11548 Federal Register / Vol. 87, No. 40 / Tuesday, March 1, 2022 / Notices 

1Certification of New Interstate Natural Gas 

Facilities, 83 FR 18020 (Apr. 25, 2018), 163 FERC 

¶ 61,042 (2018); Certification of New Interstate 

Natural Gas Facilities, 86 FR 11268 (Feb. 24, 2021), 

174 FERC ¶ 61,125 (2021). 

2Certification of New Interstate Natural Gas 

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

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

FERC ¶ 61,094 (2000) (1999 Policy Statement). 

3 15 U.S.C. 717f(e). 

4 Id. 717f. 

5 Id. 717f(e). 

6Atl. Ref. Co. v. Pub. Serv. Comm’n 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 [section] 7(e) 

requires the Commission to evaluate all factors 

bearing on the public interest.’’). 

7 15 U.S.C. 717f(e). 

8See, e.g., FPC v. Transcon. Gas Pipe Line Corp., 

365 U.S. 1, 17 (1961) (the Commission ‘‘can only 

exercise a veto power over proposed transportation 

. . . when a balance of all the circumstances weighs 

against certification’’). 

9 15 U.S.C. 717f(h). 

10 42 U.S.C. 4321–4370j. 

11 Id. 4332(2)(C); 40 CFR 1500.1–1508.1; 

Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, 

Inc., 462 U.S. 87, 97 (1983) (discussing the twin 

aims of NEPA—to consider environmental impacts 

and to disclose the agency’s consideration to the 

public). 

12Robertson v. Methow Valley Citizens Council, 

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

important ingredient of an [environmental impact 

statement] is the discussion of steps that can be 

taken to mitigate adverse environmental 

consequences.’’). 

13 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.’’); 

see also Baltimore Gas & Elec. Co., 462 U.S. at 97 

(citing Stryckers’ Bay Neighborhood Council v. 

Karlen, 444 U.S. 223, 227 (1980)). 

14 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). 

15See, e.g., Sierra Club v. FERC, 867 F.3d 1357, 

1373 (D.C. Cir. 2017) (Sabal Trail) (explaining that 

the Commission may ‘‘deny a pipeline certificate on 

the ground that the pipeline would be too harmful 

to the environment’’). 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Docket No. PL18–1–000] 

Certification of New Interstate Natural 

Gas Facilities 

AGENCY: Federal Energy Regulatory 

Commission, Department of Energy 

(DOE). 

ACTION: Updated Policy Statement on 

Certification of New Interstate Natural 

Gas Facilities. 

SUMMARY: This Updated Policy 

Statement describes how the 

Commission will evaluate all factors 

bearing on the public interest in 

determining whether a new interstate 

natural gas transportation project is 

required by the public convenience and 

necessity under the Natural Gas Act. 

DATES: Comments that pertain to the 

Paperwork Reduction Act are due May 

2, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Paige Espy (Legal Information), Office of 

the General Counsel, 888 First Street 

NE, Washington, DC 20426, (202) 

502–6698, Paige.Espy@ferc.gov 

Brandon Cherry (Technical 

Information), Office of Energy 

Projects, Federal Energy Regulatory 

Commission, 888 First Street NE, 

Washington, DC 20426, (202) 502– 

8328, Brandon.Cherry@ferc.gov 

SUPPLEMENTARY INFORMATION: 

1. On April 19, 2018, and February 

18, 2021, the Commission issued 

Notices of Inquiry (NOI) 1 to help the 

Commission explore whether, and if so 

how, it should revise the approach 

established by its currently effective 

policy statement on the certification of 

new interstate natural gas transportation 

facilities (1999 Policy Statement) 2 to 

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 section 7 of the Natural 

Gas Act (NGA).3

2. Based on the comments received in 

this proceeding and the significant 

changes that have occurred since 

issuance of the 1999 Policy Statement, 

and in order to provide stakeholders 

with more clarity on the Commission’s 

decision-making process, we are issuing 

this Updated Certificate Policy 

Statement (Updated Policy Statement). 

3. This Updated Policy Statement 

does not establish binding rules and is 

intended to explain how the 

Commission will consider applications 

to construct new interstate natural gas 

transportation facilities. 

I. Background 

A. Statutory Authority and Obligations 

4. 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.4 Under section 

7(e), the Commission shall issue a 

certificate to any qualified applicant 

upon finding that the construction and 

operation of a proposed project ‘‘is or 

will be required by the present or future 

public convenience and necessity.’’ 5

The public convenience and necessity 

standard encompasses all factors 

bearing on the public interest.6

5. The NGA authorizes the 

Commission to attach to a certificate 

‘‘such reasonable terms and conditions 

as the public convenience and necessity 

may require.’’ 7 The Commission can 

also deny an application for a certificate 

if a balancing of all public interest 

factors weighs against authorization of 

the proposed project.8 If an applicant 

receives a certificate from the 

Commission, section 7(h) of the NGA 

authorizes the certificate holder to 

acquire the property rights necessary to 

construct and operate its project by use 

of eminent domain if it cannot reach an 

agreement with a landowner.9

6. The Commission’s consideration of 

an application generally triggers 

environmental review under the 

National Environmental Policy Act of 

1969 (NEPA).10 NEPA and its 

implementing regulations require that, 

before taking or authorizing a major 

Federal action that may significantly 

affect the quality of the human 

environment, Federal agencies take a 

‘‘hard look’’ at the environmental 

consequences of the proposed action 

and disclose their analyses to the 

public.11 NEPA also requires that 

agencies consider whether there are 

steps that could be taken to mitigate any 

adverse environmental consequences.12

While NEPA is a procedural statute and 

does not require an agency to reject a 

proposed project based on its adverse 

effects or to take action to mitigate those 

effects,13 an agency may require 

mitigation measures as a condition of its 

approval under the NGA,14 or withhold 

approval based on significant adverse 

effects.15

B. Historical Context and the 1999 

Certificate Policy Statement 

7. From the enactment of the NGA in 

1938 to the 1990s, as a result of 

statutory and regulatory revisions, the 

natural gas industry evolved away from 

a system of limited competition among 

vertically integrated companies selling 

bundled commodity and transportation 

services at Commission-regulated prices 

to one where pipelines provide openaccess transportation of gas supplies 

purchased pursuant to non-Commission 

regulated agreements between 

producers and other parties. 

Consequently, consumers benefitted 

from competition among non-pipeline 

entities in an unregulated commodity 

market and from competition among 

pipeline companies providing openaccess, unbundled transportation 

services at Commission-regulated rates 

or, if authorized under certain 

circumstances, market-based rates. 


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16Pricing Policy for New and Existing Facilities 

Constructed by Interstate Natural Gas Pipelines, 71 

FERC ¶ 61,241 (1995), order on reh’g, 75 FERC 

¶ 61,105 (1996). Under this pricing policy, 

expansion projects received a determination for 

rolled-in pricing upon a showing that the new costs 

would not increase existing rates by more than five 

percent. 

17Regulation of Short-Term Natural Gas 

Transportation Services, Notice of Proposed 

Rulemaking, 63 FR 42,982 (July 29, 1998), FERC 

Stats. & Regs. ¶ 32,533 (1998) (cross-referenced at 84 

FERC ¶ 61,085). 

18Regulation of Interstate Natural Gas 

Transportation Services, NOI, 63 FR 42974 (Aug. 9, 

1998), FERC Stats. & Regs. ¶ 35,533 (1998) (crossreferenced at 84 FERC ¶ 61,087). 

19 1999 Policy Statement, 88 FERC at 61,743. 

20Although incremental pricing was presumed, 

an applicant could demonstrate that a proposed 

project qualified for a pre-determination of rolledin rate treatment through showing that inexpensive 

expansibility was made possible because of earlier, 

costly construction or that the project was designed 

to improve existing service for existing customers. 

Id. at 61,746 and n.12. 

21 Id. at 61,746. 

22 Id. at 61,745. 

23 Id. at 61,748. 

24 Id. at 61,747. 

25 Id. at 61,749. 

26 Id. at 61,745–46. While the Commission only 

moved to the stage of balancing environmental 

impacts and other considerations if a proposed 

project passed this economic test established by the 

1999 Policy Statement, Commission staff would 

begin review of the environmental impacts 

following the filing of an application. If a project 

did not pass this economic test, it could be rejected 

without further consideration of environmental 

factors. 

27 In the early 2000s, there were a number of 

proposals for natural gas import projects. However, 

as natural gas supplies increased and prices 

decreased, the Commission began to see more 

proposals for natural gas export projects. 

8. At the same time that natural gas 

commodity and transportation markets 

were becoming more competitive, the 

1990s saw significant growth in natural 

gas consumption in the industrial and 

electric generation sectors. The resultant 

expansion of the pipeline system to 

meet this demand raised issues as to 

who should bear the costs of new 

construction. Before the Commission 

adopted the 1999 Policy Statement, the 

Commission’s pricing policy for new 

construction generally allowed for the 

costs of expansion projects to be rolled 

into a pipeline company’s existing 

system costs to derive rolled-in rates in 

a future rate case under section 4 of the 

NGA.16 All shippers bore some burden 

of the expansion project’s cost, 

regardless of whether they would 

benefit from the project. Local 

distribution companies (LDC) and other 

parties believed that this pricing policy 

sent the wrong price signals by masking 

the real costs of an expansion project 

and could result in overbuilding and 

subsidization of expansion by a 

pipeline’s existing shippers. 

9. In response to these and other 

concerns, in 1998, the Commission 

issued a Notice of Proposed 

Rulemaking 17 and an NOI 18 to explore 

issues related to its policies on the 

certification and pricing of new pipeline 

projects. Based on the information 

received from stakeholders in response 

to these notices, the Commission issued 

the 1999 Policy Statement ‘‘to foster 

competitive markets, protect captive 

customers, and avoid unnecessary 

environmental and community impacts 

while serving increasing demands for 

natural gas.’’ 19 These objectives were 

realized primarily by a shift from a 

presumption of rolled-in pricing to a 

presumption of incremental pricing.20

Under incremental pricing, existing 

customers using only existing facilities 

do not subsidize the cost of constructing 

and operating new projects.21

10. Pursuant to the 1999 Policy 

Statement, when reviewing applications 

to construct new interstate 

transportation facilities the Commission 

would first determine whether a 

threshold requirement of no financial 

subsidization from existing customers 

was met. If so, the Commission would 

next consider whether the applicant 

eliminated or minimized any residual 

adverse effects the project might have 

on: (1) The applicant’s existing 

customers; (2) existing pipelines in the 

market and their captive customers; and 

(3) landowners and communities 

affected by the proposed project.22 Any 

residual adverse effects would be 

balanced against the anticipated benefits 

from the project.23 The Commission 

allowed an applicant to rely on a variety 

of factors to demonstrate that its 

proposed project was needed,24 but, in 

practice, applicants generally elected to 

submit, and the Commission accepted, 

precedent agreements with prospective 

customers for long-term firm service as 

the principal factor in demonstrating 

project need. 

11. The 1999 Policy Statement 

introduced a sliding scale approach to 

balance public benefits with adverse 

effects, where the ‘‘more interests 

adversely affected or the more adverse 

impact a project would have on a 

particular interest, the greater the 

showing of public benefits from the 

project required to balance the adverse 

impact.’’ 25 The 1999 Policy Statement 

provided that, if the Commission found 

that project benefits outweighed adverse 

impacts on economic interests, then the 

Commission would proceed to consider 

the environmental impacts of the 

project.26

C. Developments After Issuance of the 

1999 Certificate Policy Statement 

12. Much has changed since the 

Commission issued the 1999 Policy 

Statement. In the last decade, increases 

in both domestic and international 

demand for natural gas produced in the 

United States, combined with the 

available supply of competitively-priced 

gas from shale reserves, have reduced 

prices and price volatility and have 

resulted in more proposals for natural 

gas transportation and export projects.27

Much of the increased production is 

attributable to the development of the 

Marcellus and Utica shale formations in 

Pennsylvania, West Virginia, Ohio, and 

New York; shale formations in the 

Permian Basin in West Texas and 

Eastern New Mexico; Eagle Ford Shale 

in South Texas; and Bakken Shale 

Formation in North Dakota, among 

others; as well as associated new 

extraction technologies. 

13. Contracting patterns are changing 

significantly as a result of this supply 

growth. In the past, LDCs contracted for 

a large percentage of interstate pipeline 

capacity, obtaining supplies from the 

production area for their customers. 

Increasingly, however, LDCs are 

purchasing gas supplies further 

downstream at market area pooling 

points or at their city gates as other 

parties increasingly contract for pipeline 

capacity. Natural gas producers are now 

contracting for a significant amount of 

firm pipeline capacity on expansion 

projects in an effort to provide a secured 

commercial outlet for their gas. 

14. Over the past decade, there has 

been greater interest and participation 

by affected landowners and 

communities, Tribes, environmental 

organizations, and others in natural gas 

project proceedings. Part of this may be 

attributable to the increase in proposals 

for new natural gas infrastructure in 

more densely populated areas of the 

eastern half of the nation. These 

stakeholders have raised various 

concerns with, among other things, the 

use of eminent domain, the need for 

new projects, and the environmental 

impacts of project construction and 

operation, including impacts on climate 

change and environmental justice 

communities. 

15. The Commission’s consideration 

of climate change and greenhouse gas 

emissions (GHG) has also evolved since 

issuance of the 1999 Policy Statement. 

In the last decade, the Commission 

began including estimates of GHG 

emissions from project construction 

(e.g., tailpipe emissions from 

construction equipment) and operation 

(e.g., fuel combustion at compressor 

stations and gas venting and leaks) in its 


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28See, 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). 

29See, e.g., Columbia Gas Transmission, LLC, 158 

FERC ¶ 61,046, at PP 116–120 (2017); Tex. E. 

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

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

30 Dominion Transmission, Inc., 163 FERC 

¶ 61,128 (2018), pet. dismissed, Otsego 2000 v. 

FERC, 767 F.App’x 19 (D.C. Cir. 2019) (unpublished 

opinion). 

31See infra P 70. 

32Consideration of Greenhouse Gas Emissions in 

Natural Gas Infrastructure Project Reviews, 178 

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

33E.O. 12898, Federal Actions to Address 

Environmental Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, at 7629, 7632 

(Feb. 11, 1994). 

34E.O. 13985, Advancing Racial Equity and 

Support for Underserved Communities Through the 

Federal Government, 86 FR 7009, 7010–11. 

35E.O. 14008, Tackling the Climate Crisis at 

Home and Abroad, 86 FR 7619, 7629; see also The 

White House, Fact Sheet: President Biden Takes 

Executive Actions to Tackle the Climate Crisis at 

Home and Abroad, Create Jobs, and Restore 

Scientific Integrity Across Federal Government 

(2021). 

36 GHG Policy Statement, 178 FERC ¶ 61,108. 

37E.g., Public Interest Organizations (PIO) 2021 

Comments at 12; Delaware Riverkeeper Network 

2018 Comments at 67; Friends of the Central 

Shenandoah 2018 Comments at 36–38. The PIO 

2021 Comments represent 54 entities from around 

the country that advocate for the protection of 

environmental resources, including Natural 

Resources Defense Council, Sierra Club, Public 

Citizen, Conservation Law Foundation, and 

Southern Environmental Law Center. 

38See, e.g., Environmental Protection Agency 

(EPA) 2021 Comments at 1–2. 

39E.g., New Jersey Conservation Foundation, 

Sabin Center for Climate Change Law, Watershed 

Institute, Clean Air Council, PennFuture, and New 

Jersey League of Conservation Voters (collectively, 

New Jersey Conservation Foundation et al.) 2021 

Comments at 31–32. 

40E.g., Ann W. Woll 2021 Comments at 1; Jessica 

Greenwood 2021 Comments at 1; Rev. Betsy Sowers 

2021 Comments at 1. 

41E.g., Environmental Defense Fund (EDF) 2021 

Comments at 8–12. 

42See, e.g., American Gas Association (AGA) 

2021 Comments at 10–11. 

NEPA documents.28 Then, starting in 

late 2016, the Commission began to 

estimate GHG emissions from 

downstream combustion and upstream 

production.29 In 2018, however, the 

Commission reversed this practice,30

resulting in a number of judicial 

decisions finding fault with the 

Commission’s approach.31 Concurrent 

with this Updated Policy Statement, the 

Commission is issuing a new policy 

statement to explain how it will assess 

project impacts on climate change in its 

NEPA and NGA reviews going forward 

(GHG Policy Statement).32

16. Another development since 

issuance of the 1999 Policy Statement is 

an increasing recognition of the need for 

Federal agencies to focus on 

environmental justice and equity. In 

1994, under Executive Order 12898, 

agencies were directed to identify and 

address ‘‘disproportionately high and 

adverse human health or environmental 

effects’’ of their actions on minority and 

low-income populations (i.e., 

environmental justice communities).33

In 2021, President Biden issued two 

executive orders to renew and expand 

upon this directive. Specifically, 

Executive Order 13985, issued on 

January 20, 2021, requires agencies to 

conduct Equity Assessments to identify 

and remove barriers to underserved 

communities and ‘‘to increase 

coordination, communication, and 

engagement with community-based 

organizations and civil rights 

organizations.’’ 34 And Executive Order 

14008, issued on January 27, 2021, 

directs agencies to develop ‘‘programs, 

policies, and activities to address the 

disproportionately high and adverse 

human health, environmental, climaterelated and other cumulative impacts on 

disadvantaged communities, as well as 

the accompanying economic challenges 

of such impacts.’’ 35

II. Notices of Inquiry and Comments 

17. As noted above, on April 19, 2018, 

the Commission issued an NOI (2018 

NOI) seeking information and 

stakeholder perspectives to help the 

Commission explore whether, and if so 

how, it should revise the approach 

established by the 1999 Policy 

Statement. The Commission identified 

four general areas for examination in the 

2018 NOI: (1) The reliance on precedent 

agreements to demonstrate need for a 

proposed project; (2) the potential 

exercise of eminent domain and 

landowner interests; (3) the 

Commission’s evaluation of alternatives 

and environmental effects under NEPA 

and the NGA; and (4) the efficiency and 

effectiveness of the Commission’s 

certificate processes. In response to the 

2018 NOI, the Commission received 

more than 3,000 comments from a 

diverse range of stakeholders. 

18. On February 18, 2021, the 

Commission issued another NOI (2021 

NOI) seeking to build upon the existing 

record established by the 2018 NOI. The 

2021 NOI noted that a number of 

changes had occurred since the 

Commission issued the 2018 NOI, 

including regulatory changes, the 

issuance of new executive orders, and 

increased stakeholder interest in certain 

topics. Accordingly, the 2021 NOI 

provided stakeholders with an 

opportunity to refresh the record and 

provide updated information and 

additional viewpoints to help the 

Commission assess its policy. 

19. The 2021 NOI included the four 

general areas of examination identified 

in the 2018 NOI, with modifications to 

the specific questions asked, including 

new questions on how the Commission 

should assess and consider the impacts 

of proposed projects on climate change. 

The 2021 NOI also identified a fifth area 

of examination—the Commission’s 

identification and consideration of 

disproportionately high and adverse 

human health or environmental effects 

of its programs, policies, and activities 

on environmental justice communities 

and the mitigation of those adverse 

impacts and burdens, as well as the 

Commission’s identification of 

potentially affected environmental 

justice communities and measures for 

ensuring effective participation by these 

communities in the certificate review 

process. In response to the 2021 NOI, 

the Commission received more than 

35,000 comments, including more than 

150 unique comment letters, from a 

diverse range of stakeholders. 

20. The comments received in 

response to the 2018 and 2021 NOIs are 

summarized at a high level below. 

Comments related to GHG emissions are 

summarized in the aforementioned GHG 

Policy Statement.36 The considerable 

number of comments submitted in this 

proceeding indicates substantial public 

interest in the Commission’s policy for 

reviewing proposed interstate natural 

gas facilities. 

A. The Commission’s Determination of 

Need 

21. A wide range of commenters 

request that the Commission change 

how it makes its public need 

determination. Many of these 

commenters argue that the Commission 

should rely less on precedent 

agreements.37 Additionally, commenters 

request that, in assessing need, there be 

greater consideration of climate change 

impacts,38 increased transparency,39

and an enlarged participatory role for 

stakeholders.40 Some commenters 

recommend that applicants be required 

to provide specific evidence that need 

exists, the proposed facilities serve that 

need, and the asserted need cannot be 

met by existing infrastructure.41 In 

contrast, regulated companies and 

industry trade organizations are nearly 

unanimous in their general support of 

the 1999 Policy Statement as it relates 

to the public need determination.42

22. Several commenters argue that the 

public benefits recognized in the 1999 

Policy Statement are skewed, overly 


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43See, e.g., Delaware Riverkeeper Network & 

Berks Gas Truth 2021 Comments at 4. 

