. 

Cir. 2002) (quoting Michigan v. EPA, 268 F.3d 1075, 

1081 (D.C. Cir. 2001)). 57NAACP v. FPC, 425 U.S. at 669; see also FPC 

v. Transcon. Gas Pipe Line Corp., 365 U.S. 1, 17 

(1961) (Transco) (‘‘[I]t must be realized that the 

Commission’s powers under § 7 are, by definition, 

limited.’’) (citing H.T. Koplin, Conservation and 

Regulation: The Natural Gas Allocation Policy of 

the Federal Power Commission, 64 Yale L.J. 840, 

862 (1955)). 58NAACP v. FPC, 425 U.S. at 670 (emphasis 

added) (footnote omitted). As noted by Former 

Commissioner Bernard L. McNamee, this purpose 

was affirmed by later acts of Congress. See Adelphia 

Gateway, LLC, 169 FERC ¶ 61,220 (2019) 

(McNamee, Comm’r, concurring at PP 32–40). 

59See Whitman v. Am. Trucking Ass’ns, Inc., 531 

U.S. 457, 468 (2001). 

60NAACP v. FPC, 425 U.S. at 670 (‘‘While there 

are undoubtedly other subsidiary purposes 

contained in these Acts . . . .’’) (footnote omitted); 

see also id. at 670 n.6. 

61NAACP v. FPC, 425 U.S. at 670 (emphasis 

added). 

62See Transco, 365 U.S. at 8 (‘‘However, 

respondents correctly point out that Congress, in 

enacting the Natural Gas Act, did not give the 

Commission comprehensive powers over every 

incident of gas production, transportation, and sale. 

Rather, Congress was ‘meticulous’ only to invest the 

Commission with authority over certain aspects of 

this field leaving the residue for state regulation. 

Therefore, it is necessary to consider with care 

whether, despite the accepted meaning of the term 

‘public convenience and necessity,’ the 

Commission has trod on forbidden ground in 

making its decision.’’) (citation omitted); FPC v. 

Panhandle E. Pipe Line Co., 337 U.S. 498, 503 

(1949) (‘‘Congress . . . not only prescribed the 

intended reach of the Commission’s power, but also 

specified the areas into which this power was not 

to extend.’’), accord ExxonMobil Gas Mktg. Co. v. 

FERC, 297 F.3d 1071, 1076 (D.C. Cir. 2002); S. Coast 

Air Quality Mgmt. Dist. v. FERC, 621 F.3d 1085, 

1092 (9th Cir. 2010) (‘‘In sum, the history and 

judicial construction of the Natural Gas Act suggest 

that all aspects related to the direct consumption of 

gas—such as passing tariffs that set the quality of 

gas to be burned by direct end-users—remain 

within the exclusive purview of the states.’’); Pub. 

Utils. Comm’n. of Cal. v. FERC, 900 F.2d 269, 277 

(D.C. Cir. 1990) (‘‘[T]he state . . . has authority over 

the gas once it moves beyond the high-pressure 

mains into the hands of an end user.’’). 

63See Interim Policy Statement, 178 FERC 

¶ 61,108 at P 104 n.243 (discussing Transco, 365 

U.S. at 17). 

construction of a natural gas pipeline 

and transportation of natural gas in that 

pipeline are unlikely, on a project-byproject basis, to have a reasonably 

foreseeable (which is to say traceable 

and calculable) effect on climate change 

‘‘in most cases.’’ 51 Were climate change 

a reasonably foreseeable effect (as this 

term is used in environmental reviews) 

of a particular project, we would be able 

to examine the cause (here, the 

construction and the transportation of 

gas) and then determine some 

articulable and quantifiable effect (here, 

the amount of additional climate 

change) for which the project itself is 

causally responsible. We have never 

been able to do that. And while it is not 

acknowledged at all in the Interim 

Policy Statement’s procedural history, 

the Commission has repeatedly stated 

that ‘‘it cannot determine a project’s 

incremental physical impacts on the 

environment caused by GHG 

emissions,’’ 52 and CEQ has made 

similar statements.53 Nothing in the 

Interim Policy Statement suggests this 

has changed nor has any new reasoning 

been offered to explain how we can 

better determine a quantifiable 

connection between the two. 

23. The chain of causation is too 

attenuated for the cause and effect in 

this case to be considered to have a 

‘‘reasonably close causal relationship.’’ 

The reasoning goes as follows: ‘‘Changes 

to water resources, agriculture, 

ecosystems, human health, and ocean 

systems’’ occurring throughout the 

world result from global atmospheric 

changes that themselves result from the 

warming that itself results from 

increases in the world-wide 

concentration of GHGs that enter the 

atmosphere as the emissions released by 

using natural gas, that in the case of end 

uses (that is, not pipeline operational 

uses), results from the transportation of 

natural gas. The logical sequence is 

clear, but the causation is quite 

attenuated. And this attenuation cannot 

be shortened through the ploy of 

employing GHG emissions as a proxy 

for climate change. 

B. Consideration of Effects on Climate 

Change From Non-Jurisdictional Entities 

Violates the NGA and CEQ Regulations 

24. The consideration of effects 

resulting from the upstream production 

or downstream use of natural gas 

violates the NGA and CEQ’s regulations. 

25. The NGA authorizes the 

Commission to consider only those 

factors bearing on the ‘‘public 

convenience and necessity.’’ 54 The 

phrase ‘‘public convenience and 

necessity’’ is not ‘‘a broad license to 

promote the general public welfare.’’ 55

It does not permit the majority to 

conjure up its own meanings. As a 

‘‘‘creature of statute,’ ’’ 56 the 

Commission must ‘‘look to the purposes 

for which the [Natural Gas Act] was 

adopted’’ to give it content and 

meaning.57

26. As the Court explained in NAACP 

v. FPC, ‘‘public convenience and 

necessity’’ means ‘‘a charge to promote 

the orderly production of plentiful 

supplies of electric energy and natural 

gas at just and reasonable rates.’’ 58

Simply put, the production and use of 

natural gas were not only presumed but 

were presumed to be in the public 

interest. Congress put its thumb on the 

scale in favor of gas and charged the 

Commission with ensuring that there 

would be adequate infrastructure in 

place to provide an abundant supply of 

natural gas available at reasonable 

prices for all Americans to use. The 

purpose of the NGA is narrow and clear. 

And it is a mousehole through which 

the elephant of addressing the climate 

change impacts of the entire natural-gas 

industry cannot pass.59

27. And while there were ‘‘subsidiary 

purposes’’ for the passage of the Natural 

Gas Act,60 addressing the effects of 

climate change caused by using natural 

gas could not have been one of them. 

And even if it were, it is obvious that 

something that is ‘‘subsidiary’’ cannot, 

definitionally, override that which is 

primary. The majority cannot flip the 

NGA’s presumptions and consider the 

use of natural gas as intrinsically 

harmful, thus requiring mitigation. And 

it certainly cannot abandon our charge 

under the NGA to ‘‘promote the orderly 

production of plentiful supplies of . . . 

natural gas at just and reasonable 

rates’’ 61 by then weighing their 

determination that natural gas is 

harmful against the public interest when 

adjudicating section 3 and section 7 

applications. This is directly contrary to 

the purpose Congress established the 

Commission to serve and supplants the 

judgment of Congress with that of the 

Commission. If that were not reason 

enough, it also invades jurisdictional 

territory that the courts have repeatedly 

held that Congress has reserved to the 

States.62

28. The majority cannot turn to the 

Supreme Court’s holding in Transco as 

authority.63 In that case, the Court held 

that the Federal Power Commission 

lawfully denied a certificate based on 

two factors: First, that using natural gas 

to alleviate air pollution from burning 

coal was an inferior use, and second, the 


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64Transco, 365 U.S. at 4–7. In discussing whether 

consideration of end use was proper in the context 

of conservation, the Court also noted, ‘‘[t]he 

Commission said that it had not been given 

‘comprehensive’ authority to deal with ‘the end 

uses for which natural gas is consumed’ and that 

it would not deny certification on that ground 

alone.’’ Id. at 15–16 (discussing F.P.C., The First 

Five Years Under the Natural Gas Act). 

65 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 104. Nor does the Federal Power Commission 

precedent, which the majority cites, support this 

proposition. See Adelphia Gateway, LLC, 169 FERC 

¶ 61,220 (McNamee, Comm’r, concurring at P 29 

n.64). 

66 541 U.S. 752, 767–69. 

67 Id. at 767. 

68Sierra Club v. FERC, 827 F.3d 36, 49 (D.C. Cir. 

2016). 

69See 867 F.3d at 1380 (Brown, J., concurring in 

part and dissenting in part) (‘‘More significantly, 

today’s opinion completely omits any discussion of 

the role Florida’s state agencies play in the 

construction and expansion of power plans within 

the state—a question that should be dispositive.’’). 

70See Ctr. for Biological Diversity v. U.S. Army 

Corps of Eng’s, 941 F.3d 1288, 1299–1300 (11th Cir. 

2019). 

71 40 CFR. § 1508.1(g)(3) (‘‘An agency’s analysis of 

effects shall be consistent with this paragraph (g).’’); 

id. § 1508.1(g)(2) (‘‘A ‘but for’ causal relationship is 

insufficient to make an agency responsible for a 

particular effect under NEPA. Effects should 

generally not be considered if they are remote in 

time, geographically remote, or the product of a 

lengthy causal chain. Effects do not include those 

effects that the agency has no ability to prevent due 

to its limited statutory authority or would occur 

regardless of the proposed action.’’). 

72The relevant question on whether the 

Commission should prepare an EIS is whether the 

proposed action ‘‘[i]s likely to have significant 

effects.’’ 40 CFR. § 1501.3(a)(3). 

73 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 87 (‘‘Establishing such a threshold will provide 

the Commission a workable and consistent path 

forward to analyze proposed projects. Further, a 

numerical threshold is a clear, consistent standard 

that can be easily understood and applied by the 

regulated community and interested 

stakeholders.’’). 

74 Id. PP 90–95. 

75 Id. P 80. 

76 Id. P 95. 

77 Id. P 88. 

78CEQ, Draft NEPA Guidance on Consideration 

of the Effects of Climate Change and Greenhouse 

Gas Emissions, at P 3 (2010), https://

obamawhitehouse.archives.gov/sites/default/files/ 

microsites/ceq/20100218-nepa-considerationeffects-ghg-draft-guidance.pdf. 

79See supra P 22 n.52. 

80 5 U.S.C. 553; see also Shell Offshore Inc. v. 

Babbitt, 238 F.3d 622, 629 (5th Cir. 2001) (‘‘[T]he 

APA requires an agency to provide an opportunity 

for notice and comment before substantially altering 

a well established regulatory interpretation.’’). 

81 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 3. 

82 18 CFR 380.5–380.6; see also Commissioner 

Danly November 29, 2021 Response to Senator 

Barrasso September 15, 2021 Letter, Docket Nos. 

CP20–27–000, et al., at 12, Fig. 2 (Accession No. 

20211214–4001). 

83 18 CFR. § 380.5(a) (emphasis added). 

84 Interim Policy Statement, 178 FERC ¶ 61,108 at 

P 1; see also id. P 81. 

proposal would increase future prices.64

It does not stand for the proposition that 

the Commission can consider adverse 

effects of air pollution, and thus climate 

change impacts, of using natural gas as 

the majority implies.65

29. Nor is the D.C. Circuit’s outlier 

opinion, Sabal Trail, as instructive as 

the majority seems to believe. It is very 

much in tension with prevailing 

Supreme Court precedent in Public 

Citizen, which held that agencies are 

only obligated to consider 

environmental effects to which their 

actions are the proximate cause.66

Public Citizen explained that courts 

must look to the ‘‘underlying policies or 

legislative intent’’ of an agency’s organic 

statute to determine whether an agency 

is obligated to consider environmental 

effects.67 The D.C. Circuit has also 

characterized Public Citizen as 

‘‘explicit’’ that an agency is ‘‘not 

obligated to consider those effects . . . 

that could only occur after intervening 

action’’ by some other actor ‘‘and that 

only [that] actor[ ] . . . had the authority 

to prevent.’’ 68 In other words, when any 

potential effects are the result of the 

actions of third parties such as retail 

consumers, upstream production 

companies, and power generators, who 

may be several degrees of separation 

removed from the jurisdictional 

pipeline, those effects are outside the 

scope of what the agency must consider. 

30. Thus, we should not rest too much 

weight upon Sabal Trail. Not only is the 

holding narrower than the majority 

seems to believe and was roundly 

criticized by the accompanying 

dissent,69 its reasoning has since been 

called into question by another 

appellate court and I expect it will soon 

be challenged in the Supreme Court.70

31. In sum, environmental effects 

resulting from the upstream production 

and downstream use of gas are not 

factors bearing on the public 

convenience and necessity under the 

Natural Gas Act. Further, the CEQ’s 

regulations affirmatively prohibit those 

effects from being considered in an 

agency’s compliance with NEPA.71

C. The Significance Threshold Is 

Illogical and Violates Regulations 

32. In addition, the majority’s 

presumption that project emissions 

exceeding 100,000 tpy of CO2e will have 

a significant effect on the human 

environment is illogical and 

inconsistent with CEQ and Commission 

regulations. 

33. The majority offers three 

irrelevant rationales for this 

presumption: 72 first, the threshold is 

administratively workable; 73 second, 

other agencies have established 

thresholds under different statutory 

schemes that are not based on a project’s 

effect on the climate; 74 and third, the 

threshold will ‘‘capture’’ 75 ‘‘99% of 

GHG emissions from Commissionregulated natural gas projects.’’ 76 It is 

worth noting that according to 

Commission staff, a 1 million tpy 

threshold would have covered 98.909% 

of emissions from natural gas projects 

authorized from 2017 through 2021, 

making the unsupported selection of the 

lower threshold both arbitrary and 

capricious. 

