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 Department of Energy Federal Energy Regulatory Commission [Docket No. PL21-3-000]
 AGENCY: Federal Energy Regulatory Commission.
 ACTION: Interim policy statement.
 SUMMARY: This interim policy statement describes Commission procedures for evaluating climate impacts under NEPA and describes how the Commission will integrate climate considerations into its public interest determinations under the NGA.
 DATES: Public comments are due on or before April 4, 2022. Comments on the information collection are due May 10, 2022.
 ADDRESSES: Comments, identified by docket number, may be filed electronically at 
                            *http://www.ferc.gov*
                             in acceptable native applications and print-to-PDF, but not in Scanned or picture format. For those unable to file electronically, comments may be filed by mail or hand-delivery to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. The Comment Procedures section of this document contains more detailed filing procedures.
 FOR FURTHER INFORMATION CONTACT:  Karin Larson (Legal Information), Office of the General Counsel, 888 First Street NE, Washington, DC 20426, (202) 502-8236, 
                            *Karin.Larson@ferc.gov* Eric Tomasi (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8097, 
                            *Eric.Tomasi@ferc.gov*


SUPPLEMENTARY INFORMATION:  1. The Commission is issuing this interim policy statement to explain how the Commission will assess the impacts of natural gas infrastructure projects on climate change in its reviews under the National Environmental Policy Act (NEPA) and the Natural Gas Act (NGA). We seek comment on all aspects of the interim policy statement, including, in particular, on the approach to assessing the significance of the proposed project's contribution to climate change. Although the guidance contained herein is subject to revision based on the record developed in this proceeding, we will begin applying the framework established in this policy statement in the interim. Doing so will allow the Commission to evaluate and act on pending applications under sections 3 and 7 of the NGA without undue delay and with an eye toward greater certainty and predictability for all stakeholders. I. Introduction 2. Climate change poses a severe threat to the nation's security, economy, environment, and to the health of individual citizens. Human-made greenhouse gas (GHG) emissions, including carbon dioxide and methane, are the primary cause of climate change.[1]
                        
                         GHG emissions are released in large quantities through the production, transportation, and consumption of natural gas. Accordingly, to fulfill its statutory responsibilities, it is critical that the Commission consider and document how its authorization of infrastructure projects under the NGA, particularly natural gas transportation facilities, will affect emissions of GHGs.[2] 3. This policy statement describes Commission procedures for evaluating climate impacts under NEPA, both those caused by a project's contribution to climate change and the impacts of climate change on the project, and describes how the Commission will integrate climate considerations into its public interest determinations under the NGA. For purposes of assessing the appropriate level of NEPA review, Commission staff will apply the 100% utilization or “full burn” rate for the proposed project's emissions to determine whether to prepare an Environmental Impact Statement (EIS) or an environmental assessment (EA). Commission staff will proceed with the preparation of an EIS, if the proposed project may result in 100,000 metric tons per year of CO2
                        e or more.[3]
                        
                         As further described below, the Commission believes this estimate is appropriate because it captures Commission projects that may result in incremental GHG emissions that may have a significant effect upon the human environment.[4]
                        
                         This approach is consistent with the overall goal of NEPA to require a “hard look” at adverse environmental impacts and assess whether those can be minimized or avoided.[5]
                        
                         To appropriately assess possible mitigation, as further explained below, the Commission will determine a project's reasonably foreseeable GHG emissions based on a projection of the amount of capacity that will be actually used (projected utilization rate), as opposed to assuming 100% utilization, and any other factors impacting the quantification of project emissions. The Commission's NEPA analysis will examine any proposed measures to reduce reasonably foreseeable emissions. 4. When considering under the NGA whether a project is in the public interest, the Commission considers a project's impacts on climate change, and, accordingly, will consider proposals by the project sponsor to mitigate all or a portion of the project's climate change impacts, and the Commission may condition its authorization on the project sponsor further mitigating those impacts. 5. This policy statement does not establish binding rules and is intended to explain how the Commission will consider these issues when they arise.[6] 
 
 II. Background A. GHG Emissions and Climate Change 6. Climate change is the variation in the Earth's climate (including temperature, precipitation, humidity, wind, and other meteorological variables) over time. Climate change is driven by accumulation of GHGs in the atmosphere due to the increased consumption of fossil fuels (
                        *e.g.,*
                         coal, petroleum, and natural gas) since the early beginnings of the industrial age and accelerating in the mid- to late-20th century.[7]
                        
                         The GHGs produced by fossil-fuel combustion are carbon dioxide, methane, and nitrous oxide. 7. In 2017 and 2018, the U.S. Global Change Research Program [8]
                        
                         issued its Climate Science Special Report: Fourth National Climate Assessment, Volumes I and II.[9]
                        
                         This report and the recently released report by the Intergovernmental Panel on Climate Change, Climate Change 2021: The Physical Science Basis, state that climate change has resulted in a wide range of impacts across every region of the country and the globe. Those impacts extend beyond atmospheric climate change and include changes to water resources, agriculture, ecosystems, human health, and ocean systems.[10]
                        
                         According to the Fourth Assessment Report, the United States and the world are warming, global sea level is rising and oceans are acidifying, and certain weather events are becoming more frequent and more severe.[11]
                        
                         These impacts have accelerated throughout the end of the 20th century and into the 21st century.[12] B. Council on Environmental Quality Guidance on Climate Change 8. In 2010, the Council on Environmental Quality (CEQ) issued its first draft guidance on how federal agencies can consider the effects of GHG emissions and climate change under NEPA.[13]
                        
                         CEQ revised the draft guidance in 2014,[14]
                        
                         and issued final guidance in 2016.[15]
                        
                         Throughout the guidance's evolution, CEQ advised agencies to quantify GHG emissions and to consider both the extent to which a proposed project's GHG emissions would contribute to climate change and how a changing climate may impact the proposed project. The 2016 guidance, however, explicitly declined to establish a quantity or threshold of GHGs for determining whether a proposed project will have a significant impact on climate.[16] 9. CEQ rescinded the 2016 guidance in April 2017, as directed by Executive Order 13783 
                        *Promoting Energy Independence and Economic Growth,*[17]
                        
                         and issued revised draft guidance in June 2019.[18]
                        
                         In January 2021, Executive Order 13990 
                        *Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis*
                         revoked Executive Order 13783 and directed CEQ to rescind the 2019 draft guidance and to review, revise, and update the 2016 guidance.[19]
                        
                         CEQ has not yet issued an update to the 2016 guidance, but, in the interim, has directed agencies to consider all available tools and resources, including the 2016 guidance, in assessing GHG emissions and the climate change effects of proposed actions.[20] C. Previous Commission Policy on Consideration of Climate Change Under NEPA 10. Commission staff has addressed climate change in some fashion in its NEPA documents for at least a decade.[21]
                        
                         Commission staff's NEPA documents have included direct GHG emission estimates from project construction (
                        *e.g.,*
                         tailpipe emissions from construction equipment) and/or operation (
                        *e.g.,*
                         fuel combustion at compressor stations and gas venting and leaks).[22]
                        
                         Starting in late 2016, the Commission began to conservatively estimate indirect downstream GHG emissions by assuming full combustion of the maximum annual volume of gas that could be transported by the project.[23]
                        
                         For indirect upstream, production-related GHG emissions, Commission orders during that time period relied on Department of Energy studies to calculate broad estimates.[24]
                        
                         For upstream impacts, the Commission generally indicated that these analyses were not required by NEPA because the Commission lacked detailed information about the precise source of the gas to be transported, but provided estimates for informational purposes.[25] 11. In 2017, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in 
                        *Sierra Club*
                         v. 
                        *FERC*
                         (
                        *Sabal Trail*
                        ) [26]
                        
                         found that downstream GHG emissions were an indirect effect of the Sabal Trail pipeline project and required the Commission to give a quantitative estimate of the downstream GHG emissions resulting from the burning of the natural gas to be 
                        ( print page 14106)
                        transported by the pipeline or explain why the Commission could not do so, and to discuss the significance of these emissions.[27]
                        
                         On remand, the Commission compared the estimated downstream GHG emissions from the project to state and national GHG emission inventories.[28]
                        
                         However, the Commission concluded that it could not determine whether those downstream GHG emissions were significant and rejected the use of the Social Cost of Carbon (SCC) tool to inform the Commission's analysis.[29] 12. In 2018, the Commission stated in 
                        *Dominion Transmission, Inc.*[30]
                        
                         that end use consumption of gas and upstream production of gas were generally not reasonably foreseeable or causally related to the project (no party had identified the specific end use of the gas) and thus the Commission was not required to consider upstream or downstream emissions as indirect impacts under NEPA.[31]
                        
                         The Commission stated it would continue to “analyze upstream and downstream environmental effects when those effects are sufficiently causally connected to and are reasonably foreseeable effects of the proposed action.” [32]
                        
                         The Commission reiterated that without an accepted methodology it could not find whether a particular quantity of GHG emissions was significant.[33] 13. However, in 
                        *Birckhead,*
                         the D.C. Circuit rejected the Commission's position that 
                        *Sabal Trail*
                         is limited to the narrow facts of that case. While the court in 
                        *Birckhead*
                         acknowledged that downstream emissions may not always be a foreseeable effect of natural gas projects, it rejected the notion that downstream GHG emissions are a reasonably foreseeable indirect effect of a natural gas project only if a specific end destination is identified.[34]
                        
                         The court further noted that the Commission should attempt to obtain information on downstream uses to determine whether downstream GHG emissions are a reasonably foreseeable effect of the project.[35] 14. In 2021, in 
                        *Northern Natural Gas Co.,*
                         the Commission explained that it had reconsidered its position that it was unable to assess the significance of a project's GHG emissions or those emissions' contribution to climate change.[36]
                        
                         The Commission found that that project's reasonably foreseeable GHG emissions—construction and operation emissions only, as the project proposed no new capacity—would not significantly contribute to climate change.[37]
                        
                         Later in 2021, the D.C. Circuit further criticized the Commission's stance prior to 
                        *Northern Natural Gas Co.*
                         that it was unable to assess the significance of a project's GHG emissions or those emissions' contribution to climate change, holding that the Commission failed to appropriately analyze the significance of three natural gas projects' contribution to climate change using “theoretical approaches or research methods generally accepted in the scientific community,” such as the SCC tool.[38] D. Certificate Policy Statement Notices of Inquiry 15. On April 19, 2018, the Commission issued a Notice of Inquiry (2018 NOI) [39]
                        
                         seeking information and stakeholder perspectives to help the Commission explore whether, and if so how, it should revise its approach for determining whether proposed projects are consistent with the public convenience and necessity under the currently effective policy statement on the certification of new interstate natural gas transportation facilities (Certificate Policy Statement).[40]
                        
                         The 2018 NOI included a background section discussing how the legal standards and historical context informed the creation of the Certificate Policy Statement in 1999, how the Commission's evaluations under the Certificate Policy Statement and under NEPA have evolved, and how changed circumstances since 1999 have required the present review.[41]
                        
                         Notably, the Commission sought input on whether, and if so how, the Commission should adjust its evaluation of the environmental impacts of a proposed project. 16. In response to the 2018 NOI, the Commission received more than 3,000 comments from stakeholders including landowners; tribal, federal, state, and local government officials; non-governmental organizations; consultants, academic institutions, and think tanks; natural gas producers, Commission-regulated companies, local distribution companies, and industry trade organizations; electricity generators and utilities; and others. Many comments addressed GHG emissions. 17. On February 18, 2021, the Commission issued a new, refreshed Notice of Inquiry (2021 NOI),[42]
                        
                         seeking comments to build upon the existing record established by the 2018 NOI. The Commission posed several updated questions relating to GHG emissions, including asking: How the Commission could consider upstream impacts from natural gas production and downstream end-use impacts; how the Commission should determine the significance of a project's GHG emissions' contribution to climate change; whether the NGA, NEPA, or another federal statute authorize or mandate the use of the SCC analysis by the Commission; how the Commission could determine whether a proposed project's GHG emissions could be offset by reduced GHG emissions resulting from the project's operations; and how the Commission could impose GHG emission limits or mitigation to reduce the significance of impacts from a proposed project on climate change.[43] 18. With respect to determining significance, the 2021 NOI sought comment on (1) what type of metrics and models the Commission should consider in determining significance, (2) whether any level of emissions should be considered 
                        *de minimis,*
                         and (3) how the SCC tool or other tools could factor into determining significance.[44] 19. The public comment period for the 2021 NOI closed on May 26, 2021.[45]
                        
                         The Commission received over 35,000 comments and approximately 150 
                        ( print page 14107)
                        unique comment letters from a wide range of stakeholders, as noted above. 20. Comments relevant to this policy statement are addressed in Section III below. III. Statutory Authority/Obligations A. NGA 21. Section 7 of the NGA authorizes the Commission to issue certificates of public convenience and necessity for the construction and operation of facilities transporting natural gas in interstate commerce.[46]
                        
                         The Commission does not have authority to regulate intrastate transportation facilities or other facilities that affect interstate transportation, such as those used for the production, gathering, or local distribution of natural gas. Congress did not displace state authority over such subjects.[47] 22. Section 3(a) of the NGA provides for federal jurisdiction over the siting, construction, and operation of facilities used to import or export gas.[48]
                        
                         To date, the Commission has exercised section 3 authority to authorize: (1) LNG terminals located at the site of import or export and (2) the site and facilities at the place of import/export where a pipeline crosses an international border.[49]
                        
                         Additionally, NGA section 3(e) states that “[t]he Commission shall have the exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal.” [50] 23. Both NGA sections 7 and 3 authorize the Commission to attach terms and conditions to its authorization.[51]
                        
                         Courts have interpreted these provisions broadly and given the Commission latitude in deciding what types of mitigation to require.[52]
                        
                         In issuing authorizations, the Commission has required project sponsors to comply with conditions to prevent or mitigate project impacts on environmental resources.[53] B. NEPA 24. NEPA and its implementing regulations require agencies, before taking or authorizing a major federal action that may significantly affect the quality of the human environment, to take a “hard look” at the environmental consequences of the proposed action and disclose their analyses to the public by preparing an EIS.[54]
                        
                         Alternatively, agencies can first prepare an Environmental Assessment (EA) for a proposed action that is not likely to have significant effects or when the significance is unknown, to determine whether an EIS is necessary for a particular action.[55]
                        
                         Depending on the outcome of the EA, agencies can either prepare an EIS or issue a finding of no significant impact.[56] 25. Previous CEQ regulations and court cases have examined a proposed project's “context” and “intensity” or the severity of the impact as factors for determining what constitutes a significant effect.[57]
                        
                         In assessing significance, Commission staff considers, for each resource, the duration of the impact as well as the geographic, biological, or social context in which the effects would occur, and the intensity (
                        *e.g.*
                         severity) of the impact.[58]
                        
                         This analysis may draw on both qualitative and quantitative information.[59]
                        
                         Using both types of data, the Commission routinely makes significance determinations for impacts to various resources from natural gas projects.[60] 26. In evaluating whether an impact is significant, the Commission determines whether “it would result in a substantial adverse change in the physical environment.” [61]
                        
                         In making that determination, the Commission considers available evidence, giving that evidence such weight as it deems appropriate using its experience, judgment, and expertise.[62]
                        
                         Notably, 
                        ( print page 14108)
                        NEPA does not require that the studies, metrics, and models on which an agency relies be universally accepted or otherwise uncontested.[63]
                        
                         Instead, NEPA permits agencies to rely on the best available evidence, quantitative and qualitative, even where that evidence has certain limitations when assessing the significance of their actions,[64]
                        
                         and an agency's determination is entitled to deference.[65] 27. In addition to determining whether its actions may significantly affect the quality of the human environment, NEPA requires the Commission to consider whether there are steps that could be taken to mitigate any adverse environmental consequences.[66]
                        
                         While NEPA is a procedural statute and does not require a federal agency to reject a proposed project with significant adverse effects or take action to mitigate adverse effects,[67]
                        
                         an agency may require mitigation of impacts as a condition of its permitting or approval,[68]
                        
                         and the Commission routinely does so.[69] IV. Discussion A. Quantifying GHG Emissions and Determining Significance 28. Consistent with CEQ regulations,[70]
                        
                         the Commission will quantify a project's GHG emissions that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action, including those effects that occur at the same time and place as the proposed action and effects that are later in time or farther removed in distance from the proposed action. This will include GHG emissions resulting from construction and operation of the project [71]
                        
                         as well as, in most cases, GHG emissions resulting from the downstream combustion of transported gas.[72] 29. The Commission will consider all evidence in the record relating to a project's estimated GHG emissions,[73]
                        
                         utilization rate, or offsets: Estimates presented by project sponsors, as well as opposing evidence from other parties. Going forward, in determining the level of GHG emissions attributed to a project, the Commission will estimate a project's GHG emissions based on a projection of what amount of project capacity will be actually used (projected utilization rate), as opposed to assuming 100% utilization.[74]
                        
                         The Commission will also consider evidence of factors expected to reduce or offset the estimated direct or reasonably foreseeable downstream emissions of the project. 1. Categories of Emissions 30. CEQ regulations implementing NEPA require agencies to consider effects or impacts that “are reasonably foreseeable and have a reasonably close causal relationship to the proposed action . . . including those effects that occur at the same time and place as the proposed action . . . and may include effects that are later in time or farther removed in distance for the proposed action . . . .” [75]
                        
                         A “but for” causal relationship is insufficient to make an agency responsible for a particular effect,[76]
                        
                         and effects should not be considered if they are the “product of a lengthy causal chain.” [77]
                        
                         Further, effects to be considered do not include those that the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action.[78]
                        
                         Regarding reasonable foreseeability, courts have found that an impact is reasonably foreseeable if it is “sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision.” [79]
                        
                         Although courts have held that NEPA requires “reasonable forecasting,” [80]
                        
                         an agency “is not required to engage in speculative analysis” [81]
                        
                         or “to do the impractical, if 
                        ( print page 14109)
                        not enough information is available to permit meaningful consideration.” [82] 31. As discussed below, the Commission proposes to: Consider direct emissions of a project a reasonably foreseeable effect;
                    Find that an NGA section 3 export facility project is not the legally relevant cause of upstream and downstream emissions; [83] Consider on a case-by-case basis whether downstream emissions are a reasonably foreseeable effect of an NGA section 7 interstate project; and
                    Consider on a case-by-case basis whether upstream emissions are a reasonably foreseeable effect of an NGA 7 project. a. Direct Emissions 32. Several commenters assert that the Commission must consider fugitive emissions from the transportation of gas.[84]
                        
                         New Jersey Conservation Foundation, Sabin Center for Climate Change Law (Sabin Center), The Watershed Institute, Clean Air Council, PennFuture, and New Jersey League of Conservation Voters (collectively, New Jersey Conservation Foundation) argue that natural gas leakage from both pipeline operation and natural gas production is worse than combustion because methane has a higher global warming potential than carbon dioxide.[85] 33. As the Commission has long held, direct GHG emissions from the project's short-term construction [86]
                        
                         and long-term operational activities [87]
                        