44E.g., EDF 2021 Comments at 18. 

45See, e.g., New Jersey Division of Rate Counsel 

2021 Comments at 4–8. 

46See, e.g., Natural Gas Supply Association 

(NGSA) 2021 Comments at 23. 

47 Iroquois Gas Transmission System, L.P. 

(Iroquois) 2021 Comments at 10–11. 

48See, e.g., Niskanen Center, Hopewell 

Township, Horizons Village Property Owners 

Association, Inc., and 28 affected landowners 

(collectively, Niskanen Center et al.) 2021 

Comments at 18; Delaware Riverkeeper Network & 

Berks Gas Truth 2021 Comments at 9; New Jersey 

Division of Rate Counsel 2021 Comments at 8–9; 

Carolyn Elefant 2021 Comments at 2–3. 

49PIO 2018 Comments at 10. The PIO 2018 

Comments represent 64 entities from around the 

country that advocate for the protection of 

environmental resources; many of these entities 

also signed on to the PIO 2021 Comments. 

50 Delaware Riverkeeper Network & Berks Gas 

Truth 2021 Comments at 18. 51See, e.g., WBI Energy Transmission, Inc. (WBI 

Energy) 2021 Comments at 3; National Fuel Gas 

Supply Corporation (National Fuel) 2021 Comments 

at 9; Energy Transfer LP 2021 Comments at 4–5; 

Interstate Natural Gas Association of America 

(INGAA) 2021 Comments at 17–19; Boardwalk 

Pipeline Partners LP (Boardwalk) 2021 Comments 

at 28. 52See, e.g., Natural Resources Defense Council, 

Sierra Club, Earthjustice, GreenFaith, Southern 

Environmental Law Center, Conservation Law 

Foundation, Public Citizen, Catskill 

Mountainkeeper, New Jersey Conservation 

Foundation, Riverkeeper, Inc., and Acadia Center 

(collectively, Joint NGOs) April 2018 Comments at 

2; Jim Steitz 2018 Comments at 2. 

53See, e.g., Friends of the Central Shenandoah 

2018 Comments at 47–49; Upstate Forever 2018 

Comments at 2. 

54New Jersey Division of Rate Counsel 2021 

Comments at 10. 

55See, e.g., WBI Energy 2021 Comments at 5; 

INGAA 2021 Comments at 19–20; DTE Energy 

Company 2018 Comments at 5; Iroquois 2018 

Comments at 12–13. 

56E.g., WBI Energy 2021 Comments at 5. 

57See, e.g., Delaware Riverkeeper Network & 

Berks Gas Truth 2021 Comments at 29–32; Deb 

Evans and Rob Schaaf 2018 Comments at 3–5. 

58E.g., Fore River Residents Against the 

Compressor Station, Inc. (FRRACS) 2021 Comments 

at 2. 

59Enbridge Gas Pipelines (Enbridge) 2021 

Comments at 46; WBI Energy 2021 Comments at 6. 

60 INGAA 2021 Comments at 22 (citing 18 CFR 

284.7(b)). 

61Cheniere Energy, Inc. (Cheniere) 2018 

Comments at 6. 

62See, e.g., EPA 2021 Comments at 1–3; New 

Jersey Division of Rate Council 2018 Comments at 

13–15; Friends of Central Shenandoah 2018 

Comments at 57–59. 

63E.g., INGAA 2021 Comments at 23. 

64E.g., INGAA 2021 Comments at 24. 

65E.g., Cheniere 2018 Comments at 8. 

66See, e.g., Energy Transfer LP 2021 Comments 

at 6; Iroquois 2021 Comments at 12. 

67See, e.g., New Jersey Division of Rate Counsel 

2021 Comments at 13–14. 

narrow, and outdated.43 Additionally, 

some commenters recommend that the 

Commission create clear guidelines for 

benefits like reliability and resilience.44

Some commenters suggest that the 

Commission consider additional factors 

in its benefits analysis, such as 

infrastructure security and how an 

applicant’s proposal fits with, or 

advances, new Federal and State 

policies and goals.45 In contrast, 

industry trade organizations generally 

support the Commission’s existing 

benefits analysis under the 1999 Policy 

Statement, arguing that the 

Commission’s responsibilities under the 

NGA have not changed, and, thus, any 

changes to the Commission’s review of 

public benefits should not impede those 

responsibilities.46 However, some 

regulated companies recommend that 

the Commission more heavily weigh 

certain benefits, such as reliability and 

resilience, in light of recent extreme 

cold weather events and ransomware 

attacks.47

23. Regarding what evidence the 

Commission should examine to 

determine project need, many nongovernmental organizations (NGO), 

individual commenters, and other 

entities argue that the Commission 

should analyze factors beyond 

precedent agreements, such as future 

markets, opportunity costs, Federal and 

State public policies, and effects on 

competition.48 NGOs request that the 

Commission take a more ‘‘holistic’’ 

approach and assess proposed projects 

in conjunction with other projects that 

are designed to serve the same market, 

serve similar markets, or pass through 

the same region,49 and that there be 

increased coordination with State 

agencies, including allowing State 

regulators to review and approve 

precedent agreements prior to the 

Commission making a need 

determination.50 In contrast, regulated 

companies and industry trade 

organizations State that precedent 

agreements remain powerful indicators 

of need, as they represent long-term, 

binding contractual and financial 

commitments to a project and are more 

objective evidence than market 

studies.51

24. Several commenters recommend 

that when applicants provide precedent 

agreements with affiliates as evidence of 

need, the Commission look beyond 

those agreements, given that companies 

with common profit interests might 

have incentives to inflate costs which 

can then be passed on to captive 

ratepayers.52 Additionally, several 

commenters argue that the terms of 

precedent agreements should be subject 

to close scrutiny 53 and that the 

Commission should consider the 

potential for an asset to be rendered 

obsolete before the end of its useful life, 

as well as the length of time over which 

an asset’s costs are recovered.54 In 

contrast, regulated companies and 

industry trade organizations argue that 

the Commission should not distinguish 

between affiliate and non-affiliate 

agreements, as standards of conduct and 

nondiscrimination require pipeline 

companies to treat all customers 

equitably, regardless of whether the 

customer is an affiliate or a nonaffiliate.55 These entities allege that 

economic risk, financial obligation, and 

oversight by State and local regulators 

associated with precedent agreements 

demonstrate that they are clear evidence 

of need, regardless of whether the 

shipper is an affiliate.56

25. A wide range of commenters 

assert that the Commission must 

consider the end use of the natural gas 

to be transported in its assessment of 

need, even if end use could change over 

time.57 Some commenters also note that 

climate change issues cannot be 

appropriately addressed without a firm 

understanding of end use.58 However, 

regulated companies and industry trade 

organizations argue against 

consideration of expected end use given 

the practical challenges of dynamic gas 

markets,59 the Commission’s regulations 

prohibiting pipelines from unduly 

discriminating among shippers based on 

end use,60 and the fact that regulating 

end use is outside the scope of the 

Commission’s statutory authority.61

26. Many commenters recommend 

that the Commission assess need in a 

regional planning context, including 

consideration of existing infrastructure, 

in order to avoid unnecessary 

environmental harm, ‘‘underutilized or 

stranded’’ assets, and needlessly higher 

rates for captive consumers.62 Regulated 

companies and industry trade 

organizations, however, generally 

oppose the Commission using a regional 

approach to review natural gas pipeline 

projects, asserting that this could 

needlessly delay construction,63 the 

proximity of pipeline projects does not 

necessarily indicate that projects serve 

the same need in a region,64 and the 

open season process already serves to 

ensure duplicative projects are not 

constructed.65 Also, these entities do 

not support the Commission further 

examining whether existing 

infrastructure could sufficiently meet 

demand.66

27. Additionally, several commenters 

assert that the Commission must 

consider future demand as facilities age, 

as well as national and State 

decarbonization policies and targets.67

In contrast, regulated companies and 

industry trade organizations contend 

that assessment of future demand is not 


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68See, e.g., Williams Companies, Inc. (Williams) 

2021 Comments at 14; Enbridge 2021 Comments at 

51; INGAA 2021 Comments at 25–26. 

69 INGAA 2021 Comments at 25–26; Boardwalk 

2021 Comments at 38. 

70E.g., Southern Company Services, Inc. 2021 

Comments at 4. 

71See, e.g., Williams 2021 Comments at 11–12; 

Boardwalk 2021 Comments at 39–40; see also 

American Forest & Paper Association, Industrial 

Energy Consumers of America, Process Gas 

Consumers Group, and the Fertilizer Institute 

(collectively, American Forest & Paper Association 

et al.) 2021 Comments at 17; INGAA 2021 

Comments at 26–28; AGA 2021 Comments at 32; 

United Association of Journeymen and Apprentices 

of the Plumbing, Pipe Fitting and Sprinkler Fitting 

Industry of the United States and Canada, AFL–CIO 

(United Association) 2021 Comments at 26–28; 

NGSA 2021 Comments at 16. 

72See, e.g., PIO 2021 Comments at 12–13; 

Delaware Riverkeeper Network & Berks Gas Truth 

2021 Comments at 42; Edward Woll 2021 

Comments at 2; William F. Limpert 2021 Comments 

at 7–8; Massachusetts PipeLine Awareness Network 

(PLAN) 2021 Comments at 2; Rev. Betsy Sowers 

2021 Comments at 2. 

73EDF 2021 Comments at 50. 

74EPA 2021 Comments at 4. 

75See, e.g., Delaware Riverkeeper Network & 

Berks Gas Truth 2021 Comments at 43; Upstate 

Forever 2018 Comments at 3; Jane Twitmyer 2018 

Comments at 2; Franklin Regional Council of Gov’ts 

2018 Comments at 2. 

76See, e.g., Boardwalk 2021 Comments at 61–63; 

TC Energy Corporation 2021 Comments at 16; 

INGAA 2018 Comments at 56. 

77See, e.g., TC Energy Corporation 2021 

Comments at 19; Spectra Energy Partners LP 

(Spectra) 2018 Comments at 54; American 

Petroleum Institute (API) 2018 Comments at 13. 

78See, e.g., William F. Limpert 2021 Comments 

at 9; Tom Russo 2021 Comments at 12; Friends of 

the Central Shenandoah 2018 Comments at 67. 

79See, e.g., Cheniere 2021 Comments at 9–10; 

Kinder Morgan Entities (Kinder Morgan) 2021 

Comments at 18–20; API 2021 Comments at 11–13; 

INGAA 2021 Comments at 29. 

80EDF 2021 Comments at 5; Dr. Susan F. Tierney 

2018 Comments at 8, 46–48. 

81See, e.g., New Jersey Conservation Foundation, 

Watershed Institute, and Sierra Club 2018 

Comments at 35–36; Jody McCaffree 2018 

Comments at 7. 

82See, e.g., Sari DeCesare 2021 Comments at 1; 

Gary Salata 2021 Comments at 1. 

83See, e.g., Duke Energy Corporation 2018 

Comments at 45; Upstate Forever 2018 Comments 

at 3. 

84See, e.g., Kinder Morgan 2021 Comments at 20– 

21; BHE Pipeline Group 2021 Comments at 6–8; 

INGAA 2021 Comments at 31–32. 

85Tom Russo 2021 Comments at 13; American 

Midstream Partners LP, Canyon Midstream Partners 

LLC, and Cureton Midstream LLC 2018 Comments 

at 7–8; Giles County and Roanoke County, Virginia 

2018 Comments at 13–14. 

86See, e.g., Carolyn Elefant 2021 Comments at 5– 

6; Niskanen Center et al. 2021 Comments at 36–38; 

Kinder Morgan 2021 Comments at 22–26; Friends 

of Central Shenandoah 2018 Comments at 69; 

Spectra 2018 Comments at 5. 

87See Niskanen Center et al. 2021 Comments at 

28; Deb Evans and Ron Schaaf 2021 Comments at 

13; Carolyn Elefant 2018 Comments at 2–3. 

88See INGAA 2021 Comments at 32. 

necessary or prudent, given that 

sophisticated market participants 

already make these calculations, and do 

not support the Commission performing 

a comparative or future-looking analysis 

of energy sources.68 These entities 

emphasize that demand for natural gas 

projects will be correlated with demand 

for, and deployment of, variable energy 

resources.69

28. Generally, commenters are split 

on whether, and if so how, the 

Commission should consider the 

economic, energy security, and social 

attributes of domestic production and 

use of natural gas in reviewing proposed 

projects. Some regulated companies 

State that consideration of these factors 

should be limited; 70 however, others 

argue that the Commission should 

consider attributes such as job creation 

and tax revenues.71 Several individuals 

and NGOs State that the Commission 

could consider these attributes for 

particular projects, but that the 

Commission should then also consider 

the costs of natural gas projects 

associated with increased noise, 

lowered property values, lowered air 

quality, a lowered tax base, and the loss 

of landowners’ potential use of their 

land.72 Commenters also recommend 

that any need analysis be focused on the 

specific benefits of a proposed project 

rather than hypothetical or general 

benefits 73 and that the Commission 

assess the magnitude or extent of both 

the benefits and burdens of a proposed 

project, including whether the jobs 

created are temporary or permanent, as 

well as the proportion of the jobs that 

will be filled by low- to middle-income 

local workers.74

B. The Exercise of Eminent Domain and 

Landowner Interests 

29. Many commenters suggest that the 

Commission adjust its approach to 

considering the possible use of eminent 

domain. For example, some commenters 

assert that eminent domain should only 

be an option for projects that can 

guarantee domestic use or local benefit, 

or that the Commission should deny 

certificates that would rely on eminent 

domain for more than twenty percent of 

the proposed route.75 In contrast, 

regulated companies and industry trade 

organizations State that the Commission 

should maintain its current approach, as 

it adequately protects landowners from 

the unnecessary use of eminent domain 

by ensuring that only projects that are 

needed and that do not require 

subsidization from existing customers 

are approved.76 These entities also note 

that it is not possible for the 

Commission to reliably estimate the 

amount of eminent domain that will 

ultimately be used prior to issuance of 

a certificate.77

30. Some commenters assert that 

additional measures should be taken to 

minimize the use of eminent domain for 

projects, including routing pipelines in 

existing utility corridors when possible, 

requiring proof that an applicant’s 

efforts to negotiate with landowners 

have failed, or reporting to the 

Commission each easement as it is 

agreed upon.78 However, many 

regulated companies state that 

additional measures to minimize the use 

of eminent domain are unnecessary, as 

companies have already taken steps to 

ensure it is used infrequently.79

31. Several commenters recommend 

that the Commission give greater weight 

to the concerns of impacted landowners 

and communities.80 Some assert that 

landowners have unequal bargaining 

power with applicants and that the 

Commission should consider whether 

an applicant’s pre-certificate actions 

related to landowners demonstrate that 

the applicant acted in good faith.81

Additionally, some commenters argue 

that the Commission should expand the 

regulatory definition of ‘‘affected 

landowners’’ to ensure all impacted 

landowners and residents are included 

in the Commission’s consideration.82

32. Multiple commenters state that it 

is the Commission’s responsibility to 

explain the certificate process to 

landowners and to ensure that they have 

the necessary tools to fully participate.83

Regulated companies and industry trade 

organizations support the creation of the 

Commission’s Office of Public 

Participation (OPP) to guide 

landowners’ understanding of, and 

participation in, the pipeline 

development and review process.84

Several commenters recommend that 

the Commission designate certain staff 

as non-decisional to act as official 

procedural case managers.85

33. Numerous commenters also 

recommend changes to the 

Commission’s process and resources to 

assist landowners, including 

incorporating non-traditional outreach 

methods to notify and engage 

stakeholders early and throughout the 

process, improving the Commission’s 

website and eLibrary system, 

conducting public meetings and site 

visits focused on landowner issues, and 

providing longer public comment 

periods.86 Some commenters propose 

that the Commission automatically grant 

all affected landowners party status to 

project proceedings, or, at a minimum, 

provide an updated step-by-step guide 

for landowners on how to intervene.87

Industry trade organizations support 

longer intervention periods for 

landowners,88 while some regulated 

companies argue that the Commission 


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89See Adelphia Gateway LLC 2018 Comments at 

13–14. 

90See, e.g., Land Trust Alliance 2021 Comments 

at 9; Jackie Freedman 2021 Comments at 1; Pipeline 

Safety Trust 2021 Comments at 2; Terese and 

Joseph Buchanan May 18, 2021 Comments at 1; 

Gary Salata 2021 Comments at 1. 

91See, e.g., INGAA 2021 Comments at 36–38; API 

2021 Comments at 15–16; Enbridge 2021 Comments 

at 70; Cheniere 2021 Comments at 9. 

92See, e.g., API 2021 Comments at 17–18; 

Boardwalk 2021 Comments at 63–65. 

93See Friends of the Central Shenandoah 2018 

Comments at 75; EPA June 21, 2018 Comments at 

1; Leslie Sauer 2018 Comments at 2. 

94See New Jersey Conservation Foundation et al. 

2021 Comments at 21–22; Institute for Policy 

Integrity at New York University School of Law 

(Policy Integrity) 2018 Comments at 16, 23–24; 

Pennsylvania Departments of Environmental 

Protection, Conservation and Natural Resources, 

and Community and Economic Development 2018 

Comments at 6; Carolyn Sellars 2018 Comments at 

6. 

95 938 F.2d 190, 199 (D.C. Cir. 1991). 

96See, e.g., PIO 2021 Comments at 21–22. 

97E.g., INGAA 2021 Comments at 39–41. 

98 INGAA 2021 Comments at 41; Iroquois 2021 

Comments at 13–14; API 2021 Comments at 19–20; 

Competitive Enterprise Institute 2021 Comments at 

2–3; see also Kinder Morgan 2021 Comments at 26– 

28. 

99See, e.g., Joint NGOs April 2018 Comments at 

2. 

100E.g., Nature Conservancy 2018 Comments at 

2–3; Appalachian Trail Conservancy 2018 

Comments at 3. 

101 Kirk Frost May 26, 2021 Comments at 8. 

102 Delaware Riverkeeper Network & Berks Gas 

Truth 2021 Comments at 57. 

103See, e.g., INGAA 2018 Comments at 75; Duke 

Energy Corporation 2018 Comments at 51–53; 

Edison Electric Institute 2018 Comments at 16. 

104E.g., Williams 2021 Comments at 34; INGAA 

2021 Comments at 44–45; Boardwalk 2021 

Comments at 73. 

105See, e.g., Delaware Riverkeeper Network 2018 

Comments at 92–93; Friends of the Central 

Shenandoah 2018 Comments at 92–94; Deb Evans 

and Rob Schaaf 2018 Comments at 12. 

106E.g., PIO 2021 Comments at 56; Elaine Mroz 

2018 Comments at 4. 

107See, e.g., New Jersey Conservation Foundation 

et al. 2021 Comments at 18–22; Policy Integrity 

2021 Comments at 4; Chesapeake Bay Foundation 

2018 Comments at 4. 

108E.g., API 2021 Comments at 23. 

109Williams 2021 Comments at 39. 

110 INGAA 2018 Comments at 85–89. 

111 INGAA 2021 Comments at 83–85; Enbridge 

2021 Comments at 149–150. 

112E.g., INGAA 2021 Comments at 84; Enbridge 

2021 Comments at 150. 

should limit interventions to entities 

that have a direct interest in a specific 

project.89

34. A wide range of commenters argue 

that, in order to prevent needless 

condemnations while routes are still 

subject to change and it is uncertain if 

a project will be authorized, the 

Commission could defer issuing a 

certificate or condition a certificate 

holder’s exercise of eminent domain 

until an applicant obtains all final 

Federal and State permits and issuance 

of such permits is sustained if appeal is 

filed.90 In contrast, many regulated 

companies and industry trade 

organizations assert that the 

Commission has no authority under the 

NGA to condition a certificate holder’s 

exercise of eminent domain because 

eminent domain is a right that arises 

directly from the NGA.91 These 

commenters express concern that if the 

Commission defers issuing a certificate 

until an applicant has all authorizations 

needed to commence construction, it 

would create practical challenges and 

could result in unintended 

consequences (e.g., a pipeline may need 

survey access in order to obtain 

information necessary for another 

permit).92

C. The Commission’s Consideration of 

Environmental Impacts 

35. Many commenters suggest that the 

Commission revise its approach to 

analyzing alternatives under NEPA. 