34. The majority also states ‘‘even 

relatively minor GHG emissions pose a 

significant threat’’ ‘‘[b]ecause of the dire 

effects at stake.’’ 77 This rationale, 

however, is not supported by the 

evidence offered. The Commission does 

not explain how minor GHG emissions 

could lead to ‘‘dire effects.’’ We cannot 

just assume—this is administrative 

law—we must show evidence. More 

importantly, the rationale does not link 

a proposed project to effects on climate 

change. And for good reason. As CEQ 

declared: ‘‘it is not currently useful for 

the NEPA analysis to attempt to link 

specific climatological changes, or the 

environmental impacts thereof, to the 

particular project or emissions, as such 

direct linkage is difficult to isolate and 

to understand.’’ 78 The Commission has 

repeatedly agreed.79

35. On top of being illogical, the 

Interim Policy Statement effectively 

amends the Commission’s NEPA 

regulations without undergoing noticeand-comment procedures as required by 

the Administrative Procedure Act.80

The Interim Policy Statement provides 

that an EIS will be prepared when the 

threshold is exceeded at full burn.81 The 

Commission’s NEPA regulations, 

however, set forth specific categories of 

projects where an EA and EIS ‘‘will 

normally be prepared,’’ 82 with no 

mention of GHG emissions. And in a 

case where an EA is normally prepared, 

the Commission ‘‘may in specific 

circumstances’’—meaning a case-bycase determination—decide whether to 

prepare an EIS ‘‘depending on the 

location or scope of the proposed action, 

or resources affected.’’ 83

36. Given these fatal flaws, it is no 

wonder the majority seeks comment ‘‘in 

particular, on the approach to assessing 

the significance of the proposed 

project’s contribution to climate 

change.’’ 84

D. GHG Mitigation 

1. Claims of Authority To Mitigate 

37. Next, the majority states that the 

Commission’s conditioning power gives 

it authority to require a pipeline to 

mitigate GHGs emitted by its operations 


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85 Id. P 106. 

86 Id. P 103 (‘‘For example, commenters argue that 

Congress has delegated authority to the EPA and 

state agencies to regulate GHGs under the [Clean 

Air Act].’’) (citation omitted); see also id. P 103 

n.238 (citing American Public Gas Association 

Technical Conference Comments at 5–6; EEI 

Technical Conference Comments at 9–10; Enbridge 

Technical Conference Comments at 23–24; TC 

Energy Technical Conference Comments at 9–10). 

87Am. Elec. Power Co., Inc. v. Connecticut, 564 

U.S. 410, 426 (2011) (emphasis added) (discussing 

in the context of power plants but would apply 

equally here); see also Adelphia Gateway, LLC, 169 

FERC ¶ 61,220 (2019) (McNamee, Comm’r, 

concurring at PP 52–61). 

88Whether EPA or CEQ have raised ‘‘objections’’ 

is not relevant. See Interim Policy Statement, 178 

FERC ¶ 61,108 at P 85. 

89Standards of Performance for New, 

Reconstructed, and Modified Sources and 

Emissions Guidelines for Existing Sources: Oil and 

Natural Gas Sector Climate Review, 86 FR 63110 

(Nov. 15, 2021). Commenters make the point, to 

which the majority does not respond, that the 

Commission should defer to EPA’s rulemaking. See, 

e.g., EEI Technical Conference Comments at 11 

n.29. 

90See id. P 102. 

91See id. P 105 (‘‘we recognize, as many 

commenters assert, that the Commission does not 

have the statutory authority to impose conditions 

on downstream users or other entities outside the 

Commission’s jurisdiction . . . rather, the 

Commission encourages each project sponsor to 

propose measures . . . .’’) (emphasis in original). 

92See Altamont Gas Transmission, Co. v. FERC, 

92 F.3d 1239, 1248 (D.C. Cir. 1996) (‘‘Although the 

Commission ordinarily has the authority to 

consider a matter beyond its jurisdiction if the 

matter affects jurisdictional sales—at least if there 

would otherwise be a regulatory gap—here there is 

no such gap but, on the contrary, an express 

congressional reservation of jurisdiction to another 

body.’’); Am. Gas Ass’n v. FERC, 912 F.2d 1496, 

1510 (‘‘[T]he Commission may not use its § 7 

conditioning power to do indirectly . . . things that 

it cannot do at all.’’); see also Calpine Corp., 171 

FERC ¶ 61,035 (2020) (Glick, Comm’r, dissenting at 

P 7) (‘‘In recent years, the Supreme Court has 

repeatedly admonished both the Commission and 

the states that the FPA prohibits actions that ‘aim 

at’ or ‘target’ the other sovereign’s exclusive 

jurisdiction.’’). 

93See Interim Policy Statement, 178 FERC 

¶ 61,108 at P 107 (‘‘[T]he Commission plans to 

evaluate proposed mitigation plans on a case-bycase basis . . . .’’) (emphasis added); id. P 131 (‘‘the 

Commission will then consider the project’s impact 

on climate change, including the project sponsor’s 

mitigation proposal to reduce direct GHG emissions 

and, to the extent practicable, to reduce any 

reasonably foreseeable project emissions . . . .’’). 

94 15 U.S.C. 717b(a). 

95 Id. § 717f(e). 

96See also Michigan v. EPA, 576 U.S. 743, 752 

(2015) (explaining that the phrase ‘‘appropriate and 

necessary’’ in the Clean Air Act ‘‘requires at least 

some attention to cost’’); id. (‘‘One would not say 

that it is even rational, never mind ‘appropriate,’ to 

impose billions of dollars in economic costs in 

return for a few dollars in health or environmental 

benefits.’’); id. 752–53 (‘‘Agencies have long treated 

cost as a centrally relevant factor when deciding to 

regulate.’’). 

97See Interim Policy Statement, 178 FERC 

¶ 61,108 at P 5, n.6. 

98 I recognize that project sponsors have 

previously reserved their right to appeal when 

accepting a certificate, which the Commission has 

not opposed. However, in the context of 

hydropower cases, the Commission has taken a 

different approach. See Rivers Elec. Co., Inc., 178 

FERC ¶ 61,027, P 9 n.25 (2022) (Danly, Comm’r, 

concurring in part and dissenting in part) (‘‘If the 

transferee accepts this order, it is thereby agreeing 

to the new condition. It may decline to do so if it 

does not wish to accept the condition.’’). 

and reasonably foreseeable indirect 

effects.85 The majority is incorrect. 

38. As commenters explain,86 without 

any response from the majority, the 

Supreme Court has held that ‘‘Congress 

delegated to EPA the decision whether 

and how to regulate carbon-dioxide 

emissions’’ from stationary sources.87

By claiming the authority to mitigate 

these same emissions as part of the 

Natural Gas Act certification process, 

the majority are attempting to usurp the 

statutory authority the Court found 

Congress has delegated to EPA and 

which cannot be reassigned absent 

Congressional action.88 If the EPA were 

to regulate GHG emissions from 

pipeline facilities, which it is 

contemplating doing,89 the Commission 

could possibly require project sponsors 

to comply with those requirements. But 

one would not say that the Commission 

could on its own require project 

sponsors to mitigate, for example, sulfur 

dioxide because the EPA had chosen not 

to do so, or the Commission believed its 

regulations to be inadequate. 

39. The Commission’s conditioning 

authority also does not allow the 

Commission to mitigate GHG emissions 

from upstream or downstream users. 

The commenters make the point,90 also 

sidestepped by the majority,91 that the 

Commission’s conditioning authority 

cannot be used to indirectly do what the 

Commission cannot do directly. That is, 

the Commission may not indirectly rely 

on the Natural Gas Act to impose 

conditions on non-jurisdictional 

entities.92

40. Further, the Commission’s 

conditioning authority cannot be used 

in ways that would be directly contrary 

to the purpose of the NGA—to promote 

the production of plentiful supplies of 

natural gas at reasonable rates. The 

majority may not rewrite the purpose of 

the NGA to instead charge the 

Commission with the mission of 

discouraging the production and use of 

natural gas. 

2. Encouraging Project Sponsors To 

Mitigate GHG Emissions 

41. The Interim Policy Statement’s 

encouragement that project sponsors 

mitigate GHG emissions is in practical 

effect a requirement,93 and is not in 

accordance with the NGA. The NGA 

only empowers the Commission to 

impose terms and conditions in two 

contexts: (1) Pursuant to NGA section 3 

when it finds such terms ‘‘necessary or 

appropriate’’ 94 to ensure a proposed 

export or import facility is not 

inconsistent with the public interest, 

and (2) pursuant to NGA section 7, 

when it finds such terms are 

‘‘reasonable’’ and ‘‘require[d]’’ by the 

‘‘public convenience and necessity.’’ 95

Only after making these findings, can 

the Commission require mitigation. 

42. The majority does not attempt to 

make either of these required findings. 

It simply leaps from stating that the 

Commission has the discretion to 

mitigate GHG emissions to ‘‘expecting’’ 

applicants to mitigate their emissions. 

This amounts to no more than ‘‘because 

I said so.’’ More is required.96

III. Intent of the Interim Policy 

Statement 

43. One cannot help but notice the 

lengths to which the majority goes in 

order to make this policy statement 

‘‘non-binding,’’ using words like 

‘‘propose,’’ ‘‘wish,’’ ‘‘opportunity,’’ and 

even insisting, in response to this 

dissent, that it does not ‘‘impose[] an 

obligation, deny[y] a right, or fix[ ] some 

legal relationship,’’ 97 for what appears 

to have no purpose other than to avoid 

notice-and-comment procedures (that is, 

public participation) and judicial 

review. For without judicial review as a 

check, there is no need to engage in 

reasoned decision-making or be limited 

by the purposes of the statute. 

44. In this way, the majority appears 

to believe it can do whatever it wants. 

Arrogate to the Commission authority it 

does not have. Disregard regulations 

that are currently in force. Flout 

prevailing Supreme Court precedent. 

Make threats to manipulate project 

sponsors into ‘‘voluntarily’’ subjecting 

themselves to unnecessary processes 

and proposing mitigation of the ‘‘harm’’ 

resulting from the proposed use or 

transportation of natural gas to provide 

a service that Congress declared to be in 

the public interest. 

45. If an entity requests rehearing of 

today’s policy statement, the majority 

can simply reject it—either by notice or 

order (without any discussion of the 

merits)—stating that rehearing does not 

lie for policy statements. And if a 

petition for review follows, the 

Commission can argue that the Interim 

Policy Statement is not subject to review 

because it is not a substantive rule. And 

if some project sponsor suggests it is 

proposing mitigation under duress and 

it reserves the right to challenge the 

mitigation requirement in court, the 

Commission can argue the project 

sponsor cannot be aggrieved because it 

voluntarily proposed the mitigation and 

accepted the certificate and its terms.98


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99Am. Trucking Ass’n, Inc. v. I. C. C., 659 F.2d 

452, 463 (5th Cir. 1981), opinion clarified on other 

grounds, 666 F.2d 167 (5th Cir. 1982) (Am. 

Trucking). 

100 Interim Policy Statement, 178 FERC ¶ 61,108 

at P 130. 

101 Id. 

102Cf. Am. Trucking, 659 F.2d at 463–464 (‘‘The 

manner of dealing with applicants who do not 

follow what is declared to be the ‘normal’ course 

demonstrates graphically that the carrier who does 

not conform will incur both delay and potentially 

vast litigation expense’’). 

103For example, on August 24, 2020, Commission 

staff issued an EA for Tennessee Gas Pipeline 

Company, LLC et al.’s Evangeline Pass Expansion 

Project which concluded, ‘‘[w]e recommend that 

the Commission Order contain a finding of no 

significant impact.’’ Commission Staff, 

Environmental Assessment for Tenn. Gas Pipeline 

Co., LLC et al.’s Evangeline Pass Expansion Project, 

Docket Nos. CP20–50–000 et al., at 168 (Aug. 24, 

2020). Despite this recommendation, which would 

have normally been adopted by the Commission, 

Commission staff, at the direction of the Chairman, 

issued supplemental Draft and Final Environmental 

Impact Statements. See Commission Staff, Final 

Environmental Impact Statement for Tenn. Gas 

Pipeline Co., LLC et al.’s Evangeline Pass Expansion 

Project, Docket Nos. CP20–50–000 et al. (Oct. 8, 

2021); Commission Staff, Draft Environmental 

Impact Statement for Tenn. Gas Pipeline Co., LLC 

et al.’s Evangeline Pass Expansion Project, Docket 

Nos. CP20–50–000 et al. (July 16, 2021). 

104See Brown Exp., Inc. v. United States, 607 

F.2d 695, 701 (5th Cir. 1979) (‘‘An announcement 

stating a change in the method by which an agency 

will grant substantive rights is not a ‘general 

statement of policy.’ ’’). 

105See Nat. Res. Def. Council, Inc. v. NRC, 539 

F.2d 824 (2d Cir. 1976) (‘‘Further, it is clear that 

NEPA legal consequences flow from that decision 

since the order below sets forth rules concerning 

how the agency will comply with the 

environmental laws.’’), cert. granted, 430 U.S. 944 

(1977), judgment vacated and case remanded for 

consideration of mootness, 434 U.S. 1030 (1978). 

106 Interim Policy Statement, 178 FERC ¶ 61,108 

at P 3 (‘‘For purposes of assessing the appropriate 

level of NEPA review, Commission staff will apply 

the 100% utilization or ‘full burn’ rate for the 

proposed project’s emissions to determine whether 

to prepare an Environmental Impact Statement (EIS) 

or an environmental assessment (EA). Commission 

staff will proceed with the preparation of an EIS, if 

the proposed project may result in 100,000 metric 

tons per year of CO2e or more.’’) (emphasis added); 

see also Tex. v. Equal Emp’t Opportunity Comm’n, 

933 F.3d 433, 441–44 (5th Cir. 2019); id. at 442 

(‘‘That the agency’s action binds its staff . . . 

demonstrates that legal consequences flow from it 

. . . .’’). 

107See, e.g., Interstate Nat. Gas Ass’n of Am. v. 

FERC, 285 F.3d 18, 59 (D.C. Cir. 2002). 

1Certification of New Interstate Natural Gas 

Facilities, 174 FERC ¶ 61,125 (2021). 

2 I also voted for the 2021 changes to the 

procedures for imposing a stay on the certificate 

and use of eminent domain during periods when 

petitions for reconsideration and appeals were 

pending. Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, Order 

No. 871–B, 175 FERC ¶ 61,098 (2021). These 

changes were largely opposed by the pipeline 

industry, but in my opinion represented a 

reasonable approach to bring more certainty and 

fairness to our procedures for handling petitions for 

reconsideration and the use of eminent domain 

during the pending period. 