                         are an effect of the proposed project. Under current Commission regulations, the project sponsor provides an estimate of construction emissions and an estimate of the project's potential operational emissions, including fugitive emissions from both pipeline and aboveground facilities, in its application for Commission authorization.[88] b. Downstream Emissions 34. Some commenters argue that the Commission must consider the downstream emissions of natural gas projects,[89]
                        
                         including fugitive emissions.[90]
                        
                         In contrast, other commenters generally assert that the Commission should not consider downstream emissions, or at most, should only do a qualitative assessment of downstream emissions, because they are not reasonably foreseeable impacts or do not have a close causal relationship under NEPA to gas transportation.[91] 35. As discussed above, in August 2017, the D.C. Circuit issued 
                        *Sabal Trail,*
                         which involved a greenfield pipeline project that would deliver all gas transported by the project to specific gas-fired generating plants. The D.C. Circuit found that downstream emissions from the use of the transported natural gas were an indirect, reasonably foreseeable effect of the proposed pipeline and that in the circumstances of that case—where the vast majority of throughput on the proposed project was destined for a limited number of specifically identified electric generation facilities—the downstream GHG emissions could be reasonably quantified by the Commission.[92] 36. The D.C. Circuit reiterated this determination in two subsequent cases. First, in 
                        *Birckhead,*
                         the court rejected the claim that downstream emissions are only a foreseeable effect in factual circumstances akin to 
                        *Sabal Trail, i.e.,*
                         where all transported gas will be burned at specifically identified destinations, but also rejected the argument that downstream emissions are always a foreseeable effect of a natural gas certificate project.[93]
                        
                         Then, in 
                        *Allegheny Defense Project*
                         v. 
                        *FERC,*[94]
                        
                         the court stated that the downstream emissions of a project designed to deliver gas into large interstate pipeline systems, which in turn deliver gas to 16 states, are an indirect effect of the project.[95] 37. INGAA and others read the Supreme Court's 
                        *Public Citizen*
                         decision as requiring an agency to consider an environmental effect only when the agency has the authority to control the outcome and note that the Commission has no authority to regulate the end use (or production) of natural gas.[96]
                        
                         INGAA states that attempting to regulate downstream (or upstream) activities would invade the jurisdiction of other regulators, that most projects will not result in reasonably foreseeable downstream GHG emissions like those in 
                        *Sabal Trail,*
                         and thus, downstream emissions should only be considered on a case-by-case basis.[97]
                        
                         INGAA suggests the Commission look for guidance to 
                        *Center for Biological Diversity*
                         v. 
                        *U.S. Army Corps of Engineers,*[98]
                        
                         which criticizes 
                        *Sabal Trail*
                         as “breezing past . . . statutory limits and precedents . . . clarifying what effects are cognizable under NEPA.” [99] 38. Given that data show that the vast majority of consumed gas is ultimately combusted,[100]
                        
                         there appears to be a 
                        ( print page 14110)
                        substantial likelihood of GHG emissions from the end-use combustion of transported gas as a result of a natural gas project proposed under NGA section 7.[101]
                        
                         However, as contemplated by the court in 
                        *Birckhead,*
                         there may be circumstances where downstream emissions are not a foreseeable effect of an authorized project, and the court stated that each project must be analyzed on a case-by-case basis.[102]
                        
                         Accordingly, project sponsors may submit any evidence they believe indicates that downstream emissions are not a reasonably foreseeable effect of a proposed project. 39. We disagree with commenters' assertions that 
                        *Public Citizen*
                         prohibits the Commission from considering downstream GHG emissions. The question is not whether the Commission has regulatory authority over downstream emissions. Rather, as the 
                        *Sabal Trail*
                         court reasoned in applying 
                        *Public Citizen,*
                         the Commission “has no obligation to gather or consider environmental information [only] if it has no statutory authority 
                        *to act on that information.*
                        ” [103]
                        
                         Because the Commission can reject a section 7 certificate based on the project's environmental impacts, including GHG emissions, the court held that the Commission was required to consider downstream emissions resulting from the Sabal Trail project's construction.[104]
                        
                         For section 7 projects—unlike section 3 projects, described below—there is no independent decision, such as the DOE authorization critical in 
                        *Freeport,*
                         to “break the NEPA causal” chain.[105]
                        
                         Accordingly, the Commission's authorization for section 7 projects is a “legally relevant cause” of the emissions, meeting 
                        *Public Citizen'*
                        s direction that “NEPA requires `a reasonably close causal relationship' between the environmental effect and the alleged cause,” analogous to the “familiar doctrine of proximate cause from tort law.” [106] 40. The Commission finds this and subsequent direction from the D.C. Circuit more instructive than 
                        *Center for Biological Diversity,*
                         which determined that a specific effect was too tenuous to be considered in analysis of a U.S. Army Corps of Engineers discharge permit for mining activities under the Clean Water Act.[107] 41. However, for proposed export projects under NGA section 3, the Commission will not consider downstream GHG emissions an effect requiring analysis under NEPA regulations. The Department of Energy, not the Commission, has sole authority to license and consider the environmental impacts of the export of any natural gas.[108]
                        
                         As courts have explained, the Commission need not consider the effects of downstream transportation, consumption, or combustion of exported gas because the Department of Energy's “independent decision to allow exports . . . breaks the NEPA causal chain and absolves the Commission of responsibility to include [these considerations] in its NEPA analysis.” [109] c. Upstream Emissions 42. Some commenters state that the Commission must consider the upstream GHG emissions of natural gas projects, including fugitive emissions from production,[110]
                        
                         to assess the project's total impact on climate change.[111]
                        
                         Other commenters argue that upstream emissions are not a reasonably foreseeable effect of a natural gas transportation project, and therefore should not be considered by the Commission.[112]
                        
                         Some commenters focus on how to obtain sufficient information to account for upstream GHG emissions. For example, EPA recommends that the Commission require project sponsors to provide available information on reasonably foreseeable induced production demand. EPA states that environmental documents under NEPA should disclose this information as well as items such as the proposal's regionally known hydrocarbon accumulations and a decline curve analysis to allow for appropriate regional and local impact analysis.[113] 43. In various NGA section 7 proceedings, the Commission has considered upstream emissions on a case-by-case basis—sometimes acknowledging it is difficult to quantify upstream emissions due to several unknown factors, including the location of the supply source and whether transported gas will come from new or existing production.[114]
                        
                         The Commission will continue to consider on a case-by-case basis whether the environmental effects resulting from natural gas production are either likely caused by a proposed NGA section 7 project or reasonably foreseeable consequences of our approval of such projects. To the extent known, project sponsors are encouraged to submit information on the reasonably foreseeable upstream impacts caused by the project or an explanation as to why there are none for Commission consideration. 2. Calculating GHG Emissions 44. To calculate operational emissions, project sponsors should continue to follow the existing guidance outlined in section 4.9.1.3 of the Commission's Guidance Manual for Environmental Report Preparation for 
                        ( print page 14111)
                        Applications Filed under the NGA.[115]
                        
                         However, under this policy statement, for purposes of assessing the impact of a project's GHG emissions on climate change, the Commission will consider operational GHG emissions calculated based on a projected utilization rate for the project, as described below.[116] 45. Additionally, the Commission recognizes that there may be other factors that might serve to reduce a proposed project's climate impacts. For example, the installation of emission-reduction technology or purchase of offsets by downstream users would reduce the impacts. Thus, to enable the Commission's use of the best estimate of a project's GHG emissions, project sponsors are encouraged to calculate project GHG emissions using a projected utilization rate and submit evidence of any other factors that might impact a project's net emissions such as the factors identified by commenters below. 46. Commenters recommend that the Commission consider factors that might impact a project's net emissions, such as (1) whether the transported gas will phase out use of a more carbon-intensive energy source, like coal or fuel oil, and will prevent the use of more carbon-intensive energy sources in the future; (2) whether the pipeline will transport gas that would otherwise be transported by vehicles, thereby reducing the emissions from transporting the gas; (3) whether the proposed project will transport gas volumes that would have otherwise been delivered to the same consumers through a different pipeline or may ultimately end up transporting fuel blends including renewable natural gas or hydrogen; (4) whether the project sponsor will purchase offsets to counter project emissions; or (5) whether the project may be backed by a local distribution company serving customer demand in states with established emissions caps.[117]
                        
                         INGAA states that in the absence of reliable and verifiable predictive models to the contrary, the requirement of reasonable foreseeability arguably dictates that the Commission cannot adopt any default assumption that a natural gas infrastructure project will increase (rather than decrease, or leave unchanged) net global GHG emissions, and that at minimum, the Commission would have to provide a rational justification for any such assumption.[118]
                        
                         By contrast, New Jersey Conservation Foundation and others contend that the Commission should consider whether the project may be displacing renewable energy sources, thereby increasing GHG emissions.[119] 47. INGAA and other commenters strongly urge the Commission to calculate a project's downstream emissions, if at all, based on the likely utilization rate of the proposed project, instead of relying on a full-burn estimate.[120] 48. Conversely, New Jersey Conservation Foundation and others argue the Commission must calculate direct, downstream, and upstream GHG emissions by assuming the maximum authorized operating conditions, unless, some add, the project sponsor can demonstrate otherwise.[121]
                        
                         Further, other commenters propose their own methods of how to calculate the downstream emissions of a proposed project.[122]
                        
                         New Jersey Conservation Foundation urges the Commission to recommend or require the use of specified emissions factors to calculate project emissions.[123]
                        
                         Some commenters argue that the Commission must, beyond asking project sponsors, require certain information to be provided, conduct independent research, or otherwise compile missing information.[124]
                        
                         Dr. Susan F. Tierney states that the Commission should articulate a default methodology, set of assumptions, and sources of data (suggesting multiple sources including data from the U.S. Department of Energy's National Energy Technology Laboratory's 2019 life-cycle estimates of GHG emissions for the natural gas supply chain) to establish a default maximum emissions rate, which could then be supplemented by an applicant's own estimate or an intervenor's alternative estimate.[125] a. Projected Utilization Rate 49. In previous environmental documents and certificate orders, the Commission has disclosed a project's operational emissions [126]
                        
                         and estimates 
                        ( print page 14112)
                        of downstream emissions [127]
                        
                         by assuming a 100% utilization rate estimate of the project (
                        *e.g.,*
                         the maximum capacity is transported 365 days per year, 24 hours a day and fully combusted downstream). This represents the maximum potential downstream GHG emissions. However, most projects do not operate at 100% utilization at all times. In fact, many projects are designed to address peak demand. For example, traditionally, in the Northeast, demand for gas is highest in the winter months, resulting in high utilization rates during those months due to heating needs, but lower in the summer, resulting in low annual utilization rates.[128] 50. Because in most instances a 100% utilization rate estimate does not accurately capture the project's climate impacts, estimated emissions that reflect a projected utilization rate will provide more useful information. The project's projected utilization rate may be calculated using, for example: Expected utilization data from project shippers;
                    Historical usage data; [129] Demand projections;
                    An estimate of how much capacity will be used on an interruptible basis. 51. The project sponsor is encouraged to file its projected utilization rate, as well as its justification for the rate and any supporting evidence, in its application for authorization under NGA section 3 or 7. The Commission will also consider evidence submitted by commenters and protesters in support of or opposition to the projected utilization rate. b. Other Evidence Considered 52. Further, the Commission will consider any other evidence in the record that impacts the quantification of the project's reasonably foreseeable emissions. For example, the Commission will consider: Evidence of a net-reduction in GHG emissions where the use of transported gas displaces the use of a higher emitting alternative fuel; [130]
                        
                         evidence of anticipated changes in downstream usage rates over time; evidence of any real, verifiable, and measurable reduction efforts taken by the pipeline or downstream users to reduce their GHG emissions or offset their impacts; [131]
                        
                         and evidence that a project would displace zero-emissions electric generation. Further, other agencies, notably the EPA, have proposed regulations that may impact the emission of methane from Commission-regulated facilities.[132]
                        
                         If such regulations are adopted, the Commission will consider them when examining project GHG emissions. Similarly, the Commission will consider evidence from commenters and protestors supporting or challenging such estimates and assumptions. B. Level of Review and Significance 53. Under NEPA, an agency must prepare an EIS for every “major [f]ederal action[ ] significantly affecting the quality of the human environment.” [133]
                        
                         To determine whether an EIS is necessary for a particular action, the agency may prepare an EA,[134]
                        
                         described as a “concise public document” providing “sufficient evidence and analysis,” to determine whether to prepare an EIS or issue a finding of no significant impact.[135] 54. To assess significance, the Commission determines whether the impact “would result in a substantial adverse change in the physical environment,” [136]
                        
                         which, as discussed, is based on considerations of the severity of adverse environmental impacts. In making that determination, the Commission uses its experience, judgment, and expertise to give record evidence appropriate weight.[137]
                        
                         The Commission found that “there is nothing about GHG emissions or their resulting contribution to climate change that prevents us from making that same type of significance determination.” [138] 55. Specifically, in 
                        *Northern Natural Gas Co.,*
                         the Commission explained that: The U.S. Court of Appeals for the District of Columbia Circuit has explained that a proposed interstate natural gas pipeline's reasonably foreseeable GHG emissions are relevant to whether the pipeline is required by the public convenience and necessity. A rigorous review of a project's reasonably foreseeable GHG emissions is also an essential part of the Commission's responsibility under NEPA to take a “hard look” at a project's environmental impacts. Determining the significance of the impacts from a proposed project's GHG emissions informs the Commission's review in a number of important respects, including its decision whether to prepare an environmental impact statement.[139] 56. To date, no federal agency, including the Commission, has established a threshold for determining what level of project-induced GHG emissions is significant. The Commission received a number of comments, discussed below, offering perspectives on whether and at what level it should assess the significance of a proposed project's GHG emissions. 1. Comments 57. The Commission received relevant comments in response to both the 2018 and 2021 NOIs on whether the Commission should: Determine 
                        ( print page 14113)
                        significance at all; set a specific significance threshold and at what level; and/or use various inventories, goals, and tools to set the threshold. a. Whether the Commission Should Determine Significance 58. Numerous commenters (Delaware Riverkeeper, Food and Water Watch, North Carolina Department of Environmental Quality, Sabin Center, and others) argue that the Commission should make a significant impact determination based on a project's GHG emissions, which they argue would include the project's associated upstream and downstream emissions. Some commenters, for example the Sabin Center in 2018, direct the Commission to the NEPA regulation at 40 CFR 1508.27 (that was removed by amendments effective September 14, 2020), which provides that “significantly” as used in NEPA requires considerations of both the context of the action and the intensity of the impacts associated with any proposal.[140] 59. In contrast, some regulated entities and other commenters express concern about the Commission determining the significance of a project's impacts on the basis of GHG emissions, especially upstream and downstream emissions. For example, INGAA and others (Energy Infrastructure Council, Williams, etc.) argue that the Commission should, at most, engage in a qualitative discussion of downstream GHG emissions because net GHG emissions are not reasonably foreseeable, and that the Commission should not assess the significance of upstream or downstream emissions.[141]
                        
                         Commenters such as Boardwalk state that the Commission cannot reject a project because of downstream GHG emissions or consider upstream GHG emissions, may only include a general disclosure of downstream emissions in limited circumstances (such as where all end use is known), and should generally decline to assess significance and only engage in a qualitative discussion.[142] 60. Commenters argue that the Commission lacks the ability to make a significance determination and has no objective basis upon which to evaluate the impacts of GHG emissions associated with any specific proposed project.[143]
                        
                         Other commenters state that setting any significance threshold would be arbitrary [144]
                        
                         and potentially outside of the Commission's authority or jurisdiction.[145] 61. Finally, commenters state that the Commission should defer to other agencies, such as CEQ or EPA, in setting a significance threshold, citing: The lack of a national energy policy or federal GHG limits; the EPA's existing authority to regulate GHG emissions under the Clean Air Act; the direction of Executive Orders 13990 and 14008, which commenters say direct EPA to examine its own GHG emissions standards; and the ongoing Interagency Work Group efforts on the SCC.[146]
                        
                         A few industry commenters also caution against creating uncertainty or a moving target for industry while waiting for a significance threshold to be established.[147] b. What the Threshold Should Be 62. Some commenters argue that the Commission should consider any net increase in GHG emissions as significant.[148]
                        
                         Attorneys General of Massachusetts, Connecticut, Maryland, Minnesota, New Jersey, New York, Oregon, Rhode Island, and the District of Columbia (Attorneys General of Massachusetts et al.) argues that any investment in pipeline infrastructure is inconsistent with new national emissions reductions targets and thus, project emissions can be significant on that basis alone, even if they represent a small share of national emissions, or that emissions are significant if they impede the ability of a state to meet its clean energy goals.[149] 63. A few commenters suggest specific numerical thresholds. The Sabin Center recommends that the Commission assess the magnitude of GHG emissions impacts using EPA's quantification threshold of 25,000 tons per year of CO2
                        e to identify major emitters under the Clean Air Act, social cost of GHG tools to assign a dollar value to the potential impacts of the emissions, and EPA's GHG Equivalencies Calculator as a comparison tool.[150]
                        
                         One commenter cites to EIS examples where the Commission stated that monetized benefits of $8 million and $28 million would be “significant” for local economies and suggests that gross climate damages between roughly $8 and $20 million should be considered significant.[151] 64. Conversely, a few commenters state that emissions from all individual projects could be considered 
                        *de minimis*
                         and individually too small to impact climate change.[152]
                        
                         Others urge the Commission away from taking a bright line approach to determining significance,[153]
                        
                         while Driftwood Pipeline LLC urges that significance, if appropriate, requires the Commission to disclose a clear threshold.[154] 65. CEQ points the Commission to its 2016 guidance as an existing resource to help agencies assess GHG emissions and the effects of climate change in NEPA reviews.[155] c. Use of Inventories, Climate Goals, Programmatic Analyses, Etc. in Determining Significance 66. Some commenters recommend that the Commission use state, regional, and global GHG reduction goals to provide context and/or define 
                        ( print page 14114)
                        significance of GHG emissions.[156]
                        
                         For example, Attorneys General of Massachusetts et al. comments that the Commission already analyzes whether a proposed pipeline project is consistent with various energy and climate policies and goals and that this can be used as a metric for evaluating significance.[157]
                        
                         Others argue that the Commission's analysis of a proposed project's public benefits should weigh the effect of project GHG emissions on states' and the nation's abilities to comply with climate and clean energy laws and policies, such as specific energy and climate change action plans and policies.[158]
                        
                         The Ohio Environmental Council recommends that the Commission consider the total proposed upstream and downstream GHG emissions of all gas projects pending in any given year, giving weight to the total possible GHG emissions that could be locked in by those projects and comparing this total with international goals.[159] 67. Other commenters suggest alternative means or tools for assessing significance. For example, commenters suggest that the Commission should use a “Climate Test.” [160]
                        
                         Patricia Weber comments that the Commission should use such a test to determine if a project is viable in a scenario where the climate goals of the Paris agreement are met using climate and global energy market models. One commenter urges the Commission to examine acres of wetlands that will be lost due to climate impacts of proposed projects as a proxy for significance.[161]
                        