Some commenters recommend that the 

Commission consider a broader scope of 

alternatives (e.g., modifications to 

existing infrastructure, co-location with 

existing infrastructure, and alternative 

sources of energy generation) 93 or a 

broader range of factors to compare 

alternatives (e.g., the quantified and 

monetized impact of GHG emissions; 

impact of natural gas exports on 

domestic energy prices; and costeffectiveness when accounting for all 

significant health, productivity, and 

opportunity costs).94 Additionally, 

commenters assert that the Commission 

should not blindly adopt a project 

sponsor’s project purpose and, 

consistent with Citizens Against 

Burlington, Inc. v. Busey,95 must 

evaluate alternatives to achieve the 

Commission’s goals, shaped by the 

application before it and the 

Commission’s function in the decisional 

process.96 In contrast, regulated 

companies and industry trade 

organizations state that the current 

scope of the Commission’s alternatives 

analysis is appropriate and consistent 

with NEPA, and has been upheld by the 

courts.97 These entities also assert that 

Busey prohibits the Commission from 

considering alternatives that would not 

meet the purpose and need of the 

proposed Federal action.98

36. Many commenters request that the 

Commission change how it conducts its 

cumulative effects analysis under 

NEPA. For example, NGOs and other 

commenters recommend that the 

Commission conduct regional 

evaluations 99 and prepare 

programmatic environmental impact 

statement (EIS) 100 to address 

cumulative effects. To determine the 

geographic scope for regional 

evaluations, commenters recommend 

that the Commission use a radius 

around the proposed project (e.g., 100 

miles) 101 or consider the project scale, 

gas source, and end-use location.102 In 

contrast, industry trade organizations 

and regulated companies recommend 

that the Commission continue to use a 

project-specific geographic scope for its 

cumulative effects analysis.103 These 

entities assert that the Commission does 

not have the authority under section 7 

of the NGA to conduct regional 

evaluations, as the Commission only 

reviews individual pipeline 

applications, not broader Federal 

programs or regional actions where a 

programmatic review might be 

appropriate.104

37. NGOs and individual commenters 

state that how the Commission balances 

environmental impacts against favorable 

economic impacts is unclear, lacks 

transparency, and requires updating.105

Several commenters request that the 

Commission give environmental 

impacts greater weight.106 Other 

commenters criticize the Commission’s 

phased approach to addressing project 

impacts under the 1999 Policy 

Statement, and recommend that the 

Commission balance economic and 

environmental impacts together.107 In 

contrast, industry trade organizations 

state that the Commission’s approach 

under the 1999 Policy Statement 

properly balances economic and 

environmental impacts, giving 

proportionate consideration to all 

impacted stakeholders.108 These entities 

contend that broadening the balancing 

would exceed the Commission’s 

discretion under the NGA 109 and that 

the NEPA requirement to take a ‘‘hard 

look’’ at environmental consequences 

should remain separate from 

consideration of economic impacts.110

38. Regulated companies and industry 

trade organizations support the 

adoption of other agencies’ categorical 

exclusions under NEPA, including those 

referenced in Commission staff’s 

presentation at the January 19, 2021 

Commission meeting (Docket No. 

RM21–10–000).111 Additionally, these 

entities state that a categorial exclusion 

should apply to certain actions that do 

not currently qualify for the 

Commission’s blanket certificate 

authority (e.g., project amendments that 

would result in no, or minimal, changes 

to the environment).112 In contrast, 

NGOs suggest that there is no need for 

the Commission to expand its existing 

categorical exclusions, and they request 

that the Commission provide a public 

notice and comment period for all 


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113PIO 2021 Comments at 72–76. 114PIO 2021 Comments at 78; see also Dr. Susan 

F. Tierney 2021 Comments at 41–42. 115New Jersey Conservation Foundation et al. 

2021 Comments at 30–31. 116New Jersey Conservation Foundation et al. 

2021 Comments at 31. 117Energy Infrastructure Council (EIC) 2021 

Comments at 33; Spectra 2018 Comments at 95. 118WBI Energy 2021 Comments at 11; INGAA 

2018 Comments at 94. 119See, e.g., GPA Midstream Association 2021 

Comments at 1; Laborers’ International Union of 

North America 2021 Comments at 2. 

120 Kinder Morgan 2021 Comments at 46. 

121WBI Energy 2021 Comments at 11. 

122Carolyn Elefant 2021 Comments at 7; Spectra 

2018 Comments at 94–95; INGAA 2018 Comments 

at 96. 

123Tom Russo 2021 Comments at 23. 

124Carolyn Elefant 2021 Comments at 6. 

125American Forest & Paper Association et al. 

2021 Comments at 26–27; Spectra 2018 Comments 

at 98–99. 

126United Association 2021 Comments at 35–36; 

INGAA 2018 Comments at 102. 

127E.g., PLAN 2021 Comments at 3; Edward Woll 

2021 Comments at 4; Rev. Betsy Sowers 2021 

Comments at 3; Kim Robinson 2021 Comments at 

2; Surfrider Foundation 2018 Comments at 2; 

Delaware Riverkeeper Network 2018 Comments at 

57. 

128Egan Millard 2021 Comments at 3; Robert 

Kearns 2021 Comments at 3; Inbal Goldstein 2021 

Comments at 4. 

129 Dr. Susan F. Tierney 2021 Comments at 42. 

130WBI Energy 2021 Comments at 10. 

131 Kinder Morgan 2021 Comments at 47–48. 

132See, e.g., Kim Robinson 2021 Comments at 2; 

Leslie Sauer Jones and Stephanie Jones June 2021 

Comments at 1; James and Kathy Chandler 2018 

Comments at 1. 

133E.g., Kinder Morgan 2021 Comments at 42–43. 

134Enbridge 2021 Comments at 157. 

135 Kirk Frost May 26, 2021 Comments at 13. 

136 Iroquois 2021 Comments at 18–19. 

137 Kinder Morgan 2021 Comments at 44. 

138Americans for Prosperity 2021 Comments at 2. 

139AGA 2021 Comments at 39. 

140EIC 2021 Comments at 34; TransCanada 

Corporation 2018 Comments at 32. 

141API 2021 Comments at 36. 

142WEC Energy Group, Inc. 2018 Comment at 6– 

7. 

projects in which an applicant proposes 

to use a categorical exclusion.113

D. The Efficiency and Effectiveness of 

the Commission’s Review Process 

39. Many commenters recommend 

changes to the Commission’s 

application review process. For 

example, some commenters recommend 

that all affected stakeholders be brought 

into the process as early as possible,114

that decisions regarding information 

requirements be summarized in a 

comprehensive application 

completeness checklist, and that the 

Commission’s regulations be amended 

to encourage applicants to submit 

complete applications at the outset.115

Additionally, several commenters 

recommend changes to the 

Commission’s environmental review 

process, including that the Commission 

not prepare a NEPA document absent 

substantive environmental data for the 

entirety of the proposed route,116 that 

the Commission consider issuing final 

EISs and certificates at the same time,117

or, alternatively, that the Commission 

issue certificates within 90 days of 

issuance of a final NEPA document.118

Some commenters also state that the 

Commission should not inject 

additional regulatory uncertainty into 

its review process by requiring openended or unduly expansive 

environmental reviews.119

40. Commenters also make a variety of 

recommendations to increase 

transparency in the Commission’s 

review process and schedules. For 

example, some commenters propose 

that the Commission issue a public 

notice when a draft order has been 

circulated by Commission staff to the 

Commissioners,120 establish ‘‘permitting 

timetables’’ for NGA section 7(c) 

projects,121 and clarify deadlines for 

parties to intervene or submit studies.122

Some commenters also recommend that 

there be a ‘‘cooling off’’ period after the 

issuance of a draft EIS to resolve 

disputes between an applicant and 

stakeholders with assistance from the 

Commission’s Dispute Resolution 

Service.123

41. Several commenters recommend 

changes to the duration of the pre-filing 

process. Recommendations include 

shortening the pre-filing process and 

extending the application review 

process,124 collapsing pre-filing into the 

post-filing process to eliminate lengthy 

processing times,125 and condensing the 

application review process by 

consolidating as much activity as 

possible in the pre-filing process and 

requiring all interested parties planning 

to object to a project to do so during prefiling.126

42. Many commenters also propose 

ways to make stakeholder participation 

more effective. For example, some 

commenters propose that applicants 

provide transportation or access to 

public transportation to public 

meetings, adequate parking at venues, 

and options for remote participation.127

Several commenters also recommend 

that the Commission provide notices 

and related materials in multiple 

languages 128 and issue guidance to 

ensure that pipeline project developers 

provide sufficient and timely 

information.129 Additionally, some 

commenters recommend that the 

Commission’s new OPP be a neutral 

resource to landowners and other 

stakeholders seeking more information 

on the Commission’s review process.130

Other commenters recommend that staff 

prioritize input provided by 

stakeholders that will be directly 

impacted by a project,131 and that all 

comments submitted to a docket receive 

a response or some other indication that 

a member of Commission staff has read 

the comments.132

43. Several commenters note the 

importance of transparency and 

coordination in the interagency review 

process. Some regulated companies 

recommend that the Commission 

strengthen its role as the lead agency 

under NEPA by focusing on educating 

and training cooperating agencies to be 

better prepared to meet their own 

statutory deadlines.133 Other 

commenters suggest that the 

Commission consider standardized 

schedules for its review processes, such 

as publishing timelines that include prefiling, preparation of the NEPA 

document, and issuance of final orders 

and authorizations by other agencies,134

and that the Commission create a 

dedicated task force for coordinating 

with other agencies.135

44. Many commenters support the 

separate treatment of different classes of 

projects, recommending that the 

Commission provide more timely 

review of projects with minimal impacts 

and certain qualifying benefits,136 or 

expedite approvals for projects where 

only an environmental assessment is 

required and there is no opposition.137

However, other commenters oppose the 

separate treatment of different classes of 

projects, expressing concern that 

separate treatment would be arbitrary or 

discriminatory 138 and that some 

projects would be left in limbo while 

the Commission takes action on what it 

perceives as priority projects.139 Some 

commenters also suggest changes to the 

Commission’s blanket certificate 

program, including changing the filing 

requirements to reduce the number of 

required resource reports, eliminating 

the need for weekly reports,140

increasing both the automatic and prior 

notice cost limits,141 and adding 

consideration of other factors such as a 

project’s acreage to determine eligibility 

for blanket certificate authority.142

E. The Commission’s Consideration of 

Effects on Environmental Justice 

Communities 

45. Many commenters suggest that the 

Commission revise its approach for 

identifying environmental justice 

communities in certificate proceedings. 

For example, some commenters 

recommend that the Commission use 


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143See, e.g., PIO 2021 Comments at 86–87; New 

Jersey Conservation Foundation et al. 2021 

Comments at 38–40. 

144See, e.g., Delaware Riverkeeper Network & 

Berks Gas Truth 2021 Comments at 69; Tom Russo 

2021 Comments at 24–25; William F. Limpert 2021 

Comments at 19. 

145New Jersey Conservation Foundation et al. 

2021 Comments at 35–38; North Carolina 

Department of Environmental Quality 2021 

Comments at 2; EDF 2021 Comments at 57. 

146Quincy Democratic City Committee 2021 

Comments at 1–2; Natural Resources Defense 

Council May 2021 Comments at 14–15. 

147EPA 2021 Comments at 7; Jeannie Ambrose 

2021 Comments at 2. 

148See Save Our Illinois Land (SOIL) 2021 

Comments at 1; William F. Limpert 2021 Comments 

at 19; Delaware Riverkeeper Network & Berks Gas 

Truth 2021 Comments at 69. 

149New Jersey Conservation Foundation et al. 

2021 Comments at 39–40. 

150Policy Integrity 2021 Comments at 49–52. 

151See, e.g., New Jersey Conservation Foundation 

et al. 2021 Comments at 36–37; Ann W. Woll 2021 

Comments at 5; SOIL 2021 Comments at 3. 

152 Delaware Riverkeeper Network & Berks Gas 

Truth 2021 Comments at 77–82; EDF 2021 

Comments at 58. 

153API 2021 Comments at 37–39; Enbridge 2021 

Comments at 167–168. 

154Terese and Joseph Buchanan May 18, 2021 

Comments at 1; PIO 2021 Comments at 87–89; 

Robert Kearns 2021 Comments at 4; Jackie 

Freedman 2021 Comments at 1; Deborah Brown 

2021 Comments at 1. 

155New Jersey Conservation Foundation et al. 

2021 Comments at 34. 

156See, e.g., Kinder Morgan 2021 Comments at 

58–59; Ohio Environmental Council 2021 

Comments at 3. 

157Coharie Intra-Tribal Council, Haliwa-Saponi 

Indian Tribe, Lumbee Tribe of North Carolina, 

Meherrin Indian Nation of North Carolina, 

Nottoway Indian Tribe of Virginia, and Occaneechi 

Band of Saponi Nation 2021 Comments at 2; 

Haliwa-Saponi Indian Tribe 2021 Comments at 2; 

Delaware Riverkeeper Network & Berks Gas Truth 

2021 Comments at 71. 

158See, e.g., API 2021 Comments at 41; EPA 2021 

Comments at 8; National Fuel 2021 Comments at 

22. 

159New Jersey Conservation Foundation et al. 

2021 Comments at 33–35; Delaware Riverkeeper 

Network & Berks Gas Truth 2021 Comments at 73– 

74. 

160New Jersey Division of Rate Counsel 2021 

Comments at 23; PIO 2021 Comments at 105. 

161 INGAA 2021 Comments at 98–99; EPA 2021 

Comments at 8–9. 

162See, e.g., Attorneys General of Massachusetts, 

Connecticut, Maryland, Minnesota, New Jersey, 

New York, Oregon, Rhode Island, and the District 

of Columbia 2021 Comments at 32–33 (Attorneys 

General of Massachusetts et al.); see also PLAN 

2021 Comments at 5; Katherine Manuel 2021 

Comments at 5; Elizabeth Moulds 2021 Comments 

at 4; Jessica Greenwood 2021 Comments at 4; 

Shayna Gleason 2021 Comments at 3; Rick Mattila 

2021 Comments at 3. 

163See, e.g., Williams 2021 Comments at 60–62, 

65; Enbridge 2021 Comments at 178–180, 186; 

Kinder Morgan 2021 Comments at 48, 57; INGAA 

2021 Comments at 88–90. 

164See, e.g., Enbridge 2021 Comments at 181; API 

2021 Comment at 44–45. 

165 1999 Policy Statement, 88 FERC at 61,737. 

166 Id. at 61,743. 

167 Id. 

census block-level data; 143 on-theground surveys; 144 social, 

environmental, and health 

indicators; 145 and other data and tools 

to identify such communities.146

Additionally, several commenters 

recommend that the Commission 

consult with other Federal and State 

agencies for assistance with identifying 

environmental justice communities 147

or allow communities to identify 

themselves as environmental justice 

communities.148

46. Many commenters also 

recommend changes to how the 

Commission evaluates project impacts 

on environmental justice communities. 

For example, NGOs assert that the 

Commission should always use a 

reference or comparison group when 

evaluating disproportionately high and 

adverse impacts on such 

communities 149 and ensure that such a 

group is neither too geographically 

narrow nor too demographically similar 

to avoid masking disproportionate 

impacts.150 NGOs and individual 

commenters recommend that the 

Commission consider the existing 

burden from specific environmental and 

health indicators when it evaluates 

cumulative and historic exposures, 

including the presence of other 

infrastructure and existing pollution 

levels in the project area.151

Additionally, these commenters 

recommend changes to how the 

Commission evaluates the impacts of 

direct and indirect air pollution on 

environmental justice communities.152

In contrast, regulated companies and 

industry trade organizations state that 

the Commission should not make 

substantive changes to how it evaluates 

impacts on environmental justice 

communities at this time, and 

recommend that the Commission wait 

for further guidance from the White 

House, EPA, and the Council on 

Environmental Quality (CEQ) to ensure 

consistency across the Federal 

Government.153

47. Many commenters state that there 

are barriers to the participation of 

environmental justice communities in 

Commission proceedings, including 

inadequate translation services and the 

Commission’s reliance on electronic 

media.154 Other commenters state that 

Commission proceedings can be highly 

technical in nature, rendering them 

inaccessible to the general public unless 

a participant can invest significant time 

and resources.155 A wide range of 

commenters recommend changes to the 

Commission’s public notice and 

outreach processes to ensure meaningful 

engagement with environmental justice 

communities,156 including the 

Commission’s process for consulting 

with Tribes.157 Many commenters also 

support the Commission’s formation of 

OPP 158 and recommend that the 

Commission coordinate with 

community-based organizations and 

institutions to further encourage the 

participation of environmental justice 

communities in Commission 

proceedings.159

48. Several commenters assert that 

section 7(e) of the NGA provides the 

Commission with broad conditioning 

authority to address project impacts on 

environmental justice communities in 

its certificates.160 Some commenters 

state that the Commission should use its 

NEPA alternatives analysis to identify 

and evaluate ways to mitigate impacts 

on environmental justice 

communities.161 If mitigating adverse 

impacts on environmental justice 

communities is not possible, other 

commenters assert that the Commission 

should deny a certificate.162

49. In contrast, many regulated 

companies and industry trade 

organizations state that no Federal 

statute requires the Commission to 

implement specific remedial measures 

to address project impacts on 

environmental justice communities, but 

they assert that NEPA provides an 

appropriate framework in which to 

analyze such impacts.163 These entities 

also contend that that the Commission’s 

conditioning authority under section 

7(e) of the NGA is limited to direct 

project impacts and the Commission 

could not require measures to redress 

prior industrial impacts on 

environmental justice communities or 

impacts outside of the Commission’s 

jurisdiction.164

III. Goals and Objectives of the Updated 

Certificate Policy Statement 

50. While significant changes have 

occurred in the past 23 years, the 

Commission’s goals and objectives with 

this Updated Policy Statement remain 

consistent with those of the 1999 Policy 

Statement, including to: (1) 

‘‘appropriately consider the 

enhancement of competitive 

transportation alternatives, the 

possibility of over building, the 

avoidance of unnecessary disruption of 

the environment, and the unneeded 

exercise of eminent domain;’’ 165 (2) 

‘‘provide appropriate incentives for the 

optimal level of construction and 

efficient customer choices;’’ 166 and (3) 

‘‘provide an incentive for applicants to 

structure their projects to avoid, or 

minimize, the potential adverse impacts 

that could result from construction of 

the project.’’ 167


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168 Id. at 61,744. 

169 Id. 

170 Id. 

171 Id. 

172 Id. at 61,747 (emphasis added). 

173See, e.g., Minisink Residents for Envtl. Pres. & 

Safety v. FERC, 762 F.3d 97, 110 n.10 (D.C. Cir. 

2014) (noting that the 1999 Policy Statement 

‘‘permits’’ but does not ‘‘require[ ]’’ the Commission 

to ’’ look[ ] beyond the market need reflected by the 

applicant’s existing contracts with shippers’’). But 

see Environmental Defense Fund v. FERC, 2 F.4th 

953, 973 (D.C. Cir. 2021) (finding that is was 

arbitrary and capricious for the Commission to rely 

solely on a single precedent agreement with an 

affiliate shipper to establish need when demand for 

natural gas in the area was flat and the Commission 

neglected to make a finding as to whether the 

proposed pipeline would result in a more 

economical alternative to existing pipelines). 

174Under the Administrative Procedure Act, an 

agency cannot ignore substantial evidence bearing 

on the agency decision. See 5 U.S.C. 706; see also, 

e.g., Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) 

(holding that an agency decision is arbitrary and 

capricious if it ‘‘entirely fail[s] to consider an 

important aspect of the problem’’). 

51. As discussed above, the 1999 

Policy Statement included an analytical 

framework for how the Commission 

would evaluate the effects of 

certificating new projects on economic 

interests. With this Updated Policy 

Statement, the Commission intends to 

provide a more comprehensive 

analytical framework for its decisionmaking process. Specifically, we 

provide clarity on how the Commission 

will evaluate all factors bearing on the 

public interest, including the balancing 

of economic and environmental 

interests in determining whether a 

project is required by the public 

convenience and necessity, thus 

providing more regulatory certainty in 

the Commission’s review process and 

public interest determinations. 