3See Certification of New Interstate Natural Gas 

Facilities, 178 FERC ¶ 61,107 (2022) (Certificate 

Policy Statement) at PP 53–57. The need for 

enhanced scrutiny of contracts among corporate 

affiliates is recognized in state utility regulation. 

See, e.g., Va. Code § 56–76 et seq., known as the 

‘‘Virginia Affiliates Act.’’ 

4See Joint Anti-Fascist Refugee Comm. v. 

McGrath, 341 U.S. 123 (1951) (Frankfurter, J., 

concurring). 

5Certificate Policy Statement; Consideration of 

Greenhouse Gas Emissions in Natural Gas 

Infrastructure Project Reviews, 178 FERC ¶ 61,108 

(2022) (GHG Policy Statement). Although styled as 

an ‘‘interim’’ policy statement, it goes into effect 

immediately and will inflict major new costs and 

uncertainties on certificate applications that have 

been pending with the Commission for months or 

years. Id. at PP 1, 130. I consider both policy 

statements to be indivisible parts of a new policy 

governing certificates. Thus, my statement applies 

to both, and I am entering this dissent in both 

dockets. 

6 15 U.S.C. 717 et seq. See, e.g., Certificate Policy 

Statement at P 62. 

7 42 U.S.C. 4321 et seq. 

8Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, 

OSHA, 142 S. Ct. 661 (2022) (NFIB); Alabama 

Ass’n. of Realtors v. Dep’t of Health and Human 

Services, 141 S. Ct. 2485 (2021) (Ala. Ass’n.); Util. 

46. This is not good governance. Nor 

do I think it likely the majority will be 

successful. In my view, the Interim 

Policy Statement is a substantive, 

binding rule that is subject to judicial 

review. Despite the Interim Policy 

Statement’s hortatory verbiage, ‘‘there 

are sinews of command beneath the 

velvet words.’’ 99 Perhaps the best 

illustration of this is the list of six items 

project sponsors are ‘‘encouraged’’ to 

include in their applications in light of 

the new policy statement.100 This list 

includes estimates of the proposal’s 

cumulative direct and indirect 

emissions and what mitigation measures 

the project sponsors propose, as well as 

a ‘‘detailed cost estimate’’ of the 

proposed mitigation and a ‘‘proposal for 

recovering those costs.’’ 101

47. This is not encouragement. This is 

command. The project sponsors will 

know that if they want to win approval 

for their projects this is what they must 

do 102 even if they must guess at what 

will ultimately satisfy the Commission’s 

new policies. Certainly, no project 

sponsor will believe that mitigation is 

optional or that submitting an 

application exceeding the Interim Policy 

Statement’s 100,000 tpy threshold 

without a mitigation proposal would be 

anything other than a waste of time and 

money. And what other reason could 

the majority have for delaying action on 

those projects that have effectively twice 

completed the NEPA process? 103

48. There is, however, no ambiguity 

in this: The Commission has changed 

the requirements for obtaining project 

approvals and applicants need to come 

before the Commission acknowledging 

that it is so.104 The effect of this change 

is immediate. Even applicants whose 

projects have been pending with the 

Commission for upwards of two years 

will be subjected to the Commission’s 

new rules. 

49. The interim policy statement also 

determines that emissions over 100,000 

tpy of CO2e are significant (and 

emissions which fall below, not 

significant), a determination from which 

legal consequences flow under 

NEPA.105 And it binds Commission 

staff.106 While I acknowledge the courts 

have given the Commission’s 

characterization of issuances deference 

in the past,107 whether a court will do 

so in in this instance is far from certain. 

For these reasons, I respectfully 

dissent. 

James P. Danly, Commissioner 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory Commission 

Consideration of Greenhouse Gas 

Emissions in Natural Gas Infrastructure 

Project Reviews 

Docket No. PL21–3–000 

CHRISTIE, Commissioner, dissenting: 

1. Last year I voted to re-issue this 

Notice of Inquiry (NOI) for another 

round of comment 1 because I 

believed—and still do—that there are 

reasonable updates to the 1999 policy 

statement that would be worthwhile.2

For example, I agree that precedent 

agreements between corporate affiliates, 

because of the obvious potential for selfdealing, should not, in and of 

themselves and without additional 

evidence, prove need.3 I also believe 

that the Commission’s procedures for 

guaranteeing due process to affected 

property owners, which, as Justice 

Frankfurter taught, consists of the two 

core elements of notice and opportunity 

to be heard,4 could be strengthened. 

2. Unfortunately, the new certificate 

policy the majority approves today 5

does not represent a reasonable update 

to the 1999 statement. On the contrary, 

what the majority does today is arrogate 

to itself the power to rewrite both the 

Natural Gas Act (NGA) 6 and the 

National Environmental Policy Act 

(NEPA),7 a power that only the elected 

legislators in Congress can exercise. 

Today’s action represents a truly radical 

departure from decades of Commission 

practice and precedent implementing 

the NGA. 

3. The fundamental changes the 

majority imposes today to the 

Commission’s procedures governing 

certificate applications are wrong as 

both law and policy. They clearly 

exceed the Commission’s legal authority 

under the NGA and NEPA and, in so 

doing, violate the United States 

Supreme Court’s major questions 

doctrine.8


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Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014) 

(UARG); FDA v. Brown & Williamson Tobacco 

Corp., 529 U.S. 120 (2000) (Brown & Williamson). 

I discuss this doctrine in Section I.B., infra. 

9See, e.g., Natasha Bertrand, US putting together 

’global’ strategy to increase gas production if Russia 

invades Ukraine, officials say, CNN (Jan. 24, 2022), 

available at https://www.cnn.com/2022/01/23/ 

politics/us-gas-production-strategy-russia-ukraineinvasion/index.html https://www.cnn.com/2022/01/ 

23/politics/us-gas-production-strategy-russiaukraine-invasion/index.html; and, Stephen 

Stapczynski and Sergio Chapa, U.S. Became 

World’s Top LNG Exporter, Spurred by Europe 

Crisis, Bloomberg (Jan 4, 2022), available at https:// 

www.bloomberg.com/news/articles/2022-01-04/u-slng-exports-top-rivals-for-first-time-on-shalerevolution. 

10See NERC December 2021 Long-Term 

Reliability Assessment, at 5 (Dec. 2021) (‘‘Natural 

gas is the reliability ‘fuel that keeps the lights on,’ 

and natural gas policy must reflect this reality.’’) 

(emphasis added) (available at https://

www.nerc.com/pa/RAPA/ra/Reliability

%20Assessments%20DL/NERC_LTRA_2021.pdf); 

id. at 6 (‘‘Sufficient flexible [dispatchable] resources 

are needed to support increasing levels of variable 

[intermittent] generation uncertainty. Until storage 

technology is fully developed and deployed at 

scale, (which cannot be presumed to occur within 

the time horizon of this LTRA), natural gas-fired 

generation will remain a necessary balancing 

resource to provide increasing flexibility needs.’’) 

(emphasis added); NERC 2020 Long-Term 

Reliability Assessment, December 2020, at 7 (Dec. 

2020) (‘‘As more solar and wind generation is 

added, additional flexible resources are needed to 

offset their resources’ variability. This is placing 

more operating pressure on those (typically natural 

gas) resources and makes them the key to securing 

[Bulk Power System] reliability.’’ (emphases added) 

(available at https://www.nerc.com/pa/RAPA/ra/ 

Reliability%20Assessments%20DL/NERC_LTRA_

2020.pdf). 

11Letter from Industrial Energy Consumers of 

America to Sen. Joe Manchin III, Sen. John 

Barrasso, Sen. Frank Pallone, Jr., Sen. Cathy 

McMorris Rodgers, Lack of Interstate Natural Gas 

Pipeline Capacity Threatens Manufacturing 

Operations, Investments, Jobs, and Supply Chain 

(Feb. 9, 2022). 

12Since we are regulators with an advisory role, 

not Article III judges, my personal view is that the 

most politically realistic and sustainable way to 

reduce carbon emissions significantly without 

threatening the reliability of our grid and punishing 

tens of millions of American workers and 

consumers with lost jobs and skyrocketing energy 

prices (see, e.g., Europe) is by massive public 

investment in the research, development and 

deployment of the technologies that can achieve 

that goal economically and effectively. See, e.g., 

Press Release, Bipartisan Policy Center, New AEIC 

Report Recommends DOE Combine Loan and 

Demonstration Offices, Jumpstart American Clean 

Energy Deployment (Jan. 21, 2022), available at 

https://bipartisanpolicy.org/press-release/new-aeicreport-recommends-doe-combine-loan-anddemonstration-offices-jumpstart-american-cleanenergy-deployment/ (citing to American Energy 

Innovation Council, Scaling Innovation: A Proposed 

Framework for Scaling Energy Demonstrations and 

Early Deployment (Jan. 2022)). Once developed to 

commercial scale, marketable technologies will roll 

out globally on their own, without the marketdistorting mandates and subsidies that only enrich 

rent-seekers and impoverish consumers. More 

specifically with regard to natural gas facilities, 

there is also the potential with available technology 

to reduce direct methane emissions from the 

existing oil and gas system within existing legal 

authority. And such initiatives do not obviate the 

need for near-term mitigation measures, such as 

preparing the electric grid to maintain power during 

extreme weather events. 

13 15 U.S.C. 717f. 

14Certificate Policy Statement at P 62; GHG 

Policy Statement at PP 4, 99. 

15See Certificate Policy Statement at P 6, GHG 

Policy Statement at P 27. 

16Certificate Policy Statement at P 62; GHG 

Policy Statement at PP 27, 99. 

17 15 U.S.C. 717f(e). 

18See Certificate Policy Statement at P 74; GHG 

Policy Statement at P 99. 

19Certificate Policy Statement at P 62. 

20 Id. 

21 Id. The notion that a certificate could be 

rejected based solely on the interests of 

‘‘landowners’’ or ‘‘environmental justice 

communities’’ (a term the majority leaves largely 

undefined) illustrates the radical divergence from 

both law and long Commission practice of what the 

Commission purports to do today. While a 

regulatory commission should always be mindful of 

and sensitive to the impacts on affected property 

owners and communities in every case involving 

the potential use of eminent domain—particularly 

on the question of the project’s route or siting—and 

should generally seek wherever possible to reduce 

or minimize such impacts, specific measures to 

reduce or minimize such impacts are governed by 

the statutes applicable to each proceeding. Under 

both the Constitution and the NGA, if a project is 

needed for a public purpose, then landowners are 

made whole through just compensation. U.S. Const. 

amend. V. Questions of compensation are 

Continued 

4. The new policy also threatens to do 

fundamental damage to the nation’s 

energy security by making it even more 

costly and difficult to build the 

infrastructure that will be critically 

needed to maintain reliable power 

service to consumers as the generation 

mix changes to incorporate lower 

carbon-emitting resources such as wind 

and solar. And as recent events in 

Europe and Ukraine graphically 

illustrate, America’s energy security is 

an inextricable part of our national 

security.9 The majority’s proposal on 

GHG impacts is obviously motivated by 

a desire to address climate change, but 

will actually make it more difficult to 

expand the deployment of low or nocarbon resources, because it will make 

it more difficult to build or maintain the 

gas infrastructure essential to keep the 

lights on as more intermittent resources 

are deployed.10 In addition to the 

essential need for natural gas to keep 

our power supply reliable, a dependable 

and adequate natural gas supply is 

critically needed for our manufacturing 

industries and the millions of jobs for 

American workers in those industries.11

5. And while I agree that reducing 

carbon emissions that impact the 

climate is a compelling policy goal,12

this Commission—an administrative 

agency that only has the powers 

Congress has explicitly delegated to it— 

has no open-ended license under the 

U.S. Constitution or the NGA to address 

climate change or any other problem the 

majority may wish to address. 

I. Legal Questions 

6. The long-running controversy over 

the role and use of GHG analyses in 

natural-gas facility certificate cases 

raises two central questions of law and 

a third that flows from the first two: 

7. First, whether the Commission can 

use a GHG analysis to reject a 

certificate—or attach conditions 

(including the use of coercive deficiency 

letters) amounting to a de facto rejection 

by rendering the project unfeasible— 

based on the NGA’s ‘‘public 

convenience and necessity’’ 13

provision, even when the evidence 

otherwise supports a finding under the 

NGA that the facility is both 

‘‘convenient and necessary’’ to provide 

the public with essential gas supply? 

Today’s orders assume that the answer 

is yes.14

8. Second, whether the Commission 

can, or is required to, reject a 

certificate—or attach conditions 

(including the use of coercive deficiency 

letters) amounting to a de facto rejection 

by rendering the project unfeasible— 

based on a GHG analysis conducted as 

part of an environmental review under 

NEPA,15 when the certificate 

application would otherwise be 

approved as both ‘‘convenient and 

necessary’’ under the NGA? Again, 

today’s orders assume the answer is 

yes.16

9. Third, which, if any, conditions 

related to a GHG analysis may be 

attached to a certificate under NGA 

§ 7(e),17 or demanded through the use of 

deficiency letters? Today’s orders seem 

to assume that there is essentially no 

limit to the conditions the Commission 

can impose.18

10. As discussed below, today’s 

orders get each of these questions 

wrong. 

A. The ‘‘Public Interest’’ in the Natural 

Gas Act 

11. The starting point for answering 

all of these questions must be what 

‘‘public interest’’ analysis the NGA 

empowers the Commission to make. Can 

the Commission’s statutory 

responsibility to determine the ‘‘public 

convenience and necessity’’ be used to 

reject a project otherwise needed by the 

public based solely on adverse impacts 

to ‘‘environmental interests’’ 19 (a term 

today’s orders leave undefined but 

which could be reduced to an 

unspecified level of GHG emissions) as 

the Commission today asserts? 20 Or can 

the Commission reject a project solely 

due to ‘‘the interests of landowners and 

environmental justice communities’’ as 

the majority also asserts? 21 The short 


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adjudicated in state or federal court—not by this 

Commission. NGA § 7(h), 15 U.S.C. 717f(h). 

Bringing such extra-jurisdictional considerations 

into the Commission’s public convenience and 

necessity analyses under NGA § 7 is just another 

expansion of Commission power far beyond 

anything justified in law. 