                         Some commenters suggest the Commission consider a programmatic or regional analysis of pipelines.[162] 68. EDF comments that a comparison of a project's emissions to international, state, or regional carbon budgets, or assessing geophysical impacts such as increases in carbon dioxide levels, global temperatures, or sea levels can be misleading and trivialize the project's impacts.[163] 69. Some industry commenters state that any comparison of direct or indirect emissions should be made to global GHG inventories, not national or state inventories.[164]
                        
                         However, Williams states that, while the Commission should consider only direct construction and operation emissions, the Commission should compare those emissions against national GHG inventories and not against international agreements or regional targets.[165]
                        
                         Others oppose use of a regional analysis of GHG emissions from pipeline projects.[166] d. Use of the Social Cost of Greenhouse Gases 70. Several commenters generally argue for a monetization of climate damages using the Social Cost of Greenhouse Gas (SC-GHG) tools [167]
                        
                         to determine significance.[168]
                        
                         EDF recommends that the approach should be consistent with the Commission's practices for determining the significance of other monetized effects, such as economic impacts.[169]
                        
                         Public Interest Organizations comment that an established numerical significance threshold is not necessary, but if one is established, it should be used in tandem with the SCC tool and should not be based solely on one metric, especially not on a comparison to global emissions. Rather, they urge a holistic review of how a proposed project's impacts weigh against any benefits.[170]
                        
                         EDF states that if the climate damages exceeded monetized project benefits, the Commission could reject the project.[171] 71. Conversely, other commenters oppose use of the SCC tool in determining significance [172]
                        
                         or of using the SCC tool at all.[173]
                        
                         The Attorneys General of Missouri, Alabama, Alaska, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia (Attorneys General of Missouri et al.) contends that the NGA does not allow use of the SCC tool to calculate speculative damages and that its use is contrary to the Commission's public interest responsibilities. Further, they argue that NEPA does not permit the use of the SCC because NEPA does not allow agencies to rely on conclusions that are speculative or reflect substandard or outdated science.[174] 72. Public Interest Organizations state that, while neither the NGA nor NEPA explicitly reference the SCC tool, there is nothing in these or other federal statutes that would prohibit its use.[175]
                        
                         New Jersey Conservation Foundation notes that President Biden's Executive Order 13990 supports the use of the SC-GHG tools by agencies to capture the full costs of GHG emissions as accurately as possible.[176]
                        
                         New Jersey Conservation Foundation states that following issuance of Executive Order 13990, the Interagency Working Group on the Social Cost of Greenhouse Gases (GHG IWG) published interim SC-GHG values, which the Commission should use.[177] 
 
 73. CEQ notes that it was working with representatives on the GHG IWG to develop additional guidance regarding the application of the SC-GHG tools in decision-making processes, including NEPA analysis.[178]
                        
                         NGSA and API urge the Commission to wait for this review to be completed.[179]
                        
                         NGSA further states that it would be inappropriate for the Commission to develop a likely conflicting approach for utilizing the SCC tool.[180]
                        
                         API states that it would violate principles of consistency for the Commission to apply the interim SC-GHG values to current proposals (
                        *i.e.,*
                         for the remainder of this year), knowing that these values may change and lead to different treatment for future proposals.[181]
                        
                         EPA states that in cases where the Commission determines that a monetary comparison between benefits and costs is appropriate, the Commission should take into account established practices for benefit-cost analyses (
                        *e.g.,*
                         the Office of Management and Budget's Circular A-4 and references therein). If the Commission chooses to use the SC-GHG tools, EPA states that it should disclose all assumptions and levels of uncertainty associated with the analysis.[182] 74. The Public Interest Organizations state that monetizing impacts using the SCC tool provides the public and decisionmakers with accessible figures useful in determining whether a project is in the public interest and allows the Commission to easily compare project harms and economic benefits, whereas other metrics can misleadingly minimize climate impacts due to inadequate contextualization.[183] 75. Kinder Morgan asserts that the SCC tool relies on inputs or assumptions that introduce too much uncertainty.[184]
                        
                         Similarly, Attorneys General of Missouri et al. contends that the SCC tool is too speculative and arbitrary to hold up to the hard-look requirement under NEPA.[185]
                        
                         Rebutting this, EDF emphasizes that the GHG IWG's methodology is rigorous and based on the best available data and economic practices, such as utilizing a 300-year time horizon.[186]
                        
                         INGAA states that the significant variation in output among GHG IWG's interim values shows that discount rates reflect a high level of uncertainty in the models and that an agency's chosen discount rate wields an outsized influence on the end result.[187]
                        
                         INGAA states that the Commission should: (1) Only use the SCC tool within the NEPA evaluation, not the NGA evaluation; (2) use the SCC tool as a relative, but not absolute, measure; (3) use the SCC tool only as a threshold indicator; and (4) place any SCC estimates in the proper context.[188] 76. New Jersey Conservation Foundation recommends that the Commission use all of the GHG IWG's interim values provided for the SC-GHG tools (GHG IWG recommends using a discount rate of 3%, but also provides values associated with discount rates of 2.5% and 5%).[189] 77. Boardwalk and Kinder Morgan argue that the Commission should only use the SCC tool as a qualitative tool.[190]
                        
                         Boardwalk further asserts that there should not be any triggering levels that would result in adverse action by the Commission or a significance determination. Boardwalk contends that the use of trigger levels would create substantial regulatory uncertainty. Kinder Morgan and Williams also express concern that the SCC tool yields inherently one-sided GHG data if it is applied to a project in a manner that monetizes only the project's GHG costs and not the corresponding project benefits.[191]
                        
                         Energy Infrastructure Council asserts that the SCC tool is meaningless without a standard or threshold for significance and its use requires a monetized cost-benefit analysis of an entire project.[192] 78. Kinder Morgan states that the SCC tool was not designed for project-specific analysis but could be used as a screening tool in a qualitative analysis. If the Commission uses the SCC tool, Kinder Morgan recommends that it should explain why and how it was used.[193]
                        
                         This explanation should include information about the SCC's function, its mechanism, its embedded limitations and assumptions, and the specific reason for its application in a given circumstance. Kinder Morgan states that this type of explanation is vital to avoid misleading the public about the purpose of the SCC calculation and the meaning of its results.[194]
                        
                         Spectra Energy Partners, LP and Seneca Resources Corporation contend that the Commission has no basis to designate a particular SCC dollar amount as significant, and any such designation would be arbitrary and could not meaningfully inform the Commission's decision making or the public.[195]
                        
                         Additionally, Kinder Morgan states that the Commission should not use the SCC tool to determine mitigation measures or conditions because no statute requires that the Commission implement mitigation based on calculations from such a tool.[196] 2. Appropriate Level of NEPA Review and Significance Determination 79. To determine the appropriate level of NEPA review, the Commission is establishing a significance threshold of 100,000 metric tons or more per year of CO2
                        e. In calculating this emissions estimate, Commission staff will apply the 100% utilization or “full burn” rate for natural gas supplies delivered by the proposed project and will prepare an EIS if the estimated emissions from the proposed project may exceed the 100,000 metric tons per year threshold. 80. An emissions threshold of 100,000 metric tons per year of CO2
                        e captures the majority of annual emissions generated by Commission authorized projects, including those that may result in incremental GHG emissions over a long duration that may have a significant effect upon the human environment. Establishing a threshold for NEPA purposes also provides Commission staff, industry, and other stakeholders clarity regarding whether a particular project will result in the preparation of either an EA or an EIS. We believe that such clarity ultimately benefits both the regulated community and public by ensuring certainty regarding the Commission's process for reviewing applications for natural gas infrastructure. 81. In its NEPA document, staff will estimate the proposed project's GHG emissions based on all relevant evidence submitted in the record—including the project's utilization rate, offsets, and mitigation. A project with estimated emissions of 100,000 metric tons per year of CO2
                        e or greater will be presumed to have a significant effect, unless record evidence refutes that 
                        ( print page 14116)
                        presumption.[197]
                        
                         While the 100,000 metric ton presumption will serve as a guidepost, facilitating transparent, predictable analysis of a proposed project's contribution to climate change, our analysis will continue to consider all evidence in the record on a case-by-case basis. As part of that analysis, the Commission will continue to consider any emerging tools as well as any forthcoming frameworks or analysis issued by CEQ or other agencies on this issue. Finally, as noted at the outset, we encourage commenters to address this approach to assessing significance—including the 100,000 metric ton CO2
                        e threshold. a. Commission Authority To Establish a Threshold 82. Section 3 of the NGA requires the Commission to approve an application for the exportation or importation of natural gas unless the proposal “will not be consistent with the public interest.” [198]
                        
                         Similarly, under section 7, the Commission must find a proposed project is or will be required by the present or future public convenience and necessity.[199]
                        
                         The Commission has long regarded section 3's “public interest” standard and section 7's “public convenience and necessity” standard as substantially equivalent.[200]
                        
                         In considering applications under section 3 or section 7, the Commission must “evaluate all factors bearing on the public interest.” [201]
                        
                         The Commission has recognized from its earliest decisions that it may consider the end use of gas as a factor in assessing the public interest [202]
                        
                         and has long considered the impact of natural gas combustion on air pollution.[203] 83. As discussed above, the courts have interpreted the Commission's obligations under NEPA to require analysis of downstream GHG emissions for NGA section 7 certificate projects, but do not require an analysis of either downstream or upstream GHG emissions for section 3 export projects.[204]
                        
                         As also discussed above, the Commission has previously acknowledged that upstream emissions for NGA section 7 certificate projects may be difficult to quantify. However, as noted, the Commission will continue to consider on a case-by-case basis whether GHG emissions from upstream production activities are a reasonably foreseeable and causally connected result of a proposed project.[205] 84. Contrary to the suggestion of some commenters, the Commission would not intrude into another agency's domain by establishing a significance threshold. The Commission does not propose to set an emissions standard that projects will be expected to meet; rather, the threshold would be an indication of potential significance for purposes of the Commission's review of a project's environmental impacts under NEPA and trigger the preparation of an EIS.[206] 85. As discussed above, NEPA requires the Commission to take a “hard look” at the environmental consequences of a proposed action and to prepare an EIS disclosing its analysis to the public where its action may significantly affect the quality of the human environment, or to prepare an EA for a proposed action that is not likely to have significant effects or when the significance is unknown to determine if an EIS is necessary. We note that neither EPA nor CEQ raise objections to the Commission determining the significance of GHG emissions; in fact, EPA points to Executive Order 14008, which directs the federal government to prioritize assessment, disclosure, and mitigation of climate pollution and climate-related risks, in response to the Commission's query on how it could determine the significance of a project's GHG emissions.[207] 86. As discussed above, NEPA requires the Commission to determine whether a project would have any significant effects on the environment, including the effects of GHG emissions on the climate.[208]
                        
                         Moreover, courts have rejected the claim that under the NEPA framework, the determination of whether an impact is significant must not involve any subjective judgment calls.[209] 87. We are establishing a uniform GHG emissions threshold because GHG emissions affect climate to the same degree, regardless of the location or specifics of a particular project. Establishing such a threshold will provide the Commission a workable and consistent path forward to analyze proposed projects. Further, a numerical threshold is a clear, consistent standard that can be easily understood and applied by the regulated community and interested stakeholders. b. Rationale for an Emissions Threshold of 100,000 Metric Tons per Year 88. Human impact on the warming of the global climate system is unequivocal.[210]
                        
                         Even if deep reductions in GHG emissions are achieved, the planet is projected to warm by at least 1.5 degrees Celsius (°C) by 2050.[211]
                        
                         This level of warming will present major global consequences. For example, extreme temperature events that may have occurred once in 10 years on average in a climate without human influence will occur 4.1 times as frequently and be 1.9 °C hotter.[212]
                        
                         Agricultural and ecological drought events that may have occurred once in 10 years on average across drying regions in a climate without human influence will occur twice as frequently.[213]
                        
                         Warming beyond 1.5 °C presents even more severe consequences. The Intergovernmental Panel on Climate Change states that “[w]ith every additional increment of global warming, changes in extremes continue to become larger.” [214]
                        
                         For example, every subsequent 0.5 °C of warming “causes clearly discernible increases in the intensity and frequency of hot extremes, including heatwaves (
                        *very likely*), and heavy precipitation 
                        ( print page 14117)
                        (
                        *high confidence*), as well as agricultural and ecological droughts in some regions (
                        *high confidence*
                        ).” [215]
                        
                         Because of the dire effects at stake, even relatively minor GHG emissions pose a significant threat, 100,000 metric tons per year of project GHG emissions will capture all natural gas projects that have what we believe to be the potential for causing significant impacts on climate, given the typical lifespans of authorized projects. For a single natural gas project with a lifespan of 30 years, this threshold represents a total of three million metric tons of GHG emissions. 89. Based on an internal review of natural gas projects from 2008 to 2021, a 100,000 metric tons per year threshold will cover the vast majority of potential GHG emissions from natural gas projects authorized by the Commission. For context, projects that likely have 100,000 metric tons per year or more of GHG emissions include projects transporting an average of 5,200 dekatherms per day and projects involving the operation of one or more compressor stations or LNG facilities. 90. Outside the NEPA context, other federal and state agencies that have established thresholds to evaluate or regulate GHG emissions from an analysis of the emissions from regulated sources. Most notably, in 2012, EPA issued the Tailoring Rule to regulate GHG emissions from stationary sources of air pollution under the Prevention of Significant Deterioration (PSD) [216]
                        
                         and Title V [217]
                        
                         permitting programs [218]
                        
                         and proposed to phase in the regulation of GHG emissions in two steps. Under Step 1, sources already subject to the PSD permitting program for at least one non-GHG pollutant (“anyway” sources) were required to utilize best available control technology (BACT) for GHG emissions [219]
                        
                         if they increased net GHG emissions by at least 75,000 tons per year of CO2
                        e. 91. Under Step 2, EPA expanded the Tailoring Rule by requiring a new source or a major modification to an existing source to obtain PSD and/or Title V permits based on GHG emissions alone. Sources that had the potential to emit at least 100,000 tons per year of CO2
                        e would become newly subject to the PSD and/or Title V requirements, even if they did not exceed the statutory threshold for any other pollutant. Additionally, modifications to an existing source already subject to PSD and/or Title V that increased net GHG emissions by at least 75,000 tons per year of CO2
                        e would be subject to PSD requirements regardless of whether there was an increase in the emissions of any other pollutant.[220] 92. In setting the 75,000 tons and 100,000 tons per year of GHGs thresholds, EPA considered the administrative burden of permitting the estimated number of additional facilities under each threshold and the percentage of total national stationary source GHG emissions that would be covered under the threshold.[221]
                        
                         For example, under Step 1, EPA estimated a 5% increase in the total annual cost to run the permitting programs and that approximately 65% of GHG emissions would be covered. Under Step 2, EPA estimated that approximately 550 new sources would become subject to the PSD and Title V programs, increasing total annual costs to run the programs by 42% and covering 67% of GHG emissions. EPA further found that lowering the threshold to 50,000 or 25,000 tons per year of CO2
                        e would drastically increase both the number of new facilities requiring permits and the cost of administering the programs but would only marginally increase the percentage of GHG emissions covered to 70% and 75%, respectively. 93. In 2014, the Supreme Court invalidated portions of the Tailoring Rule, holding that EPA may not use GHG emissions as the sole basis for determining whether a source is subject to a PSD or Title V permitting requirements.[222]
                        
                         While the Supreme Court's ruling struck down Step 2 of the Tailoring Rule, it upheld Step 1 and allowed EPA to continue to regulate GHG emissions from “anyway” sources. Notably, the decision did not discuss EPA's methodology for establishing the thresholds; it only ruled that deviating from the 100 and 250 tons per year statutory thresholds in the Clean Air Act when requiring sources to newly obtain PSD or Title V permits based solely on GHG emissions under Step 2 was impermissible. 94. Further, at least two agencies in California that are directed to determine the significance of GHG emissions and climate impacts of proposed projects under the California Environmental Quality Act have also proposed or established thresholds of significance based on an analysis of regulated sources. First, in 2008, the California Air Resources Board (California ARB) proposed finding a less than significant impact for a proposed industrial project that, with mitigation, emits no more than 7,000 metric tons per year of CO2
                        e from non-transportation sources, including combustion and fugitive emissions.[223]
                        
                         Second, the South Coast Air Quality Management District (South Coast AQMD) adopted an interim GHG significance threshold of 10,000 metric tons of CO2
                        e per year for stationary 
                        ( print page 14118)
                        sources of air pollution in 2008.[224]
                        
                         Both California ARB and South Coast AQMD found that their thresholds would capture approximately 90% of emissions from their respective regulated sources.[225] 95. Like EPA and the California agencies, we are basing our threshold on an analysis of regulated sources. Although we are adopting a conceptually similar methodology in establishing our threshold, we note that our approach will cover a larger number of emissions than the threshold established by EPA in the Tailoring Rule. EPA's thresholds of 75,000 and 100,000 tons per year accounted for only 65% and 67% of emissions from EPA-regulated sources, respectively, whereas our proposed threshold of 100,000 metric tons per year would deem nearly three-quarters of Commission-regulated natural gas project, which collectively account for roughly 99% of GHG emissions from Commission-regulated natural gas projects, to have a significant impact on climate change. 3. Other Metrics 96. As noted above, commenters argue for and against the use of various existing GHG inventories or goals as a comparison tool to determine significance. Comparison to an existing GHG inventory or goal presents substantially different percentages based on the chosen goal (international, state, regional, or local). Because different projects may have different potential purposes and the purpose of a project may be characterized to support or oppose a particular viewpoint, we do not believe that tying the Commission's significance determination for a proposed project's GHG emissions to a particular inventory or goal is appropriate. However, we recognize that this type of comparison can be helpful to inform the Commission's analysis and the public, especially when presented using a consistent metric across proposed projects under consideration by the Commission. We note that many commenters reference the SC-GHG as one tool. To the extent permitted by law,[226]
                        
                         the Commission could consider the SC-GHG in the future. C. Mitigation 97. Federal agencies can use mitigation to minimize the potential adverse environmental effects of their actions,[227]
                        
                         and mitigation is used by the Commission in reviewing NGA sections 3 and 7 proposals.[228] 98. The NGA grants the Commission broad authority to attach reasonable terms and conditions to NGA section 7 certificates of public convenience and necessity and NGA section 3 authorizations.[229]
                        
                         The Commission has consistently exercised this authority to attach environmental conditions that mitigate the adverse environmental impacts of a proposed project, and the Commission is not precluded from utilizing this authority to require a project sponsor to mitigate all, or a portion of, the impacts related to a proposed project's GHG emissions. Therefore, consistent with the discussion provided herein, going forward project proponents are encouraged to propose mitigation that will minimize climate impacts. The Commission will consider any mitigation measures proposed by the project sponsor on a case-by-case basis when balancing the need for a project against its adverse environmental impacts and may require additional mitigation as a condition of an NGA section 3 authorization or section 7 certificate. 1. Technical Conference on GHG Mitigation 99. On November 19, 2021, the Commission held a Commission staff-led technical conference to discuss methods project sponsors may use to mitigate the effects of direct and indirect greenhouse gas emissions resulting from Natural Gas Act sections 3 and 7 authorizations.[230]
                        