IV. Updated Certificate Policy 

Statement 

A. Factors To Be Balanced in Assessing 

the Public Convenience and Necessity 

52. In determining whether to issue a 

certificate of public convenience and 

necessity, the Commission will weigh 

the public benefits of a proposal, the 

most important of which is the need 

that will be served by the project, 

against its adverse impacts. 

1. Consideration of Project Need 

53. To demonstrate that a project is 

required by the public convenience and 

necessity, an applicant must first 

establish that the proposed project is 

needed. As indicated above, the 

Commission’s expectations and 

requirements for how applicants should 

demonstrate project need have evolved 

over time. In the 1999 Policy Statement, 

the Commission noted concerns 

associated with relying ‘‘primar[ily]’’ 168

or ‘‘almost exclusively’’ 169 on contracts 

to establish need for a new project. 

Those concerns included the 

‘‘additional issues [that arise] when the 

contracts are held by pipeline 

affiliates’’ 170 and the difficulty such a 

policy creates for ‘‘articulat[ing] to 

landowners and community interests 

why their land must be used for a new 

pipeline project.’’ 171 Thus, the 1999 

Policy Statement provided that: 

[r]ather than relying only on one test for 

need, the Commission will consider all 

relevant factors reflecting on the need for the 

project. These might include, but would not 

be limited to, precedent agreements, demand 

projections, potential cost savings to 

consumers, or a comparison of projected 

demand with the amount of capacity 

currently serving the market.172

54. However, in practice, the 

Commission has relied almost 

exclusively on precedent agreements to 

establish project need. Although courts 

have upheld the Commission’s practice 

in certain contexts,173 we find that we 

cannot adequately assess project need 

without also looking at evidence beyond 

precedent agreements. After all, as the 

Commission’s 1999 Policy Statement 

noted, many different factors may 

indicate the need—or lack thereof—for 

a new interstate pipeline. While 

precedent agreements may indicate one 

or more shipper’s willingness to 

contract for new capacity, such 

willingness may not in all 

circumstances be sufficient to sustain a 

finding of need—e.g., in the face of 

contrary evidence or where there is 

reason to discount the probative value 

of those precedent agreements. 

Accordingly, we find that looking only 

to precedent agreements, and ignoring 

other, potentially contrary, evidence 

may cause the Commission to reach a 

determination on need that is 

inconsistent with the weight of the 

evidence in any particular proceeding, 

in violation of both the NGA and the 

Commission’s responsibilities under the 

Administrative Procedure Act.174 We 

reaffirm the Commission’s commitment 

to consider all relevant factors bearing 

on the need for a project. Although 

precedent agreements remain important 

evidence of need, and we expect that 

applicants will continue to provide 

precedent agreements, the existence of 

precedent agreements may not be 

sufficient in and of themselves to 

establish need for the project. The 

Commission will also consider, as 

relevant, the circumstances surrounding 

the precedent agreements (e.g., whether 

the agreements were entered into before 

or after an open season and the results 

of the open season, including the 

number of bidders, whether the 

agreements were entered into in 

response to LDC or generator requests 

for proposals (RFP) and, if so, the details 

around that RFP process, including the 

length of time from RFP to execution of 

the agreement), as well as other 

evidence of need, as discussed below. 

55. For all categories of proposed 

projects, we encourage applicants to 

provide specific information detailing 

how the gas to be transported by the 

proposed project will ultimately be 

used, why the project is needed to serve 

that use, and the expected utilization 

rate of the proposed project. To the 

extent applicants do not have 

information on the end use of the gas, 

they are encouraged to work with their 

prospective shippers to obtain it. The 

absence of this information may prevent 

an applicant from meeting its burden to 

demonstrate that a project is needed. 

56. For a market-driven project that is 

responding to increased natural gas 

demand, the evidence relating to the 

need for the project could include a 

market study that projects volumetric or 

peak day load growth. An applicant may 

rely on publicly available analyses by 

the Energy Information Administration 

or other third parties showing 

projections of market growth. The 

applicant could also provide its best 

assessment, based on publicly available 

information or data, of whether other 

transportation suppliers may be able to 

meet the incremental demand with 

existing capacity to demonstrate why 

new pipeline construction is necessary. 

For individual shippers, load growth 

profiles, gas supply portfolios, and any 

advanced approval of contracts by State 

public service commissions would also 

be helpful in showing evidence of 

project need. 

57. Some projects may not directly 

serve a customer but rather are being 

undertaken to add supplies of natural 

gas to the market. Such projects may be 

driven by natural gas producers or 

natural gas utilities attempting to 

provide supply at lower cost or support 

reliability by increasing the volumes of 

natural gas available to customers. For 

these projects, evidence to demonstrate 

consumer benefits may include 

projections of the net benefits, for 

example projected lower natural gas 

prices for consumers due to increased 

supply competition, compared to the 

incremental costs of transportation on 

the new pipeline. The Commission will 

consider record evidence of regional 

projections for both gas supply and 

market growth, as well as pipelinespecific studies in these areas. 


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175 1999 Policy Statement, 88 FERC at 61,739–40 

(noting that the ‘‘use of contracts with affiliates to 

demonstrate market support for projects has 

generated opposition from affected landowners and 

competitor pipelines who question whether the 

contracts represent real market demand’’) and 

61,744 (stating that ‘‘[u]sing contracts as the 

primary indicator of market support for the 

proposed pipeline project also raises additional 

issues when the contracts are held by pipeline 

affiliates.’’). 

176 2 F.4th at 973. 

177See supra P 55. 

178 1999 Policy Statement, 88 FERC at 61,746–47, 

clarified, 90 FERC at 61,391–96. 

179 1999 Policy Statement, 88 FERC at 61,746. For 

new pipeline companies, without existing 

customers, this requirement has no application. 

180 Id. 

181 Id. 

182Order Clarifying Statement of Policy, 90 FERC 

at 61,391. 

183 Id. at 61,393. 

184 1999 Policy Statement, 88 FERC at 61,748. 

58. Other pipeline projects may be 

intended to support more efficient 

system operations by replacing older 

and inefficient facilities (e.g., 

compressors and leak-prone pipes) and 

performing other infrastructure 

improvements, or to respond to 

changing State and Federal Government 

pipeline safety or environmental 

requirements. For these projects, 

applicants may document how 

proposed facilities, for example pipeline 

or compressor replacements, provide 

expected system benefits, such as 

reduced operating costs, improved 

pipeline integrity, or reduced natural 

gas leaks. In addition, an applicant may 

document how a project avoids adverse 

impacts or satisfies any changing State 

or Federal Government regulations. 

59. The Commission will consider 

both current and projected future 

demand for a project based on the 

evidence in the record. Applicants are 

encouraged to submit analyses showing 

how market trends as well as current 

and expected policy and regulatory 

developments would affect future need 

for the project. Applicants are also 

encouraged to provide a thorough 

assessment of alternatives, including 

supporting data, to facilitate the 

Commission’s review. In assessing the 

strength of the applicant’s need 

showing, the Commission will consider 

record evidence of alternatives to the 

proposed project. The Commission’s 

evaluation will include information 

indicating that other suppliers would be 

able to meet some or all of the needs to 

be served by the proposed project on a 

timely, competitive basis or whether 

other factors may eliminate or curtail 

such needs. 

60. As the Commission noted in the 

1999 Policy Statement, projects 

supported by precedent agreements 

with affiliates raise unique concerns 

regarding need for the project.175 And, 

as the United States Court of Appeals 

for the District of Columbia Circuit (D.C. 

Circuit) recently held in Environmental 

Defense Fund v. FERC, ‘‘evidence of 

‘market need’ is too easy to manipulate 

when there is a corporate affiliation 

between the proponent of a new 

pipeline and a single shipper who have 

entered into a precedent agreement.’’ 176

Given those concerns, affiliate 

precedent agreements will generally be 

insufficient to demonstrate need. 

Instead, where projects are backed 

primarily by precedent agreements with 

affiliates, the Commission will consider 

additional information, such as the 

evidence outlined above.177 We will 

determine how much additional 

evidence is required on a case-by-case 

determination. 

61. To the extent the Commission 

receives information in the record from 

third parties addressing the need for a 

project, that too will be considered in 

our analysis. Where an applicant fails to 

carry its burden of demonstrating the 

proposed project is needed, the 

Commission will not undertake any 

further consideration of the project’s 

benefits or adverse effects. 

2. Consideration of Adverse Effects 

62. In determining whether to issue a 

certificate of public convenience and 

necessity, the Commission will consider 

four major interests that may be 

adversely affected by the construction 

and operation of new projects: (1) The 

interests of the applicant’s existing 

customers; (2) the interests of existing 

pipelines and their captive customers; 

(3) environmental interests; and (4) the 

interests of landowners and surrounding 

communities, including environmental 

justice communities. The Commission 

may deny an application based on any 

of these types of adverse impacts. 

a. Impacts on Existing Customers of the 

Pipeline Applicant 

63. Existing customers of the pipeline 

applicant may be adversely affected if a 

proposed project causes an increase in 

rates or a degradation in service. 

Regarding potential rate increases, 

although we are no longer 

characterizing this issue as a ‘‘threshold 

question’’ in this Updated Policy 

Statement, our policy of no financial 

subsidies remains unchanged.178 That 

is, the pipeline applicant must be 

prepared to financially support its 

proposed project without relying on 

subsidization by its existing customers. 

As to other potential impacts to existing 

customers, like a degradation in service, 

we will consider the applicant’s efforts 

to eliminate or minimize any such 

impacts. 

64. As the Commission stated in the 

1999 Policy Statement, the policy of no 

financial subsidies does not mean that 

a project sponsor has to bear all the 

financial risk of the project; the risk can 

be shared with new customers, but it 

generally cannot be shifted to existing 

customers.179 One of the Commission’s 

regulatory goals is to protect captive 

customers from rate increases during the 

terms of their contracts that are 

unrelated to the costs associated with 

their service. And existing customers of 

the expanding pipeline should not have 

to subsidize a project that does not serve 

them. 

65. The 1999 Policy Statement also 

stated that the requirement that a new 

project must be financially viable 

without subsidies does not eliminate the 

possibility that, in some instances, 

project costs should be rolled into the 

rates of existing customers.180 In most 

instances, incremental pricing will 

avoid subsidies for the new project, but 

the situation may be different in cases 

of inexpensive expansibility that is 

made possible because of earlier, costly 

construction.181 In that instance, 

because the existing customers bear the 

cost of the earlier, more costly 

construction in their rates, incremental 

pricing could result in the new 

customers receiving a subsidy from the 

existing customers because the new 

customers would not face the full cost 

of the construction that makes their new 

service possible. 

66. Additionally, expansion costs 

could still be included in existing 

shippers’ rates when proposed projects 

are designed to improve service for 

existing customers.182 Increasing the 

rates of existing customers to pay for 

projects designed to benefit those 

customers (i.e., by replacing existing 

capacity, improving reliability, or 

providing flexibility) is not a subsidy.183

b. Impacts on Existing Pipelines and 

Their Customers 

67. As the Commission stated in the 

1999 Policy Statement, existing 

pipelines that already serve the market 

to be served by the proposed new 

capacity may be affected by the 

potential loss of market share and the 

possibility that they may be left with 

unsubscribed capacity investment.184

Additionally, captive customers of 

existing pipelines may be affected if 

they must pay for the resulting 

unsubscribed capacity in their rates. 

These remain important concerns. 


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185See Ruby Pipeline, L.L.C., 128 FERC ¶ 61,224, 

at PP 37–39 (2009); see also 1999 Policy Statement, 

88 FERC at 61,748. 

186City of Clarksville, Tennessee v. FERC, 888 

F.3d at 479 (quoting NAACP v. FPC, 425 U.S. at 

669–70 and FPC v. Hope Nat. Gas Co., 320 U.S. at 

610). 

187 1999 Policy Statement, 88 FERC at 61,747. 

188See Atl. Ref. Co. v. Pub. Serv. Comm’n of N.Y., 

360 U.S. at 391 (holding that the NGA requires the 

Commission to consider ‘‘all factors being on the 

public interest’’); see also Sabal Trail, 867 F.3d at 

1373 (explaining that the Commission must 

consider a pipeline’s direct and indirect GHG 

emissions because the Commission may ‘‘deny a 

pipeline certificate on the ground that the pipeline 

would be too harmful to the environment’’). 

189Recognizing that CEQ is in the process of 

revising its NEPA regulations, the Commission will 

consider the comments in this docket regarding 

NEPA in our future review of our regulations, 

procedures, and practices for implementing NEPA. 

190 15 U.S.C. 717f(e); see also, e.g., ANR Pipeline 

Co. v. FERC, 876 F.2d 124, 129 (D.C. Cir. 1989) 

(noting the Commission’s ‘‘extremely broad’’ 

conditioning authority). 

191Supra P 15. 

192Sabal Trail, 867 F.3d at 1374. 

193 Id. at 1373. In Birckhead v. FERC, 925 F.3d 

510, 518 (D.C. Cir. 2019), 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. The 

court further noted that the Commission should 

attempt to obtain information on downstream uses 

68. It has been the Commission’s longstanding position that it has an 

obligation to ensure fair competition, 

but that it is not the role of the 

Commission to protect existing 

pipelines from the effects of 

competition.185 While we continue to 

maintain this position, we also 

emphasize that it is not just unfair 

competition that can harm captive 

customers. The Commission must 

consider the possible harm to captive 

customers that can result from a new 

pipeline, regardless of whether there is 

evidence of unfair competition. 

69. Congress enacted the NGA ‘‘with 

the principal aim of encouraging the 

orderly development of plentiful 

supplies of . . . natural gas at 

reasonable prices, and protecting 

consumers against exploitation at the 

hands of natural gas companies.’’ 186

Ensuring the orderly development of 

natural gas supplies includes preventing 

overbuilding. One way that the 

Commission can prevent overbuilding is 

through careful consideration of a 

proposed project’s impacts on existing 

pipelines. To the extent that a proposed 

project is designed to substantially serve 

demand already being met on existing 

pipelines, that could be an indication of 

potential overbuilding. Nevertheless, in 

such instances, the Commission will 

also consider whether the proposed 

project would offer certain advantages 

(e.g., providing lower costs to 

consumers or enhancing system 

reliability). 

70. Comments from existing pipelines 

and their captive customers about the 

potential impacts from a proposed 

project will be an important piece of our 

review. Additionally, comments from 

State utility or public service 

commissions as to how a proposed 

project may impact existing pipelines 

will be particularly useful. 

c. Environmental Impacts 

71. As noted above, the 1999 Policy 

Statement included an analytical 

framework for how the Commission 

would evaluate the effects of 

certificating new projects on economic 

interests. However, the 1999 Policy 

Statement did not describe how the 

Commission would consider 

environmental interests in its decisionmaking process and, more specifically, 

how it would balance these interests 

with the economic interests of a project. 

Instead, it stated that environmental 

interests would be ‘‘separately 

considered’’ in a certificate proceeding 

after the balancing of public benefits 

against the residual adverse effects on 

economic interests.187

72. While the 1999 Policy Statement 

focused on economic impacts, the 

consideration of environmental impacts 

is an important part of the 

Commission’s responsibility under the 

NGA to evaluate all factors bearing on 

the public interest.188 In the years 

immediately following issuance of the 

1999 Policy Statement, the Commission 

would sometimes issue a preliminary 

determination on the nonenvironmental issues associated with a 

proposed project, and then issue a 

subsequent decision on the certificate 

application following the environmental 

review process; however, in practice, 

Commission staff would begin review of 

both the economic and environmental 

impacts following the filing of an 

application. Today, the Commission no 

longer issues preliminary 

determinations on non-environmental 

issues, and the Commission and staff 

continue to review the economic and 

environmental impacts of projects 

concurrently. Thus, the sequential 

framing of these analyses in the 1999 

Policy Statement has created some 

confusion and incorrectly conveyed 

how the Commission considers 

environmental impacts. In addition to 

questions about sequencing, we have 

seen a significant increase in comments 

from a range of stakeholders expressing 

concerns about how the Commission 

considers environmental impacts, 

including impacts on climate change 

and environmental justice communities, 

in its public interest determinations. 

73. To provide more clarity and 

regulatory certainty to all participants in 

certificate proceedings, we explain here 

how the Commission will consider 

environmental impacts.189 The 

Commission will balance all impacts, 

including economic and environmental 

impacts, together in its public interest 

determinations under the NGA. As 

discussed further below, the potential 

adverse impacts will be weighed against 

the evidence of need and other potential 

benefits of a proposal in determining 

whether to issue a certificate of public 

convenience and necessity. 

74. We will consider environmental 

impacts and potential mitigation in both 

our environmental reviews under NEPA 

and our public interest determinations 

under the NGA. The Commission 

expects applicants to structure their 

projects to avoid, or minimize, potential 

adverse environmental impacts. 

Additionally, we expect applicants to 

propose measures for mitigating 

impacts, and we will consider those 

measures—or the lack thereof—in 

balancing adverse impacts against the 

potential benefits of a proposal. Further, 

the NGA grants the Commission broad 

authority to attach reasonable terms and 

conditions to certificates of public 

convenience and necessity.190 Should 

we deem an applicant’s proposed 

mitigation of impacts inadequate to 

enable us to reach a public interest 

determination, we may condition the 

certificate to require additional 

mitigation. We may also deny an 

application based on any of the types of 

adverse impacts described herein, 

including environmental impacts, if the 

adverse impacts as a whole outweigh 

the benefits of the project and cannot be 

mitigated or minimized. 

75. As noted above, since issuance of 

the 1999 Policy Statement, the 

Commission’s policy for considering 

climate impacts has evolved.191 In 

addition to the significant increase in 

comments from stakeholders, the courts 

have issued several decisions 

addressing the Commission’s evaluation 

of GHG emissions in certificate 

proceedings. The D.C. Circuit recently 

held that reasonably foreseeable 

downstream GHG emissions are an 

indirect effect of the Commission 

authorizing proposed projects 192 and 

are relevant to the Commission’s 

determination of whether proposed 

projects are required by the public 

convenience and necessity.193


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to determine whether downstream GHG emissions 

are a reasonably foreseeable effect of the project. 

Birckhead, 925 F.3d at 518–19. 

194 GHG Policy Statement, 178 FERC ¶ 61,108. 

195 1999 Policy Statement, 88 FERC at 61,748. 

196 Id. at 61,749 (‘‘The balancing of interests and 

benefits that will precede the environmental 

analysis will largely focus on economic interests 

such as the property rights of landowners.’’). 

197Supra P 16. 

198 15 U.S.C. 717f(h). 

199 Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, Order 

871–B, 86 FR 26150 (May 13, 2021), 175 FERC 

¶ 61,098, at P 47 (2021). 

200See, e.g., Midship Pipeline Co., LLC, 177 FERC 

¶ 61,187 (2021). 

201See Midcoast Interstate Transmission, Inc. v. 

FERC, 198 F.3d 960, 973 (D.C. Cir. 2000) (‘‘The 

Continued 

76. Concurrently with this Updated 

Policy Statement, we are issuing a 

separate policy statement to explain 

how the Commission will assess project 

impacts on climate change in certificate 

proceedings going forward.194 This 

separate policy statement describes 

Commission procedures for evaluating 

climate impacts under NEPA and 

explains how the Commission will 

integrate climate considerations into its 

public convenience and necessity 

findings under the NGA, including how 

the Commission will consider measures 

to mitigate climate impacts. When 

making public interest determinations, 

we intend to fully consider climate 

impacts, in addition to other 

environmental impacts. 

d. Impacts on Landowners and 

Surrounding Communities 

77. The construction and operation of 

new natural gas infrastructure has the 

potential to result in adverse impacts on 

the landowners and communities 

surrounding a project. As the 

Commission stated in the 1999 Policy 

Statement: 

[l]andowners whose land would be 

condemned for the new pipeline right-ofway, under eminent domain rights conveyed 

by the Commission’s certificate, have an 

interest as does the community surrounding 

the right-of-way. The interest of these groups 

is to avoid unnecessary construction, and any 

adverse effects on their property associated 

with a permanent right-of-way.195

In the over 20 years that have passed 

since issuance of the 1999 Policy 

Statement, the Commission has seen an 

increase in proposals for projects in 

more densely populated areas, as well 

as a significant increase in comments 

from landowners raising a multitude of 

economic, environmental, and others 

concerns with proposed projects. 

78. While the 1999 Policy Statement 

focused primarily on the economic 

impact associated with a permanent 

right-of-way on a landowner’s 

property,196 going forward, and as 

discussed below, our analysis of 

impacts to landowners will be more 

expansive. This fuller consideration of 

landowner impacts is consistent with 

the Commission’s approach in recent 

years of more fully engaging with 

landowners to ensure that their 

concerns are properly considered in our 

proceedings. For example, in June 2021, 

the Commission established OPP, in 

part, to facilitate public participation in 

Commission proceedings. 