22Sabal Trail, 867 F.3d 1357, 1382 (DC Cir. 2017) 

(Sabal Trail) (Brown, J., dissenting in part and 

concurring in part). 

23Atl. Refining Co. v. Pub. Serv. Comm’n of State 

of N.Y., 360 U.S. 378, 391 (1959) (‘‘This is not to 

say that rates are the only factor bearing on the 

public convenience and necessity, for § 7(e) 

requires the Commission to evaluate all factors 

bearing on the public interest.’’); N.C. Gas Corp., 10 

FPC 469, 476 (1950) (‘‘Public convenience and 

necessity comprehends a question of the public 

interest. Or, stated another way: Is the proposal 

conducive to the public welfare? Is it reasonably 

required to promote the accommodation of the 

public? The public interest we referred to has many 

facets. To the limit of our authority under the law 

our responsibility encompasses them all’’) 

(emphasis added) (quoting Commonwealth Nat. Gas 

Corp., 9 FPC 70 (1950)). 

24NAACP v. FPC, 425 U.S. 662, 669 (1976) (‘‘This 

Court’s cases have consistently held that the use of 

the words ‘public interest’ in a regulatory statute is 

not a broad license to promote the general public 

welfare. Rather, the words take meaning from the 

purposes of the regulatory legislation.’’). Where the 

Supreme Court has permitted the Commission to 

consider end use, those considerations have related 

directly to its core statutory responsibilities under 

the NGA, namely, ensuring adequate supply at 

reasonable rates. See FPC v. Transcontinental Pipe 

Line Co., 365 U.S. 1 (1961) (permitting the 

Commission to consider whether the end use was 

‘‘wasteful’’ of limited gas resources). 

25NGA § 1(b), 15 U.S.C. 717(b). 

26ONEOK, Inc. v. Learjet, Inc., 575 U.S. 373, 378 

(2015) (emphasis added); see also, FPC v. 

Panhandle E. Pipe Line Co., 337 U.S. 498, 502–503 

(1949) (‘‘suffice it to say that the Natural Gas Act 

did not envisage federal regulation of the entire 

natural-gas field to the limit of constitutional 

power. Rather it contemplated the exercise of 

federal power as specified in the Act, particularly 

in that interstate segment which states were 

powerless to regulate because of the Commerce 

Clause of the Federal Constitution. The jurisdiction 

of the Federal Power Commission was to 

complement that of the state regulatory bodies.’’) 

(emphasis added) (footnotes omitted); Myersville 

Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 

1301, 1315 (D.C. Cir. 2015) (‘‘the Commission’s 

power to preempt state and local law is 

circumscribed by the Natural Gas Act’s savings 

clause, which saves from preemption the ‘rights of 

States’ under the Clean Air Act and two other 

statutes.’’) (citations omitted). 

27Ofc. of Consumers’ Counsel v. FERC, 655 F.2d 

1132, 1142 (D.C. Cir. 1980) (‘‘We bear in mind the 

caveat that an agency may not bootstrap itself into 

an area in which it has no jurisdiction by violating 

its statutory mandate.’’) (citations, quotation marks, 

ellipsis omitted). 

28City of Clarksville, Tenn. v. FERC, 888 F.3d 

477, 479 (D.C. Cir. 2018) (City of Clarksville) 

(‘‘Congress enacted the Natural Gas Act with the 

principal aim of ‘encouraging the orderly 

development of plentiful supplies of natural gas at 

reasonable prices,’ and ‘protect[ing] consumers 

against exploitation at the hands of natural gas 

companies,’’) (citations omitted); see also 

Alexandra B. Klass & Danielle Meinhardt, 

Transporting Oil and Gas: U.S. Infrastructure 

Challenges, 100 Iowa L. Rev. 947, 990–99 (Mar. 

2015). 

29City of Clarksville, 888 F.3d. at 479. (‘‘Along 

with those main objectives, there are also several 

‘subsidiary purposes including conservation, 

environmental, and antitrust issues.’ ’’) (quoting 

Pub. Utils. Comm’n of Cal. v. FERC, 900 F.2d 269, 

281 (D.C. Cir. 1990)) (cleaned up). This does not 

mean that the Commission cannot properly impose 

conditions or mitigation to address environmental 

impacts directly related to the jurisdictional project; 

it merely recognizes that the Commission’s main 

objective is to facilitate the expansion and 

preservation of natural gas service at just and 

reasonable rates and that doing so will inevitably 

entail some measure of environmental costs. These 

can sometimes be reduced or minimized, but never 

completely eliminated. Every project ever built has 

some degree of environmental impacts. The 

standard under the NGA cannot be zero impacts. 

30Congress could easily have conferred that 

authority if it had wanted to. There is no indication 

that Congress intended or expected FERC to 

perform any environmental regulation when it 

created the agency. See generally, Clark Byse, The 

Department of Energy Organization Act: Structure 

and Procedure, 30 Admin. L. Rev. 193 (1978). This 

Commission’s predecessor, the Federal Power 

Commission, existed for decades before EPA was 

created in 1970. And Congress began enacting 

legislation bearing on emissions decades before 

then as well. See Christopher D. Ahlers, Origins of 

the Clean Air Act: A New Interpretation, 45 Envtl. 

L. 75 (2015). Nor were the effects of GHG emissions 

unknown at that time. See Danny Lewis, Scientists 

Have Been Talking About Greenhouse Gases for 191 

Years, Smithsonian Magazine (Aug. 3, 2015) (citing 

to Nobel Laureate Svante Arrhenius’ 1896 paper 

‘‘On the Influence of Carbonic Acid in the Air upon 

the Temperature of the Ground’’). 

31See United States v. Pub. Utils. Comm’n of Cal., 

345 U.S. 295, 315 (1953) (explaining that recourse 

to legislative history is appropriate where ‘‘the 

literal words would bring about an end completely 

at variance with the purpose of the statute.’’) 

(citations omitted). The present circumstance is 

very nearly the opposite: We are urged to pursue 

‘‘an end completely at variance with the purpose of 

the statute’’ and for which there is no support in 

the ‘‘literal words.’’ Id.; see also Ctr. for Biological 

Diversity v. U.S. Army Corps of Eng’rs, 941 F.3d 

1288, 1299 (11th Cir. 2019) (Ctr. for Biological 

Diversity) (‘‘Regulations cannot contradict their 

animating statutes or manufacture additional 

agency power.’’) (citing Brown & Williamson, 529 

U.S. at 125–26). 

answer is no. There is nothing in the 

text or history of the NGA to support 

such a claim about, or application of, 

the Commission’s public interest 

responsibilities under the NGA. 

12. As discussed herein, any claim 

that a ‘‘public interest’’ analysis under 

the NGA gives FERC the authority to 

reject a project based solely on GHG 

emissions is specious and ahistorical. 

The history of the NGA indicates that 

Congress intended the statute to 

promote the development of pipelines 

and other natural-gas facilities. As one 

federal judge has observed, ‘‘nothing in 

the text of [the NGA] . . . empowers the 

Commission to entirely deny the 

construction of an export terminal or the 

issuance of a certificate based solely on 

an adverse indirect environmental effect 

regulated by another agency.’’ 22

13. I recognize that the Commission 

and the courts have construed ‘‘public 

convenience and necessity’’ to require 

the Commission to consider ‘‘all factors 

bearing on the public interest,’’ 23 but 

the Supreme Court has been very clear 

that any public interest analysis 

undertaken in the course of determining 

‘‘public necessity and convenience’’ is 

constrained by the purposes and 

limitations of the statute.24 It is not an 

open-ended license to use this 

Commission’s certificating authority to 

promote whatever a majority of 

Commissioners from time to time may 

happen to view as the ‘‘public interest.’’ 

14. With regard to GHG emissions that 

may be associated with upstream 

production activities or downstream 

distribution to, or consumption by, 

retail consumers, the Commission 

simply has no authority over such 

activities. That authority was left to the 

states.25 Congress intended for the NGA 

to fill ‘‘a regulatory gap’’ over the 

‘‘interstate shipment and sale of gas.’’ 26

15. Even if the Commission were to 

undertake some estimate of the indirect 

GHG impacts of third-party activities 

that it has no authority to regulate, it 

does not follow that the Commission 

can then reject a certificate based on 

those impacts.27 To do so would be to 

ignore the undeniable purpose of the 

NGA, which was enacted to facilitate 

the development and bringing to market 

of natural gas resources. The 

Commission’s role under the NGA is to 

promote the development of the nation’s 

natural gas resources and to safeguard 

the interests of ratepayers.28 Any 

consideration of environmental impacts, 

while important, is necessarily 

subsidiary to that role.29

16. It is a truism that FERC is an 

economic regulator, not an 

environmental regulator. This 

Commission was not given certification 

authority in order to advance 

environmental goals; 30 it was given 

certification authority to ensure the 

development of natural gas resources 

and their availability—this includes 

pipeline infrastructure—at just and 

reasonable rates. To construe the 

Commission’s analysis of the public 

convenience and necessity as a license 

to prohibit the development of needed 

natural gas resources using the public 

interest language in the NGA would be 

to negate the very legislative purpose of 

the statute.31 Put another way, the 

premise of the NGA is that the 

production and transportation of natural 

gas for ultimate consumption by end 

users is socially valuable and should be 

promoted, not that the use of natural gas 

(which inevitably results in some 

discharge of GHGs) is inherently 

destructive and must be curbed, 

mitigated, or discouraged. 

17. To those who say ‘‘well, times 

have changed and Congress was not 


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32NAACP v. FPC, 425 U.S. at 665–670 (noting 

that, although ‘‘the eradication of discrimination in 

our society is an important national goal,’’ the 

Supreme Court has ‘‘consistently held that the use 

of the words ‘public interest’ in a regulatory statute 

is not a broad license to promote the general 

welfare. Rather, the words take meaning from the 

purposes of the regulatory legislation’’ which, for 

the [Federal Power Act] and [Natural Gas Act], are 

‘‘to encourage the orderly development of plentiful 

supplies of electricity and natural gas at reasonable 

prices.’’); see also Brown & Williamson, 529 U.S. at 

161 (‘‘no matter how important, conspicuous, and 

controversial the issue, and regardless of how likely 

the public is to hold the Executive Branch 

politically accountable, . . . an administrative 

agency’s power to regulate in the public interest 

must always be grounded in a valid grant of 

authority from Congress.’’) (quotation marks, 

citation omitted). 

33Office of Consumers’ Counsel v. FERC, 655 

F.2d at 1147 (emphases added). 

34See, e.g., NGA §§ 7(e), 15 U.S.C. 717f(e) (apart 

from statutory exceptions, ‘‘a certificate shall be 

issued to any qualified applicant . . . if it is found 

that the applicant is able and willing properly to do 

the acts and to perform the service proposed,’’ and, 

among other things, to comply with ‘‘the 

requirements, rules and regulations of the 

Commission . . .’’) (emphasis added). 

35Certificate Policy Statement at PP 4–6; GHG 

Policy Statement at P 39 (citing Sabal Trail, 867 

F.3d at 1372–73). 

36 I won’t belabor the point, but just to reiterate: 

a ‘‘public convenience and necessity’’ analysis is 

not a generalized ‘‘public interest’’ analysis, as 

courts have recognized. See, supra, P 13 & n.24 and 

infra, P 27. The ‘‘environmental’’ impacts 

appropriately considered in a certification 

proceeding must surely be limited in some way to 

the proposed facility itself since both upstream 

gathering and downstream use are beyond the 

Commission’s statutory jurisdiction. See City of 

Clarksville, 888 F.3d at 479 (identifying 

‘‘environmental’’ concerns as a ‘‘subsidiary’’ 

purpose of the NGA). 

37 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) 

(Stewart, J., concurring); see also Catherine 

Morehouse, Glick, Danly spar over gas pipeline 

reviews as FERC considers project’s climate impacts 

for first time, Utility Dive (Mar. 19, 2021) (quoting 

Chairman Glick regarding use of GHG emissions 

analysis in N. Natural Gas Co., 174 FERC ¶ 61,189 

(2021): ‘‘We essentially used the eyeball 

test. . . .’’). Shorn of its irrelevant disquisition on 

EPA’s stationary source regulations, today’s GHG 

policy statement enshrines an eyeball test as the 

trigger for subjecting virtually all certificate 

applicants to the time-consuming and costly EIS 

process. GHG Statement at PP 88–95. 

38 Miller v. California, 413 U.S. 15 (1973). 

39NFIB, 142 S. Ct. at 667 (Gorsuch, J., concurring) 

(citations omitted). 

40UARG, 573 U.S. 302, 324 (2014) (‘‘When an 

agency claims to discover in a long-extant statute 

an unheralded power to regulate ‘a significant 

portion of the American economy,’ Brown & 

Williamson, 529 U.S. at 159 . . . , we typically greet 

its announcement with a measure of skepticism. We 

expect Congress to speak clearly if it wishes to 

assign to an agency decisions of vast ‘economic and 

political significance.’ Id. at 160.’’); Gundy v. 

United States, 139 S. Ct. 2116, 2141–42 (2019) 

(Gundy) (Gorsuch, J., dissenting) (‘‘Under our 

precedents, an agency can fill in statutory gaps 

where ‘statutory circumstances’ indicate that 

Congress meant to grant it such powers. But we 

don’t follow that rule when the ‘statutory gap’ 

concerns ‘a question of deep economic and political 

significance’ that is central to the statutory scheme. 

So we’ve rejected agency demands that we defer to 

their attempts to rewrite rules for billions of dollars 

in healthcare tax credits, to assume control over 

millions of small greenhouse gas sources, and to 

ban cigarettes.) (citations omitted). 

thinking about climate change when it 

passed the NGA,’’ here’s an 

inconvenient truth: If Congress wants to 

change the Commission’s mission under 

the NGA it has that power; FERC does 

not. 

18. Any authority to perform a public 

interest analysis under the NGA must be 

construed with reference to the 

animating purposes of the Act. It is not 

a free pass to pursue any policy 

objective—however important or 

compelling it may be—that is related in 

some way to jurisdictional facilities.32

As the Court of Appeals for the D.C. 