                         Representatives from industry, academia, non-governmental organizations, and state regulatory commissions participated as panelists, with discussion topics including: How the Commission could determine the quantity of reasonably foreseeable GHG emissions resulting from a project proposed under section 3 or 7 of the NGA and the appropriate level of mitigation for such emissions; types of mitigation measures a project sponsor could employ to reduce the amount of GHG emissions associated with a proposed project; and methods for the continued verification and accounting of GHG mitigation during project operation, as well as cost impacts to the industry from implementing GHG mitigation measures and how project sponsors might recover those costs. 100. In addition to the panelists' written statements, the Commission received over 20 comments in response to the technical conference. The Commission considered these statements and comments in developing the mitigation policy described below. 2. Authority To Require Mitigation 101. Some commenters state that the Commission has broad authority under the NGA to place conditions in certificate authorizations requiring pipeline companies to mitigate GHG impacts,[231]
                        
                         while others argue that the Commission does not have authority under the NGA or NEPA to impose mitigation measures,[232]
                        
                         especially 
                        ( print page 14119)
                        measures to mitigate upstream or downstream GHG emissions.[233]
                        
                         Specifically, commenters argue that the Commission's authority under NGA section 7(e) to place conditions on a certificate is limited by the statutory purpose to regulate interstate transportation to ensure reliable access to plentiful natural gas at reasonable prices.[234]
                        
                         Commenters further assert that the Commission has no authority to establish environmental policy and that the Commission cannot use its conditioning authority to indirectly mitigate an effect that it has no authority to directly mitigate.[235] 102. Commenters also claim that any attempt to mitigate indirect GHG emissions would infringe on the regulatory authority of other federal and state agencies and result in back-door regulation of energy policy.[236]
                        
                         Specifically, commenters state that any attempt by the Commission to mitigate upstream or downstream GHG emissions would interfere with state resource decisions and usurp issues of national energy and environmental policy that Congress vested in other federal authorities.[237]
                        
                         For example, commenters argue that Congress has delegated authority to the EPA and state agencies to regulate GHGs under the CAA.[238]
                        
                         Even if the Commission had the authority to impose mitigation measures for upstream or downstream GHG emissions, commenters argue that the Commission must first establish that those GHG emissions are reasonably foreseeable and have a sufficiently close causal connection (akin to proximate causation under tort law) [239]
                        
                         to the authorization of a project under NEPA, and if not, should not be considered for mitigation purposes.[240]
                        
                         Lastly, commenters question reliance on 
                        *Sabal Trail*
                         to support the Commission's authority to impose mitigation.[241] 103. We disagree with contentions that the Commission does not have the authority under the NGA or NEPA to require mitigation of GHG emissions by a project sponsor. The D.C. Circuit stated in 
                        *Sabal Trail,*
                         that “the [Commission] has legal authority to mitigate” greenhouse-gas emissions that are an indirect effect of authorizing a pipeline project.[242]
                        
                         And, as early as 1961, the Supreme Court recognized that the Commission's predecessor, the Federal Power Commission, had the authority to consider downstream uses, and specifically, the impact of end-users combusting transported gas on air quality, as part of its public convenience and necessity determination under the NGA.[243]
                        
                         Both NGA sections 3 and 7 authorize the Commission to attach “such reasonable terms and conditions as the public convenience and necessity may require.” [244]
                        
                         Pursuant to this authority, the Commission has conditioned NGA section 7 certificates and section 3 authorizations on mitigation of impacts of the proposed project.[245]
                        
                         Moreover, courts have interpreted this provision broadly and given the Commission latitude in deciding what types of mitigation to require.[246] 104. Regarding claims that the Commission cannot mandate mitigation of downstream emissions because those emissions are outside the Commission's jurisdiction, we recognize, as many commenters assert, that the Commission does not have the statutory authority to impose conditions on downstream users or other entities outside the Commission's jurisdiction, such as production, gathering, and local distribution entities.[247]
                        
                         Rather, the Commission encourages each 
                        *project sponsor*
                         to propose measures to mitigate the impacts of reasonably foreseeable 
                        ( print page 14120)
                        GHG emissions associated with its proposed project, and will consider such mitigation proposals in assessing the extent of a project's adverse impacts.[248] 105. We note that the Supreme Court's ruling in 
                        *Public Citizen*
                         does not preclude the Commission from requiring project sponsors to mitigate reasonably foreseeable upstream or downstream emissions. As discussed previously,[249]
                        
                         the Commission may consider downstream GHG emissions under 
                        *Public Citizen,*
                         which states that “NEPA requires `a reasonably close causal relationship' between [an] environmental effect and the alleged cause,” analogous to the “familiar doctrine of proximate cause from tort law” and does not require an agency to gather or consider information regarding environmental harms if it lacks authority to act on that information.[250]
                        
                         As directed by 
                        *Public Citizen,*
                         decisionmakers should “look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.” [251]
                        
                         Here, the NGA “broadly instruct[s]” the Commission to consider “the public convenience and necessity” when evaluating proposed interstate pipeline applications, balancing public benefits against adverse effects, including adverse environmental effects,[252]
                        
                         and we have noted that the Commission has consistently exercised its broad conditioning authority under the NGA to attach environmental conditions that mitigate the adverse environmental impacts of a proposed project.[253]
                        
                         NEPA requires an agency to consider the environmental impacts of its actions, including steps that could be taken to mitigate adverse environmental consequences,[254]
                        
                         although it does not require a federal agency to take action to mitigate those adverse effects.[255]
                        
                         As CEQ recognizes, an agency may, however, require mitigation of impacts under its authority as a condition of its permitting or approval.[256]
                        
                         Thus, as the D.C. Circuit held in 
                        *Sabal Trail,*
                         the Commission can deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment, because the agency is the “legally relevant cause” of the direct and reasonably foreseeable environmental effects of the pipelines it approves.[257]
                        
                         Accordingly, the Commission may consider the end use of gas and the impact of natural gas combustion on air pollution as a factor in assessing the public interest.[258]
                        
                         However, as detailed below, the Commission's priority is for project sponsors to mitigate, to the greatest extent possible, a project's direct GHG emissions. The Commission also encourages project sponsors to propose mitigation of reasonably foreseeable indirect emissions, and will take such proposals into account in assessing the extent of a project's adverse impacts. 3. Mitigation Measures 106. The Commission encourages the project sponsor to propose measures to mitigate the direct GHG emissions of its proposed project to the extent these emissions have a significant adverse environmental impact.[259]
                        
                         INGAA describes three possible levels of mitigation—to zero, to a level of below significance, and to an amount to be determined by use of the SCC—but dismisses each as unworkable, improperly adopting broad policy judgements, and reliant on a one-sided and imprecise methodology, respectively.[260]
                        
                         The Commission plans to evaluate proposed mitigation plans on a case-by-case basis and is not mandating a standard level of mitigation. We also encourage project sponsors to proposed measures to mitigate the reasonably foreseeable upstream or downstream emissions associated with their projects. 107. The Commission will consider the project's impact on climate change, including the project sponsor's mitigation proposal, as part of its public interest determination under NGA section 3 or 7.[261]
                        
                         When making the public interest determination, the Commission will assess the adequacy of the project sponsor's proposed mitigation on a case-by-case basis and will consider the project's impact on climate change as one of many factors.[262]
                        
                         Further, the Commission may require additional mitigation of a project's direct GHG emissions as a condition of the authorization, should the Commission deem a project sponsor's proposed mitigation inadequate to support the public interest determination. 108. Also we note that NEPA does not preclude the Commission from approving a project with significant adverse impacts.[263]
                        
                         If a project's emissions equal or exceed the 100,000 
                        ( print page 14121)
                        metric tons per year significance threshold and the project sponsor's proposed mitigation will reduce the project's GHG emissions below that threshold, the Commission will consider that mitigation in determining whether it can make a finding of no significant impact. 109. While the Commission has broad authority to require mitigation of GHG emissions by a project sponsor, we are not mandating here any particular form of mitigation.[264]
                        
                         A project sponsor is free to propose any mechanism to mitigate the project's GHG emissions.[265]
                        
                         However, in order to ensure that any GHG emissions reduction mechanisms achieve real, verifiable, and measurable reductions, any proposed mechanisms should: a. Be both real and additional—the emissions reductions would not have otherwise happened unless the proposed reduction mechanism was implemented, and the associated reductions occur beyond regulatory requirements; [266] b. be quantifiable—any emissions reductions must be calculated using a transparent and replicable methodology; c. be unencumbered—seller has clear ownership of or exclusive rights to the benefits of the GHG reduction; and d. be trackable—the project sponsor must also propose means for the Commission to monitor and track compliance with the proposed mitigation measures for the life of the project. 110. Commenters express concerns with how the Commission will determine whether mitigation measures are verifiable or how the Commission will monitor or track compliance with mitigation measures in a way that avoids double counting emissions reductions.[267]
                        
                         Commenters point out that other federal agencies and states are already monitoring GHG emissions from certificated projects, such as EPA's GHG Reporting Rule, so a Commission-designed monitoring scheme would be duplicative and unnecessary.[268]
                        
                         EEI recommends that the Commission explore interagency agreements or memorandums of understanding (MOU) with agencies like EPA and PHMSA to avoid redundancies and clarify mitigation responsibilities,[269]
                        
                         while INGAA states that such agreements or MOUs would be insufficient.[270] 111. We believe it best not to mandate mitigation based on a specific volume or proportion of emissions. Encouraging project sponsors to submit proposed mitigation measures as opposed to mandating a certain level of mitigation for all projects allows the Commission to consider a project sponsor's proposed mitigation plan in comparison to the project's benefits, such as fuel switching or providing reliable gas service, when making a public interest determination and allows project sponsors the flexibility to choose what mitigation measures work best for their individual project. Moreover, we recognize that determining an appropriate amount of mitigation, particularly for downstream uses, depends on a variety of complex factors, some of which may not be known at the time of an application, such as state and local climate change policies, the interconnected nature of the natural gas pipeline system, long-term changes in natural gas supply sources, changes in demand for natural gas over time, individual companies' long-term goals to reduce GHG emissions, the availability of renewable energy credits or other carbon offsets, and the potential for future action by other federal agencies.[271] 112. Similarly, we believe it best to allow project sponsors to demonstrate that their proposed mitigation measures are verifiable and propose means for the Commission to monitor or track the proposed measures through the life of the project. This approach allows project sponsors to take advantage of existing monitoring programs and tailor verification and tracking to their chosen mitigation proposals and prevents the Commission from needing to establish a new monitoring program. 4. Opportunities for Mitigation 113. While project sponsors are free to propose any type of mitigation mechanism, the following are examples of mitigation mechanisms project sponsors may consider. a. Market-Based Mitigation 114. Project sponsors may mitigate the GHG emissions of a proposed project through participation in one (or more) of the various types of carbon offset markets. Sponsors could, for example, purchase renewable energy credits, participate in a mandatory compliance market (if located in a state that requires participation in such a market), or participate in a voluntary carbon market. i. Renewable Energy Credits 115. Renewable energy credits (REC) are tradeable, market-based 
                        ( print page 14122)
                        commodities that provide proof that one megawatt hour of electricity was generated from a renewable source and delivered to the grid. RECs legally convey the attributes of renewable electricity generation to their owner. While state or regional RECs may be traded on financial exchanges that typically meet state or regional guidelines, they are not limited by geographic boundaries—RECs can be purchased independently from electricity and can be matched with energy consumption.[272] 116. Commenters argue that the Commission may not require RECs because unlike offsets, RECs pertain only to the use of electric power and are therefore not appropriate for upstream or downstream mitigation, do not mitigate or compensate for GHG emissions, and are not denominated in carbon dioxide (CO2) or CO2
                        e, thus, they cannot represent any specific amount of avoided or reduced emissions.[273]
                        
                         Enbridge also states that in most instances, project sponsors will not qualify to purchase RECs under existing state programs.[274]
                        
                         While RECs may not represent a 100% offset per unit of GHG emitted, RECs do represent a decrease in GHG emissions from overall energy use and production, and we will consider them. ii. Mandatory Compliance Market Participation 117. The compliance market is a mandatory offset program regulated by national, regional, or provincial law and mandates CO2
                         and GHG emission reduction requirements. Under this framework an allowance, which is an authorization for an entity to emit GHG emissions, is created. Allowances are generated and traded for regulatory compliance and are priced as a commodity based on supply and demand, regardless of project type. 118. A prime example of an existing, domestic compliance market is the Regional Greenhouse Gas Initiative (RGGI). RGGI is a cooperative effort by eleven Northeast and Mid-Atlantic states [275]
                        
                         to limit CO2
                         emissions at certain electric power generators. Each region involved in RGGI has an established emissions budget (cap) and each electric power generator holds allowances covering their GHG emissions. If a generator is below its established cap, it may trade an allowance to other entities [276]
                        
                         that exceed their cap. RGGI has an established emissions-based auction and trading system where allowances are bought, sold, and traded.[277]
                        
                         In addition to allowances, offsets may be used for compliance purposes, which requires a third-party certification of that offset for use. RGGI strictly regulates the quantity and types of offsets. There are five pre-determined types of RGGI offsets: a. Landfill gas (methane) capture/burning; b. sulfur hexafluoride capture/recycling; c. afforestation (the establishment of a forest in an area where there was no previous tree cover); d. energy efficiency (end use); and e. agricultural manure management operations (avoided emissions). 119. In addition to RGGI, California participates in the Western Climate Initiative with Quebec and Nova Scotia,[278]
                        
                         covering industrial production, electricity generation, residential, commercial, and small industrial combustion, and transportation fuel combustion. 120. If an applicant proposes any method of market-based mitigation of GHG emissions, such as those described in this section, we encourage the applicant to inform the Commission of any state or regional compliance goals or initiatives that may be relevant to our consideration of such mitigation proposal. iii. Voluntary Carbon Market Participation 121. If a project sponsor is not located in a state that participates in a mandatory compliance market, the voluntary carbon market offers an opportunity to mitigate project emissions. The voluntary carbon market transacts with offsets, which are the instrument representing the reduction, avoidance, or sequestration of one metric ton of GHG.[279]
                        
                         The voluntary market funds additional, external projects that avoid or reduce GHG emissions.[280]
                        
                         The voluntary carbon market is open to project sponsors regardless of location and is more flexible than compliance markets, although each market has its own standards, registries, and project types. Offset allowances are issued to project sponsors of qualifying CO2
                         emissions offset projects. 122. Typically, an independent third party qualifies offset projects and establishes standards to verify offsets; however, not all offsets available in the voluntary market are certified by a third party. In order to ensure the additionality and permanence of offsets, the use of unverified offsets is discouraged. If a project sponsor proposes to mitigate project emissions through participation in a voluntary carbon market, the sponsor is encouraged to seek Commission approval of the third party that would verify the offsets prior to participation. Examples of existing, acceptable third-party certifiers include: a. Climate Action Reserve; [281] b. Verified Carbon Standard; [282]
                        
                         and c. American Carbon Registry.[283] 123. Some commenters support allowing project sponsors to purchase emissions offsets while others oppose it as a mitigation method. For example, Policy Integrity recommends that the 
                        ( print page 14123)
                        Commission require certificate holders to purchase emission offsets from a third party.[284]
                        
                         Policy Integrity states that carbon offsets are: (1) Consistent with compensatory mitigation requirements employed by other federal agencies, such as the Bureau of Land Management, U.S. Fish and Wildlife Service, and EPA; and (2) included and supported in CEQ's NEPA regulations and guidance.[285]
                        
                         Policy Integrity also recommends that the Commission develop a carbon offset program as opposed to relying on third-party programs; [286]
                        
                         however, the Commission lacks statutory authority to create such a program and believes that the existing programs and certifiers mentioned above are sufficient. 124. Conversely, some commenters oppose the Commission requiring project sponsors to purchase offsets from third parties because it is difficult to ensure that carbon offsets have the necessary traits of additionality (the reduction would not have happened but for the purchased offset), permanence (the reduction persists for the entire certification period of the offset), absence of leakage (the offset does not trigger some other activity elsewhere that adds GHG emissions), and rigorous third-party verification.[287]
                        
                         INGAA further comments that it would be difficult or impossible for the Commission to choose an appropriate level of offsetting because of the variability in emissions over the life of a project and the risk of over-counting for a given quantity of gas that might move over multiple jurisdictional transportation projects, and that not enough high-qualify offsets are available.[288]
                        
                         Commissioner Kelliher cautions that the Commission would have to verify offsets given concerns about fraud and environmental and accounting integrity.[289]
                        
                         As previously stated, the Commission is not requiring project sponsors to purchase offsets or mandating a certain level of offsetting, and while the Commission acknowledges the challenges with third-party offsets, we believe the certifiers mentioned above will sufficiently account for them. b. Physical Mitigation 125. In addition to purchasing RECs or emissions offsets, project sponsors could also propose to mitigate and/or offset GHG emissions through the use of physical, on- or off-site mitigation measures. Physical mitigation measures could include smaller-scale efforts including reducing a project's fugitive methane emissions or incorporating renewable energy or other energy efficient technologies to reduce a project's GHG emissions from compressor stations, or larger-scale undertakings such as carbon capture and storage, or direct air CO2
                         capture. Project sponsors could also propose environmentally based measures, such as planting trees along the right-of-way or in other locations to offset carbon emissions or restoring wetlands to provide additional carbon storage; however, the scale needed for such measures to meaningfully mitigate GHG emissions may render them impractical. In addition, project sponsors could propose to reduce GHG emissions from their existing facilities, including those with no direct connection to the proposed project, as mitigation for project-related emissions. 126. Commenters detail a host of mitigation measures they are currently undertaking or propose to implement to reduce direct project emissions, such as: Installing vent gas recovery systems and optimizing operations to reduce venting and blowdowns, replacing cast iron/unprotected steel pipes with polyethylene or protected steel pipes to minimize leaks, employing a variety of technologies and methods to identify and reduce leaks, and replacing natural gas-fired horsepower at compressor stations.[290]
                        
                         Other commenters echo some of those suggestions [291]
                        
                         and recommend operational limits on construction equipment, such as limited idle time when engines are not in use.[292]
                        
                         Other commenters criticize any mitigation measures, especially carbon capture and sequestration and offsets, and recommend that the Commission achieve “real zero” emissions that accounts for air and water pollution and focuses on environmental justice communities and workers impacted by the negative externalities associated with project operation and jobs that are being phased out.[293]
                        
                         Some commenters assert that direct emissions are already substantially mitigated pursuant to the regulatory authority exercised by other agencies.[294]
                        
                         With regard to methane leaks, Dr. Anna Scott explains that its independent certification and measurement program verifies that a company's operations meet regulatory standards and incentivize companies to go beyond the standards by using an engineering-based review process that assesses development through to operations, as well as continuous monitoring of emissions along the supply chain.[295]
                        