79. In addition to the increase in 

comments from landowners since 

issuance of the 1999 Policy Statement, 

the Commission has also seen a 

significant increase in comments raising 

environmental justice concerns. In 

recent years, issues surrounding 

environmental justice and equity have 

received increased focus and attention 

at both the State and Federal levels, as 

demonstrated by the recent issuance of 

Executive Orders 13985 and 14008, 

referenced above.197 The Commission is 

committed to ensuring that 

environmental justice and equity 

concerns are better incorporated into 

our decision-making processes. 

Accordingly, we clarify that our 

consideration of impacts to 

communities surrounding a proposed 

project will include an assessment of 

impacts to any environmental justice 

communities and of necessary 

mitigation to avoid or lessen those 

impacts. 

80. The Commission and applicants 

have a shared responsibility to engage 

communities that may be impacted by a 

proposed project. This responsibility 

includes ensuring effective 

communication with landowners and 

environmental justice communities 

about potential impacts and giving 

careful consideration to the input of 

such parties during the agency 

proceeding. Below, we further discuss 

our expectations for how pipeline 

applicants will engage with landowners, 

steps the Commission has taken to 

protect landowner interests, and how 

the Commission will consider potential 

impacts to landowners and 

environmental justice communities. 

i. Impacts on Landowners 

81. As noted above, once the 

Commission grants a certificate of 

public convenience and necessity, 

section 7(h) of the NGA authorizes a 

certificate holder to acquire the 

necessary land or property to construct 

the approved facilities by exercising the 

right of eminent domain for those lands 

for which it could not negotiate an 

easement with landowners.198 As the 

Commission has previously recognized: 

[t]here is no question that eminent domain is 

among the most significant actions that a 

government may take with regard to an 

individual’s private property. And the harm 

to an individual from having their land 

condemned is one that may never be fully 

remedied, even in the event they receive 

their constitutionally-required 

compensation.199

Thus, looking only at the economic 

impacts associated with eminent 

domain does not sufficiently account for 

the full scope of impact on landowners. 

Landowners whose property is subject 

to eminent domain often experience 

intangible impacts, which cannot 

always be monetized. Our consideration 

of landowner impacts will be based 

upon robust early engagement with all 

interested landowners, as well as 

continued evaluation of input from such 

parties during the course of any given 

proceeding. And we will, to the extent 

possible, assess a wider range of 

landowner impacts. 

82. Given the serious impacts 

associated with the use of eminent 

domain, we expect pipeline applicants 

to take all appropriate steps to minimize 

the future need to use eminent domain. 

This includes engaging with the public 

and interested stakeholders during the 

planning phase of projects to solicit 

input on route concerns and incorporate 

reroutes, where practicable, to address 

landowner concerns, as well as 

providing landowners with all 

necessary information. Additionally, we 

expect pipelines to take seriously their 

obligation to attempt to negotiate 

easements respectfully and in good faith 

with impacted landowners. The 

Commission will look unfavorably on 

applicants that do not work proactively 

with landowners to address concerns. 

83. Additionally, we note that that, 

while a certificate provides the holder 

with significant rights and privileges, it 

also imposes concomitant 

responsibilities, including complying 

with all certificate conditions. 

Specifically, certificate holders must 

comply with requirements regarding 

restoration of the pipeline right-of-way. 

Failure to comply with such 

requirements could mean that a pipeline 

is out of compliance with its certificate, 

and could lead to compliance action by 

the Commission, including referral to 

the Commission’s Office of Enforcement 

for further investigation and potential 

civil penalties.200

84. Although the Commission does 

not have the authority to deny or restrict 

the power of eminent domain in a 

section 7 certificate,201 or to oversee the 


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Commission does not have the discretion to deny 

a certificate holder the power of eminent domain.’’). 202PennEast Pipeline Co., LLC, 174 FERC 

¶ 61,056, at P 10 (2021) (citing Atl. Coast Pipeline, 

LLC, 164 FERC ¶ 61,100, at P 88 (2018); Mountain 

Valley Pipeline, LLC, 163 FERC ¶ 61,197, at P 76 

(2018); PennEast Pipeline Co., LLC, 164 FERC 

¶ 61,098, at P 33 n.82 (2018)). 203 Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, Order 

871–B, 86 FR 26150 (May 13, 2021), 175 FERC 

¶ 61,098, order on reh’g, Order 871–C, 86 FR 43077 

(Aug. 6, 2021), 176 FERC ¶ 61,062 (2021). 

204We recognize that the Commission’s 

environmental justice analysis will also apply to the 

Commission’s authorization of liquefied natural gas 

facilities, pursuant to section 3 of the NGA. While 

those authorizations are not the subject of this 

Updated Policy Statement, this commitment is 

worth noting in this discussion of impacts on 

environmental justice communities. 

205Policy Integrity 2021 Comments at 46–47, 55– 

56. 

206 Vecinos para el Bienestar de la Comunidad 

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

(Vecinos) (remanding a Commission order based in 

part on a ‘‘deficient’’ environmental justice 

analysis). 

207For example, screening tool data ‘‘may need to 

be supplemented with additional or more localized 

information and/or ground truthing.’’ EPA 2021 

Comments at 7, 9. 

208This may include, for example, relevant State 

or local agencies. We also note that Federal 

agencies, including EPA and CEQ, are in the 

process of updating their guidance regarding 

environmental justice. 

209North Carolina DEQ 2018 Comments at 8. See 

also Niskanen Center 2018 Comments at 17–19. 

210An overly broad geographic unit of analysis, 

for example, could dilute the presence of 

environmental justice communities. See Policy 

Integrity 2021 Comments at 46–48; see also Federal 

Interagency Working Group on Environmental 

Justice & NEPA Committee, Promising Practices for 

EJ Methodologies in NEPA Reviews at 21, 26 (March 

2016), https://www.epa.gov/sites/production/files/ 

2016-08/documents/nepa_promising_practices_

document_2016.pdf (EJ IWG & NEPA Committee). 

211See Vecinos, 6 F.4th at 1330 (‘‘When 

conducting an environmental justice analysis, an 

agency’s delineation of the area potentially affected 

by the project must be ‘reasonable and adequately 

explained,’ . . . and include ‘a rational connection 

between the facts found and the decision made.’ ’’ 

(citations omitted)). 

212See EJ IWG & NEPA Committee at 21–28. 

213 ‘‘ ‘Cumulative impact’ is the impact on the 

environment which results from the incremental 

impact of the action when added to other past, 

present, and reasonably foreseeable future actions 

regardless of what agency (Federal or non-Federal) 

or person undertakes such other actions. 

Cumulative impacts can result from individually 

minor but collectively significant actions taking 

place over a period of time.’’ 40 CFR 1508.7 (1978). 

214See EDF 2021 Comments at 58; Attorneys 

General of Massachusetts et al. 2021 Comments at 

31; Delaware Riverkeeper & Berks Gas Truth 2021 

Comments at 78 and 83; and SOIL 2021 Comments 

at 3. 

acquisition of property rights through 

eminent domain, including issues 

regarding the timing of and just 

compensation for the acquisition of 

property rights,202 the Commission has 

recently taken steps within its authority 

to protect landowner interests. 

Specifically, the Commission issued 

Order No. 871–B, which precludes 

authorization of construction during the 

rehearing period for certificate orders 

and pending resolution of rehearing 

requests reflecting opposition to project 

construction, operation, or need (subject 

to a time limitation), and which 

establishes a general policy, subject to a 

case-by-case determination, of staying 

certificate orders during the rehearing 

period and pending Commission 

resolution of any timely requests for 

rehearing filed by landowners (also 

subject to a time limitation).203

85. We acknowledge that in many 

cases pipeline applicants will not be 

able to acquire all the necessary rightof-way by negotiation and in such 

instances may need to use eminent 

domain. In assessing potential impacts 

to landowners, the Commission will 

consider the steps a pipeline applicant 

has already taken to acquire lands 

through respectful and good faith 

negotiation, as well as the applicant’s 

plans to minimize the use of eminent 

domain upon receiving a certificate. 

And, as discussed further below, the 

potential adverse impacts to 

landowners, along with other adverse 

impacts, will be weighed against the 

evidence of need and potential benefits 

of a proposal in determining whether to 

issue a certificate of public convenience 

and necessity. 

ii. Impacts on Environmental Justice 

Communities 

86. Our evaluation of the impacts of 

a proposed interstate natural gas 

pipeline will include a robust 

consideration of its impacts on 

environmental justice communities.204

We recognize that environmental justice 

communities have long borne a 

disproportionate share of the impacts 

associated with industrial development 

near their residences, workplaces, 

religious institutions, and schools. That 

history often comes with significant, 

deleterious consequences. For example, 

environmental justice communities 

frequently experience health disparities, 

such as higher rates of asthma and 

certain cancers relative to society at 

large, which can render individuals in 

those communities particularly 

susceptible to incremental pollution and 

other adverse impacts that may be 

caused by a new project.205 The 

Commission’s public interest 

responsibility demands that we 

seriously evaluate these considerations 

and incorporate them into the balancing 

test outlined below.206

87. For the Commission to adequately 

evaluate the impacts of a proposed 

project on environmental justice 

communities, it is essential to promptly 

and properly identify such 

communities. Commenters noted the 

insufficiency of relying only on initial 

screening tools to identify 

environmental justice communities.207

While data from screening tools such as 

the EPA’s EJSCREEN may be useful, 

additional data collection methods may 

be necessary to properly identify 

environmental justice communities. We 

encourage applicants to consult with 

guidance provided by EPA, CEQ, and 

other authoritative sources,208 to ensure 

that the Commission has before it all the 

data needed to adequately identify 

environmental justice communities 

potentially affected by a proposed 

project. We will evaluate and 

incorporate, as appropriate, any 

subsequently issued guidance when 

considering how to identify 

environmental justice communities 

affected by a proposed project. We 

encourage project developers to do the 

same. 

88. Many commenters encourage the 

Commission to factor in demographic 

considerations—such as disability, age, 

household income, pre-existing health 

conditions, and level of education.209

We recognize that such demographic 

considerations may be appropriate to 

consider on a project-by-project basis or 

as Federal guidance evolves. 

89. Additionally, we recognize that 

proper selection of both the geographic 

unit of analysis (e.g., census block 

group) within the affected environment 

and the reference community (e.g., 

county/parish, or State) is necessary to 

ensure that affected environmental 

justice communities are properly 

identified for consideration in the 

Commission’s analysis.210 The affected 

environment for environmental justice 

analysis purposes may vary according to 

the characteristics of the particular 

project and the surrounding 

communities.211 Accordingly, the 

Commission will ensure that the 

delineation of the affected area, selected 

geographic unit of analysis, and 

reference community are consistent 

with best practices and Federal 

guidance and will not be limited to a 

one-size-fits-all approach.212

90. The consideration of cumulative 

impacts 213 is particularly important 

when it comes to conducting an 

environmental justice analysis.214 An 

environmental analysis that, for 

example, considers incremental impacts 

of a project in isolation will, almost by 

definition, fail to adequately consider 

the project’s impact on a community 

that already experiences elevated levels 

of pollution or other adverse impacts. 

To adequately capture the effects of 


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215New Jersey Conservation Foundation et al. 

2021 Comments 2021 at 36–37. 

216EPA, EnviroAtlas Interactive Map, https://

www.epa.gov/enviroatlas/enviroatlas-interactivemap (last visited Feb. 1, 2022); Centers for Disease 

Control and Prevention, Social Vulnerability Index 

Interactive Map, https://svi.cdc.gov/map.html (last 

visited Feb. 1, 2022). 

217 18 CFR 385.2201. 

218 Friends of Buckingham v. State Air Pollution 

Control Bd., 947 F.3d 68, 92 (4th Cir. 2020). 

219 1999 Policy Statement, 88 FERC at 61,745–46. 

220 Id. at 61,749. 

221 Id. 

cumulative impacts, it is essential that 

the Commission consider those preexisting conditions and how the adverse 

impacts of a proposed project may 

interact with and potentially exacerbate 

them. To that end, several commenters 

provide recommendations for specific 

health and environmental indicators 

that the Commission should consider 

when it evaluates cumulative exposures. 

These include factors such as air 

pollution, heat vulnerability, as well as 

the effects of pre-existing infrastructure 

(e.g., bus depots, highways, and waste 

facilities).215 That analysis can be 

informed by a wide range of data, 

including, for example, health statistics 

such as cancer clusters, asthma rates, 

social vulnerability data, and 

community resilience data.216 We will 

carefully examine cumulative impacts 

on environmental justice communities 

and encourage applicants to identify 

and submit any such data that may be 

relevant for the particular 

environmental justice communities 

affected by their proposed project. 

91. The Commission will also 

consider measures to eliminate or 

mitigate a project’s adverse impacts on 

environmental justice communities. We 

recognize that mitigation must be 

tailored to the needs of different 

environmental justice communities. 

This will require close consultation 

between the project developer, the 

communities in question, and the 

Commission, consistent with our ex 

parte regulations.217 We will look with 

disfavor on mitigation proposals that are 

proposed without sufficient community 

input. In addition, we note that effective 

mitigation will require the Commission 

to consider, among other things, the 

feasibility of proposed mitigation and 

methods for ensuring compliance, the 

timing of proposed mitigation, and, 

where useful, a range of potential 

mitigation options. 

92. As described above, in June 2021, 

the Commission established OPP to help 

facilitate public participation in 

Commission proceedings. We anticipate 

that OPP will similarly play an 

important role in ensuring that 

environmental justice communities are 

able to participate meaningfully in 

section 7 certificate proceedings that 

affect their interests. We also recognize 

the adverse impacts that natural gas 

infrastructure can have on Native 

American Tribes and Tribal resources, 

and we will continue to review our 

existing processes to ensure that the 

Commission is engaging in effective 

government-to-government consultation 

with Tribes and receiving and 

considering Tribal input on proposals. 

93. In sum, we recognize that 

‘‘environmental justice is not merely a 

box to be checked’’ 218 and we commit 

to ensuring that such concerns are fully 

considered in our public interest 

analysis under NGA section 7. We 

expect the principles and concerns 

outlined above will guide that 

consideration as the Commission 

continues to develop its environmental 

justice precedent. Finally, as noted 

above, we recognize that Federal 

agencies, including EPA and CEQ, are in 

the process of updating their guidance 

regarding environmental justice and we 

will review and incorporate, as 

appropriate, any future guidance in our 

case-by-case decision-making process. 

B. Assessing Public Benefits and 

Adverse Effects 

94. In deciding whether to issue a 

certificate of public convenience and 

necessity, the Commission must decide 

whether, on balance, the project will 

serve the public interest. In order to 

make such a determination, the 

Commission must consider all of the 

benefits of a proposal together with all 

of the adverse impacts, including the 

economic and environmental impacts. 

95. As discussed above, under the 

1999 Policy Statement, the Commission 

would first determine whether, given an 

applicant’s efforts to mitigate or 

minimize impacts, there would be any 

residual adverse effects on the economic 

interests of the existing customers of the 

pipeline applicant, existing pipelines in 

the market and their captive customers, 

or landowners and communities 

affected by the proposal. If so, the 

Commission would balance the 

evidence of public benefits to be 

achieved by the project against those 

residual adverse effects on economic 

interests. If the benefits outweighed the 

adverse economic effects, the 

Commission would then consider the 

environmental impacts associated with 

the proposal.219

96. As noted above, today, the 

Commission and staff review the 

economic and environmental impacts of 

projects concurrently. Thus, the 

sequential framing of these analyses in 

the 1999 Policy Statement has created 

some confusion and incorrectly 

conveyed how the Commission 

considers economic and environmental 

impacts. Accordingly, to provide clarity 

regarding our decision-making process, 

we explain that, in order to determine 

whether a proposed project is in the 

public interest, we must look at the 

entirety of a proposal and balance all its 

benefits against all of its adverse 

impacts. 

97. In assessing the public benefits of 

a project, the Commission intends to 

consider all benefits that will be 

provided by the project. The most 

important consideration in assessing 

benefits will be the evidence 

demonstrating that a project is needed, 

as discussed in more detail above. The 

Commission will also consider any 

benefits beyond demand that are alleged 

by the applicant and supported in the 

record, which may include evidence 

that the project will displace more 

pollution-heavy generation sources, 

facilitate the integration of renewable 

energy sources, and/or result in a 

significant source of jobs or tax revenues 

(we note that temporary impacts 

associated with a proposal will 

generally be given less weight). 

98. In assessing the adverse impacts of 

a proposal, we will consider the range 

of impacts to: (1) Existing customers of 

the pipeline applicant; (2) existing 

pipelines in the market and their 

captive customers; (3) environmental 

resources; and (4) landowners and 

surrounding communities, including 

environmental justice communities. In 

reviewing those adverse impacts, the 

Commission will carefully consider the 

extent to which an applicant will be 

able to mitigate any adverse impacts 

through applicant-proposed measures or 

additional measures that the 

Commission could require. 

99. Consistent with the 1999 Policy 

Statement, we believe that ‘‘[t]he more 

interests adversely affected or the more 

adverse impact a project would have on 

a particular interest, the greater the 

showing of public benefits from the 

project required to balance the adverse 

impact.’’ 220 And, as the Commission 

did in the 1999 Policy Statement, we 

decline to adopt any bright-line 

standards for how we will carry out this 

balancing; 221 rather, the approach must 

remain flexible enough for the 

Commission to resolve specific cases 

and take into account the different 

interests that must be considered. We do 

make clear, however, that there may be 

proposals denied solely on the 

magnitude of a particular adverse 


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222 44 U.S.C. 3507(d). 223 5 CFR 1320. 224This Updated 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. 

225The Updated Policy Statement will not impact 

burden estimates to the following components of 

FERC–537: Pipeline Purging/Testing Exemptions, 

Blanket Certificates Prior Notice Filings, Blanket 

Certificates-Annual Reports, Section 311 

Construction-Annual Reports, Request for Waiver of 

Capacity Release Regulations, Interstate and 

Intrastate Bypass Notice, Blanket Certificates, or 

Hinshaw Blanket Certificates. 

226Burden 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. 

227Commission 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. 

impact to any of the four interests 

described above if the adverse impacts, 

as a whole, outweigh the benefits of the 

project and cannot be mitigated or 

minimized. On the other hand, there 

may be proposals that have significant 

impacts but are still found to be in the 

public interest if the public benefits 

outweigh those impacts. 

V. Applicability of the Updated 

Certificate Policy Statement 

100. A major purpose of this Updated 

Policy Statement is to provide clarity 

and regulatory certainty regarding the 

Commission’s decision-making process. 

Therefore, the Updated Policy 

Statement will not be applied 

retroactively to cases where a certificate 

has already been issued and investment 

decisions have been made. However, 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. 

VI. Information Collection Statement 

101. The collection of information 

discussed in the Updated 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 222 and OMB’s implementing 

regulations.223 OMB must approve 

information collection requirements 

imposed by agency rules.224

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. 

102. 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 2, 2022. 

The burden estimates are focused on 

implementing the voluntary information 

collection pursuant to this Updated 

Policy Statement. The Commission asks 

that any revised burden estimates 

submitted by commenters include the 

details and assumptions used to 

generate the estimates. 

103. The following estimate of 

reporting burden is related only to this 

Updated Policy Statement. 

104. Public Reporting Burden: The 

collection of information related to this 

Updated Policy Statement falls under 

FERC–537 and impacts the burden 

estimates associated with the ‘‘Interstate 

Certificate and Abandonment 

Applications’’ component of FERC–537. 

The Updated Policy Statement will not 

impact the burden estimates related to 

any other component of FERC–537.225

The estimated annual burden 226 and 

cost 227 follow. 

MODIFICATIONS TO FERC–537 (GAS PIPELINE CERTIFICATES: CONSTRUCTION, ACQUISITION, AND ABANDONMENT) 

AS A RESULT OF PL18–1–000 

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) 

Interstate Certificate and 

Abandonment Applications.

40 1 40 880 hours; $76,560 Increase.35,200 hours; $3,062,400 

Increase.

$76,560 Increase. 

105. Title: FERC–537, Gas Pipeline 

Certificates: Construction, Acquisition 

and Abandonment. 

106. Action: Proposed revisions to an 

existing information collection. 