Circuit has explained: 

Any such authority to consider all 

factors bearing on ‘‘the public interest’’ 

must take into account what ‘‘the public 

interest’’ means in the context of the 

Natural Gas Act. FERC’s authority to 

consider all factors bearing on the 

public interest when issuing certificates 

means authority to look into those 

factors which reasonably relate to the 

purposes for which FERC was given 

certification authority. It does not imply 

authority to issue orders regarding any 

circumstance in which FERC’s 

regulatory tools might be useful.33

19. Whereas the Commission’s role in 

certificating facilities under the NGA is 

explicit,34 any purported authority for 

the Commission to regulate GHGs is 

conspicuously absent. The claim that 

the Commission can reject a needed 

facility due to GHG emissions using the 

public interest component in the NGA 

seems to be based on the following 

logic: To ascertain whether a facility 

serves the public convenience and 

necessity, the Commission must first 

determine whether the facility is in ‘‘the 

public interest,’’ which in turn entails 

considering factors such as 

‘‘environmental’’ impacts from 

construction and operation of the 

proposed facility, as well as estimating 

and quantifying greenhouse gas 

emissions from the proposed facility, 

including both upstream emissions 

associated with gathering the gas and 

downstream emissions associated with 

its use, which the Commission is 

somehow empowered to deem to be too 

excessive to grant the certificate.35

Suffice it to say, this tortured logic 

breaks apart in multiple places.36

20. Surely if Congress had any 

intention that GHG analyses should (or 

could) be the basis for rejecting 

certification of natural-gas facilities, it 

would have given the Commission clear 

statutory guidance as to when to reject 

on that basis. Instead, those who want 

the Commission to conjure up a 

standard on GHG emissions for deciding 

how much is too much are advocating 

for a standard resembling Justice 

Stewart’s famous method for identifying 

obscenity, to wit, that he could not 

describe it, but ‘‘I know it when I see 

it.’’ 37 And the Supreme Court 

eventually had the good sense to 

abandon that ocular standard.38

21. Using GHG analysis to reject a 

certificate implicates an important 

judicial doctrine used in evaluating just 

how far an administrative agency can go 

in essentially creating public policy 

without clear textual support in 

statutory law. Now let’s turn to that 

doctrine in this context. 

B. The Major Questions Doctrine and 

the NGA 

22. The Commission’s actions today 

implicate the ‘‘major questions 

doctrine,’’ which Justice Gorsuch has 

recently explained as follows: 

The federal government’s powers . . . 

are not general, but limited and divided. 

Not only must the federal government 

properly invoke a constitutionally 

enumerated source of authority to 

regulate in this area or any other, it must 

also act consistently with the 

Constitution’s separation of powers. 

And when it comes to that obligation, 

this Court has established at least one 

firm rule: ‘‘We expect Congress to speak 

clearly’’ if it wishes to assign to an 

executive agency decisions ‘‘of vast 

economic and political significance.’’ 

We sometimes call this the major 

questions doctrine.39

In short, the major questions doctrine 

presumes that Congress reserves major 

issues to itself, so unless a grant of 

authority to address a major issue is 

explicit in a statute administered by an 

agency, it cannot be inferred to have 

been granted. 

23. Whether this Commission can 

reject a certificate based on a GHG 

analysis—a certificate that otherwise 

would be approved under the NGA—is 

undeniably a major question of public 

policy. It will have enormous 

implications for the lives of everyone in 

this country, given the inseparability of 

energy security from economic security. 

Yet the Supreme Court has made it clear 

that broad deference to administrative 

agencies on major questions of public 

policy is not in order when statutes are 

lacking in any explicit statutory grant of 

authority.40 ‘‘When much is sought from 

a statute, much must be shown. . . . 

[B]road assertions of administrative 


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41 In re MCP No. 165, 20 F.4th 264, 267–268 (6th 

Cir. 2021) (Sutton, C.J., dissenting from denial of 

initial hearing en banc) (emphases added). 42Panhandle E. Pipe Line Co. v. Pub. Serv. 

Comm’n of Ind., 332 U.S. 507, 516 (1947) (‘‘three 

things, and three things only Congress drew within 

its own regulatory power, delegated by the [Natural 

Gas] Act to its agent, the Federal Power 

Commission. These were: (1) The transportation of 

natural gas in interstate commerce; (2) its sale in 

interstate commerce for resale; and (3) natural gas 

companies engaged in such transportation or 

sale.’’); cf. Ala. Assn., 141 S. Ct. at 2488 

(invalidating the CDC’s eviction moratorium 

because the ‘‘downstream connection between 

eviction and the interstate spread of disease is 

markedly different from the direct targeting of 

disease that characterizes the measures identified in 

the statute’’). 

43Am. Elec. Power Co. v. Conn., 564 U.S. 410, 426 

(2011). 44 Id. (‘‘Congress delegated to EPA the decision 

whether and how to regulate carbon-dioxide 

emissions from powerplants’’) (emphasis added); 

Am. Lung Ass’n. v. EPA, 985 F.3d at 959–60 (D.C. 

Cir. 2021) (‘‘there is no question that the regulation 

of greenhouse gas emissions by power plants across 

the Nation falls squarely within the EPA’s 

wheelhouse.’’). Consider for a moment how strange 

it would be for Congress to delegate regulation of 

GHG emissions from electric power plants to EPA, 

while somehow delegating regulation of GHG 

emissions from natural gas fired power plants to 

FERC. Yet that is what today’s orders presuppose. 

45See Mountain Valley Pipeline, LLC, 171 FERC 

¶ 61,232 (2020) (McNamee, Comm’r, concurring at 

PP 32–40) (discussing decades’ worth of legislative 

enactments, all of which ‘‘indicates that the 

Commission’s authority over upstream production 

and downstream use of natural gas has been further 

limited by Congress.’’). 

46U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 422 

(Kavanaugh, J. dissenting) (emphases added); see 

also NFIB, 142 S. Ct. at 665 (‘‘the question . . . is 

whether the Act plainly authorizes the Secretary’s 

mandate. It does not.’’). 

47We cannot assume a Congressional intent to 

regulate every incidence of greenhouse gas 

emissions. As Justice Ginsberg observed, ‘‘we each 

emit carbon dioxide merely by breathing.’’ Am. 

Elec. Power Co. v. Conn., 564 U.S. at 426. 

48Ala. Ass’n., 141 S. Ct. at 2489. 

49Congress may ‘‘delegate power under broad 

general directives’’ so long as it sets forth ‘‘an 

intelligible principle’’ to guide the delegee. 

Mistretta v. United States, 488 U.S. 361, 372 (1989). 

See Gundy, 139 S. Ct. at 2129 (‘‘a delegation is 

constitutional so long as Congress has set out an 

‘intelligible principle’ to guide the delegee’s 

exercise of authority. Or in a related formulation, 

the Court has stated that a delegation is permissible 

if Congress has made clear to the delegee the 

general policy he must pursue and the boundaries 

of his authority.’’) (citations, internal quotations 

omitted). 

50 Mountain Valley, 171 FERC ¶ 61,232 

(McNamee, Comm’r, concurring at P 41); see also 

id. PP 15–47. 

51See generally, Ford P. Hall, Certificates of 

Public Convenience and Necessity, 28 Mich. L. Rev. 

276 (1930) (analyzing the meaning of ‘‘public 

convenience and necessity’’ in state laws antedating 

passage of the NGA, and concluding that it is the 

need of the consuming public, without which it 

will be inconvenienced, that is the critical question 

to be answered). 

52The first such statute appears to have been the 

Interstate Commerce Act (ICA). The Supreme Court 

explicitly held that the use of the term ‘‘public 

convenience and necessity’’ was chosen in the 

knowledge that it would be understood against the 

background of its historical usage. ICC v. Parker, 

326 U.S. 60, 65 (1945) (construing ‘‘public 

convenience and necessity’’ under the ICA and 

recognizing that Congress’ decision to use a term 

with such a long history indicated Congress 

intended ‘‘a continuation of the administrative and 

judicial interpretation of the language.’’) When it 

passed the NGA, Congress was similarly cognizant 

of having employed the same concept as in the ICA. 

See, Robert Christin et al., Considering the Public 

Convenience and Necessity in Pipeline Certificate 

Cases under the Natural Gas Act, 38 Energy L.J. 

115, 120 (2017) (citing Comm. on Interstate 

Commerce, Interstate Transportation and Sale of 

Natural Gas, S. Rep. No. 75–1162, at 5 (Aug. 9, 

1937) and noting that ‘‘the concept of a regulatory 

agency determining whether a private entity’s 

proposal was in the public convenience and 

necessity was an established practice when the 

NGA was enacted.’’). 

53See In re Kan. Pipe Line & Gas Co., 2 FPC 29, 

56 (1939) (‘‘We view the term [public convenience 

and necessity] as meaning a public need or benefit 

without which the public is inconvenienced to the 

extent of being handicapped in pursuit of business 

or comfort or both without which the public 

generally in the area involved is denied to its 

detriment that which is enjoyed by the public of 

other areas similarly situated.’’) 

power demand unmistakable legislative 

support.’’ 41

24. There is no ‘‘unmistakable 

legislative support’’ for the powers the 

Commission asserts today. A broad 

power to regulate upstream and 

downstream GHG emissions and their 

global impacts has simply not been 

delegated to this Commission.42 To the 

extent the federal government has such 

power, it has been delegated elsewhere. 

‘‘Of necessity, Congress selects different 

regulatory regimes to address different 

problems.’’ 43 The U.S. Environmental 

Protection Agency (EPA) is charged 

with regulating greenhouse gas 

emissions under the Clean Air Act.44 By 

contrast, Congress established in the 

NGA a regulatory regime to address 

entirely different problems, namely, the 

need to develop the nation’s natural gas 

resources and to protect ratepayers from 

unjust and unreasonable rates for gas 

shipped in the flow of interstate 

commerce. If it chose, Congress could 

enact legislation that would invest the 

Commission with authority to constrain 

the development and bringing to market 

of natural gas resources, but the fact is 

that Congress has chosen not to do so. 

On the contrary, every time Congress 

has enacted natural gas legislation, it 

has been to promote the development of 

natural gas resources, not throw up 

barriers to them.45

25. The fact that the NGA requires the 

Commission to make some form of 

public interest determination in the 

course of a certificate proceeding does 

not furnish a basis for the Commission 

to arrogate to itself the authority to 

constrain the development of natural 

gas resources on the grounds of their 

potential greenhouse gas emissions. As 

now-Justice Kavanaugh has explained: 

‘‘If an agency wants to exercise 

expansive regulatory authority over 

some major social or economic activity 

. . . regulating greenhouse gas emitters, 

for example—an ambiguous grant of 

statutory authority is not enough. 

Congress must clearly authorize an 

agency to take such a major regulatory 

action.’’ 46 Congress has not ‘‘clearly 

authorize[d]’’ this Commission to 

regulate greenhouse gas emitters, nor to 

deny certificates to facilities whose 

construction and operation would be in 

the public convenience and necessity, 

simply because the construction and 

operation of such infrastructure may 

result in some amount of greenhouse gas 

emissions.47 ‘‘Even if the text were 

ambiguous, the sheer scope of the . . . 

claimed authority . . . would counsel 

against’’ such an expansive 

interpretation.48

26. The fact that the Commission has 

absolutely no standard against which to 

measure the impact of natural gas 

production upstream or use downstream 

of the facilities it certificates is also 

important. In order for Congress to 

delegate any authority to an executive 

agency, it must legislatively set forth an 

intelligible principle for the agency to 

follow.49 There is no such ‘‘intelligible 

principle’’ for the Commission to follow 

when it comes to greenhouse gas 

emissions. 

27. Although the NGA requires the 

Commission to determine whether a 

proposed facility is in the ‘‘public 

convenience and necessity,’’ the term 

‘‘has always been understood to mean 

‘need’ for the service. To the extent the 

environment is considered, such 

consideration is limited to the effects 

stemming from the construction and 

operation of the proposed facilities.’’ 50

The term ‘‘public convenience and 

necessity’’ has long been understood to 

refer most essentially to the public’s 

need for service on terms that are just 

and reasonable, i.e., that are low enough 

for the public to pay the rates and high 

enough for the provider to maintain a 

profitable business.51 That 

understanding was reflected in various 

statutes employing the term, including 

the Natural Gas Act.52 And it was 

further reflected in the earliest ‘‘public 

convenience and necessity’’ analyses 

under the NGA.53

28. To summarize: Whether and how 

to regulate GHG emissions is a major 

question of vast economic and political 

significance. Congress has not explicitly 

authorized the Commission to regulate 

in this area as required under the major 

questions doctrine, nor has it laid down 

an intelligible principle for the 

Commission to follow as required by the 

non-delegation doctrine. Moreover, 


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54NEPA, 42 U.S.C. 4321 et seq., requires all 

federal agencies to undertake an ‘‘environmental 

assessment’’ of their actions, typically including the 

preparation of an ‘‘environmental impact 

statement’’ of proposed ‘‘major federal actions.’’ As 

discussed below, the purpose of the EA and EIS is 

for the agency to be fully informed of the impact 

of its decisions. NEPA does not mandate any 

specific action by the agency in response to an EA 

or EIS, other than to make an informed decision. 

See, e.g., Steven M. Siros, et al., Pipeline Projects— 

The Evolving Role of Greenhouse Gas Emissions 

Analyses under NEPA, 41 Energy L.J. 47 (May 

2020); see also Sabal Trail, 867 F.3d at 1367–68 

(describing NEPA as ‘‘primarily informationforcing’’ and noting that courts ‘‘should not 

‘‘ ‘flyspeck’’ an agency’s environmental analysis, 

looking for any deficiency no matter how minor.’ ’’) 

(quoting Nevada v. Dep’t of Energy, 457 F.3d 78, 93 

(D.C. Cir. 2006)). 

55NGA § 7(e), 15 U.S.C. 717f(e), authorizes the 

Commission to attach to a certificate ‘‘such 

reasonable terms and conditions as the public 

convenience and necessity may require.’’ There is 

no analytical difference between the Commission’s 

authority to reject a certificate application and its 

authority to mitigate it. See Nat’l Fuel Gas Supply 

Corp. v. FERC, 909 F.2d 1519, 1522 (D.C. Cir. 1990) 

(‘‘The Commission may not, . . . when it lacks the 

power to promote the public interest directly, do so 

indirectly by attaching a condition to a certificate 

that is, in its unconditional form, already in the 

public convenience and necessity.’’) (citations 

omitted). That the Commission may be tempted to 

abuse its conditioning authority has long been 

recognized. See Carl I. Wheat, Administration by 

the Federal Power Commission of the Certificate 

Provisions of the Natural Gas Act, 14 Geo. Wash. 