                         On a policy level, Gary 
                        ( print page 14124)
                        Choquette of Pipeline Research Council International (PRCI) argues for a centralized funding mechanism for pipeline research to establish gas quality requirements with the aim of maximizing supply and reducing emissions and notes that PRCI has developed a tool that provides a method for prioritizing alternatives to reduce emissions based on effectiveness and associated capital and operating costs.[296] 127. Commenters also recommend that the Commission consider a project sponsor's participation in programs that help shippers voluntarily reduce emissions and other voluntary emissions reductions programs when evaluating mitigation measures, such as the ONE Future Coalition, Oil and Gas Climate Initiative, Climate and Clean Air Coalition Oil and Gas Methane Partnership, EPA Natural Gas STAR Program and Natural Gas STAR Methane Challenge Program, Methane Guiding Principles, the Natural Gas Sustainability Initiative, and The Environmental Partnership.[297]
                        
                         The Commission encourages project sponsors to detail their participation in such programs and any other voluntary measures as part of their mitigation plan for the Commission to consider as part of its public interest determination. c. Cost Recovery 128. Commenters request that the Commission allow full cost recovery for any GHG mitigation measures through either the section 7 process or a general section 4 rate case for capitalized mitigation costs but caution the Commission to ensure that mitigation efforts are verified and the consumer's interest in low prices are balanced with a project sponsor's right to recover costs and earn a fair rate of return under the NGA.[298]
                        
                         Alternatively, for periodic purchases of market-based mitigation measures specifically, commenters state that pipelines could propose a tracker through a limited section 4 filing.[299]
                        
                         Conversely, other commenters oppose passing mitigation costs along to shippers, especially if it would increase rates for end-users, particularly low-income communities, who may not directly reap any local environmental benefits.[300]
                        
                         In the event mitigation costs are passed to shippers, American Forest supports establishing a baseline from which to judge emissions reductions and supports having an independent entity monitor and measure those reductions.[301]
                        
                         The Commission has previously considered and approved a proposal by a pipeline proponent to recover the costs of purchasing carbon offsets. In 2010, Ruby Pipeline, L.L.C., proposed to voluntarily purchase GHG offsets for the direct emissions associated with its compressor units (approximately 523,000 metric tons of GHG per year).[302]
                        
                         Going forward, project sponsors wishing to purchase offsets or proposing other measures to mitigate their project's GHG emissions may propose to recover the costs of these measures through their proposed rates. Applicants are encouraged to submit detailed cost estimates of GHG mitigation in their application and to clearly state how they propose to recover those costs. Pipelines may seek to recover GHG emissions mitigation costs through their rates, similarly to how they seek to recover other costs associated with constructing and operating a project, such as the cost of other construction mitigation requirements or the cost of fuel. Additionally, the Commission's process for section 7 and section 4 rate cases is designed to protect shippers from unjust or unreasonable rates and will continue to do so with respect to the recovery of costs for mitigation measures. D. Application of Policy Statement 129. We will apply this interim policy statement to both pending and new NGA section 3 and 7 applications.[303]
                        
                         As noted above, doing so will allow the Commission to evaluate and act on such applications without undue delay. Applicants with pending applications will be given the opportunity to supplement the record and explain how their proposals are consistent with this policy statement, and stakeholders will have an opportunity to respond to any such filings. A project sponsor for any new natural gas infrastructure project is encouraged to include the following in its NGA section 3 or 7 application: The project's projected utilization rate and supporting information;
                    an estimate of reasonably foreseeable project GHG emissions;
                    if upstream and downstream emissions are not quantified, evidence to support why those emissions are not reasonably foreseeable project emissions;
                    evidence, if any, that impacts the quantification of the project's reasonably foreseeable GHG emissions;
                    a description of its proposed GHG mitigation measures, including the percent of the project's direct and indirect GHG emissions that will be mitigated and, if applicable, a tracking mechanism for tracking mitigation of GHG emissions; and
                    a detailed cost estimate of its proposed GHG mitigation and a proposal for recovering those costs. 130. As explained above, the Commission will then consider the project's impact on climate change, including the project sponsor's mitigation proposal to reduce direct GHG emissions and, to the extent practicable, to reduce any reasonably foreseeable project emissions, as part of its determination under NEPA and its public interest determination under NGA section 3 or 7.[304] 
 
 V. Information Collection Statement 131. The collection of information discussed in the Policy Statement is being submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 [305]
                        
                         and OMB's implementing regulations.[306]
                        
                         OMB must approve information collection requirements imposed by agency rules.[307]
                        
                         Respondents will not be subject to any penalty for failing to comply with a collection of information if the collection does not display a valid OMB control number. 132. The Commission solicits comments from the public on the Commission's need for this information, whether the information will have practical utility, the accuracy of the burden estimates, recommendations to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. PUBLIC COMMENTS ARE DUE May 10, 2022. The burden estimates are focused on implementing the voluntary information collection pursuant to this Policy Statement. The Commission asks that any revised burden estimates submitted by commenters include the details and assumptions used to generate the estimates. 133. The following estimate of reporting burden is related only to this Policy Statement. 134. 
                        *Public Reporting Burden:*
                         The collection of information related to this Policy Statement falls under FERC-577 and impacts the burden estimates associated with the “Gas Pipeline Certificates” component of FERC-577. The Policy Statement will not impact the burden estimates related to any other component of FERC-577. The estimated annual burden [308]
                        
                         and cost [309]
                        
                         follow. FERC-577 (Natural Gas Facilities: Environmental Review and Compliance) as a Result of PL21-3-000
Number of
                                 respondents
Annual
                                 number of 
                                 responses per respondent
Total number of responses
Average burden & cost
                                 ($) per response
Total annual burden
                                 hours & total annual cost 
                                 ($)
Cost per respondent
                                 ($)(1)
(2)
(1) * (2) = (3)
(4)
(3) * (4) = (5)
(5) ÷ (1)Gas Pipeline Certificates
40
1
40
1,520 hrs; $132,240 Increase
60,800 hrs; $5,289,600 Increase
$132,240 Increase.
 135. 
                        *Title:*
                         FERC-577, Natural Gas Facilities: Environmental Review and Compliance 136. 
                        *Action:*
                         Proposed revisions to an existing information collection. 137. 
                        *OMB Control No.:*
                         1902-0128 138. 
                        *Respondents:*
                         Entities proposing natural gas projects. 139. 
                        *Frequency of Information Collection:*
                         On occasion. 140. 
                        *Necessity of Voluntary Information Collection:*
                         The Commission's existing FERC-577 information collection pertains to regulations implementing NEPA and reporting requirements for landowner notifications. The information collected pursuant to this Policy Statement should help the Commission in assessing natural gas infrastructure projects. 141. 
                        *Internal Review:*
                         The opportunity to file the information conforms to the Commission's plan for efficient information collection, communication, and management within the natural gas pipeline industry. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimates associated with the opportunity to file the information. 142. Interested persons may provide comments on this 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. VI. Comment Procedures 143. The Commission invites comments on the interim policy statement by April 4, 2022. Comments must refer to Docket No. PL21-3-000 and must include the commenter's name, the organization they represent, if applicable, and their address in their comments. 144. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at 
                        *http://www.ferc.gov*. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing. 145. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. 146. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. VII. Document Availability 147. In addition to publishing the full text of this document in the 
                        **Federal Register**
                        , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission's Home Page (
                        *http://www.ferc.gov*). At this time, the Commission has suspended access to the Commission's Public Reference Room due to the President's March 13, 2020 proclamation declaring a National 
                        ( print page 14126)
                        Emergency concerning the Novel Coronavirus Disease (COVID-19). 148. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 149. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at 
                        *ferconlinesupport@ferc.gov,*
                         or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at 
                        *public.referenceroom@ferc.gov.* By the Commission. Commissioner Danly is dissenting with a separate statement attached. Commissioner Christie is dissenting with a separate statement attached. Issued: February 18, 2022. Kimberly D. Bose, Secretary.
 DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews Docket No. PL21-3-000 DANLY, Commissioner, 
                        *dissenting:* 1. I dissent in full from today's Interim Greenhouse Gas (GHG) Policy Statement which purports to set forth the Commission's procedures to evaluate the climate change impacts of proposed natural gas projects under the National Environmental Policy Act (NEPA) and to incorporate climate change considerations into the Commission's determinations under sections 3 and 7 of the Natural Gas Act (NGA).[1] 2. This policy statement is irredeemably flawed. It is practically unworkable because it establishes a standardless standard. Its universal application to all projects, both new and pending (some for over two years), is an affront to basic fairness and is unjustifiable, especially in light of the many unnecessary delays already suffered by applicants. It is unlawful because it is illogical, it arrogates to the Commission power it does not have, and it violates the NGA, NEPA and the Commission's and the Council on Environmental Quality's (CEQ) regulations. It is also deliberately drafted so as to evade judicial review. Lastly, it will sow confusion throughout an industry that already suffers profound uncertainty. This issuance does not know what it is and neither will affected entities: It is immediately applicable, but also seeks comments, and it is allegedly not a draft policy statement, but an “interim” one. How can stakeholders have any confidence in its contents at all? [2] 3. When reading this policy statement, it is nearly impossible to credit the majority with actually believing that “minimiz[ing] our litigation risk,” making Commission decisions “legally durable,” and “increas[ing], not reduc[ing], customer and investor confidence,” are truly the goals of this proceeding.[3]
                        
                         Rather, the purpose of this Interim Policy Statement, like several of the Commission's other recent Natural Gas Act issuances, appears to be to actively discourage the submission of section 3 or section 7 applications by intentionally making the process more expensive, more time-consuming, and riskier.[4] I. Overview of the Interim Policy Statement's Contents 4. The Interim Policy Statement begins by explaining it will apply upon issuance while at the same time being subject to comment and revision.[5]
                        
                         The majority explains this is necessary to “act on pending applications under sections 3 and 7 of the NGA without undue delay and with an eye toward greater certainty and predictability for all stakeholders.” [6] 5. Next, it provides a historical background on past court, Commission, and CEQ issuances. For the sake of brevity, I will not describe this background discussion other than to note it is frequently misleading.[7] 6. Then the Interim Policy Statement announces that “the Commission will quantify a project's GHG emissions that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action.” [8]
                        
                         This, it seems, will be fairly broad: the majority goes on to say that “[t]his 
                        *will*
                         include GHG emissions resulting from construction and operation of the project as well as, in most cases, GHG emissions resulting from the downstream combustion of transported natural gas.” [9] 7. The majority also states that it will continue to consider whether upstream emissions are a reasonably foreseeable effect for NGA section 7 projects on a case-by-case basis.[10]
                        
                         Notably missing, though, is any discussion of how upstream emissions could have a reasonably close causal relationship to an NGA section 7 project.[11] 
 
 8. The Interim Policy Statement then describes how the quantity of project's emissions will be determined: By using a projected utilization rate for the project and considering “other factors that might impact a project's net emissions.” [12]
                        
                         This raises more questions than it answers. Do these other factors include consideration of whether the natural gas being transported will actually reduce overall emissions or simply replace existing emissions; for example by powering natural gas generation that permits the retirement of higher-emitting generation or by serving an end use need that will turn to a different—and perhaps higher emitting—energy source if the pipeline is not constructed? [13]
                        
                         What does this mean for projects where the end use is unknown? Does the Commission have the expertise to evaluate a project sponsor's evidence and resolve any factual disputes? Will the majority send these issues to an Administrative Law Judge as it recently did to resolve a dispute over what constituted appropriate post-construction right-of-way restoration (a subject matter with which the Commission presumably has 
                        *some*
                         expertise)? [14] 9. I would suspect most attentive readers would have been interested to then learn how, having determined the means by which to arrive at these numbers, the Commission plans to weigh emissions among all of the other factors to be considered in its NGA determination. But the majority does not say. 10. Next, the Interim Policy Statement explains “the Commission is establishing a significance threshold of 100,000 metric tons or more per year [(tpy)] of CO2
                        e” [15]
                        
                         and 
                        *will presume*
                         that the impact of a proposed project exceeding that threshold is significant unless refuted by record evidence.[16]
                        
                         According to Commission staff, of the 214 projects with direct [17]
                        
                         and downstream emissions authorized from January 2017 through June 2021, this policy would have applied to 72% of them. This means that, as of the issuance of this Interim Policy Statement, the EIS is now our default environmental document.[18] 11. The Interim Policy Statement says the Commission has authority to impose GHG mitigation for both direct emissions and downstream emissions.[19]
                        
                         This is a sweeping claim of jurisdiction and one that drastically departs from the Commission's historic employment of its conditioning authority. But right on the heels of that jurisdictional declaration, instead of ordering mitigation, the majority “encourages” project sponsors to “propose measures to mitigate the direct GHG emissions of its proposed project to the extent these emissions have a significant adverse environmental impact” and “to mitigate the reasonably foreseeable upstream or downstream emissions associated with their projects.” [20]
                        
                         The majority states the Commission will consider these mitigation measures in its public interest determinations.[21]
                        
                         This whole maneuver is odd—how often does one declare hitherto unasserted jurisdiction and then not employ it? Be warned: this is not restraint, it is foreshadowing.[22] 12. The majority tells project sponsors they are “free to propose any mechanism to mitigate the project's GHG emissions” [23]
                        
                         and offers some suggestions. Plant trees.[24]
                        
                         Incorporate renewable energy or other energy efficiency technologies.[25]
                        
                         And, with the faint echo of Johann Tetzel, the majority also suggests purchasing [26]
                        
                         renewable energy offsets.[27] 13. The majority's guidance ends there, leaving the project sponsor to figure out how 
                        *much*
                         they should mitigate by these measures,[28]
                        
                         some of which, it ought be pointed out, do not appear to have a discernable connection to the reduction of carbon emissions.[29]
                        
                         Nor does the majority explain how the Commission can verify and track any such mitigation throughout the life of the project.[30]
                        
                         The majority offers no general framework but says only that it wants project sponsors to mitigate “to the greatest extent possible.” [31]
                        
                         One wonders why no mechanism is set forth. Could it be that we learned nothing of value from soliciting comments on GHG mitigation,[32]
                        
                         holding a technical conference on the subject,[33]
                        
                         and soliciting a second round of comments following that technical conference? [34]
                        
                         And think of where this leaves project sponsors. Often, they seek guidance from Commission staff. But for the 30 applications that are currently pending, such communication is potentially barred by the Commission's 
                        *ex parte*
                         rules.[35]
                        
                         And even for those who are not so disadvantaged, absent direction from the Commission, staff can offer no more than this: You must roll the dice and cross your fingers that the Commission will act on, and maybe even grant, the requested authorization.[36] 
 
 14. But the mitigation requirements may not end there. The majority states it “may require additional mitigation as a condition of an NGA section 3 authorization or section 7 certificate.” [37]
                        
                         Using what standard? Not stated. Perhaps, it will become a good-behavior approach akin to how the Commission has considered landowner impacts, stating: “We are satisfied that [project sponsor] has taken appropriate steps to minimize [GHG emissions].” [38]
                        
                         And this encumbrance is perpetual: Mitigation, the majority says, will span “the life of the project.” [39]
                        
                         That is long time. Ample opportunity for invasive oversight, enforcement actions, and novel, as yet unpredictable, employments of the Commission's authority.[40] 15. Next, we reach the majority's guidance on cost recovery. The majority states “[p]ipelines 
                        *may*
                         seek to recover mitigation costs through their rates,” and are “encouraged to submit detailed cost estimates of GHG mitigation in their application and to clearly state how they propose to recover those costs.” [41]
                        
                         Pipelines 
                        *may*
                         recover costs? On what possible basis could the Commission 
                        *deny*
                         recovery? The majority declines to say. Then, presumably in response to comments about increasing rates for low-income communities and requests to balance the cost of mitigation with its environmental benefit, the majority states that “the Commission's process for section 7 and section 4 rate cases is designed to protect shippers from unjust or unreasonable rates and will continue to do so with respect to the recovery of costs for mitigation measures.” [42]
                        
                         How can that be true when the Commission will issue a certificate only when it determines that proposed mitigation measures are required for a pipeline project to be deemed in the public convenience and necessity? Is the Commission really suggesting that it will deny the recovery of costs that it determines are necessary to satisfy the public interest? 16. The Interim Policy Statement concludes by informing project sponsors with pending applications that they “will be given the opportunity to supplement the record and explain how their proposals are consistent with this policy statement” and that those filings will be subject to a reply comment period.[43]
                        
                         Future applicants are also “encouraged” to include a list of information in their filings.[44]
                        
                         What happens if a project sponsor supplements its record and the Commission revises the Interim Policy Statement once again before acting on that project sponsor's application? I can imagine that occurring as the comment deadline is six weeks away. And how can future applicants reasonably rely on interim guidance that may or may not change? What “certainty and predictability” [45]
                        
                         does this policy provide? 17. In sum, the Commission will weigh direct GHG emissions and, in most cases, downstream emissions in its NGA determinations. It will not tell you how these emissions will be assessed other than to say that project sponsors are encouraged to mitigate them. It will not tell you how project shippers will be protected from imprudently incurred costs. This is the tyranny of vagueness. It is also a threat. Imagine the fear that will animate the mitigation “voluntarily” proposed by those project sponsors with pending applications who are facing millions of dollars in sunk costs and with shippers that have relied on projects being placed into service and now only have higher cost and less reliable options available. This policy statement cannot rightly be described as “encouraging” anything.[46] II. Interim Policy Statement Proposes, and Takes, Unlawful Actions A. The Interim Policy Statement, in Its Entirety, Is Based on the Wrong Premise 18. It is worth pausing to consider the underlying premise of the majority's policy for considering GHG emissions, establishing a GHG emission threshold for preparing EISs, and requiring GHG emission mitigation. All are based on the presumption that GHG emissions are an “effect” of the proposed action. 19. In order to constitute an “effect,” three elements must be met: (1) There is a “change[ ] in the human environment,” that change (2) is “reasonably foreseeable,” and (3) it “has a reasonably close causal relationship to the proposed action or alternatives.” [47]
                        
                         The majority, however, does not allege that the change in the human environment at issue is the release of GHG emissions themselves. That makes sense, given that it would be like the Commission saying, in the hydropower context, that the flow of water from the powerhouse is a change in the human environment. While this would be 
                        *an*
                         effect, it is not the kind of effect that is at issue in an environmental review. Instead, the effect we would care about would be the change to the quality or quantity of the body of water through which the water flows and any resultant further changes caused to species, vegetation, etc. 20. No, the majority is concerned about the changes in the human environment caused, not by the existence of GHG emissions themselves, but by climate change. The Interim Policy Statement is absolutely clear that this is its animating purpose: “The Commission is issuing this interim policy statement to explain how the Commission will assess the impacts of natural gas infrastructure projects on climate change”; [48]
                        
                         “Climate change is the variation in the Earth's climate (including temperature, humidity, wind, and other meteorological variables) over time”; [49]
                        