107. OMB Control No.: 1902–0060. 

108. Respondents: Entities proposing 

natural gas projects under section 7 of 

the NGA. 

109. Frequency of Information 

Collection: On occasion. 

110. Necessity of Voluntary 

Information Collection: The 

Commission’s existing FERC–537 

information collection pertains to 

regulations implementing section 7 of 

the NGA, which authorizes the 

Commission to issue certificates of 

public convenience and necessity for 

the construction and operation of 

facilities transporting natural gas in 

interstate commerce. The information 

collected pursuant to this Updated 

Policy Statement should help the 

Commission in making its public 

interest determinations. 

111. 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. 

112. Interested persons may provide 

comments on this information 

collection 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. 


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1Certification of New Interstate Nat. Gas 

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

Policy Statement). 

2Certification of New Interstate Nat. Gas 

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

3Certification of New Interstate Nat. Gas Pipeline 

Facilities, 88 FERC ¶ 61,227 (1999), clarified, 90 

FERC ¶ 61,128, further clarified, 92 FERC ¶ 61,094 

(2000) (Original Policy Statement). 

4Consideration of Greenhouse Gas Emissions in 

Nat. Gas Infrastructure Project Reviews, 178 FERC 

¶ 61,108 (2022) (Interim GHG Policy Statement). I 

note that today’s issuance in Docket No. PL21–3– 

000 ‘‘is subject to revision’’ and is described as an 

‘‘interim’’ policy statement. Id. P 1. 

5 15 U.S.C. 717f. 

6See Updated Policy Statement, 178 FERC 

¶ 61,107 at P 74 (‘‘[W]e expect applicants to propose 

measures for mitigating impacts, and we will 

consider those measures—or the lack thereof—in 

balancing adverse impacts against the potential 

benefits of a proposal.’’). 

7NAACP v. FPC, 425 U.S. 662, 669–70 (1976) 

(citations omitted) (NAACP); accord Myersville 

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

1301, 1307 (D.C. Cir. 2015) (quoting NAACP, 425 

U.S. at 669–70) (Myersville). 

8Atl. 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)) (emphasis in original). 

9 15 U.S.C. 717f(c). 

10 Id. § 717f(e) (‘‘[A] certificate shall be issued to 

any qualified applicant therefor, . . . if it is found 

that the applicant is able and willing properly to do 

the acts and to perform the service proposed and 

to conform to the provisions of this chapter and the 

requirements, rules, and regulations of the 

Commission thereunder, and that the proposed 

service, sale, operation, construction, extension, or 

acquisition, to the extent authorized by the 

certificate, is or will be required by the present or 

future public convenience and necessity; otherwise 

such application shall be denied.’’) (emphasis 

added); see Okla. Nat. Gas Co. v. FPC, 257 F.2d 634, 

639 (D.C. Cir. 1958) (‘‘The granting or denial of a 

certificate of public convenience and necessity is a 

matter peculiarly within the discretion of the 

Commission.’’). 

11Cf. ICC v. Parker, 326 U.S. 60, 65 (1945) 

(‘‘Public convenience and necessity is not defined 

by the statute. The nouns in the phrase possess 

connotations which have evolved from the halfcentury experience of government in the regulation 

of transportation.’’); see generally S. Rep. No. 75– 

1162 at 5 (1937) (recognizing similarities in the 

provisions requiring certificates for public 

convenience and necessity under the other statutes, 

e.g., the Interstate Commerce Act). 

12 15 U.S.C. 717f(e). 

13Envtl. Def. Fund v. FERC, 2 F.4th 953, 975 (D.C. 

Cir. 2021) (internal quotation marks omitted). 

14Updated Policy Statement, 178 FERC ¶ 61,107 

at P 4 n.6 (quoting Atl. Ref. Co. v. Pub. Serv. 

Comm’n of N.Y., 360 U.S. 378, 391 (1959)). 

15NAACP, 425 U.S. at 669. 

16 Id. at 669–70; accord Myersville, 783 F.3d at 

1307 (quoting NAACP, 425 U.S. at 669–70). I note 

that the Supreme Court has also recognized the 

Commission has authority to consider ‘‘other 

subsidiary purposes,’’ such as ‘‘conservation, 

environmental, and antitrust questions.’’ NAACP, 

425 U.S. at 670 & n.6 (citations omitted). But all 

subsidiary purposes are, necessarily, subordinate to 

the statute’s primary purpose. 

VII. Document Availability 

113. 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 

Emergency concerning the Novel 

Coronavirus Disease (COVID–19). 

114. 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. 

115. 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 

Certification of New Interstate Natural 

Gas Facilities 

Docket No. PL18–1–000 

DANLY, Commissioner, dissenting: 

1. I dissent from the issuance of the 

Updated Policy Statement on 

Certification of New Interstate Natural 

Gas Facilities.1 Before I explain my 

reasons for dissenting, I would like to 

state from the outset that I voted for the 

Commission’s most recent revised 

Notice of Inquiry 2 considering changes 

to its Original Policy Statement.3

2. I cannot, however, support today’s 

issuance because it will, in combination 

with the Interim Greenhouse Gas (GHG) 

Policy Statement,4 have profound 

implications for the ability of natural 

gas companies to secure capital, on the 

timelines for Natural Gas Act (NGA) 

section 7 5 applications to be processed, 

and on the costs that a pipeline and its 

customers will bear as a result of the 

potentially unmeasurable mitigation 

that the majority expects each company 

to propose when filing its application 6

and the possibility of further mitigation 

measures added unilaterally by the 

Commission. As I explain in more detail 

below, this policy statement 

contravenes the purpose of the NGA 

which, as the Supreme Court has held, 

is to ‘‘encourage the orderly 

development of plentiful supplies of 

. . . natural gas at reasonable prices.’’ 7

I. The Commission’s Jurisdiction and 

the Public Convenience and Necessity 

Standard Are Not as Broad as the 

Updated Policy Statement Suggests 

3. As an initial matter, the 

Commission ‘‘is a ‘creature of statute,’ 

having ‘no constitutional or common 

law existence or authority, but only 

those authorities conferred upon it by 

Congress.’ ’’ 8 The applicable statute is 

the NGA, and the statutory standard 

applicable to NGA section 7(c) 

certificate applications 9 is whether a 

proposed project ‘‘is or will be required 

by the present or future public 

convenience and necessity.’’ 10

4. Notably, public convenience and 

necessity is not anywhere defined in the 

language of the NGA.11 That phrase is 

famously ambiguous, and the statute 

fails to provide factors to be weighed in 

arriving at a determination that a 

proposed project ‘‘is or will be required 

by the present or future public 

convenience and necessity.’’ 12

Accordingly, ‘‘the Natural Gas Act ‘vests 

the Commission with broad discretion 

to invoke its expertise in balancing 

competing interests and drawing 

administrative lines.’ ’’ 13 This does not, 

of course, mean that we are wholly 

without guideposts in construing the 

meaning of the public convenience and 

necessity standard. As recognized by my 

colleagues, the Supreme Court has 

found that NGA section ‘‘7(e) requires 

the Commission to evaluate all factors 

bearing on the public interest.’’ 14 This 

finding, however, cannot not be read in 

a vacuum. The Court has explained that 

the inclusion of the phrase ‘‘public 

interest’’ in a statute is not ‘‘a broad 

license to promote the general public 

welfare’’—instead, it ‘‘take[s] meaning 

from the purposes of the regulatory 

legislation.’’ 15 Thus, we turn, as we 

must, to the purpose of the NGA: ‘‘to 

encourage the orderly development of 

plentiful supplies of . . . natural gas at 

reasonable prices.’’ 16 Any balancing 

under the public convenience and 

necessity standard should ‘‘take 

meaning’’ from that purpose. 

5. We also know that ‘‘[n]othing 

contained in [NGA section 7] shall be 

construed as a limitation upon the 

power of the Commission to grant 


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

18See Panhandle E. Pipe Line Co. v. FPC, 169 

F.2d 881, 884 (D.C. Cir. 1948) (‘‘[N]othing in the 

Natural Gas Act suggests that Congress thought 

monopoly better than competition or one source of 

supply better than two, or intended for any reason 

to give an existing supplier of natural gas for 

distribution in a particular community the privilege 

of furnishing an increased supply.’’). 

19 15 U.S.C. 717(b) (emphasis added). 

20 Id. 

21See id. 

22Pub. Utils. Comm’n of Cal. v. FERC, 900 F.2d 

269, 277 (D.C. Cir. 1990). 

23 15 U.S.C. 717(c). 

24See FPC v. Transcon. Gas Pipe Line Corp., 365 

U.S. 1, 8 (1961) (Transco) (‘‘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.’’) 

(citation omitted); see also FPC v. Panhandle E. 

Pipe Line Co. 337 U.S. 498, 502–03 (1949) 

(‘‘[S]uffice 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 the states were powerless to regulate 

because of the Commerce Clause of the Federal 

Constitution.’’) (footnote omitted). 

25See 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.’’) (citations 

omitted); Cape May Greene, Inc. v. Warren, 698 

F.2d 179, 188 (3d Cir. 1983) (‘‘The National 

Environmental Policy Act does not expand the 

jurisdiction of an agency beyond that set forth in 

its organic statute.’’) (citations omitted); Gage v. 

U.S. Atomic Energy Comm’n, 479 F.2d 1214, 1220 

n.19 (D.C. Cir. 1973) (‘‘NEPA does not mandate 

action which goes beyond the agency’s organic 

jurisdiction.’’) (citation omitted). 

26 Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 

371 (1989); accord Robertson v. Methow Valley 

Citizens Council, 490 U.S. 332, 350 (1989) (Methow 

Valley) (‘‘[I]t is now well settled that NEPA itself 

does not mandate particular results, but simply 

prescribes the necessary process.’’); see also 

Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, 

Inc., 462 U.S. 87, 97 (1983) (‘‘Congress in enacting 

NEPA . . . did not require agencies to elevate 

environmental concerns over other appropriate 

considerations.’’). 

27 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 

756–57 (2004) (citation omitted); accord Winter v. 

Nat. Res. Def. Council, Inc., 555 U.S. 7, 23 (2008) 

(‘‘NEPA imposes only procedural requirements to 

‘ensur[e] that the agency, in reaching its decision, 

will have available, and will carefully consider, 

detailed information concerning significant 

environmental impacts.’ ’’) (quoting Methow Valley, 

490 U.S. at 349); see also Vt. Yankee Nuclear Power 

Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 

558 (1978) (‘‘NEPA does set forth significant 

substantive goals for the Nation, but its mandate to 

the agencies is essentially procedural.’’) (citations 

omitted). 

28Citizens Against Burlington, Inc. v. Busey, 938 

F.2d 190, 206 (D.C. Cir. 1991) (citing Methow 

Valley, 490 U.S. at 353 & n.16). 

29See Updated Policy Statement, 178 FERC 

¶ 61,107 at P 74 (‘‘We will consider environmental 

impacts and potential mitigation in both our 

environmental reviews under NEPA and our public 

interest determinations under the NGA. The 

Commission expects applicants to structure their 

projects to avoid, or minimize, potential adverse 

environmental impacts.’’); id. (‘‘Should we deem an 

applicant’s proposed mitigation of impacts 

inadequate to enable us to reach a public interest 

determination, we may condition the certificate to 

require additional mitigation.’’); id. P 79 (‘‘[W]e 

clarify that our consideration of impacts to 

communities surrounding a proposed project will 

include an assessment of impacts to any 

environmental justice communities and of 

necessary mitigation to avoid or lessen those 

impacts.’’). 

30But see id. P 74 (concluding because the 

Commission’s conditioning authority is broad, if the 

Commission determines that the applicant’s 

proposed mitigation of impacts are inadequate, the 

Commission has the authority to condition the 

certificate to require additional mitigation). 

31 15 U.S.C. 717f(e). 

32See Richmond Power & Light of City of 

Richmond, Ind. v. FERC, 574 F.2d 610, 620 (D.C. 

Cir. 1978) (‘‘What the Commission is prohibited 

from doing directly it may not achieve by 

indirection.’’) (footnote omitted). 

33See Methow Valley, 490 U.S. at 352–53 (‘‘There 

is a fundamental distinction, however, between a 

requirement that mitigation be discussed in 

certificates of public convenience and 

necessity for service of an area already 

being served by another natural-gas 

company.’’ 17 Therefore, the 

Commission is not barred from finding 

a proposed project required by the 

public convenience and necessity when 

it is in an area that is already served by 

another company.18

6. Another consideration relevant to 

the Commission’s evaluation of the 

public interest is our jurisdiction and, 

specifically, which areas of regulation 

Congress identified as being reserved to 

states—and thus outside of our 

jurisdiction. NGA section 1(b) sets forth 

that division of jurisdiction, providing 

that, 

[t]he provisions of [the NGA] shall apply to 

the transportation of natural gas in interstate 

commerce, to the sale in interstate commerce 

of natural gas for resale for ultimate public 

consumption for domestic, commercial, 

industrial, or any other use, and to naturalgas companies engaged in such 

transportation or sale, and to the importation 

or exportation of natural gas in foreign 

commerce and to persons engaged in such 

importation or exportation, 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.19

The Commission’s authority therefore 

extends to: (1) The ‘‘transportation of 

natural gas in interstate commerce,’’ (2) 

the ‘‘sale in interstate commerce of 

natural gas for resale,’’ and (3) ‘‘naturalgas companies engaged in such 

transportation or sale.’’ 20 Exempted 

from our jurisdiction are production, 

gathering and local distribution.21 From 

these exemptions, it may be gleaned that 

the Commission does not have 

jurisdiction over the ‘‘gas once it moves 

beyond the high-pressure mains into the 

hands of an end user.’’ 22 Another 

exemption from federal regulation is 

contained in NGA section 1(c), which 

states: 

The provisions of this chapter shall not 

apply to any person engaged in or legally 

authorized to engage in the transportation in 

interstate commerce or the sale in interstate 

commerce for resale, of natural gas received 

by such person from another person within 

or at the boundary of a State if all the natural 

gas so received is ultimately consumed 

within such State, or to any facilities used by 

such person for such transportation or sale, 

provided that the rates and service of such 

person and facilities be subject to regulation 

by a State commission.23

By declaring the foregoing exemptions 

from federal regulation, Congress has 

carefully delineated the limits of the 

Commission’s jurisdiction.24

7. These limits on the Commission’s 

jurisdiction are not extended by the 

National Environmental Policy Act 

(NEPA).25 In fact, NEPA cannot extend 

our jurisdiction because NEPA is not a 

means of ‘‘mandating that agencies 

achieve particular substantive 

environmental results’’; 26 rather, it 

serves to ‘‘impose[ ] only procedural 

requirements on federal agencies with a 

particular focus on requiring agencies to 

undertake analyses of the environmental 

impact of their proposals and 

actions.’’ 27 Indeed, ‘‘NEPA not only 

does not require agencies to discuss any 

particular mitigation plans that they 

might put in place, it does not require 

agencies—or third parties—to effect 

any.’’ 28 It is necessary to acknowledge 

the limited, procedural nature of 

NEPA’s requirements since it almost 

appears as though some of my 

colleagues have become convinced that 

it is necessary to ensure that 

environmental impacts are mitigated 

before one can make a finding that a 

proposed project is required by the 

public convenience and necessity.29

Neither NEPA nor the NGA establishes 

such a requirement. 

8. And, any attempt to justify such 

action through the Commission’s 

conditioning authority is 

unsupported.30 Under its conditioning 

authority, ‘‘[t]he 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.’’ 31 But the Commission’s 

conditioning authority cannot be used 

to impose conditions beyond the 

Commission’s jurisdiction.32 Nor can 

the Commission find support under 

NEPA for its expectation that applicants 

propose mitigation measures in order 

for a project to be deemed required by 

the public convenience and necessity.33


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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. . . . Even more 

significantly, it would be inconsistent with NEPA’s 

reliance on procedural mechanisms—as opposed to 

substantive, result-based standards—to demand the 

presence of a fully developed plan that will mitigate 

environmental harm before an agency can act.’’) 

(citing Baltimore Gas & Elec. Co., 462 U.S. at 100 

(‘‘NEPA does not require agencies to adopt any 

particular internal decisionmaking structure’’)). 

34Original Policy Statement, 88 FERC ¶ 61,227 at 

61,747. 

35NEXUS Gas Transmission, LLC, 172 FERC 

¶ 61,199, at P 5 (2020) (citation omitted). 

36Updated Policy Statement, 178 FERC ¶ 61,107 

at P 52 (emphasis added). 

37See id. P 54 (citing Minisink Residents for 

Envtl. Pres. & Safety v. FERC, 762 F.3d 97, 110 n.10 

(D.C. Cir. 2014) (noting that the 1999 Policy 

Statement ‘‘permits’’ but does not ‘‘require[ ]’’ the 

Commission to ‘‘look[ ] beyond the market need 

reflected by the applicant’s existing contracts with 

shippers’’)). 

38 Id. 

39 Id. P 54 (listing other considerations that it 

views as relevant to a need determination, 

including whether the agreements were entered into 

before or after an open season, the results of the 

open season, the number of bidders, whether the 

agreements were entered into in response to a local 

distribution company or generator request for 

proposals (RFP), the details of any such RFP 

process, demand projections underlying the 

capacity subscribed, estimated capacity utilization 

rates, potential cost savings to customers, regional 

assessments, and filings or statements from State 

regulatory commissions or local distribution 

companies regarding the proposed project). 

40 Id. P 55. 

41 Id. 

42See id. 

43 Id. 

44See id. PP 55–59. 

45 Id. P 60. 

46 Id. P 54. I am generally skeptical of affiliate 

transactions and think that in most circumstances, 

the Commission should scrutinize agreements with 

an affiliate. As I have previously explained, I agree 

with the U.S. Court of Appeals for District of 

Columbia Circuit’s decision to remand the 

Commission’s orders and the court’s explanation for 

doing so in Environmental Defense Fund v. FERC, 

2 F.4th 953. See Spire STL Pipeline LLC, 176 FERC 

¶ 61,160 (2021) (Danly, Comm’r, dissenting at P 9). 

47See, e.g., City of Oberlin, Ohio v. FERC, 937 

F.3d 599, 606 (D.C. Cir. 2019) (‘‘[T]his Court has 

also recognized that ‘it is Commission policy to not 

look behind precedent or service agreements to 

make judgments about the needs of individual 

shippers.’ ’’) (citation omitted); Minisink Residents 

for Envtl. Pres. & Safety v. FERC, 762 F.3d at 111 

(‘‘Petitioners identify nothing in the policy 

statement or in any precedent construing it to 

suggest that it requires, rather than permits, the 

Commission to assess a project’s benefits by looking 

beyond the market need reflected by the applicant’s 

existing contracts with shippers. To the contrary, 

the policy statement specifically recognizes that 

such agreements ‘always will be important evidence 

of demand for a project.’ ’’) (quoting Original Policy 

Statement, 88 FERC ¶ 61,227 at 61,748); see also 

Myersville Citizens for a Rural Cmty., Inc. v. FERC, 

783 F.3d 1301, 1311 (D.C. Cir. 2015) (explaining 

that ‘‘[f]or a variety of reasons related to the nature 

of the market, ‘it is Commission policy to not look 

behind precedent or service agreements to make 

judgments about the needs of individual shippers.’ 

. . . In keeping with its policy, the Commission 

concluded that the evidence that the Project was 

fully subscribed was adequate to support the 

finding of market need.’’) (citation omitted). 

48Envtl. Def. Fund v. FERC, 2 F.4th 953. 