L. Rev. 194, 214–215 (1945) (‘‘It is particularly 

important that the Commission . . . steel itself 

against the somewhat natural temptation to attempt 

to use such ‘conditions’ as substitutes or ‘shortcuts’ 

for other (and more appropriate) methods of 

regulation prescribed in the statute. . . . . 

[W]hatever may be said with respect to conditions 

concerning rates and other matters over which the 

Commission has specific authority under other 

provisions of the Act, it would appear clear that the 

power to prescribe ‘reasonable conditions’ in 

certificates cannot be greater in scope than the 

statutory authority of the Commission.’’) 

56 ‘‘[I]t is now well settled that NEPA itself does 

not mandate particular results, but simply 

prescribes the necessary process. If the adverse 

environmental effects of the proposed action are 

adequately identified and evaluated, the agency is 

not constrained by NEPA from deciding that other 

values outweigh the environmental costs. . . . 

Other statutes may impose substantive 

environmental obligations on federal agencies, . . . 

but NEPA merely prohibits uninformed—rather 

than unwise—agency action.’’ Robertson v. Methow 

Valley Citizens Council, 490 U.S. 332, 350–51 

(1989) (citations omitted; emphases added). See 

also, e.g., Minisink Residents for Envtl. Preserv. & 

Safety v. FERC, 762 F.3d 97, 112 (D.C. Cir. 2014) 

(same). 

57 Dep’t. of Transp. v. Pub. Citizen, 541 U.S. 752, 

767 (2004) (Pub. Citizen). This principle has been 

incorporated into the implementing regulations of 

the Council of Environmental Quality (CEQ), an 

executive branch agency. See 40 CFR. § 1508.1(g)(2) 

(2021) (‘‘Effects do not include those effects that the 

agency has no ability to prevent due to its limited 

statutory authority or would occur regardless of the 

proposed action’’). 

58Pub. Citizen, 541 U.S. at 767 (citations 

omitted). 

59Certificate Policy Statement at PP 73–76; GHG 

Policy Statement at PP 28–31. 

60Pub. Citizen, 541 U.S. at 767 (citations 

omitted). 

61See, e.g., Sabal Trail, 867 F.3d at 1372 (citing 

Pub. Citizen, 541 U.S. at 770) (‘‘when the agency 

has no legal power to prevent a certain 

environmental effect, there is no decision to inform, 

and the agency need not analyze the effect in its 

NEPA review.’’) (emphasis in original); Citizens 

Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 

(D.C. Cir. 1991) (‘‘an agency need follow only a ‘rule 

of reason’ in preparing an EIS . . . and . . . this 

rule of reason governs both which alternatives the 

agency must discuss, and the extent to which it 

must discuss them.’’) (internal citations and 

quotations omitted, emphasis in original). To state 

the obvious: We have absolutely no way of knowing 

how much an individual project may or may not 

contribute to global climate change for any number 

of reasons, including because there is no way for 

us to meaningfully evaluate the release of GHG 

emissions if the facility in question were not to be 

certificated. Notwithstanding, today, the majority 

boasts of forcing virtually every certificate applicant 

into the EIS process. GHG Policy Statement at PP 

80, 88. 

62Pub. Citizen, 541 U.S. at 767 (citations 

omitted). 

63 GHG Policy Statement at P 80, 88. For purposes 

of determining what emissions count toward the 

100,000 metric tons per year threshold, the majority 

states that this number is measured based on ‘‘the 

construction, operational, downstream, and, where 

determined to be reasonably foreseeable, upstream 

GHG emissions that reoccur annually over the life 

of the project.’’ Id. P 80 & n.197. 

EPA, in coordination with the states, 

already has authority to regulate in this 

area as specified in federal statutes, 

which is far removed from this 

Commission’s core expertise and 

traditional responsibilities. 

29. Let’s now turn to the second major 

question. 

C. GHG Analysis Under NEPA 

30. Is this Commission required or 

allowed by NEPA 54 to reject a certificate 

for a natural gas facility—one that 

would otherwise be approved under the 

NGA—based on a GHG analysis 

conducted as part of the NEPA 

environmental review? And rejection 

includes attaching mitigation conditions 

so onerous (or coercing through 

deficiency letters) that they render the 

project unfeasible.55

31. Again, the short answer is no. 

NEPA does not contain a shred of 

specific textual authority requiring or 

allowing the Commission to reject based 

on a NEPA review of estimated GHG 

impacts (indirect or direct) a certificate 

application for a facility that otherwise 

would be found necessary to serve the 

public under the NGA. Nor would it: As 

an information-forcing statute, NEPA 

imposes no substantive obligations.56

32. Even conducting an analysis of 

indirect GHG effects under NEPA goes 

too far. The Supreme Court has 

explicitly rejected the idea that an ‘‘an 

agency’s action is considered a cause of 

an environmental effect [under NEPA] 

even when the agency has no statutory 

authority to prevent that effect.’’ 57

Rather, NEPA ‘‘requires a reasonably 

close causal relationship between the 

environmental effect and the alleged 

cause,’’ that is analogous to ‘‘the 

familiar doctrine of proximate cause 

from tort law.’’ 58 While this might leave 

some difficult judgments at the margins, 

estimates of the potential global impacts 

of possible non-jurisdictional upstream 

or downstream activity—as today’s 

orders purport to require 59—is not a 

close call. 

33. First off, in determining how far 

an agency’s NEPA responsibilities run, 

one ‘‘must look to the underlying 

policies or legislative intent in order to 

draw a manageable line between those 

causal changes that may make an actor 

responsible for an effect and those that 

do not.’’ 60 As discussed at length above, 

there is no way of drawing a plausible 

line, much less a manageable one, from 

the Commission’s certificating 

responsibilities under the NGA and the 

possible consequences of global climate 

change—consequences which, however 

potentially grave, are remote from this 

agency’s limited statutory mission 

under the NGA. 

34. Second, speculating about the 

possible future impact on global climate 

change of a facility’s potential GHG 

emissions does not assist the 

Commission in its decision-making and 

therefore violates the ‘‘rule of reason’’: 

Where an agency lacks the power to do 

anything about the possible 

environmental impacts, it is not 

obligated to analyze them under 

NEPA.61 Again, the Supreme Court has 

explained, ‘‘inherent in NEPA and its 

implementing regulations is a ‘rule of 

reason,’ which ensures that agencies 

determine whether and to what extent 

to prepare an EIS based on the 

usefulness of any new potential 

information to the decision-making 

process. Where the preparation of an 

EIS would serve ‘no purpose’ in light of 

NEPA’s regulatory scheme as a whole, 

no rule of reason worthy of the title 

would require an agency to prepare an 

EIS.’’ 62

35. This conclusion becomes even 

more obvious when considered 

alongside the undeniable fact that 

neither NEPA nor any other statute 

contains a scintilla of guidance as to 

which specific metrics are to be used to 

determine when the Commission can or 

must reject a project based on a GHG 

analysis. The Commission today 

establishes a threshold of 100,000 

metric tons of CO2e of annual project 

emissions for purposes of its analysis of 

natural gas projects under NEPA.63 The 

rationale for establishing this threshold 

has literally nothing to do with the 


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64 Id. PP 88–93 (acknowledging that the Supreme 

Court has partially invalidated EPA’s regulatory 

regime). 

65 Id. P 89 (emphasis added). 

66 Id. P 95. It appears that the majority’s intent is 

to force all applicants into the EIS process. This 

will undeniably cause each application to become 

far more costly and time-consuming, both obvious 

disincentives to even trying. 

67EPA Comments, Iroquois Gas Transmission 

Sys., L.P., Docket No. CP20–48–000 at 1–2 (filed 

Dec. 20, 2021) (EPA Dec. 20, 2021 Letter). 

68And yet, as a practical matter, applicants must 

spend years of work and possibly millions of 

dollars (or more) in preparatory tasks like lining up 

financing, securing local political support, 

obtaining permits, etc. All this extensive legwork is 

needed just to put an application in to the 

Commission. Today’s orders effectively tell 

applicants that their application could be rejected 

for any reason or no reason at all. Nor does the 

majority even do the courtesy of providing a target 

for the applicant to aim at. 

69See Bradley C. Karkkainen, Whither NEPA?, 

N.Y.U. Envtl. L.J. 333, 339 & n.31 (2004) (noting 

that ‘‘Department of Energy EISs produced prior to 

1994 had a mean cost of $6.3 million and a median 

cost of $1.2 million; following an aggressive effort 

to reduce costs, after 1994 the mean cost fell to $5.1 

million, but the median cost rose to $2.7 million.’’) 

70See, Nat. Res. Def. Council, Inc. v. EPA, 822 

F.2d 104, 129 (D.C. Cir. 1987) (‘‘NEPA, as a 

procedural device, does not work a broadening of 

the agency’s substantive powers. Whatever action 

the agency chooses to take must, of course, be 

within its province in the first instance.’’) (citations 

omitted, emphasis added); Balt. Gas & Elec. Co. v. 

Natural Res. Defense Council, Inc., 462 U.S. 87, 97 

(1983) (acknowledging NEPA’s ‘‘twin aims’’ as 

obligating an agency ‘‘to consider every significant 

aspect of the environmental impact of a proposed 

action’’ and ensuring ‘‘that the agency will inform 

the public that it has indeed considered 

environmental concerns in its decision-making 

process,’’ but noting that ‘‘Congress in enacting 

NEPA, however, did not require agencies to elevate 

environmental concerns over other appropriate 

considerations.’’) (citations, alterations omitted). 

71 18 CFR 380.1 (2021) (emphasis added); see also 

40 CFR 1500.3(a) (2021) (compliance with the CEQ 

regulations ‘‘is applicable to and binding on all 

Federal agencies . . . except where compliance 

would be inconsistent with other statutory 

requirements’’). 

72 18 CFR 380.1 (2021). See The Hon. Joseph T. 

Kelliher Jan. 7, 2022 Comments, Technical 

Conference on Greenhouse Gas Mitigation: Natural 

Gas Act Sections 3 and 7 Authorizations, Docket 

No. PL21–3–000 at 2 (The Hon. Joseph T. Kelliher 

Jan. 7, 2022 Comments) (‘‘if imposing mitigation for 

direct and indirect emissions discourages or 

forestalls pipeline development, the mitigation 

policy is directly contrary to the principal purpose 

of the Natural Gas Act and must be set aside.’’). 

73Bradley C. Karkkainen, Whither NEPA?, N.Y.U. 

Envtl. L.J. at 345–346 (noting that fear of NEPA 

challenges has led agencies to ‘‘‘kitchen sink’ EISs’’ 

to reduce the risk of reversal, but that almost 

nobody actually reads them ‘‘and those who 

attempt to do so may find it difficult to separate the 

good information from the junk. Contrary to 

conventional wisdom, more information is not 

always better.’’); see also, Pub. Citizen, 541 U.S. at 

768–769 (‘‘NEPA’s purpose is not to generate 

paperwork—even excellent paperwork—but to 

foster excellent action.’’) (quoting then-in effect 40 

CFR 1500.1(c) (2003)). 

74The delay is clearly part of the point. Why else 

funnel virtually every certificate applicant into the 

EIS process? See e.g., Bradley C. Karkkainen, 

Whither NEPA?, N.Y.U. Envtl. L.J. at 339–40 

(observing that NEPA has become ‘‘a highly 

effective tool that environmental NGOs and others 

can use to raise the financial and political costs of 

projects they oppose and stretch out decisions over 

an extended time frame, giving time to rally 

political opposition.’’). See also P 47, infra. 

75 In fact, even if the Commission had the 

authority to impose upstream or downstream GHG 

emissions mitigation, or to deny certificates of 

public convenience and necessity on that basis, the 

majority admits that it is by no means obvious that 

doing so would actually prevent or even 

meaningfully reduce global climate change or the 

problems associated with it. See GHG Policy 

Statement at P 88 (noting that ‘‘[e]ven if deep 

reductions in GHG emissions are achieved, the 

planet is projected to warm by at least 1.5 degrees 

Celsius (°C) by 2050;’’ and that ‘‘even relatively 

minor GHG emissions pose a significant threat’’). 

Commission’s NGA obligations, or even 

with its NEPA obligations. It consists of 

little more than piggybacking on EPA’s 

approach to regulating stationary 

sources.64 Today’s order boasts that this 

new threshold will capture projects 

‘‘transporting an average of 5,200 

dekatherms per day and projects 

involving the operation of one or more 

compressor stations or LNG facilities’’ 65

and that this threshold ‘‘will capture 

over 99% of GHG emissions from 

Commission-regulated natural gas 

projects.’’ 66

36. These are just arbitrarily chosen 

numbers. A proliferation of 

quantification does not constitute 

reasoned decision-making. All of the 

important questions about the creation 

and application of this threshold remain 

unanswered: Is there anything in either 

the NGA or NEPA to indicate how much 

is too much and should be rejected? Or 

how little is low enough to get under the 

red line? No. If the Commission is 

attempting to quantify indirect global 

GHG impacts, as EPA now suggests we 

do,67 how much global impact is too 

much and requires rejection of the 

certificate? How much impact is not too 

much? Should rejection only be based 

on impacts on the United States? North 

America? The Western Hemisphere? 

The planet? Where is the line? Again, 

there is absolutely no statutory 

provision that answers these questions 

as to the application of GHG metrics in 

a certificate proceeding brought under 

the NGA. The complete absence of any 

statutory guidance on the seminal 

question of ‘‘how much is too much? ’’ 

would render any action by the 

Commission to reject a certificate based 

on any metric as ‘‘arbitrary and 

capricious’’ in the fullest sense.68

37. I recognize that the 100,000 metric 

tons marker adopted in today’s orders is 

not a threshold for rejecting a proposed 

project but only for subjecting it to 

further scrutiny in the form of an EIS. 