                         “[C]limate change has resulted in a wide range of impacts across every region of the country and the globe. Those impacts extend beyond atmospheric climate change and include changes to water resources, agriculture, ecosystems, human health, and ocean systems.” [50] 21. The question therefore is not whether GHG emissions are reasonably foreseeable but whether 
                        *climate change and its resulting effects*
                         are reasonably foreseeable and have a reasonably close causal relationship to the proposed action. And if so, whether those effects are significant and can be mitigated by the Commission. 22. While determining the environmental impacts of a project is done on a case-by-case basis, the 
                        ( print page 14129)
                        construction of a natural gas pipeline and transportation of natural gas in that pipeline are unlikely, on a project-by-project basis, to have a reasonably foreseeable (which is to say traceable and calculable) effect on climate change “in most cases.” [51]
                        
                         Were climate change a reasonably foreseeable effect (as this term is used in environmental reviews) of a particular project, we would be able to examine the cause (here, the construction and the transportation of gas) and then determine some articulable and quantifiable effect (here, the amount of additional climate change) for which the project itself is causally responsible. We have never been able to do that. And while it is not acknowledged at all in the Interim Policy Statement's procedural history, the Commission has repeatedly stated that “it cannot determine a project's incremental physical impacts on the environment caused by GHG emissions,” [52]
                        
                         and CEQ has made similar statements.[53]
                        
                         Nothing in the Interim Policy Statement suggests this has changed nor has any new reasoning been offered to explain how we can better determine a quantifiable connection between the two. 23. The chain of causation is too attenuated for the cause and effect in this case to be considered to have a “reasonably close causal relationship.” The reasoning goes as follows: “Changes to water resources, agriculture, ecosystems, human health, and ocean systems” occurring throughout the world result from global atmospheric changes that themselves result from the warming that itself results from increases in the world-wide concentration of GHGs that enter the atmosphere as the emissions released by using natural gas, that in the case of end uses (that is, not pipeline operational uses), results from the transportation of natural gas. The logical sequence is clear, but the causation is quite attenuated. And this attenuation cannot be shortened through the ploy of employing GHG emissions as a proxy for climate change. B. Consideration of Effects on Climate Change From Non-Jurisdictional Entities Violates the NGA and CEQ Regulations 24. The consideration of effects resulting from the upstream production or downstream use of natural gas violates the NGA and CEQ's regulations. 25. The NGA authorizes the Commission to consider only those factors bearing on the “public convenience and necessity.” [54]
                        
                         The phrase “public convenience and necessity” is not “a broad license to promote the general public welfare.” [55]
                        
                         It does not permit the majority to conjure up its own meanings. As a “`creature of statute,' ” [56]
                        
                         the Commission must “look to the purposes for which the [Natural Gas Act] was adopted” to give it content and meaning.[57] 26. As the Court explained in 
                        *NAACP*
                         v. 
                        *FPC,*
                         “public convenience and necessity” means “a charge to 
                        *promote the orderly production of plentiful supplies*
                         of electric energy and natural gas at just and reasonable rates.” [58]
                        
                         Simply put, the production and use of natural gas were not only presumed but were presumed to be in the public interest. Congress put its thumb on the scale in favor of gas and charged the Commission with ensuring that there would be adequate infrastructure in place to provide an abundant supply of natural gas available at reasonable prices for all Americans to use. The purpose of the NGA is narrow and clear. And it is a mousehole through which the elephant of addressing the climate change impacts of the entire natural-gas industry cannot pass.[59] 27. And while there were “subsidiary purposes” for the passage of the Natural Gas Act,[60]
                        
                         addressing the effects of climate change caused by using natural gas could not have been one of them. And even if it were, it is obvious that something that is “subsidiary” cannot, definitionally, override that which is primary. The majority cannot flip the NGA's presumptions and consider the use of natural gas as intrinsically harmful, thus requiring mitigation. And it certainly cannot abandon our charge under the NGA to “
                        *promote*
                         the orderly production of plentiful supplies of . . . natural gas at just and reasonable rates” [61]
                        
                         by then weighing their determination that natural gas is harmful against the public interest when adjudicating section 3 and section 7 applications. This is directly contrary to the purpose Congress established the Commission to serve and supplants the judgment of Congress with that of the Commission. If that were not reason enough, it also invades jurisdictional territory that the courts have repeatedly held that Congress has reserved to the States.[62] 28. The majority cannot turn to the Supreme Court's holding in 
                        *Transco*
                         as authority.[63]
                        
                         In that case, the Court held that the Federal Power Commission lawfully denied a certificate based on two factors: First, that using natural gas to alleviate air pollution from burning coal was an inferior use, and second, the 
                        ( print page 14130)
                        proposal would increase future prices.[64]
                        
                         It does not stand for the proposition that the Commission can consider adverse effects of air pollution, and thus climate change impacts, of using natural gas as the majority implies.[65] 29. Nor is the D.C. Circuit's outlier opinion, 
                        *Sabal Trail,*
                         as instructive as the majority seems to believe. It is very much in tension with prevailing Supreme Court precedent in 
                        *Public Citizen,*
                         which held that agencies are only obligated to consider environmental effects to which their actions are the proximate cause.
                        [66]*Public Citizen*
                         explained that courts must look to the “underlying policies or legislative intent” of an agency's organic statute to determine whether an agency is obligated to consider environmental effects.[67]
                        
                         The D.C. Circuit has also characterized 
                        *Public Citizen*
                         as “explicit” that an agency is “not obligated to consider those effects . . . that could only occur after intervening action” by some other actor “and that only [that] actor[ ] . . . had the authority to prevent.” [68]
                        
                         In other words, when any potential effects are the result of the actions of third parties such as retail consumers, upstream production companies, and power generators, who may be several degrees of separation removed from the jurisdictional pipeline, those effects are outside the scope of what the agency must consider. 30. Thus, we should not rest too much weight upon 
                        *Sabal Trail.*
                         Not only is the holding narrower than the majority seems to believe and was roundly criticized by the accompanying dissent,[69]
                        
                         its reasoning has since been called into question by another appellate court and I expect it will soon be challenged in the Supreme Court.[70] 31. In sum, environmental effects resulting from the upstream production and downstream use of gas are not factors bearing on the public convenience and necessity under the Natural Gas Act. Further, the CEQ's regulations affirmatively prohibit those effects from being considered in an agency's compliance with NEPA.[71] C. The Significance Threshold Is Illogical and Violates Regulations 32. In addition, the majority's presumption that project emissions exceeding 100,000 tpy of CO2
                        e will have a significant effect on the human environment is illogical and inconsistent with CEQ and Commission regulations. 33. The majority offers three irrelevant rationales for this
                        
                         presumption: [72]*first,*
                         the threshold is administratively
                        
                         workable; [73]*second,*
                         other agencies have established thresholds under different statutory schemes that are not based on a project's effect on the climate; [74]
                        
                         and 
                        *third,*
                         the threshold will “capture” [75]
                        
                         “99% of GHG emissions from Commission-regulated natural gas projects.” [76]
                        
                         It is worth noting that according to Commission staff, a 1 million tpy threshold would have covered 98.909% of emissions from natural gas projects authorized from 2017 through 2021, making the unsupported selection of the lower threshold both arbitrary and capricious. 34. The majority also states “even relatively minor GHG emissions pose a significant threat” “[b]ecause of the dire effects at stake.” [77]
                        
                         This rationale, however, is not supported by the evidence offered. The Commission does not explain how minor GHG emissions could lead to “dire effects.” We cannot just assume—this is administrative law—we must show evidence. More importantly, the rationale does not link a proposed project to effects on climate change. And for good reason. As CEQ declared: “it is not currently useful for the NEPA analysis to attempt to link specific climatological changes, or the environmental impacts thereof, to the particular project or emissions, as such direct linkage is difficult to isolate and to understand.” [78]
                        
                         The Commission has repeatedly agreed.[79] 35. On top of being illogical, the Interim Policy Statement effectively amends the Commission's NEPA regulations without undergoing notice-and-comment procedures as required by the Administrative Procedure Act.[80]
                        
                         The Interim Policy Statement provides that an EIS will be prepared when the threshold is exceeded at full burn.[81]
                        
                         The Commission's NEPA regulations, however, set forth specific categories of projects where an EA and EIS “will normally be prepared,” [82]
                        
                         with no mention of GHG emissions. And in a case where an EA is normally prepared, the Commission “may in 
                        *specific*
                         circumstances”—meaning a case-by-case determination—decide whether to prepare an EIS “depending on the location or scope of the proposed action, or resources affected.” [83] 36. Given these fatal flaws, it is no wonder the majority seeks comment “in particular, on the approach to assessing the significance of the proposed project's contribution to climate change.” [84] D. GHG Mitigation 1. Claims of Authority To Mitigate 37. Next, the majority states that the Commission's conditioning power gives it authority to require a pipeline to mitigate GHGs emitted by its operations 
                        ( print page 14131)
                        and reasonably foreseeable indirect effects.[85]
                        
                         The majority is incorrect. 38. As commenters explain,[86]
                        
                         without any response from the majority, the Supreme Court has held that “Congress 
                        *delegated to EPA the decision whether and how*
                         to regulate carbon-dioxide emissions” from stationary sources.[87]
                        
                         By claiming the authority to mitigate these same emissions as part of the Natural Gas Act certification process, the majority are attempting to usurp the statutory authority the Court found Congress has delegated to EPA and which cannot be reassigned absent Congressional action.[88]
                        
                         If the EPA were to regulate GHG emissions from pipeline facilities, which it is contemplating doing,[89]
                        
                         the Commission could possibly require project sponsors to comply with those requirements. But one would not say that the Commission could on its own require project sponsors to mitigate, for example, sulfur dioxide because the EPA had chosen not to do so, or the Commission believed its regulations to be inadequate. 39. The Commission's conditioning authority also does not allow the Commission to mitigate GHG emissions from upstream or downstream users. The commenters make the point,[90]
                        
                         also sidestepped by the majority,[91]
                        
                         that the Commission's conditioning authority cannot be used to indirectly do what the Commission cannot do directly. That is, the Commission may not indirectly rely on the Natural Gas Act to impose conditions on non-jurisdictional entities.[92] 40. Further, the Commission's conditioning authority cannot be used in ways that would be directly contrary to the purpose of the NGA—to promote the production of plentiful supplies of natural gas at reasonable rates. The majority may not rewrite the purpose of the NGA to instead charge the Commission with the mission of discouraging the production and use of natural gas. 2. Encouraging Project Sponsors To Mitigate GHG Emissions 41. The Interim Policy Statement's encouragement that project sponsors mitigate GHG emissions is in practical effect a requirement,[93]
                        
                         and is not in accordance with the NGA. The NGA only empowers the Commission to impose terms and conditions in two contexts: (1) Pursuant to NGA section 3 when it finds such terms “necessary or appropriate” [94]
                        
                         to ensure a proposed export or import facility is not inconsistent with the public interest, and (2) pursuant to NGA section 7, when it finds such terms are “reasonable” and “require[d]” by the “public convenience and necessity.” [95]
                        
                         Only after making these findings, can the Commission require mitigation. 42. The majority does not attempt to make either of these required findings. It simply leaps from stating that the Commission has the discretion to mitigate GHG emissions to “expecting” applicants to mitigate their emissions. This amounts to no more than “because I said so.” More is required.[96] III. Intent of the Interim Policy Statement 43. One cannot help but notice the lengths to which the majority goes in order to make this policy statement “non-binding,” using words like “propose,” “wish,” “opportunity,” and even insisting, in response to this dissent, that it does not “impose[] an obligation, deny[y] a right, or fix[ ] some legal relationship,” [97]
                        
                         for what appears to have no purpose other than to avoid notice-and-comment procedures (that is, public participation) and judicial review. For without judicial review as a check, there is no need to engage in reasoned decision-making or be limited by the purposes of the statute. 44. In this way, the majority appears to believe it can do whatever it wants. Arrogate to the Commission authority it does not have. Disregard regulations that are currently in force. Flout prevailing Supreme Court precedent. Make threats to manipulate project sponsors into “voluntarily” subjecting themselves to unnecessary processes and proposing mitigation of the “harm” resulting from the proposed use or transportation of natural gas to provide a service that Congress declared to be in the public interest. 45. If an entity requests rehearing of today's policy statement, the majority can simply reject it—either by notice or order (without any discussion of the merits)—stating that rehearing does not lie for policy statements. And if a petition for review follows, the Commission can argue that the Interim Policy Statement is not subject to review because it is not a substantive rule. And if some project sponsor suggests it is proposing mitigation under duress and it reserves the right to challenge the mitigation requirement in court, the Commission can argue the project sponsor cannot be aggrieved because it voluntarily proposed the mitigation and accepted the certificate and its terms.[98] 
 
 46. This is not good governance. Nor do I think it likely the majority will be successful. In my view, the Interim Policy Statement is a substantive, binding rule that is subject to judicial review. Despite the Interim Policy Statement's hortatory verbiage, “there are sinews of command beneath the velvet words.” [99]
                        
                         Perhaps the best illustration of this is the list of six items project sponsors are “encouraged” to include in their applications in light of the new policy statement.[100]
                        
                         This list includes estimates of the proposal's cumulative direct and indirect emissions and what mitigation measures the project sponsors propose, as well as a “detailed cost estimate” of the proposed mitigation and a “proposal for recovering those costs.” [101] 47. This is not encouragement. This is command. The project sponsors will know that if they want to win approval for their projects this is what they must do [102]
                        
                         even if they must guess at what will ultimately satisfy the Commission's new policies. Certainly, no project sponsor will believe that mitigation is optional or that submitting an application exceeding the Interim Policy Statement's 100,000 tpy threshold without a mitigation proposal would be anything other than a waste of time and money. And what other reason could the majority have for delaying action on those projects that have effectively twice completed the NEPA process? [103] 48. There is, however, no ambiguity in this: The Commission has changed the requirements for obtaining project approvals and applicants need to come before the Commission acknowledging that it is so.[104]
                        
                         The effect of this change is immediate. Even applicants whose projects have been pending with the Commission for upwards of two years will be subjected to the Commission's new rules. 49. The interim policy statement also determines that emissions over 100,000 tpy of CO2
                        e are significant (and emissions which fall below, not significant), a determination from which legal consequences flow under NEPA.[105]
                        
                         And it binds Commission staff.[106]
                        
                         While I acknowledge the courts have given the Commission's characterization of issuances deference in the past,[107]
                        
                         whether a court will do so in in this instance is far from certain. For these reasons, I respectfully dissent. James P. Danly, 
                        *Commissioner* DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews Docket No. PL21-3-000 CHRISTIE, Commissioner, 
                        *dissenting*: 1. Last year I voted to re-issue this Notice of Inquiry (NOI) for another round of comment [1]
                        
                         because I believed—and still do—that there are reasonable updates to the 1999 policy statement that would be worthwhile.[2]
                        
                         For example, I agree that precedent agreements between corporate affiliates, because of the obvious potential for self-dealing, should not, in and of themselves and without additional evidence, prove need.[3]
                        
                         I also believe that the Commission's procedures for guaranteeing due process to affected property owners, which, as Justice Frankfurter taught, consists of the two core elements of notice and opportunity to be heard,[4]
                        
                         could be strengthened. 2. Unfortunately, the new certificate policy the majority approves today [5]
                        
                         does not represent a reasonable update to the 1999 statement. On the contrary, what the majority does today is arrogate to itself the power to rewrite both the Natural Gas Act (NGA) [6]
                        
                         and the National Environmental Policy Act (NEPA),[7]
                        
                         a power that 
                        *only*
                         the elected legislators in Congress can exercise. Today's action represents a truly radical departure from decades of Commission practice and precedent implementing the NGA. 3. The fundamental changes the majority imposes today to the Commission's procedures governing certificate applications are wrong as both law 
                        *and*
                         policy. They clearly exceed the Commission's legal authority under the NGA and NEPA and, in so doing, violate the United States Supreme Court's major questions doctrine.[8] 
 
 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 no-carbon resources, because it will make it more difficult to build or maintain the gas infrastructure essential to keep the lights on as more intermittent resources are deployed.[10]
                        
                         In addition to the essential need for natural gas to keep our power supply reliable, a dependable and adequate natural gas supply is critically needed for our manufacturing industries and the millions of jobs for American workers in those industries.[11] 5. And while I agree that reducing carbon emissions that impact the climate is a compelling policy goal,[12]
                        
                         this Commission—an administrative agency that only has the powers Congress has explicitly delegated to it—has no open-ended license under the U.S. Constitution or the NGA to address climate change or any other problem the majority may wish to address. I. Legal Questions 6. The long-running controversy over the role and use of GHG analyses in natural-gas facility certificate cases raises two central questions of law and a third that flows from the first two: 7. 
                        *First,*
                         whether the Commission can use a GHG analysis to 
                        *reject*
                         a certificate—or attach conditions (including the use of coercive deficiency letters) amounting to a 
                        *de facto*
                         rejection by rendering the project unfeasible—based on the NGA's “public convenience and necessity” [13]
                        
                         provision, even when the evidence otherwise supports a finding under the NGA that the facility is both “convenient and necessary” to provide the public with essential gas supply? Today's orders assume that the answer is yes.[14] 8. 
                        *Second,*
                         whether the Commission can, or is required to, 
                        *reject*
                         a certificate—or attach conditions (including the use of coercive deficiency letters) amounting to a 
                        *de facto*
                         rejection by rendering the project unfeasible—based on a GHG analysis conducted as part of an environmental review under NEPA,[15]
                        
                         when the certificate application would otherwise be approved as both “convenient and necessary” under the NGA? Again, today's orders assume the answer is yes.[16] 9. 
                        *Third,*
                         which, if any, conditions related to a GHG analysis may be attached to a certificate under NGA § 7(e),[17]
                        
                         or demanded through the use of deficiency letters? Today's orders seem to assume that there is essentially no limit to the conditions the Commission can impose.[18] 10. As discussed below, today's orders get each of these questions wrong. A. The “Public Interest” in the Natural Gas Act 11. The starting point for answering all of these questions must be what “public interest” analysis the NGA empowers the Commission to make. Can the Commission's statutory responsibility to determine the “public convenience and necessity” be used to 
                        *reject*
                         a project otherwise needed by the public based 
                        *solely*
                         on adverse impacts to “environmental interests” [19]
                        
                         (a term today's orders leave undefined but which could be reduced to an unspecified level of GHG emissions) as the Commission today asserts? [20]
                        
                         Or can the Commission reject a project 
                        *solely*
                         due to “the interests of landowners and environmental justice communities” as the majority also asserts? [21]
                        
                         The short 
                        ( print page 14134)
                        answer is no. There is nothing in the text or history of the NGA to support such a claim about, or application of, the Commission's public interest responsibilities under the NGA. 12. As discussed herein, any claim that a “public interest” analysis under the NGA gives FERC the authority to reject a project based solely on GHG emissions is specious and ahistorical. The history of the NGA indicates that Congress intended the statute to 
                        *promote*
                         the development of pipelines and other natural-gas facilities. As one federal judge has observed, “nothing in the text of [the NGA] . . . empowers the Commission to entirely deny the construction of an export terminal or the issuance of a certificate based solely on an adverse indirect environmental effect regulated by another agency.” [22] 13. I recognize that the Commission and the courts have construed “public convenience and necessity” to require the Commission to consider “all factors bearing on the public interest,” [23]
                        