II. A Number of the Changes to the 

Certificate Policy Statement Are 

Misguided 

• Changes in the Commission’s Need 

Determination 

9. In the Original Policy Statement, 

the Commission stated that, in 

evaluating the need for a project, it 

would: 

consider all relevant factors reflecting on the 

need for the project. These might include, but 

would not be limited to, precedent 

agreements, demand projections, potential 

cost savings to consumers, or a comparison 

of projected demand with the amount of 

capacity currently serving the market. The 

objective would be for the applicant to make 

a sufficient showing of the public benefits of 

its proposed project to outweigh any residual 

adverse effects discussed below.34

Although the Commission stated in its 

Original Policy Statement that it would 

consider other factors, the Commission 

has also ‘‘explained that the [Original] 

Policy Statement does not require a 

certain percentage of a proposed 

project’s capacity be subscribed, and 

that with respect to affiliate shippers, ‘it 

is . . . Commission policy to not look 

beyond precedent or service agreements 

to make judgments about the needs of 

individual shippers.’ ’’ 35

10. In the Updated Policy Statement, 

the Commission now is revising how it 

determines need. The Updated Policy 

Statement explains that ‘‘[i]n 

determining whether to issue a 

certificate of public convenience and 

necessity, the Commission will weigh 

the public benefits of a proposal, the 

most important of which is the need that 

will be served by the project, against its 

adverse impacts.’’ 36 The Commission 

acknowledges that its prior reliance on 

precedent agreements to determine need 

has been upheld by courts,37 but then 

proclaims that ‘‘we cannot adequately 

assess project need without also looking 

at evidence beyond precedent 

agreements.’’ 38 An expectation is then 

established that applicants continue to 

provide precedent agreements but ‘‘the 

existence of precedent agreements may 

not be sufficient in and of themselves to 

establish need for the project.’’ 39

11. The Commission underscores 

what it views as necessary for the 

Commission to determine need for all 

categories of proposed projects: 

‘‘specific information detailing how the 

gas to be transported by the proposed 

project will ultimately be used,’’ i.e., the 

end use and, ‘‘why the project is needed 

to serve that use.’’ 40 And if the 

applicant does not have information 

regarding the intended end use? 

Applicants are ‘‘encouraged’’ to turn to 

their shippers to obtain it.41 In the 

absence of such information, the 

Commission suggests that the applicant 

may not satisfy its burden to 

demonstrate need for the proposed 

project.42 The projected end use and an 

explanation of the reasons why the 

project is needed to serve that use are 

not the only information the 

Commission requests—‘‘[f]or all 

categories of proposed projects,’’ the 

majority also ‘‘encourage[s] applicants 

to provide specific information detailing 

. . . the expected utilization rate of the 

proposed project.’’ 43 The majority also 

suggests types of ‘‘evidence’’ for various 

categories of projects.44

12. And when precedent agreements 

are with an affiliate of the applicant, the 

majority states that those precedent 

agreements, will generally not be 

sufficient to demonstrate need.45

13. I agree that, as a legal matter, the 

Commission may take into account 

considerations other than precedent 

agreements in its need determination. I 

also agree that there may be 

circumstances—such as when there is 

evidence of self-dealing in the execution 

of a precedent agreement with an 

affiliated shipper—where ‘‘the existence 

of precedent agreements may not be 

sufficient in and of themselves to 

establish need for the project.’’ 46

14. To the extent, however, that 

today’s order suggests that the 

Commission must look beyond 

precedent agreements in every 

circumstance to determine need, I 

disagree. In my view, precedent 

agreements are strong evidence of need 

and the Commission need not look 

further in most circumstances. As my 

colleagues acknowledge, courts have 

upheld on numerous occasions the 

Commission’s application of its Original 

Policy Statement and the Commission’s 

reliance on precedent agreements to 

support multiple findings of market 

need.47

15. In terms of precedent agreements 

with affiliates, the Commission recently 

received guidance in the form of the 

narrow holding in Environmental 

Defense Fund v. FERC.48 There, the 

court found the Commission’s public 

convenience and necessity 

determination to be arbitrary and 

capricious due to the Commission’s 

rel[iance] solely on a precedent agreement to 

establish market need for a proposed pipeline 

when (1) there was a single precedent 

agreement for the pipeline; (2) that precedent 

agreement was with an affiliated shipper; (3) 

all parties agreed that projected demand for 

natural gas in the area to be served by the 


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49 Id. at 976. 

50Enbridge Gas Pipelines May 26, 2021 

Comments at 42. ‘‘[U]nder the Commission’s openaccess regulatory regime, pipelines must provide 

transportation service without ‘undue 

discrimination or preference of any kind.’ ’’ NEXUS 

Gas Transmission, LLC, 172 FERC ¶ 61,199, at P 17 

(2020) (quoting 18 CFR 284.7(b)). The Commission’s 

new consideration of the intended end use of the 

gas and why the gas is needed to serve that use may 

also cause tension with NGA section 4. Updated 

Policy Statement, 178 FERC ¶ 61,107 at P 52. NGA 

section 4(b) states that ‘‘[n]o natural-gas company 

shall, with respect to any transportation or sale of 

natural gas subject to the jurisdiction of the 

Commission, (1) make or grant any undue 

preference or advantage to any person or subject 

any person to any undue prejudice or disadvantage, 

or (2) maintain any unreasonable difference in rates, 

charges, service, facilities, or in any other respect, 

either as between localities or as between classes of 

service.’’ 15 U.S.C. 717c(b). 

51Transco, 365 U.S. at 22. 

52See, e.g., TC Energy Corporation May 26, 2021 

Comments at 12–13 (explaining that after the 

Supreme Court’s Transco decision ‘‘was issued in 

1961, Congress passed the NGPA, the Wellhead 

Decontrol Act, EPAct 1992, and the Commission 

issued Orders Nos. 636 and 637. These statutes and 

regulatory orders fundamentally altered the natural 

gas markets by acting to facilitate the development 

of competitive natural gas markets served by 

competitive interstate natural gas transportation.’’); 

id. (‘‘Under the current regulatory framework, there 

is no basis for the Commission to deny a certificate 

application based on end use, because the current 

framework requires equal access to a plentiful gas 

supply for all buyers and sellers. The end use of 

natural gas is outside the objectives of the current 

statutory framework, and the Commission should 

not take end use into consideration when assessing 

the public need for a pipeline project under the 

NGA.’’); Boardwalk Pipeline Partners, LP May 26, 

2021 Comments at 34 (‘‘FPC v. Transco was 

decided prior to the NGPA’s and Wellhead 

Decontrol Act’s creation of a competitive natural 

gas market that allows all consumers to benefit from 

the United States’ plentiful gas supplies . . . . 

[G]iven all of the changes that have occurred over 

the past 60 years’’ and ‘‘[u]nder the current openaccess regime, there is no legal basis for the 

Commission to deny a certificate application based 

on end use.’’) (emphasis omitted). 

53 15 U.S.C. 3301–3432. 

54Natural Gas Wellhead Decontrol Act of 1989, 

Public Law 101–60, 103 Stat. 157 (1989). 

55 Gen. Motors Corp. v. Tracy, 519 U.S. 278, 283 

(1997) (quoting 57 FR 13271 (1992)). 

56Pub. Serv. Comm’n of State of N.Y. v. MidLouisiana Gas Co., 463 U.S. 319, 334 (1983). 

57See S. Rep. No. 101–39, at 1 (1989) (‘‘[T]he 

purpose . . . is to promote competition for natural 

gas at the wellhead in order to ensure consumers 

an adequate and reliable supply of natural gas at the 

lowest reasonable price.’’); H.R. Rep. No. 101–29, at 

6 (1989) (‘‘All sellers must be able to reasonably 

reach the highest-bidding buyer in an increasingly 

national market. All buyers must be free to reach 

the lowest-selling producer, and obtain shipment of 

its gas to them on even terms with other supplies.’’). 

58Adelphia Gateway, LLC, 169 FERC ¶ 61,220 

(2019) (McNamee, Comm’r, concurring at P 36). 

59H.R. Rep. 100–78, at 2 (1987). 

60TC Energy Corporation May 26, 2021 

Comments at 13. 

61Updated Policy Statement, 178 FERC ¶ 61,107 

at P 62. 

62 Id. 

63 Id. P 74 (emphasis added). 

64 Id. 

new pipeline was flat for the foreseeable 

future; and (4) the Commission neglected to 

make a finding as to whether the 

construction of the proposed pipeline would 

result in cost savings or otherwise 

represented a more economical alternative to 

existing pipelines.49

That case does not stand for the 

proposition that in every circumstance, 

the Commission must always look 

beyond the precedent agreements. 

Instead, that case should be read as a 

failure on the part of the Commission to 

engage in reasoned decision making 

based on the facts presented. 

16. Next, I disagree with the 

majority’s position that the Commission 

should weigh end use in its 

determination of need. I agree with 

Enbridge Gas Pipeline that 

‘‘[p]rioritizing certain end uses in 

determining project need would be 

inconsistent with the Commission’s 

policies of open access, open seasons 

and awarding capacity to those that 

value the capacity the most.’’ 50 More 

importantly, the Commission does not 

have jurisdiction over the end use of the 

gas and has been purposefully deprived 

of its upstream and downstream 

authorities by Congress. The breadth of 

the subject matters that inform our 

public interest determinations must be 

informed by the limits of our 

jurisdiction. 

17. I recognize that in Transco the 

Supreme Court stated that ‘‘ ‘end-use’ 

. . . was properly of concern to the 

Commission.’’ 51 As commenters 

observe,52 however, the Transco 

decision was made prior to Congress’ 

enactment of the Natural Gas Policy Act 

of 1978 (NGPA) 53 and the Natural Gas 

Wellhead Decontrol Act of 1989 

(Wellhead Decontrol Act).54 These later 

enactments are instructive as to whether 

the Commission should consider end 

use as part of its public convenience 

and necessity determination. 

18. The NGPA ‘‘was designed to 

phase out regulation of wellhead prices 

charged by producers of natural gas, 

. . . to ‘promote gas transportation by 

interstate and intrastate pipelines’ for 

third parties’’ 55 and also ‘‘to provide 

investors with adequate incentives to 

develop new sources of supply.’’ 56

Later, the enactment of the Wellhead 

Decontrol Act resulted in deregulating 

upstream natural gas production, and 

the legislative history suggests the 

enactment would serve to encourage 

competition of natural gas at the 

wellhead.57 In combination, these acts 

effectively deprived the Commission of 

authority upstream of the jurisdictional 

pipeline. 

19. In 1987, Congress repealed 

sections of the Power Plant and 

Industrial Fuel Use Act of 1978 (Fuel 

Use Act), further deregulating 

downstream considerations. My former 

colleague, Commissioner McNamee 

previously explained that the Fuel Use 

Act had ‘‘restricted the use of natural 

gas in electric generation so as to 

conserve it for other uses’’ and ‘‘[w]ith 

the repeal of the Fuel Use Act, Congress 

made clear that natural gas could be 

used for electric generation and that the 

regulation of the use of natural gas by 

power plants unnecessary.’’ 58 A House 

report stated: 

By amending [the Fuel Use Act], H.R. 1941 

will remove artificial government restrictions 

on the use of oil and gas; allow energy 

consumers to make their own fuel choices in 

an increasingly deregulated energy 

marketplace; encourage multifuel 

competition among oil, gas, coal, and other 

fuels based on their price, availability, and 

environmental merits; preserve the ‘coal 

option’ for new baseload electric powerplants 

which are long-lived and use so much fuel; 

and provide potential new markets for 

financially distressed domestic oil and gas 

producers.59

These later, deregulatory enactments 

were not at play in Transco. And I agree 

that ‘‘the current framework requires 

equal access to a plentiful gas supply for 

all buyers and sellers.’’ 60 Taking the 

foregoing into account, I am not 

convinced that the Commission has 

authority to deny a certificate of public 

convenience and necessity on the basis 

of end use, and the Commission should 

not consider end use in its need 

determination. 

b. Consideration of Adverse Effects 

20. The Commission explains in its 

Updated Policy Statement that it will 

consider four categories of adverse 

impacts from the construction and 

operation of new projects: (1) The 

interests of the applicant’s existing 

customers; (2) the interests of existing 

pipelines and their captive customers; 

(3) environmental interests; and (4) the 

interests of landowners and surrounding 

communities, including environmental 

justice communities.61 The Commission 

also states that it may deny an 

application based on any of the 

foregoing types of adverse impacts.62

Further, the Commission will ‘‘consider 

environmental impacts and potential 

mitigation in both our environmental 

reviews under NEPA and our public 

interest determinations under the 

NGA.’’ 63 And the Commission ‘‘expects 

applicants to structure their projects to 

avoid, or minimize, potential adverse 

environmental impacts.’’ 64

21. First, regarding the interests of the 

applicant’s existing customers, the 

Commission announces that while our 


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65 Id. P 63. 

66Certification of New Interstate Nat. Gas 

Pipeline Facilities, 90 FERC ¶ 61,128, at 61,391. 

67NAACP, 425 U.S. at 670 (emphasis added). 

68Updated Policy Statement, 178 FERC ¶ 61,107 

at P 69. 

69 15 U.S.C. 717f(g). 

70Updated Policy Statement, 178 FERC ¶ 61,107 

at P 62 (emphasis added); see also id. P 99 (‘‘[T]here 

may be proposals denied solely on the magnitude 

of a particular adverse impact to any of the four 

interests described above if the adverse impacts, as 

a whole, outweigh the benefits of the project and 

cannot be mitigated or minimized.’’). 

71 Id. P 72 (citation omitted). 

72 Id. P 71. 

73 Id. P 74. 

74 Id. 

75 Id. 

76 Id. 

77 Id. P 76. 

78See Interim GHG Policy Statement, 178 FERC 

¶ 61,108 (Danly, Comm’r, dissenting). 

79See Whitman v. Am. Trucking Ass’ns, Inc., 531 

U.S. 457, 468 (2001) (‘‘Congress, we have held, does 

not alter the fundamental details of a regulatory 

scheme in vague terms or ancillary provisions—it 

does not, one might say, hide elephants in 

mouseholes.’’) (citations omitted). 

80ANR Pipeline Co. v. FERC, 876 F.2d 124, 129 

(D.C. Cir. 1989) (citation omitted). 

81Nat’l Fuel Gas Supply Corp. v. FERC, 909 F.2d 

1519, 1522 (D.C. Cir. 1990) (citing Sunray MidContinent Oil Co. v. FPC, 364 U.S. 137, 152 (1960) 

(‘‘once want of power to do this directly were 

established, the existence of power to achieve the 

same end indirectly through the conditioning 

power might well be doubted’’); Richmond Power 

& Light v. FERC, 574 F.2d 610, 620 (D.C. Cir. 1978) 

(the Commission may not achieve indirectly 

through conditioning power of Federal Power Act 

what it is otherwise prohibited from achieving 

directly)); see also Am. Gas Ass’n v. FERC, 912 F.2d 

1496, 1510 (D.C. Cir. 1990) (‘‘[T]he Commission 

may not use its section 7 conditioning power to do 

indirectly . . . things that it cannot do at all.’’). 

82See, e.g., Nat’l Fuel Gas Supply Corp. v. FERC, 

909 F.2d at 1520, 1522 (D.C. Cir. 1990) (finding that 

the Commission exceeded the scope of its NGA 

section 7(e) authority in conditioning the approval 

of an off-system sales certificate upon certificate 

holder’s acceptance of a blanket transportation 

certificate because ‘‘the Commission squarely found 

that National’s proposed ‘sales are required by the 

public convenience and necessity,’ quite apart from 

conditioning their certification upon the pipeline’s 

filing for a blanket transportation certificate.’’); N. 

Nat. Gas Co., Div. of InterNorth v. FERC, 827 F.2d 

779, 792–93 (D.C. Cir. 1987) (granting rehearing en 

banc, reaffirming the holding in Panhandle E. Pipe 

Line Co. v. FERC, 613 F.2d 1120, 1133 (D.C. Cir. 

Continued 

policy of no financial subsidies remains 

unchanged, the Commission will no 

longer treat this as a threshold 

requirement.65 This reprioritization is 

fine; it is merely a policy choice with no 

obvious legal infirmity. 

22. Next, the Commission turns to its 

considerations of existing pipelines and 

their customers with an emphasis on the 

prevention of overbuilding. In an order 

clarifying the Original Policy Statement, 

the Commission discussed the 

consideration of overbuilding and 

explained that ‘‘[s]ending the wrong 

price signals to the market can lead to 

inefficient investment and contracting 

decisions which can cause pipelines to 

build capacity for which there is not a 

demonstrated market need,’’ and that 

‘‘[s]uch overbuilding, in turn, can 

exacerbate adverse environmental 

impacts, distort competition between 

pipelines for new customers, and 

financially penalize existing customers 

of expanding pipelines and customers of 

the pipelines affected by the 

expansion.’’ 66 I agree that the concern 

of overbuilding is worthy of 

consideration in the Commission’s 

balancing and consistent with the 

purpose of ‘‘encourag[ing] the orderly 

development of plentiful supplies of 

. . . natural gas at reasonable prices.’’ 67

23. The Commission also states that 

‘‘[t]o the extent that a proposed project 

is designed to substantially serve 

demand already being met on existing 

pipelines, that could be an indication of 

potential overbuilding.’’ 68 In my view, 

the Commission should weigh this 

consideration with NGA section 7(g) in 

mind, which provides that ‘‘[n]othing 

contained in [NGA section 7] shall be 

construed as a limitation upon the 

power of the Commission to grant 

certificates of public convenience and 

necessity for service of an area already 

being served by another natural-gas 

company.’’ 69 In considering whether a 

proposed project is designed to 

substantially serve demand that is 

already met, the Commission should 

also consider whether the proposed 

project would allow for further 

competition, send appropriate price 

signals and improve the efficiency or 

reliability of service to existing 

customers. This is worth noting because 

of the statement in today’s order that 

states that ‘‘[t]he Commission may deny 

an application based on any of these 

types of adverse impacts,’’ 70 including 

impacts to existing pipelines and their 

customers. 

24. Third, the majority addresses 

environmental impacts, stating: ‘‘While 

the 1999 Policy Statement focused on 

economic impacts, the consideration of 

environmental impacts is an important 

part of the Commission’s responsibility 

under the NGA to evaluate all factors 

bearing on the public interest.’’ 71 As 

explained by the majority, the Original 

Policy Statement ‘‘included an 

analytical framework for how the 

Commission would evaluate the effects 

of certificating new projects on 

economic interests,’’ and it ‘‘did not 

describe how the Commission would 

consider environmental interests in its 

decision-making process and, more 

specifically, how it would balance these 

interests with the economic interests of 

a project.’’ 72 The Commission now 

adjusts that framework to include 

environmental impacts as a 

consideration in its Updated Policy 

Statement. 

25. The Commission explains that it 

will consider environmental impacts 

and potential mitigation in both our 

environmental reviews under NEPA and 

our public interest determinations 

under the NGA.73 The majority 

‘‘expect[s] applicants to propose 

measures for mitigating impacts,’’ for 

consideration in the Commission’s 

balancing of adverse impacts against the 

potential benefits of a proposal.74 The 

Commission may condition the 

certificate with further mitigation.75

Moreover, the Commission states that it 

may ‘‘deny an application based on . . . 

environmental impacts, if the adverse 

impacts as a whole outweigh the 

benefits of the project and cannot be 

mitigated or minimized.’’ 76 Finally, the 

majority indicates its intent when 

making its public convenience and 

necessity determination to fully 

consider climate impacts.77

26. I discuss the reasons why I 

disagree with the majority’s Interim 

GHG Policy Statement in my dissent to 

that order.78 In terms of the change from 

an economic focus in the Original 

Policy Statement, my view is that the 

Commission should retain its economic 

framework as the basis of its policy 

statement. I am concerned that several 

of the changes made in today’s Updated 

Policy Statement include issues outside 

the scope of that which the Commission 

is able to consider under the NGA. 

Though time has passed since the 

NGA’s enactment, it is Congress’ role to 

amend the statute should it see fit to 

include in the Commission’s authority 

matters such as the conditioning of 

certificates to mitigate GHG emissions. 

Congress has done so before and could 

do so again.79 To restate the approach 

that should be taken to determine the 

public convenience and necessity: Any 

balancing under that standard must 

‘‘take meaning’’ from the interests 

articulated in the NGA. 

27. Although courts have recognized 

that the Commission’s NGA section 7(e) 

‘‘conditioning authority is ‘extremely 

broad,’ ’’ 80 such authority is not without 

limit. ‘‘The Commission may not, 

however, when it lacks the power to 

promote the public interest directly, do 

so indirectly by attaching a condition to 

a certificate that is, in unconditional 

form, already in the public convenience 

and necessity.’’ 81 There have been 

circumstances where the courts have 

found the Commission exceeded its 

conditioning authority.82 Its use must be 


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1979), which provides ‘‘that ‘the Commission does 

not have authority under section 7 to compel flowthrough of revenues to customers of services not 

under consideration in that proceeding for 

certification,’ ’’ and vacating a condition that 

violates that holding). 

83Updated Policy Statement, 178 FERC ¶ 61,107 

at P 74. 

84See Interim GHG Policy Statement, 178 FERC 

¶ 61,108 at PP 114–115 (encouraging project 

sponsors to propose mitigation measures, stating 

that project sponsors ‘‘are free to propose any type 

of mitigation mechanism,’’ and providing the 

following examples of market-based mitigation: 

‘‘[the] purchase [of] renewable energy credits, 

participat[ion] in a mandatory compliance market 

(if located in a State that requires participation in 

such a market), or participat[ion] in a voluntary 

carbon market’’). 