But this is no small matter—completion 

of an EIS is extremely cost-intensive and 

time-consuming and, in addition, 

creates a plethora of opportunities for 

opponents of the project who otherwise 

lack meritorious objections to it, to run 

up the costs, to cause delays, and to 

create new grounds for the inevitable 

appeals challenging the certificate even 

if the applicant does manage to obtain 

it.69

38. NEPA provides no statutory 

authority to reject a gas project that 

would otherwise be approved under the 

NGA. How could it? As is well-known, 

the duties NEPA imposes are essentially 

procedural and informational.70 The 

Commission’s regulations implementing 

NEPA reflect its limits by noting that, 

‘‘[t]he Commission will comply with the 

regulations of the Council on 

Environmental Quality except where 

those regulations are inconsistent with 

the statutory requirements of the 

Commission.’’ 71

39. It’s not actually very difficult to 

see how the approach the majority 

adopts today is ‘‘inconsistent with the 

statutory requirements of the 

Commission.’’ 72 I will repeat that the 

purpose of the NGA is to promote the 

development, transportation, and sale at 

reasonable rates of natural gas. I will 

repeat that the NGA conveys only 

limited jurisdictional authority; that 

NEPA conveys no jurisdictional 

authority; that a different agency is 

responsible for regulating GHGs; and 

that such regulation is a major issue that 

Congress would have to speak to 

unambiguously, which it clearly has not 

done. And yet under the analysis 

embraced by the majority today, this 

Commission purports to impose 

onerous—possibly fatal—regulatory 

requirements on certificate applicants in 

order to generate reams of highly 

speculative data that have no 

meaningful role to play in the execution 

of this agency’s statutory duties.73 In 

fact, it contravenes the purposes of the 

NGA in at least two obvious ways: First, 

by bringing extrinsic considerations to 

bear on the Commission’s decisionmaking, and second, by causing 

needless delay in the process.74

40. There is no meaningful way of 

evaluating any of the critical issues, and 

no statutory authority to actually do 

anything about upstream or downstream 

emissions,75 but unlimited ways to find 

fault with any analysis. Even though 

they aren’t supposed to ‘‘flyspeck’’ an 

agency’s NEPA analysis, judges who 

wish to impose their own policy 

preferences will be tempted to do 

exactly that. And once the agency 

undertakes to address an issue in its 

NEPA analysis, it is subject to the APA’s 

‘‘reasoned decision-making’’ standard of 


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76 Vecinos Para El Bienestar de la Comunidad 

Costera v. FERC, 6 F.4th 1321, 1329 (D.C. Cir. 2021) 

(Vecinos) (‘‘Because the Commission failed to 

respond to significant opposing viewpoints 

concerning the adequacy of its analyses of the 

projects’ greenhouse gas emissions, we find its 

analyses deficient under NEPA and the APA.’’). 

77Cf. The Hon. Joseph T. Kelliher Jan. 7, 2022 

Comments at 3. 

78Sabal Trail, 867 F.3d 1357. In support of its 

assertion of broad discretion in attaching conditions 

to a certificate, the majority also cites to ANR 

Pipeline Co. v. FERC, 876 F.2d 124, 129 (D.C. Cir. 

1989) (ANR Pipeline). Certificate Policy Statement 

at P 74 & n. 190. Since the Commission’s 

conditioning authority is limited in the same way 

as its certificating authority, there is little reason to 

discuss it separately. I will only note in passing 

that, although the court described the Commission’s 

conditioning authority as ‘‘extremely broad,’’ the 

only issue actually before the court in ANR Pipeline 

was the validity of certificate terms imposed in 

furtherance of the Commission’s core duty to ensure 

that rates are non-discriminatory. Id. 

79Birckhead v. FERC, 925 F.3d 510 (D.C. Cir. 

2019) (rejecting, for failure to raise the issue before 

the Commission, a claim that NEPA requires FERC 

to analyze downstream GHG emissions). Since 

Birckhead was decided on jurisdictional grounds, 

any substantive commentary in that order is mere 

dicta and I will not discuss it further. 

80 Vecinos, 6 F.4th 1321. 

81Both orders suffer from a number of infirmities 

that don’t bear belaboring in this context. In brief, 

however, Sabal Trail reads the Commission’s duty 

to ‘‘balance ‘the public benefits against the adverse 

effects of the project, including adverse 

environmental effects,’ ’’ Sabal Trail, 867 F.3d at 

1373 (quoting Minisink Residents for Envtl. Pres. & 

Safety v. FERC, 762 F.3d 97 at 101–02 and citing 

Myersville Citizens for a Rural Cmty. v. FERC, 783 

F.3d at 1309), far too expansively, and Vecinos 

compounds that error. Both orders are discussed 

below. 

82Namely, ‘‘[b]ecause FERC could deny a 

pipeline certificate on the ground that the pipeline 

would be too harmful for the environment, the 

agency is a ‘legally relevant cause’ of the direct and 

indirect environmental effects of pipelines that it 

approves.’’ Sabal Trail, 867 F.3d at 1373. The other 

orders the majority relies on depend vitally on this 

statement. See, e.g., Certificate Policy Statement at 

PP 75 & n. 192 (citing Birckhead); 86 & n. 207 

(citing Vecinos); GHG Policy Statement at PP 13, 

36–38 (citing Birckhead) and P 14 & n. 38 (citing 

Vecinos). 

83See Ctr. for Biological Diversity, 941 F.3d at 

1300 (‘‘the legal analysis in Sabal Trail is 

questionable at best. It fails to take seriously the 

rule of reason announced in Public Citizen or to 

account for the untenable consequences of its 

decision. The Sabal Trail court narrowly focused on 

the reasonable foreseeability of the downstream 

effects, as understood colloquially, while breezing 

past other statutory limits and precedents—such as 

Metropolitan [Edison Co. v. People Against Nuclear 

Energy, 460 U.S. 776 (1983)] and Public Citizen— 

clarifying what effects are cognizable under 

NEPA.’’). 

84Sabal Trail, 867 F.3d at 1372–1373. In each of 

the D.C. Circuit orders Sabal Trail purported to 

distinguish, the court had found that FERC did not 

have to analyze, because it could not regulate, 

downstream emissions. 

85 Id. at 1373 (citing Sierra Club v. FERC 

(Freeport), 827 F.3d 36, 47 (D.C. Cir. 2016). The 

‘‘companion cases’’ are Sierra Club v. FERC (Sabine 

Pass), 827 F.3d 59 (D.C. Cir. 2016) and 

EarthReports, Inc. v. FERC, 828 F.3d 949 (D.C. Cir. 

2016). 

86Sabal Trail, 867 F.3d at 1373 (emphasis in 

original). 

87 Id. (citations omitted). 

88 Id. 

89Supra, Section I.B. Cf. ICC v. Parker, 326 U.S. 

60, 65 (1945) (construing ‘‘public convenience and 

necessity’’ under the Interstate Commerce Act and 

recognizing that Congress’ decision to use a term 

with such a long history indicated Congress 

intended ‘‘a continuation of the administrative and 

judicial interpretation of the language.’’). Far from 

being ‘‘a continuation of the administrative and 

judicial interpretation of the language,’’ construing 

it to extend to an analysis of global GHG emissions 

is novel and unprecedented. 

90 Vecinos, 6 F.4th at 1328–30. 

91 40 CFR. § 1502.21(c). 

review.76 Thus the effect is to ramp up 

dramatically the legal uncertainties and 

costs facing any certificate applicant. 

D. The Policy Statements Rest on 

Inadequate Legal Authority 

41. Today’s orders rely to a 

remarkable degree on a smattering of 

statements from a handful of recent 

orders. Simply put, these authorities are 

simply ‘‘too slender a reed’’ 77 to 

support the great weight today’s orders 

place on them. 

42. Neither Sabal Trail 78 nor 

Birckhead,79 nor the more recent 

Vecinos 80 opinion from the D.C. Circuit 

changes any of the analysis above. 

Indeed, to the extent language from 

those cases is interpreted as requiring 

the Commission to exercise authority 

not found in statutes—and these 

opinions are more confusing than clear, 

as well as inconsistent with the D.C. 

Circuit’s own precedent—then such an 

interpretation would be contrary to the 

Supreme Court’s major question 

doctrine. Be that as it may, while I 

recognize that Sabal Trail and Vecinos 

are presently applicable to this 

Commission, neither of those cases 

individually nor both of them together 

provide a lawful basis for rejecting a 

certificate for a facility that is otherwise 

found to be needed under the NGA 

solely because of its estimated potential 

impacts on global climate change.81

43. Virtually the entire structure of 

the majority’s fundamental policy 

changes rests on a single line from Sabal 

Trail.82 That statement is itself 

predicated on an idiosyncratic reading 

of Public Citizen and the D.C. Circuit’s 

own precedents.83 Sabal Trail rather 

facilely distinguished existing D.C. 

Circuit precedent on the grounds that, 

in contrast to those cases, the same 

agency that was performing the EIS was 

also authorized to approve or deny the 

certificate.84 It reasoned that because the 

Commission could take 

‘‘environmental’’ issues into account in 

its public interest analysis, and GHG 

emissions raise ‘‘environmental’’ issues, 

it must therefore follow that the 

Commission could deny a certificate 

based on projected GHG emissions 

estimates. 

44. Sabal Trail acknowledged that 

‘‘Freeport and its companion cases 

rested on the premise that FERC had no 

legal authority to prevent the adverse 

environmental effects of natural gas 

exports.’’ 85 Specifically, ‘‘FERC was 

forbidden to rely on the effects of gas 

exports as a justification for denying an 

upgrade license.’’ 86 In contrast with 

those cases—all of which addressed 

certification of LNG facilities under 

NGA § 3 as opposed to interstate 

transportation facilities under NGA 

§ 7—the court in Sabal Trail concluded 

that, under NGA § 7, by contrast, ‘‘FERC 

is not so limited. Congress broadly 

instructed the agency to consider ‘the 

public convenience and necessity’ when 

evaluating applications to construct and 

operate interstate pipelines.’’ 87 It thus 

concluded that, ‘‘[b]ecause FERC could 

deny a pipeline certificate on the 

ground that the pipeline would be too 

harmful for the environment, the agency 

is a ‘legally relevant cause’ of the direct 

and indirect environmental effects of 

pipelines that it approves. See Freeport, 

827 F.3d at 47. Public Citizen thus did 

not excuse FERC from considering these 

indirect effects.’’ 88

45. But the Sabal Trail court never 

considered with reference to the 

Commission’s statutory authority the 

proper scope of that public interest 

analysis or the extent to which 

‘‘environmental’’ issues could be 

considered in that context. It simply 

assumed the Commission’s authority to 

be unlimited. But as discussed above, 

Congress drafted the NGA for the 

purpose of filling a specific gap in 

regulatory authority. The only way 

Sabal Trail would be correct is if 

Congress had ‘‘clearly authorized’’ the 

Commission to evaluate geographically 

and temporally remote impacts of nonjurisdictional activity in its ‘‘public 

convenience and necessity’’ 

determinations. As discussed above, 

that conclusion is clearly, irredeemably, 

wrong.89

46. As for Vecinos, there, the court 

compounds that error both by relying 

uncritically on Sabal Trail and by 

finding fault with the Commission for 

failing to connect its decision not to use 

the Social Cost of Carbon to Petitioners’ 

argument that it was required to do so 

under 40 CFR. § 1502.21(c).90 That 

regulation sets forth an agency’s 

obligations when ‘‘information relevant 

to reasonably foreseeable significant 

adverse impacts cannot be obtained.’’ 91

But global climate change is only a 

‘‘foreseeable significant adverse impact’’ 

of the Commission’s action if the 

Commission’s authority extends as far 


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92See supra, n. 83. 

93NFIB, 142 S. Ct. 661. 

94Ala. Ass’n., 141 S. Ct. 2485 at 2489. 

95See generally, Allegheny Def. Project v. FERC, 

964 F.3d 1, 18 (D.C. Cir. 2020) (noting that circuit 

court precedent may be departed from ‘‘when 

intervening developments in the law—such as 

Supreme Court decisions—have removed or 

weakened the conceptual underpinnings of the 

prior decision.’’) (cleaned up, citation omitted). 

96 In his NFIB concurrence, Justice Gorsuch 

states: ‘‘Sometimes Congress passes broadly worded 

statutes seeking to resolve important policy 

questions in a field while leaving an agency to work 

out the details of implementation. Later, the agency 

may seek to exploit some gap, ambiguity, or 

doubtful expression in Congress’s statutes to 

assume responsibilities far beyond its initial 

assignment. The major questions doctrine guards 

against this possibility by recognizing that Congress 

does not usually hide elephants in mouseholes.’’ 

142 S. Ct. at 669 (Gorsuch, J., concurring) (citations, 

alterations omitted). It would be hard to find a 

better description of the path the Commission has 

taken to arrive at today’s orders. 

97See, e.g., Bloomberg Philanthropies, https://

www.bloomberg.org/environment/moving-beyondcarbon/ (‘‘Launched in 2019 with a $500 million 

investment from Mike Bloomberg and Bloomberg 

Philanthropies, Beyond Carbon . . . . works . . . to 

. . . stop the construction of proposed gas plants.’’) 

(last visited Feb. 8, 2022) (emphasis added); Sierra 

Club, https://www.sierraclub.org/policy/energy/ 

fracking, (‘‘There are no ‘clean’ fossil fuels. The 

Sierra Club is committed to eliminating the use of 

fossil fuels, including coal, natural gas and oil, as 

soon as possible’’) (emphases added) (last visited 

Feb. 8, 2022); Natural Resources Defense Council, 

https://www.nrdc.org/issues/reduce-fossil-fuels 

(‘‘Oil, gas, and other fossil fuels come with grave 

consequences for our health and our future. . . . 

NRDC is pushing America to move beyond these 

dirty fuels. We fight dangerous energy development 

on all fronts’’) (emphases added) (last visited Feb. 