                         but the Supreme Court has been very clear that any public interest analysis undertaken in the course of determining “public necessity and convenience” is constrained by the purposes and limitations of the statute.[24]
                        
                         It is not an open-ended license to use this Commission's certificating authority to promote whatever a majority of Commissioners from time to time may happen to view as the “public interest.” 14. With regard to GHG emissions that may be associated with upstream production activities or downstream distribution to, or consumption by, retail consumers, the Commission simply has 
                        *no*
                         authority over such activities. That authority was left to the states.[25]
                        
                         Congress intended for the NGA to fill “a regulatory gap” over the “
                        *interstate*
                         shipment and sale of gas.” [26] 15. Even if the Commission were to undertake some estimate of the indirect GHG impacts of third-party activities that it has no authority to regulate, it does not follow that the Commission can then reject a certificate based on those impacts.[27]
                        
                         To do so would be to ignore the undeniable purpose of the NGA, which was enacted to facilitate the development and bringing to market of natural gas resources. The Commission's role under the NGA is to 
                        *promote*
                         the development of the nation's natural gas resources and to safeguard the interests of ratepayers.[28]
                        
                         Any consideration of environmental impacts, while important, is necessarily subsidiary to that role.[29] 16. It is a truism that FERC is an economic regulator, 
                        *not*
                         an environmental regulator. This Commission was not given certification authority in order to advance environmental goals; [30]
                        
                         it was given certification authority to 
                        *ensure the development*
                         of natural gas resources and their availability—this includes pipeline infrastructure—at just and reasonable rates. To construe the Commission's analysis of the public convenience and necessity as a license to 
                        *prohibit*
                         the development of 
                        *needed*
                         natural gas resources using the public interest language in the NGA would be to negate the very legislative purpose of the statute.[31]
                        
                         Put another way, the premise of the NGA is that the production and transportation of natural gas for ultimate consumption by end users is socially valuable and should be promoted, not that the use of natural gas (which inevitably results in some discharge of GHGs) is inherently destructive and must be curbed, mitigated, or discouraged. 17. To those who say “well, times have changed and Congress was not 
                        ( print page 14135)
                        thinking about climate change when it passed the NGA,” here's an inconvenient truth: 
                        *If Congress wants to change the Commission's mission under the NGA it has that power; FERC does not.* 18. Any authority to perform a public interest analysis under the NGA must be construed with reference to the animating purposes of the Act. It is not a free pass to pursue any policy objective—however important or compelling it may be—that is related in some way to jurisdictional facilities.[32]
                        
                         As the Court of Appeals for the D.C. Circuit has explained: Any such authority to consider all factors bearing on “the public interest” must take into account what “the public interest” means 
                        *in the context of the Natural Gas Act.*
                         FERC's authority to consider all factors bearing on the public interest when issuing certificates means authority to look into those factors which reasonably relate to the purposes for which FERC was given certification authority. 
                        *It does not imply authority to issue orders regarding any circumstance in which FERC's regulatory tools might be useful.*[33] 19. Whereas the Commission's role in certificating facilities under the NGA is explicit,[34]
                        
                         any purported authority for the Commission to regulate GHGs is conspicuously absent. The claim that the Commission can reject a needed facility due to GHG emissions using the public interest component in the NGA seems to be based on the following logic: To ascertain whether a facility serves the public convenience and necessity, the Commission must first determine whether the facility is in “the public interest,” which in turn entails considering factors such as “environmental” impacts from construction and operation of the proposed facility, as well as estimating and quantifying greenhouse gas emissions from the proposed facility, including both upstream emissions associated with gathering the gas and downstream emissions associated with its use, which the Commission is somehow empowered to deem to be too excessive to grant the certificate.[35]
                        
                         Suffice it to say, this tortured logic breaks apart in multiple places.[36] 20. Surely if Congress had any intention that GHG analyses should (or could) be the basis for rejecting certification of natural-gas facilities, it would have given the Commission clear statutory guidance as to when to reject on that basis. Instead, those who want the Commission to conjure up a standard on GHG emissions for deciding how much is 
                        *too*
                         much are advocating for a standard resembling Justice Stewart's famous method for identifying obscenity, to wit, that he could not describe it, but “I know it when I see it.” [37]
                        
                         And the Supreme Court eventually had the good sense to abandon that ocular standard.[38] 21. Using GHG analysis to reject a certificate implicates an important judicial doctrine used in evaluating just how far an administrative agency can go in essentially 
                        *creating*
                         public policy without clear textual support in statutory law. Now let's turn to that doctrine in this context. B. The Major Questions Doctrine and the NGA 22. The Commission's actions today implicate the “major questions doctrine,” which Justice Gorsuch has recently explained as follows: The federal government's powers . . . are not general, but limited and divided. Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other, it must also act consistently with the Constitution's separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: “We expect Congress to speak clearly” if it wishes to assign to an executive agency decisions “of vast economic and political significance.” We sometimes call this the major questions doctrine.[39] In short, the major questions doctrine presumes that Congress reserves major issues to itself, so unless a grant of authority to address a major issue is explicit in a statute administered by an agency, it cannot be inferred to have been granted. 23. Whether this Commission can reject a certificate based on a GHG analysis—a certificate that otherwise would be approved under the NGA—is undeniably a major question of public policy. It will have enormous implications for the lives of everyone in this country, given the inseparability of energy security from economic security. Yet the Supreme Court has made it clear that broad deference to administrative agencies on major questions of public policy is 
                        *not*
                         in order when statutes are lacking in any explicit statutory grant of authority.[40]
                        
                         “
                        *When much is sought from a statute, much must be shown. . . .*
                         [B]road assertions of administrative 
                        ( print page 14136)
                        power demand 
                        *unmistakable legislative*
                         support.” [41] 24. There is no “unmistakable legislative support” for the powers the Commission asserts today. A broad power to regulate upstream and downstream GHG emissions and their global impacts has simply 
                        *not*
                         been delegated to this Commission.[42]
                        
                         To the extent the federal government has such power, it has been delegated elsewhere. “Of necessity, Congress selects different regulatory regimes to address different problems.” [43]
                        
                         The U.S. Environmental Protection Agency (EPA) is charged with regulating greenhouse gas emissions under the Clean Air Act.[44]
                        
                         By contrast, Congress established in the NGA a regulatory regime to address entirely different problems, namely, the need to develop the nation's natural gas resources and to protect ratepayers from unjust and unreasonable rates for gas shipped in the flow of interstate commerce. If it chose, Congress could enact legislation that would invest the Commission with authority to constrain the development and bringing to market of natural gas resources, but the fact is that Congress has chosen 
                        *not*
                         to do so. On the contrary, every time Congress has enacted natural gas legislation, it has been to 
                        *promote*
                         the development of natural gas resources, not throw up barriers to them.[45] 25. The fact that the NGA requires the Commission to make some form of public interest determination in the course of a certificate proceeding does not furnish a basis for the Commission to arrogate to itself the authority to constrain the development of natural gas resources on the grounds of their potential greenhouse gas emissions. As now-Justice Kavanaugh has explained: “If an agency wants to exercise expansive regulatory authority over some major social or economic activity  . . . 
                        *regulating greenhouse gas emitters, for example*
                        —an ambiguous grant of statutory authority is not enough. Congress must 
                        *clearly authorize*
                         an agency to take such a major regulatory action.” [46]
                        
                         Congress has 
                        *not*
                         “clearly authorize[d]” this Commission to regulate greenhouse gas emitters, nor to deny certificates to facilities whose construction and operation would be in the public convenience and necessity, simply because the construction and operation of such infrastructure may result in some amount of greenhouse gas emissions.[47]
                        
                         “Even if the text were ambiguous, the sheer scope of the  . . .  claimed authority  . . .  would counsel against” such an expansive interpretation.[48] 26. The fact that the Commission has absolutely no standard against which to measure the impact of natural gas production upstream or use downstream of the facilities it certificates is also important. In order for Congress to delegate any authority to an executive agency, it must legislatively set forth an intelligible principle for the agency to follow.[49]
                        
                         There is no such “intelligible principle” for the Commission to follow when it comes to greenhouse gas emissions. 27. Although the NGA requires the Commission to determine whether a proposed facility is in the “public convenience and necessity,” the term “has always been understood to mean `need' for the service. To the extent the environment is considered, such consideration is limited to the effects stemming from the construction and operation of the proposed facilities.” [50]
                        
                         The term “public convenience and necessity” has long been understood to refer most essentially to the public's need for service on terms that are just and reasonable, 
                        *i.e.,*
                         that are low enough for the public to pay the rates and high enough for the provider to maintain a profitable business.[51]
                        
                         That understanding was reflected in various statutes employing the term, including the Natural Gas Act.[52]
                        
                         And it was further reflected in the earliest “public convenience and necessity” analyses under the NGA.[53] 28. To summarize: Whether and how to regulate GHG emissions is a major question of vast economic and political significance. Congress has not explicitly authorized the Commission to regulate in this area as required under the major questions doctrine, nor has it laid down an intelligible principle for the Commission to follow as required by the non-delegation doctrine. Moreover, 
                        ( print page 14137)
                        EPA, in coordination with the states, already has authority to regulate in this area as specified in federal statutes, which is far removed from this Commission's core expertise and traditional responsibilities. 29. Let's now turn to the second major question. C. GHG Analysis Under NEPA 30. Is this Commission required or allowed by NEPA [54]
                        
                         to 
                        *reject*
                         a certificate for a natural gas facility—
                        *one that would otherwise be approved under the NGA*
                        —based on a GHG analysis conducted as part of the NEPA environmental review? And rejection includes attaching mitigation conditions so onerous (or coercing through deficiency letters) that they render the project unfeasible.[55] 31. Again, the short answer is no. NEPA does not contain a shred of specific textual authority requiring or allowing the Commission to 
                        *reject*
                         based on a NEPA review of estimated GHG impacts (indirect or direct) a certificate application for a facility that otherwise would be found necessary to serve the public under the NGA. Nor would it: As an information-forcing statute, NEPA imposes no substantive obligations.[56] 32. Even conducting an analysis of indirect GHG effects under NEPA goes too far. The Supreme Court has explicitly rejected the idea that an “an agency's action is considered a cause of an environmental effect [under NEPA] even when the agency has no statutory authority to prevent that effect.” [57]
                        
                         Rather, NEPA “requires a reasonably close causal relationship between the environmental effect and the alleged cause,” that is analogous to “the familiar doctrine of proximate cause from tort law.” [58]
                        
                         While this might leave some difficult judgments at the margins, estimates of the potential global impacts of possible non-jurisdictional upstream or downstream activity—as today's orders purport to require [59]
                        
                        —is not a close call. 33. First off, in determining how far an agency's NEPA responsibilities run, one “must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.” [60]
                        
                         As discussed at length above, there is no way of drawing a plausible line, much less a manageable one, from the Commission's certificating responsibilities under the NGA and the possible consequences of global climate change—consequences which, however potentially grave, are remote from this agency's limited statutory mission under the NGA. 34. Second, speculating about the possible future impact on global climate change of a facility's potential GHG emissions does not assist the Commission in its decision-making and therefore violates the “rule of reason”: Where an agency lacks the power to do anything about the possible environmental impacts, it is not obligated to analyze them under NEPA.[61]
                        
                         Again, the Supreme Court has explained, “inherent in NEPA and its implementing regulations is a `rule of reason,' which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decision-making process. Where the preparation of an EIS would serve `no purpose' in light of NEPA's regulatory scheme as a whole, no rule of reason worthy of the title would require an agency to prepare an EIS.” [62] 35. This conclusion becomes even more obvious when considered alongside the undeniable fact that neither NEPA nor any other statute contains a scintilla of guidance as to which specific metrics are to be used to determine when the Commission can or must reject a project based on a GHG analysis. The Commission today establishes a threshold of 100,000 metric tons of CO2
                        e 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 
                        ( print page 14138)
                        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 decision-making, and second, by causing needless delay in the process.[74] 40. There is no meaningful way of evaluating any of the critical issues, and no statutory authority to actually do anything about upstream or downstream emissions,[75]
                        
                         but unlimited ways to find fault with any analysis. Even though they aren't supposed to “flyspeck” an agency's NEPA analysis, judges who wish to impose their own policy preferences will be tempted to do exactly that. And once the agency undertakes to address an issue in its NEPA analysis, it is subject to the APA's “reasoned decision-making” standard of 
                        ( print page 14139)
                        review.[76]
                        
                         Thus the effect is to ramp up dramatically the legal uncertainties and costs facing any certificate applicant. D. The Policy Statements Rest on Inadequate Legal Authority 41. Today's orders rely to a remarkable degree on a smattering of statements from a handful of recent orders. Simply put, these authorities are simply “too slender a reed” [77]
                        
                         to support the great weight today's orders place on them. 42. Neither 
                        *Sabal Trail*
                         [78]
                        
                         nor 
                        *Birckhead,*[79]
                        
                         nor the more recent 
                        *Vecinos*
                         [80]
                        
                         opinion from the D.C. Circuit changes any of the analysis above. Indeed, to the extent language from those cases is interpreted as requiring the Commission to exercise authority 
                        *not*
                         found in statutes—and these opinions are more confusing than clear, as well as inconsistent with the D.C. Circuit's own precedent—then such an interpretation would be contrary to the Supreme Court's major question doctrine. Be that as it may, while I recognize that 
                        *Sabal Trail*
                         and 
                        *Vecinos*
                         are presently applicable to this Commission, neither of those cases individually nor both of them together provide a lawful basis for 
                        *rejecting*
                         a certificate for a facility that is otherwise found to be needed under the NGA solely because of its estimated potential impacts on global climate change.[81] 43. Virtually the entire structure of the majority's fundamental policy changes rests on a single line from 
                        *Sabal Trail.*[82]
                        
                         That statement is itself predicated on an idiosyncratic reading of 
                        *Public Citizen*
                         and the D.C. Circuit's own precedents.
                        [83]*Sabal Trail*
                         rather facilely distinguished existing D.C. Circuit precedent on the grounds that, in contrast to those cases, the same agency that was performing the EIS was also authorized to approve or deny the certificate.[84]
                        
                         It reasoned that because the Commission could take “environmental” issues into account in its public interest analysis, and GHG emissions raise “environmental” issues, it must therefore follow that the Commission could deny a certificate based on projected GHG emissions estimates. 44. 
                        *Sabal Trail*
                         acknowledged that “
                        *Freeport*
                         and its companion cases rested on the premise that FERC had no legal authority to prevent the adverse environmental effects of natural gas exports.” [85]
                        
                         Specifically, “FERC was forbidden to rely on the effects of gas exports 
                        *as a justification for*
                         denying an upgrade license.” [86]
                        
                         In contrast with those cases—all of which addressed certification of LNG facilities under NGA § 3 as opposed to interstate transportation facilities under NGA § 7—the court in 
                        *Sabal Trail*
                         concluded that, under NGA § 7, by contrast, “FERC is not so limited. Congress broadly instructed the agency to consider `the public convenience and necessity' when evaluating applications to construct and operate interstate pipelines.” [87]
                        
                         It thus concluded that, “[b]ecause FERC could deny a pipeline certificate on the ground that the pipeline would be too harmful for the environment, the agency is a `legally relevant cause' of the direct and indirect environmental effects of pipelines that it approves. 
                        *See Freeport,*
                         827 F.3d at 47. 
                        *Public Citizen*
                         thus did not excuse FERC from considering these indirect effects.” [88] 45. But the 
                        *Sabal Trail*
                         court never considered with reference to the Commission's statutory authority the proper scope of that public interest analysis or the extent to which “environmental” issues could be considered in that context. It simply assumed the Commission's authority to be unlimited. But as discussed above, Congress drafted the NGA for the purpose of filling a specific gap in regulatory authority. The only way 
                        *Sabal Trail*
                         would be correct is if Congress had “clearly authorized” the Commission to evaluate geographically and temporally remote impacts of non-jurisdictional activity in its “public convenience and necessity” determinations. As discussed above, that conclusion is clearly, irredeemably, wrong.[89] 46. As for 
                        *Vecinos,*
                         there, the court compounds that error both by relying uncritically on 
                        *Sabal Trail*
                         and by finding fault with the Commission for failing to connect its decision not to use the Social Cost of Carbon to Petitioners' argument that it was required to do so under 40 CFR. § 1502.21(c).[90]
                        
                         That regulation sets forth an agency's obligations when “information relevant to reasonably foreseeable significant adverse impacts cannot be obtained.” [91]
                        
                         But global climate change is only a “foreseeable significant adverse impact” of the Commission's action 
                        *if*
                         the Commission's authority extends as far 
                        ( print page 14140)
                        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 well-funded interest groups working to reduce or eliminate natural gas usage.[97]
                        
                         Today's orders, whatever the intent, will have the undeniable effect of advancing that 
                        *policy*
                         goal, and we should not deny the obvious. Rather than bringing legal certainty to the Commission's certificate orders,[98]
                        
                         today's orders will greatly increase the costs and uncertainty associated with this Commission's own handling of certificate applications. In fact, by purporting to apply today's new policy retroactively on applications that have already been submitted (and in many instances pending for years), today's action is deeply unfair: It judges by an entirely new set of standards applications that were prepared and submitted to meet the old standards and essentially opens all of them to be relitigated.[99]
                        
                         The undoubted effect of these orders will be to interpose additional months or years of delay on project applicants and to increase exponentially the vulnerability on appeal of any Commission orders that do approve a project. 50. Recently I said the Commission's new rule on unlimited late interventions in certificate cases was “not a legal standard, but a legal weapon.” [100]
                        
                         The new certificate policy approved today is the mother of all legal weapons. There is no question that it will be wielded against each and every natural gas facility both at the Commission and in the inevitable appeals, making the costs of even pursuing a natural gas project insuperable. 51. Let me emphasize that every person or organization pursuing the policy goal of ending the use of natural gas by opposing every natural gas facility has an absolute right under the First Amendment to engage in such advocacy. However, whether to end the use of natural gas by banning the construction of all new natural gas projects is a public policy question of immense importance, one that affects the lives and livelihoods of tens of millions of Americans and their communities, as well as the country's national security. In a democracy, such a huge policy question should 
                        *only*
                         be decided by legislators elected by the people, not by unelected judges or administrative agencies.[101] 52. This public-policy context is absolutely relevant to these orders because it illustrates that the long-running controversy at this Commission over the use of GHG analyses in natural-gas 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 
                        ( print page 14141)
                        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 non-jurisdictional 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 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.


# Footnotes

1.
    
                             Intergovernmental Panel on Climate Change, United Nations, 
                            *Summary for Policymakers*
                             of Climate Change 2021: The Physical Science Basis SPM-5 (Valerie Masson-Delmotte et al. eds.) (2021), 
                            *https://www.ipcc.ch/​report/​ar6/​wg1/​downloads/​report/​IPCC_​AR6_​WGI_​SPM.pdf*
                             (IPCC Report). Back to Citation
 2.
    