85See id. P 129 (‘‘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.’’). 

86See Updated Policy Statement, 178 FERC 

¶ 61,107 at P 78 (citing Original Policy Statement, 

88 FERC ¶ 61,227 at 61,749 (‘‘The balancing of 

interests and benefits that will precede the 

environmental analysis will largely focus on 

economic interests such as the property rights of 

landowners.’’)) 87 Id. 88 Id. P 79. 89 Id. P 80. 90 Id. P 81. 91 Id. P 82. 92 Id. 

93 Id. P 85. 

94See Spire STL Pipeline LLC, 178 FERC ¶ 61,109 

at P 10 (2022) (citation omitted). 

95Spire STL Pipeline LLC, 177 FERC ¶ 61,147, at 

P 70 (2021) (citation omitted); see id. (Danly, 

Comm’r, concurring in part and dissenting in part) 

(disagreeing with the Commission’s decision to not 

interpret NGA section 7(h) in the first instance and 

to leave the interpretation to the courts). 

96Updated Policy Statement, 178 FERC ¶ 61,107 

P 90 (relying on a repealed definition for 

‘‘cumulative impacts,’’ formerly 40 CFR 1508.7 

(1978), in the Council on Environmental Quality’s 

(CEQ) regulations) (citations omitted). 

97 Id. P 90 n.213. 

consistent with the other provisions of 

the NGA and the Commission may not 

use conditions under the guise of acting 

in the public interest in order to do 

something it would otherwise not have 

authority to do. 

28. There are also practical 

considerations in the Commission 

finding in today’s policy statement that 

‘‘[s]hould [the Commission] deem an 

applicant’s proposed mitigation of 

impacts inadequate to enable us to reach 

a public interest determination, we may 

condition the certificate to require 

additional mitigation.’’ 83 The costs that 

attend the proposed mitigation of GHG 

emissions may be unmeasurable, may 

not be readily apparent, and may also be 

more than the natural gas companies 

and its shippers are willing or able to 

bear. There will perhaps be difficulty in 

measuring the costs of conditions, such 

as market-based mitigation,84 when the 

costs are determined based on a 

changing market. For instance, the cost 

of purchasing renewable energy credits 

may be different at the time an 

application is filed in comparison to 

when the certificate is issued. And there 

is no guarantee that the potentially 

extraordinary costs incurred by a 

pipeline to comply with the 

Commission’s public interest 

determination will be recovered in the 

pipeline’s rates.85 These practical 

considerations have not been taken into 

account by the Commission. Without 

these considerations, I am not 

convinced that the Commission has 

engaged in reasoned decision making. 

29. Turning to the Commission’s 

consideration of impacts on landowners 

and surrounding communities, as the 

majority recognizes, the Original Policy 

Statement’s primary focus was on 

economic impacts associated with a 

permanent right-of-way on a 

landowner’s property.86 Going forward, 

the consideration ‘‘of impacts to 

landowners will be more expansive.’’ 87

The majority clarifies that the 

‘‘consideration of impacts to 

communities surrounding a proposed 

project will include an assessment of 

impacts to any environmental justice 

communities and of necessary 

mitigation to avoid or lessen those 

impacts.’’ 88 And ‘‘expectations’’ are 

established ‘‘for how pipeline 

applicants will engage with 

landowners.’’ 89

30. The majority also commits itself to 

‘‘robust early engagement with all 

interested landowners, as well as 

continued evaluation of input from such 

parties during the course of any given 

proceeding’’ and states that the 

Commission ‘‘will, to the extent 

possible, assess a wider range of 

landowner impacts.’’ 90 Further, the 

majority states that it ‘‘expect[s] 

pipeline applicants to take all 

appropriate steps to minimize the future 

need to use eminent domain,’’ including 

‘‘engage[ment] with the public and 

interested stakeholders during the 

planning phase of projects to solicit 

input on route concerns and incorporate 

reroutes, where practicable, to address 

landowner concerns, as well as 

providing landowners with all 

necessary information.’’ 91

31. The majority states that it 

‘‘expect[s] pipelines to take seriously 

their obligation to attempt to negotiate 

easements respectfully and in good faith 

with impacted landowners’’ and 

indicates that ‘‘[t]he Commission will 

look unfavorably on applicants that do 

not work proactively with landowners 

to address concerns.’’ 92 Does this mean 

that the majority plans to weigh, in its 

balancing of interests, allegations 

concerning whether the applicant has 

engaged in good faith negotiation of 

easements and collaboration with 

landowners to address concerns? It 

appears so. The Commission later states 

that ‘‘[i]n assessing potential impacts to 

landowners, the Commission will 

consider the steps a pipeline applicant 

has already taken to acquire lands 

through respectful and good faith 

negotiation, as well as the applicant’s 

plans to minimize the use of eminent 

domain upon receiving a certificate.’’ 93

32. It is worth reminding my 

colleagues that on the very same 

meeting that this order is issued, the 

Commission also issues an order 94 that 

reaffirms a decision to deny 

landowners’ request for the Commission 

to interpret the scope of NGA section 

7(h) because, in my colleagues’ view, 

NGA section 7(h) is ‘‘a provision that 

gives courts a particular implementing 

role’’ and therefore ‘‘is better resolved 

by the courts than the Commission.’’ 95

And yet here, the Commission 

contemplates considering in its 

balancing whether applicants have 

engaged in good faith negotiations for 

easements pursuant to NGA section 

7(h). 

33. Finally, the Commission discusses 

how it will consider impacts to 

environmental justice communities. In 

explaining its objectives, the majority 

states that ‘‘[t]he consideration of 

cumulative impacts is particularly 

important when it comes to conducting 

an environmental justice analysis.’’ 96 In 

support, the Commission has the 

following footnote: 

‘‘ ‘Cumulative impact’ is the impact on the 

environment which results from the 

incremental impact of the action when added 

to other past, present, and reasonably 

foreseeable future actions regardless of what 

agency (Federal or non-Federal) or person 

undertakes such other actions. Cumulative 

impacts can result from individually minor 

but collectively significant actions taking 

place over a period of time.’’ 40 CFR 1508.7 

(1978).97

34. There is no problem with 

announcing the paradigm by which a 

particular type of analysis will be 

conducted, but this looks very much as 

though my colleagues have decided that 

they can disregard currently-effective 

regulations and adopt their own 

definition of the ‘‘effects’’ that should be 

considered in the Commission’s 


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98Cf. Updated Policy Statement, 178 FERC 

¶ 61,107 at P 74 n.189 (‘‘Recognizing that CEQ is 

in the process of revising its NEPA regulations, the 

Commission will consider the comments in this 

docket regarding NEPA in our future review of our 

regulations, procedures, and practices for 

implementing NEPA.) 

99See 40 CFR 1508.1(g)(3) (‘‘An agency’s analysis 

of effects shall be consistent with this paragraph (g). 

Cumulative impact, defined in 40 CFR [§ ] 1508.7 

(1978), is repealed.’’). 

100Updated Policy Statement, 178 FERC ¶ 61,107 

at P 90. 

101See 40 CFR 1508.1(g) (defining ‘‘effects or 

impacts’’). 

102 18 CFR 380.1. 

103See Updated Policy Statement, 178 FERC 

¶ 61,107 at P 53 (stating that ‘‘the Commission’s 

expectations and requirements for how applicants 

should demonstrate project need have evolved over 

time’’). 

104See, e.g., id. P 74 (‘‘Should we deem an 

applicant’s proposed mitigation of impacts 

inadequate to enable us to reach a public interest 

determination, we may condition the certificate to 

require additional mitigation. We may also deny an 

application based on any of the types of adverse 

impacts described herein, including environmental 

impacts, if the adverse impacts as a whole outweigh 

the benefits of the project and cannot be mitigated 

or minimized.’’); id. P 82 (‘‘[W]e expect pipelines 

to take seriously their obligation to attempt to 

negotiate easements respectfully and in good faith 

with impacted landowners. The Commission will 

look unfavorably on applicants that do not work 

proactively with landowners to address concerns.’’). 

105Lewis Carroll, Alice’s Adventures in 

Wonderland and Through the Looking-Glass 107 

(Hugh Haughton ed., Penguin Classics 1998). 

106See 15 U.S.C. 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.’’) (emphasis added). 

107Updated Policy Statement, 178 FERC ¶ 61,107 

at P 3 (stating that the Updated Policy Statement 

does not establish binding rules, but rather it is 

intended to explain how the Commission will 

consider NGA section 7 certificate applications). 

108See Interstate Nat. Gas Ass’n of Am. v. FERC, 

285 F.3d 18, 59 (D.C. Cir. 2002) (‘‘The distinction 

between substantive rule and policy statement is 

said to turn largely on whether the agency position 

is one of ‘present binding effect,’ i.e., whether it 

‘constrains the agency’s discretion.’ ’’) (citations 

omitted); Brown Express, 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.’ ’’). 

109See Panhandle E. Pipe Line Co. v. FERC, 198 

F.3d 266, 270 (D.C. Cir. 1999) (denying the petition 

for review because ‘‘[t]he challenged opinions 

[were] non-binding policy statements’’ and 

therefore, the court found that the party petitioning 

for review was ‘‘not aggrieved and has not suffered 

an injury-in-fact.’’). 

110See Updated Policy Statement, 178 FERC 

¶ 61,107 at P 100 (‘‘[T]he 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.’’). 

111 ‘‘ ‘Natural-gas company’ means a person 

engaged in the transportation of natural gas in 

interstate commerce, or the sale in interstate 

commerce of such gas for resale.’’ 15 U.S.C. 717a(6). 

analysis.98 The current NEPA 

regulations repealed the definition of 

‘‘Cumulative impact’’ previously 

contained in 40 CFR 1508.7.99 The 

Commission, in attempting to go farther 

than the CEQ’s regulations, reasons that 

‘‘[t]o adequately capture the effects of 

cumulative impacts, it is essential that 

the Commission consider those preexisting conditions and how the adverse 

impacts of a proposed project may 

interact with and potentially exacerbate 

them.’’ 100

35. I disagree with the Commission’s 

decision to disregard CEQ’s 

regulations.101 The Commission, in its 

own regulations, states that it ‘‘will 

comply with the regulations of the 

[CEQ] except where those regulations 

are inconsistent with the statutory 

requirements of the Commission.’’ 102

Regardless of the latitude the majority 

thinks we may enjoy when conducting 

our analyses, it is a matter of black letter 

law that we are constrained by our 

regulations which adopt CEQ’s 

regulations; we are also unable to 

conjure rubrics out of thin air without 

explanation. 

III. The Commission’s Approach of 

‘‘Expecting’’ Self-Imposed Mitigation 

Appears Calculated To Circumvent 

Statutory Limits on the Commission’s 

Authority 

36. In the Updated Policy Statement, 

as well as in the Interim GHG Policy 

Statement, the Commission has asserted 

a dramatic expansion of its conditioning 

authority. As explained above, the 

Commission likely does not have the 

statutory authority to enter this new 

territory. It is not surprising, therefore, 

to see a consistent theme in the Updated 

Policy Statement that the Commission 

has expectations of applicants.103 The 

Commission expects more of applicants 

going forward. Should those 

expectations not be met to the 

Commission’s satisfaction, the 

Commission suggests that it will weigh 

that against finding that the project is 

required by the public convenience and 

necessity.104

37. Instead of saying that it is 

imposing or requiring the legally 

dubious conditions itself, the 

Commission is expecting the natural gas 

companies to play a game of ‘‘sentence 

first—verdict afterwards,’’ 105 where the 

applicants choose their own sentence— 

their proposed mitigation measures—in 

an effort to guess at the Commission’s 

expectations. Only then will the 

Commission rule on whether the project 

is required by the public convenience 

and necessity and reveal whether the 

proposed mitigation is sufficient. 

38. It works in the Commission’s favor 

for applicants to impose their own 

mitigation measures. If the applicant 

proposes the mitigation instead of 

having it imposed by the Commission, 

it is less likely that a court would deem 

such condition unreasonable or beyond 

the Commission’s authority should it 

come to be challenged at all.106 How can 

a condition be unreasonable or beyond 

the Commission’s jurisdiction if it is 

imposed at the suggestion of the 

applicant—the party who needs to 

satisfy such conditions? 

IV. It Is Unclear Whether the Updated 

Policy Statement Is Actually Binding 

and Whether the Commission Should 

Have Proceeded Through Rulemaking 

39. Whether the Commission can 

impose mitigation as contemplated here, 

or whether the Commission lacks 

authority to do so with its conditioning 

authority will ultimately be addressed 

by the courts. I recognize the 

Commission’s assertion that the 

Updated Policy Statement is not 

binding.107 I question whether that is 

actually the case.108

40. Given the non-binding 

designation, there may indeed be wellfounded concerns by parties seeking to 

challenge the Updated Policy 

Statement.109 But as explained above, 

the Commission has established its 

expectations regarding what 

information it wants included in 

certificate applications and plans to 

apply the Updated Policy Statement to 

both currently-pending 110 and future 

applications for a certificate of public 

convenience and necessity. For parties 

hesitant to challenge a ‘‘non-binding’’ 

policy statement, I submit that a court 

may perhaps be receptive to arguments 

of aggrievement based on the interests of 

shippers who will now likely have to 

renegotiate their agreements for 

proposed projects with currentlypending certificate applications. 

41. Moreover, natural gas 

companies 111 and their shippers likely 

have not contemplated the increased 

costs that will come with the 

Commission’s new policies. It is likely 

that companies with pending 

applications have not yet presented 

proposals for mitigation of the proposed 

project’s GHG emissions. But the need 

for developing such proposals will 

arise—the Commission has requested 

that companies with pending 

applications supplement their 


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112See Updated Policy Statement, 178 FERC 

¶ 61,107 at P 100. 

113See 18 CFR 157.6(b) (‘‘Each application filed 

other than an application for permission and 

approval to abandon pursuant to section 7(b) shall 

set forth the following information . . . .’’). 

114 Id. § 157.5(a). 

115Cf. MCI Telecomms. Corp. v. Am. Tel. & Tel. 

Co., 512 U.S. 218, 228 (1994) (‘‘It might be good 

English to say that the French Revolution ‘modified’ 

the status of the French nobility—but only because 

there is a figure of speech called understatement 

and a literary device known as sarcasm.’’). 

116NAACP, 425 U.S. at 669–70 (citations 

omitted); accord Myersville, 783 F.3d at 1307 

(quoting NAACP, 425 U.S. at 669–70). 

117NERC, Long Term Reliability Assessment, at 5 

(Dec. 2021), https://www.nerc.com/pa/RAPA/ra/ 

Reliability%20Assessments%20DL/NERC_LTRA_

2021.pdf (emphasis added). 

118See Updated Policy Statement, 178 FERC 

¶ 61,107 at P 51 (asserting that the Commission is 

‘‘providing more regulatory certainty in the 

Commission’s review process and public interest 

determinations’’); id. P 73 (‘‘To provide more clarity 

and regulatory certainty to all participants in 

certificate proceedings, we explain here how the 

Commission will consider environmental 

impacts.’’); id. P 100 (‘‘A major purpose of this 

Updated Policy Statement is to provide clarity and 

regulatory certainty regarding the Commission’s 

decision-making process.’’). 

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 

applications.112 The resulting cost 

increases will, at a minimum, make 

these projects more expensive and thus 

increase pipeline rates that may 

ultimately be passed on to consumers. 

But it is entirely possible that, in at least 

some cases, applicants will not accept 

the certificate. 

42. One final thought is that it may 

have been more appropriate for the 

Commission to have proceeded through 

rulemaking instead of through a policy 

statement. The Commission details the 

types of information that it expects to be 

included in applications. However, the 

Commission’s regulations already 

address what the ‘‘General content[s] of 

[an] application’’ should include in 18 

CFR 157.6(b). Nothing in that section 

supports the Commission’s expectation 

for information regarding end use and 

proposals for mitigation measures.113

Our regulations do state that 

‘‘[a]pplications under section 7 of the 

Natural Gas Act shall set forth all 

information necessary to advise the 

Commission fully concerning the 

operation, sales, service, construction, 

extension, or acquisition for which a 

certificate is requested . . . .’’ 114 But 

nowhere do our regulations permit the 

Commission to add to the requirements 

set forth therein regarding the contents 

necessary for an NGA section 7(c) 

application. The Commission may, of 

course, request information from an 

applicant through a data request to 

assist with its determination of whether 

the project is required by the public 

convenience and necessity. But to 

expect (in other words require) 

information, such as that regarding end 

use and proposals for mitigation of 

impacts, is perhaps something that 

should have been done through a 

rulemaking. Can a party ignore the 

Commission’s requests for additional 

information? Yes, but the cost would be 

the potential further delay to the 

issuance of already stalled certificates 

and perhaps the ultimate rejection of a 

proposal that fails to meet the 

Commission’s expectations. 

V. Today’s Decision Will Have 

Profound Reliability Implications 

43. I cannot overstate the implications 

of the Updated Policy Statement.115 It 

will subvert the purpose of the NGA: To 

‘‘encourage the orderly development of 

plentiful supplies of . . . natural gas at 

reasonable prices.’’ 116 Further, we leave 

the public and the regulated 

community—including investors upon 

whom we rely to provide billions of 

dollars for critical infrastructure—with 

profound uncertainty regarding how the 

Commission will determine whether a 

proposed project is required by the 

public convenience and necessity. With 

that uncertainty comes reliability 

concerns. 

44. The North American Electric 

Reliability Corporation (NERC) recently 

highlighted just how important natural 

gas is to our electric system when it 

explained in its most recent Long Term 

Reliability Assessment that ‘‘[n]atural 

gas is the reliability ‘fuel that keeps the 

lights on,’ and natural gas policy must 

reflect this reality.’’ 117 Today’s issuance 

is unlikely to allay NERC’s reliability 

concerns. I began this statement with 

the consequences that could attend 

today’s issuance of the Updated Policy 

Statement. As a reminder those 

consequences include, but are not 

limited to, further delay in the issuance 

of certificates, the incurrence of 

unmeasurable and unrecoverable costs 

that may result from the Commission’s 

imposition of mitigation measures to 

address GHG and environmental justice 

impacts (which are now both 

considered in the Commission’s 

balancing), and difficulty in securing 

capital for proposed projects. It is 

foreseeable that the result will be to 

cause a reliability crisis in areas that 

need the gas the most. This arises 

because of the uncertain criteria to be 

applied by the Commission, the delays 

in obtaining the Commission’s approval, 

and the resulting increases in costs— 

including the cost of mitigation. 

Individually and collectively, these 

could be so severe that a natural gas 

company might be unable to accept the 

conditions of its certificate and proceed 

with a project that otherwise is needed 

to maintain reliability. 

VI. Conclusion 

45. Many in the industry have asked 

for certainty. The majority says that they 

have provided it.118 Regrettably, the 

majority is wrong on that point, as well. 

The only certainty to be found in the 

Updated Policy Statement is that 

confusion will reign hereafter, at the 

expense of those who depend on natural 

gas. 

For these reasons, I respectfully dissent. 

James P. Danly, 

Commissioner 

DEPARTMENT OF ENERGY FEDERAL 

ENERGY REGULATORY 

COMMISSION 

Certification of New Interstate Natural 

Gas Facilities 

Docket No. PL18–1–000 

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


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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. 

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. 

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

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 

section 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. 


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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 

adjudicated in State or Federal court—not by this 

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

Bringing such extra-jurisdictional considerations 

into the Commission’s public convenience and 

necessity analyses under NGA section 7 is just 

another expansion of Commission power far beyond 

anything justified in law. 

22Sabal Trail, 867 F.3d 1357, 1382 (D.C. 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 section 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 

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 

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 


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‘‘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). 

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 section 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). 

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 

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 


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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). 

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 

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 

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 


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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.’’) 

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 section 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. 

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, 

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 


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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. 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 

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 

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


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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’’). 

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. 

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 

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 section 3 as opposed to interstate 

transportation facilities under NGA 

section 7—the court in Sabal Trail 

concluded that, under NGA section 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, 


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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). 

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). 

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 

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 


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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, section 1). 

102 GHG Policy Statement at PP 27–28, 31, & n.97. 

See also, EPA Dec. 20, 2021 Letter. 

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. 

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 

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. 

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 


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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. 2022–04148 Filed 2–28–22; 8:45 am] 

BILLING CODE 6717–01–P 


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