8, 2022); Press Release, NRDC Receives $100 

million from Bezos Earth Fund to Accelerate 

Climate Action (Nov. 16, 2020), available at https:// 

www.nrdc.org/media/2020/201116 (‘‘The Bezos 

Earth Fund grant will be used to help NRDC 

advance climate solutions and legislation at the 

state level, move the needle on policies and 

programs focused on reducing oil and gas 

production’’) (emphasis added) (last visited Feb. 8, 

2022); Sebastian Herrera, Jeff Bezos Pledges $10 

Billion to Tackle Climate Change, Wall Street 

Journal (Feb. 17, 2020) (‘‘Mr. Bezos . . . said the 

Bezos Earth Fund would help back scientists, 

activists, [non-governmental organizations]’’) 

(emphasis added); see also, Ellie Potter, 

Environmentalists launch campaign to ban gas 

from US clean energy program, S&P Global Platts 

(Sep. 2, 2021) (quoting Collin Rees, U.S. Campaign 

Manager for Oil Change International, ‘‘Clean 

energy means no gas and no other fossil fuels, 

period.’’) (emphases added); Sean Sullivan, FERC 

sets sights on gas infrastructure policy in 2022, S&P 

Capital IQ (Dec. 31, 2021) (quoting Maya van 

Rossum, head of Delaware Riverkeeper Network, 

‘‘we are not changing course at all: We continue to 

take on every pipeline, LNG, and fracked gas project 

as urgently as we did before, knowing we will have 

to invest heavily to stop it . . .’’) (emphases added). 

98See Letter of Chairman Richard Glick to Sen. 

John Barasso, M.D. (Feb. 1, 2022) (‘‘Preparing an EIS 

to consider the reasonably foreseeable GHG 

emissions that may be attributed to a project 

proposed under section 7 of the NGA allows the 

Commission to issue more legally durable orders on 

which all stakeholders can depend, including 

project developers.’’); Letter of Commissioner 

Allison Clements to Sen. John Barasso, M.D. (Feb. 

1, 2022) (‘‘I will do my part to assure that the 

updated policy will be a legally durable framework 

for fairly and efficiently considering certificate 

applications—one that serves the public interest 

and increases regulatory certainty for all 

stakeholders.’’); see also, Corey Paul, FERC Dems 

argue legal benefits from climate reviews outweigh 

gas project delays, S&P Capital IQ Pro (Feb. 3, 

2022). 

99Certificate Policy Statement at P 100 (‘‘the 

Commission will apply the Updated Policy 

Statement to any currently pending applications for 

new certificates. Applicants will be given the 

opportunity to supplement the record and explain 

how their proposals are consistent with this 

Updated Policy Statement, and stakeholders will 

have an opportunity to respond to any such 

filings.’’) 

100Adelphia Gateway, LLC, 178 FERC ¶ 61,030 

(2022) (Christie, Comm’r concurring at P 4) 

(available at: https://www.ferc.gov/news-events/ 

news/item-c-3-commissioner-christies-partialconcurrence-and-partial-dissent-adelphia). 

101See Am. Lung Ass’n v. EPA, 985 F.3d at 1003 

(Walker, J., concurring in part and dissenting in 

part) (‘‘whatever multi-billion-dollar regulatory 

power the federal government might enjoy, it’s 

found on the open floor of an accountable Congress, 

not in the impenetrable halls of an administrative 

agency—even if that agency is an overflowing font 

of good sense.’’) (citing U.S. Const. art I, § 1). 

102 GHG Policy Statement at PP 27–28, 31, & n.97. 

See also, EPA Dec. 20, 2021 Letter. 

as the Sabal Trail court said it does. For 

the reasons set out in this statement, I 

respectfully disagree. Nor am I alone in 

my disagreement.92

47. Finally, as to the contention that 

the Commission is bound to follow 

Sabal Trail notwithstanding its errors, I 

would simply point out that intervening 

Supreme Court precedents—such as 

NFIB 93 and Ala. Ass’n. 94—have not just 

significantly weakened, but utterly 

eviscerated the conceptual 

underpinnings of Sabal Trail’s limitless 

construction of the Commission’s public 

interest inquiry under the NGA’s 

‘‘public convenience and necessity’’ 

analysis.95 It is folly for this 

Commission to proceed heedless of the 

Supreme Court’s recent rulings that 

agencies may not use ambiguous or 

limited grants of statutory authority in 

unprecedented ways to make policy on 

major questions that Congress has 

reserved for itself. But that’s exactly 

what the Commission does today.96

48. We are indeed bound to follow 

judicial precedent, but we don’t get to 

‘‘cherry pick’’ one precedent such as 

Sabal Trail because we like that 

particular opinion, while ignoring the 

many other conflicting precedents, 

especially those more recent rulings 

from the Supreme Court itself applying 

the major question doctrine. These more 

recent opinions light up Sabal Trail as 

a clear outlier. 

II. The Real Debate Is About Public 

Policy not Law 

49. Preventing the construction of 

each and every natural gas project is the 

overt public-policy goal of many wellfunded interest groups working to 

reduce or eliminate natural gas usage.97

Today’s orders, whatever the intent, will 

have the undeniable effect of advancing 

that policy goal, and we should not deny 

the obvious. Rather than bringing legal 

certainty to the Commission’s certificate 

orders,98 today’s orders will greatly 

increase the costs and uncertainty 

associated with this Commission’s own 

handling of certificate applications. In 

fact, by purporting to apply today’s new 

policy retroactively on applications that 

have already been submitted (and in 

many instances pending for years), 

today’s action is deeply unfair: It judges 

by an entirely new set of standards 

applications that were prepared and 

submitted to meet the old standards and 

essentially opens all of them to be 

relitigated.99 The undoubted effect of 

these orders will be to interpose 

additional months or years of delay on 

project applicants and to increase 

exponentially the vulnerability on 

appeal of any Commission orders that 

do approve a project. 

50. Recently I said the Commission’s 

new rule on unlimited late interventions 

in certificate cases was ‘‘not a legal 

standard, but a legal weapon.’’ 100 The 

new certificate policy approved today is 

the mother of all legal weapons. There 

is no question that it will be wielded 

against each and every natural gas 

facility both at the Commission and in 

the inevitable appeals, making the costs 

of even pursuing a natural gas project 

insuperable. 

51. Let me emphasize that every 

person or organization pursuing the 

policy goal of ending the use of natural 

gas by opposing every natural gas 

facility has an absolute right under the 

First Amendment to engage in such 

advocacy. However, whether to end the 

use of natural gas by banning the 

construction of all new natural gas 

projects is a public policy question of 

immense importance, one that affects 

the lives and livelihoods of tens of 

millions of Americans and their 

communities, as well as the country’s 

national security. In a democracy, such 

a huge policy question should only be 

decided by legislators elected by the 

people, not by unelected judges or 

administrative agencies.101

52. This public-policy context is 

absolutely relevant to these orders 

because it illustrates that the longrunning controversy at this Commission 

over the use of GHG analyses in naturalgas certificate cases, whether it’s a 

demand to quantify indirect impacts 

from upstream production and 

downstream use,102 or a demand to 

apply an administratively-constructed 


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103 GHG Policy Statement at P 96. See also, e.g., 

Vecinos, 6 F.4th at 1328–1329. 

104EPA Dec. 20, 2021 Letter at 4 (emphases 

added). 

105This Commission’s independence reflects a 

conscious choice on Congress’ part to insulate 

certain of its functions from the vicissitudes of 

political pressure. See generally, Sharon B. Jacobs, 

The Statutory Separation of Powers, 129 Yale L.J. 

378 (2019) (explaining that some but not all of the 

Federal Power Commission’s authorities were 

transferred to FERC, which was intended at least in 

part to counterbalance presidential influence). 

Succumbing to the pressure of EPA and others 

would sacrifice that crucial independence in 

meaningful ways. 

106Cf. Vecinos, 6 F.4th at 1329. 

107 It has been observed that the values associated 

with the imputed social costs of GHG emissions 

have fluctuated dramatically from one 

administration to the next. See, e.g., Garrett S. Kral, 

What’s In a Number: The Social Cost of Carbon, 

Geo. Envtl. L. Rev. Online 1 (Aug. 19, 2021) 

(comparing the social cost of GHG emissions under 

the Trump administration with the interim social 

cost under the Biden administration and noting 

‘‘the value of SC–GHGs have fluctuated. A lot.’’). 

This degree of abrupt fluctuation—e.g., the social 

cost of carbon increasing from $7 per ton to $51 per 

ton—can only be explained by politics, not science. 

108NFIB, 142 S. Ct. at 667 (Gorsuch, J. 

Concurring). (‘‘The central question we face today 

is: Who decides?’’) (emphasis added). 

109See P 5 and n.12, supra. 

110Office of Consumers Counsel, 655 F.2d at 1142 

(‘‘an agency may not bootstrap itself into an area in 

which it has no jurisdiction by violating its 

statutory mandate’’) (quoting FMC v. Seatrain Lines, 

Inc., 411 U.S. 726, 745 (1973)) (ellipsis omitted); see 

also In re MCP No. 165, 20 F.4th 264, 269 (6th Cir. 

2021) (Sutton, C.J., dissenting) (‘‘As the Supreme 

Court recently explained in invalidating an eviction 

moratorium promulgated by the Center for Disease 

Control, ‘our system does not permit agencies to act 

unlawfully even in pursuit of desirable ends.’ Ala. 

Ass’n of Realtors, 141 S. Ct. at 2490. Shortcuts in 

furthering preferred policies, even urgent policies, 

rarely end well, and they always undermine, 

sometimes permanently, American vertical and 

horizontal separation of powers, the true mettle of 

the U.S. Constitution, the true long-term guardian 

of liberty.’’) (emphasis added). 

111This argument is often put forth by the legal, 

academic, and corporate elites who assume that an 

administrative agency will enact the public policies 

they prefer when Congress will not. Such an 

expectation is perfectly rational since these elites 

disproportionately have the resources that are most 

effective in achieving desired outcomes in the 

administrative process, which is largely an insiders’ 

game. The body of work on the economic theory of 

regulatory capture over the past half-century is 

relevant to this topic. See generally, Susan E. 

Dudley, Let’s Not Forget George Stigler’s Lessons 

about Regulatory Capture, Regulatory Studies 

Center (May 20, 2021) (available at https://

regulatorystudies.columbian.gwu.edu/ 

let%E2%80%99s-not-forget-georgestigler%E2%80%99s-lessons-about-regulatorycapture). And it is not just for-profit corporate elites 

at work here, so are other special interests who seek 

desired policy outcomes from administrative action 

rather than from the often messy and hard 

democratic processes of seeking to persuade voters 

to elect members of Congress who agree with you. 

See, e.g., n. 97, supra. 

metric such as the Social Cost of 

Carbon 103—and then use GHG analyses 

to reject (or mitigate to death, or impose 

costly delays on) a gas project—has far 

less to do with the law itself and far 

more to do with promoting preferred 

public policy goals. 

53. EPA admits as much in a 

remarkably (perhaps unwittingly) 

revealing passage in a letter to this 

Commission: 

EPA reaffirms the suggestion that the 

Commission avoid expressing project-level 

emissions as a percentage of national or state 

emissions. Conveying the information in this 

way inappropriately diminishes the 

significance of project-level GHG emissions. 

Instead, EPA continues to recommend 

disclosing the increasing conflict between 

GHG emissions and national, state, and local 

GHG reduction policies and goals . . .104

54. So according to EPA, this 

Commission—which is supposed to be 

independent of the current (or any) 

presidential administration, by the 

way—should literally manipulate how it 

presents GHG data in order to avoid 

‘‘inappropriately’’ diminishing the 

impact. As EPA reveals, this is really 

not about data or any specific GHG 

metric at all, but is really about 

pursuing public policy goals, especially 

those of the current presidential 

administration that runs EPA.105

55. The EPA’s purported guidance to 

this Commission illustrates that the real 

debate here is not over the minutiae of 

one methodology versus another, or 

whether one methodology is ‘‘generally 

accepted in the scientific community’’ 

and another is not,106 or whether one 

particular esoteric formula is 

purportedly required by a regulation 

issued by the CEQ 107 and another does 

not meet the CEQ’s directives. 

56. The real debate over the use of 

GHG analyses in certificate proceedings 

is about public policy, not law, and 

ultimately comes down to these 

questions: Who makes major decisions 

of public policy in our constitutional 

system? Legislators elected by the 

people or unelected administrative 

agencies or judges? Who decides? 108

III. Conclusions 

57. Based on the analysis above the 

following legal conclusions can be 

drawn: 

58. First, the Commission may not 

reject a certificate based solely on an 

estimate of the impacts of GHG 

emissions, indirect or direct. Nor, on the 

basis of such GHG estimates, may the 

Commission attach to a certificate (or 

coerce through deficiency letters) 

conditions that represent a de facto 

rejection by rendering the project 

financially or technically unfeasible. 

59. Second, the Commission can 

consider the direct GHG impacts of the 

specific facility for which a certificate is 

sought, just as it analyzes other direct 

environmental impacts of a project, and 

can attach reasonable and feasible 

conditions to the certificate designed to 

reduce or minimize the direct GHG 

impacts caused by the facility, just as it 

does with other environmental impacts. 

60. Third, the conditions the 

Commission can impose are, like its 

other powers, limited to the authorities 

granted to it by Congress and the 

purposes for which they are given. So, 

no, the Commission may not impose 

conditions on a certificate to mitigate 

upstream or downstream GHG 

emissions arising from nonjurisdictional activity. 

61. These legal conclusions do not 

mean that responding to climate change 

is not a compelling policy necessity for 

the nation. In my view it is, as I stated 

above.109

62. However, neither my policy 

views—nor those of any other member 

of this Commission—can confer 

additional legal authority on FERC.110

For in our democracy, it is the elected 

legislators who have the exclusive 

power to determine the major policies 

that respond to a global challenge such 

as climate change. Further, the 

argument that administrative agencies 

must enact policies to address major 

problems whenever Congress is too 

slow, too polarized, or too prone to 

unsatisfying compromises, must be 

utterly rejected.111 That is not how it is 

supposed to work in a democracy. 


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63. For if democracy means anything 

at all, it means that the people have an 

inherent right to choose the legislators 

to whom the people grant the power to 

decide the major questions of public 

policy that impact how the people live 

their daily lives. Unelected federal 

judges and executive-branch 

administrators, no matter how 

enlightened they and other elites may 

regard themselves to be, do not have the 

power to decide such questions; they 

only have the power to carry out the 

duly-enacted laws of the United States, 

including the most important law of all, 

the Constitution. That is the basic 

constitutional framework of the United 

States and it is the same for any liberal 

democracy worth the name. 

For these reasons, I respectfully 

dissent. 

Mark C. Christie, 

Commissioner. 

[FR Doc. 2022–04536 Filed 3–10–22; 8:45 am] 

BILLING CODE 6717–01–P 


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