                             
                            *See Sierra Club*
                             v. 
                            *FERC,*
                             867 F.3d 1357, 1374 (D.C. Cir. 2017) (
                            *Sabal Trail*) (requiring the Commission to consider the reasonably foreseeable GHG emissions resulting from natural gas projects). Back to Citation
 3.
    
                             Carbon dioxide equivalent is the combination of the emissions that contribute to climate change adjusted using each pollutant's global warming potential. This allows the Commission to aggregate all GHG emissions into a single value that accounts for each chemical's specific potential to trap heat in the atmosphere. Back to Citation
 4.
    
                             
                            *See, e.g., Grand Canyon Trust*
                             v. 
                            *FAA,*
                             290 F.3d 339, 340 (D.C. Cir. 2002) (“If 
                            *any*
                             `significant' environmental impacts might result from the proposed agency action[,] then an EIS must be prepared 
                            *before*
                             agency action is taken.” (quoting 
                            *Sierra Club*
                             v. 
                            *Peterson,*
                             717 F.2d 1409, 1415 (D.C. Cir. 1983))); 
                            *Found. for N. Am. Wild Sheep*
                             v. 
                            *U.S. Dep't of Agr.,*
                             681 F.2d 1172, 1178 (9th Cir. 1982) (“If substantial questions are raised whether a project may have a significant effect upon the human environment, an EIS must be prepared.”). Back to Citation
 5.
    
                             
                            *See*42 U.S.C. 4331(a); 4332(c). Back to Citation
 6.
    
                             Commissioner Danly's dissent claims that today's interim policy statement is “a substantive, binding rule that is subject to judicial review.” Danly Dissent at P 46. This interim document is intended to provide all interested entities with guidance as to how the Commission will approach application under NGA sections 3 and 7. It does not “impose[] an obligation, den[y] a right, or fix[] some legal relationship.” 
                            *Reliable Automatic Sprinkler Co.*
                             v. 
                            *Consumer Prod. Safety Comm'n,*
                             324 F.3d 726, 731 (D.C. Cir. 2003). Parties that disagree with the approach outlined in the statement retain their full rights to litigate their concerns in any individual proceeding. 
                            *Cf. id.*
                             (“Final agency action `marks the consummation of the agency's decisionmaking process' and is `one by which rights or obligations have been determined, or from which legal consequences will flow.') (quoting 
                            *Bennett*
                             v. 
                            *Spear,*
                             520 U.S. 154, 178 (1997)). In addition, Commissioner Danly speculates that “no project sponsor will believe that mitigation is optional or that submitting an application exceeding the Interim Policy Statement's 100,000 tpy threshold without a mitigation proposal would be anything other than a waste of time and money.” Danly Dissent PP 46-47. In response, we note only that the Commission will consider mitigation on a case-by-case basis and that we have not suggested that GHG emissions must be mitigated to insignificant levels in order for us to conclude that a proposed 
                            
                            project is required by the public convenience and necessity or consistent with the public interest. Back to Citation
 7.
    
                             IPCC Report at SPM-5. Other forces contribute to climate change, such as agriculture, forest clearing, and other anthropogenically driven sources. Back to Citation
 8.
    
                             The U.S. Global Change Research Program is the leading U.S. scientific body on climate change. It comprises representatives from 13 federal departments and agencies and issues reports every 4 years that describe the state of the science relating to climate change and the effects of climate change on different regions of the United States and on various societal and environmental sectors, such as water resources, agriculture, energy use, and human health. Back to Citation
 9.
    
                             U.S. Global Change Research Program, Climate Science Special Report, Fourth National Climate Assessment | Volume I (Donald J. Wuebbles et al. eds) (2017), 
                            *https://science2017.globalchange.gov/​downloads/​CSSR2017_​FullReport.pdf*; U.S. Global Change Research Program, Fourth National Climate Assessment, Volume II Impacts, Risks, and Adaptation in the United States (David Reidmiller et al. eds.) (2018), 
                            *https://nca2018.globalchange.gov/​downloads/​NCA4_​2018_​FullReport.pdf*
                             (USGCRP Report Volume II). Back to Citation
 10.
    
                             IPCC Report at SPM-5 to SPM-10. Back to Citation
 11.
    
                             USGCRP Report Volume II at 73-75. Back to Citation
 12.
    
                             
                            *See, e.g.,*
                             USGCRP Report Volume II at 99 (describing accelerating flooding rates in Atlantic and Gulf Coast cities). Back to Citation
 13.
    
                             CEQ, 
                            *Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions*
                             (Feb. 18, 2010), 
                            *https://ceq.doe.gov/​docs/​ceq-regulations-and-guidance/​20100218-nepa-consideration-effects-ghg-draft-guidance.pdf*. Back to Citation
 14.
    
                             Revised Draft Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews, 79 FR 77802 (Dec. 24, 2014). Back to Citation
 15.
    
                             CEQ, 
                            *Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews*
                             (Aug. 1, 2016), 
                            *https://ceq.doe.gov/​docs/​ceq-regulations-and-guidance/​nepa_​final_​ghg_​guidance.pdf*
                             (2016 CEQ Guidance). Back to Citation
 16.
    
                             2016 CEQ Guidance at 9-10 (“This guidance does not establish any particular quantity of GHG emissions as `significantly' affecting the quality of the human environment or give greater consideration to the effects of GHG emissions and climate change over other effects on the human environment.”). Back to Citation
 17.
    
                             Exec. Order No. 13783, 82 FR 16576 (Apr. 5, 2017). Back to Citation
 18.
    
                             Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions, 84 FR 30097 (June 26, 2019). Back to Citation
 19.
    
                             Exec. Order No. 13990, 86 FR 7037 (Jan. 20, 2021). Back to Citation
 20.
    
                             Notice of Rescission of Draft Guidance, 86 FR 10252 (Feb. 19, 2021). Back to Citation
 21.
    
                             For details on GHG analysis in the Commission's NEPA documents through April 2018, see 
                            *Certification of New Interstate Natural Gas Facilities,*83 FR 18020, 163 FERC ¶ 61,042, at PP 44-50 (2018) (2018 NOI). Back to Citation
 22.
    
                             
                            *See, 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). Back to Citation
 23.
    
                             
                            *See, e.g., Columbia Gas Transmission, LLC,*
                             158 FERC ¶ 61,046, at P 120 (2017); 
                            *Tex. E. Transmission, LP,*
                             157 FERC ¶ 61,223, at P 41 (2016), 
                            *reh'g granted,*
                             161 FERC ¶ 61,226 (2017). Back to Citation
 24.
    
                             
                            *See, e.g., Columbia Gas Transmission, LLC,*
                             158 FERC ¶ 61,046 at PP 116-119. Back to Citation
 25.
    
                             With respect to upstream emissions, the D.C. Circuit subsequently noted that the Commission does not violate NEPA in not considering upstream GHG emissions where there is no evidence to predict the number and location of additional wells that would be drilled as a result of a project. 
                            *Birckhead*
                             v. 
                            *FERC,*
                             925 F.3d 510, 518 (D.C. Cir. 2019) (
                            *Birckhead*). Back to Citation
 26.
    
                             867 F.3d 1357. Back to Citation
 27.
    
                             
                            *Id.*
                             at 1374. Back to Citation
 28.
    
                             
                            *Fla. Se. Connection, LLC,*
                             164 FERC ¶ 61,099, at P 5 (2018). Back to Citation
 29.
    
                             
                            *Id.*
                             No party petitioned for judicial review of the Commission's determination on remand. Back to Citation
 30.
    
                             163 FERC ¶ 61,128 (2018), 
                            *pet. dismissed, Otsego 2000*
                             v. 
                            *FERC,*
                             767 F.App'x 19 (D.C. Cir. 2019) (unpublished opinion). Back to Citation
 31.
    
                             
                            *Id.*
                             PP 41-44, 61-62. Back to Citation
 32.
    
                             
                            *Id.*
                             P 44; 
                            *see also Tenn. Gas Pipeline Co., LLC,*
                             163 FERC ¶ 61,190, at PP 61-62 (2018). Back to Citation
 33.
    
                             
                            *Dominion Transmission, Inc.,*
                             163 FERC ¶ 61,128 at PP 67-70. Back to Citation
 34.
    
                             
                            *Birckhead,*
                             925 F.3d at 518-19. Back to Citation
 35.
    
                             
                            *Id.*
                             at 520. Back to Citation
 36.
    
                             174 FERC ¶ 61,189, at P 29 (2021). Back to Citation
 37.
    
                             
                            *Id.*
                             PP 29-36. Back to Citation
 38.
    
                             
                            *Vecinos para el Bienestar de la Comunidad Costera*
                             v. 
                            *FERC,*
                             6 F.4th 1321, 1328 (D.C. Cir. 2021) (
                            *Vecinos)*
                             (citing 40 CFR 1502.21(c), which requires an EIS to include an evaluation of impacts based upon theoretical approaches or research methods generally accepted in the scientific community where the information relevant to the reasonably foreseeable significant adverse impacts cannot be obtained because the means to obtain it are not known). The case is pending on remand with the Commission. Back to Citation
 39.
    
                             2018 NOI, 163 FERC ¶ 61,042. Back to Citation
 40.
    
                             
                            *Certification of New Interstate Natural Gas Pipeline Facilities,*
                             88 FERC ¶ 61,227 (1999), 
                            *clarified,*
                             90 FERC ¶ 61,128, 
                            *further clarified,*
                             92 FERC ¶ 61,094 (2000). The Commission must determine whether a proposed natural gas project is or will be required by the present or future public convenience and necessity, as that standard is established in NGA section 7. 15 U.S.C. 717f. Back to Citation
 41.
    
                             2018 NOI, 163 FERC ¶ 61,042 at PP 5-50. Back to Citation
 42.
    
                             
                            *Certification of New Interstate Natural Gas Facilities,*
                             174 FERC ¶ 61,125 (2021). Back to Citation
 43.
    
                             
                            *Id.*
                             P 17. Back to Citation
 44.
    
                             
                            *Id.*
                             (citations omitted). Back to Citation
 45.
    
                             
                            *See*
                             Notice Extending Time for Comments, Docket No. PL18-1-000 (Mar. 31, 2021) (extending the original comment deadline from April 26, 2021, to May 26, 2021). Back to Citation
 46.
    
                             15 U.S.C. 717f. Back to Citation
 47.
    
                             NGA section 1(b) states that Commission authority applies to interstate transportation of natural gas and sales for resale, “but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.” 
                            *Id.*
                             717(b). Back to Citation
 48.
    
                             The 1977 Department of Energy Organization Act (42 U.S.C. 7151(b)) placed all section 3 jurisdiction under the Department of Energy. The Secretary of Energy subsequently delegated authority to the Commission to “[a]pprove or disapprove the construction and operation of particular facilities, the site at which such facilities shall be located, and with respect to natural gas that involves the construction of new domestic facilities, the place of entry for imports or exit for exports.” Department of Energy Delegation Order No. 00-004.00A, section 1.21A (May 16, 2006). Back to Citation
 49.
    
                             In addition to pipelines that cross the international border with Canada and Mexico, the Commission has also asserted authority over the portions of subsea pipelines planned to cross the “border” of the Exclusive Economic Zone between the U.S. and the Bahamas. 
                            *See, e.g., Tractebel Calypso Pipeline, LLC,*
                             106 FERC ¶ 61,273 (2004), 
                            *vacated, Calypso U.S. Pipeline, LLC,*
                             137 FERC ¶ 61,098 (2011). Back to Citation
 50.
    
                             15 U.S.C. 717b(e)(1). Back to Citation
 51.
    
                             
                            *Id.*
                             717f(e) (“The Commission shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.”); 
                            *see also id.*
                             717b(a) (stating that the Commission may “grant such application, in whole or in part, with such modification and upon such terms and conditions as the Commission may find necessary or appropriate”); 
                            *id.*
                             717b(e)(3)(A) (providing the authority to approve an application for an LNG Terminal, “in whole or part, with such modifications and upon such terms and conditions as the Commission find[s] necessary or appropriate”). Back to Citation
 52.
    
                             
                            *See Twp. of Bordentown*
                             v. 
                            *FERC,*
                             903 F.3d 234, 261 n.15 (3d Cir. 2018) (concluding that the Commission's authority to enforce any required remediation is amply supported by provisions of the NGA); 
                            *Sabal Trail,*
                             867 F.3d at 1374 (holding that the Commission has legal authority to mitigate reasonably foreseeable indirect effects). Back to Citation
 53.
    
                             
                            *See, e.g., Atl. Coast Pipeline, LLC,*
                             161 FERC ¶ 61,042, at app. A (2017), 
                            *on reh'g,*
                             164 FERC ¶ 61,100 (2018). Back to Citation
 54.
    
                             42 U.S.C. 4332(2)(C); 40 CFR 1502.3; 
                            *see Balt. Gas & Elec. Co.*
                             v. 
                            *Nat. Res. Def. Council, Inc.,*
                             462 U.S. 87, 97 (1983) (discussing the twin aims of NEPA). Back to Citation
 55.
    
                             40 CFR 1501.5, 1508.1(h). Back to Citation
 56.
    
                             40 CFR 1508.1(
                            *l*) (defining a finding of no significant impact as a document that briefly presents the reasons why an action that is not otherwise categorically excluded under § 1501.4 will not have a significant effect on the human environment and for which an EIS will therefore not be prepared). Back to Citation
 57.
    
                             
                            *Vieux Carre Prop. Owners, Residents & Assocs., Inc.*
                             v. 
                            *Pierce,*
                             719 F.2d 1272, 1279 (5th Cir. 1983) (stating there is “no hard and fast definition of `significant' ” but considering the proposed project's context in assessing whether a finding of no significance impact was reasonable). The regulations implementing NEPA previously addressed the term “significantly,” but that provision was removed by amendments effective September 14, 2020 and replaced with 40 CFR 1501.3(b). “Whether a project has significant environmental impacts, thus triggering the need to produce an EIS, depends on its `context' (region, locality) and `intensity' (`severity of impact').” 
                            *Nat'l Parks Conservation Ass'n*
                             v. 
                            *Semonite,*
                             916 F.3d 1075, 1082 (D.C. Cir.) (quoting 40 CFR 1508.27 (2018)), 
                            *amended in part by*
                             925 F.3d 500 (D.C. Cir. 2019). The new 40 CFR 1501.3(b) calls for agencies to consider the “potentially affected environment and degree of the effects of the action” and to consider the short-term, long-term, beneficial, and adverse effects, and effects on public safety and those that would violate laws. Back to Citation
 58.
    
                             
                            *See, e.g.*
                             Final EIS for the Alaska LNG Project, Docket No. CP17-178-000, at 4-1. Back to Citation
 59.
    
                             
                            *See Sabal Trail,*
                             867 F.3d at 1371 (“The EIS also gave the public and agency decisionmakers the qualitative and quantitative tools they needed to make an informed choice for themselves. NEPA requires nothing more.”). Back to Citation
 60.
    
                             
                            *See, e.g., Transcon. Gas Pipe Line Co., LLC,*
                             158 FERC ¶ 61,125, at P 79 (describing how the final EIS for the Atlantic Sunrise Project concluded that the project would result in adverse impacts that would be mitigated to less than significant levels), 
                            *order on reh'g,*
                             161 FERC ¶ 61,250 (2017), 
                            *petition denied sub nom., Allegheny Def. Project*
                             v. 
                            *FERC,*
                             964 F.3d 1 (D.C. Cir. 2020); 
                            *see also infra*
                             note 61; 
                            *see also Magnum Gas Storage, LLC,*
                             134 FERC ¶ 61,197, at P 115 (2011) (explaining that “`significantly,' as used in NEPA, requires considerations of both context and intensity, which varies with the setting of each proposed action.”). Back to Citation
 61.
    
                             
                            *N. Nat. Gas Co.,*
                             174 FERC ¶ 61,189, at P 32 (citing 
                            *Magnum Gas Storage, LLC,*
                             134 FERC ¶ 61,197 at P 114 (“[A]n impact was considered to be significant if it would result in a substantial adverse change in the physical environment or natural condition and could not be mitigated to less-than-significant level.”)). Back to Citation
 62.
    
                             
                            *See, e.g., Tex. LNG Brownsville LLC,*
                             169 FERC ¶ 61,130, at P 56 (2019) (“Due to the relatively undeveloped nature of the project area, the visual sensitivity of nearby recreation areas, and the lack of feasible visual screening measures, the Final EIS concluded that the project would result in a 
                            
                            significant impact on visual resources when viewed from the adjacent Laguna Atascosa National Wildlife Refuge.”), 
                            *order on reh'g,*
                             170 FERC ¶ 61,139, at P 32 (2020), 
                            *remanded on other grounds, Vecinos,*
                             6 F.4th 1321; Final EIS for the Alaska LNG Project, Docket No. CP17-178-000, at ES-4 (Mar. 2020) (explaining the significant, long-term to permanent project impacts from the loss of thousands of acres of permafrost from construction that would permanently alter hydrology and vegetation within and past the project footprint). Back to Citation
 63.
    
                             
                            *Sierra Club*
                             v. 
                            *U.S. Dep't of Transp.,*
                             753 F.2d 120, 128 (D.C. Cir. 1985) (“It is clearly within the expertise and discretion of the agency to determine proper testing methods.”); 
                            *see also Hughes River Watershed Conservancy*
                             v. 
                            *Johnson,*
                             165 F.3d 283, 289 (4th Cir. 1999) (“Agencies are entitled to select their own methodology as long as that methodology is reasonable. The reviewing court must give deference to an agency's decision.”). Back to Citation
 64.
    
                             
                            *See Spiller*
                             v. 
                            *White,*
                             352 F.3d 235, 244 n.5 (5th Cir. 2003) (rejecting petitioner's contention that the significance determination must be objective, factual, and quantitative and should not involve any qualitative judgment calls). Back to Citation
 65.
    
                             
                            *See La. Crawfish Producers Ass'n-W.*
                             v. 
                            *Rowan,*
                             463 F.3d 352, 355 (5th Cir. 2006) (NEPA-related decisions are accorded a considerable degree of deference); 
                            *Spiller*
                             v. 
                            *White,*
                             352 F.3d at 244 n.5 (“We should note that our deference to the [l]ead [a]gencies['] fact-finding and conclusions includes deference to their judgment as to whether any particular environmental impact of the proposed pipeline rises to the level of significance”); 
                            *Powder River Basin Res. Council*
                             v. 
                            *U.S. Bureau of Land Mgmt.,*
                             37 F.Supp. 3d 59, 74 (D.D.C. 2014) (agencies are afforded discretion to use their expertise to determine the best method to evaluate the significance of an impact to a particular resource, so long as that method is reasonable). Back to Citation
 66.
    
                             
                            *Robertson*
                             v. 
                            *Methow Valley Citizens Council,*
                             490 U.S. 332, 351 (1989) (“To be sure, one important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences.”). Back to Citation
 67.
    
                             
                            *Id.*
                             at 352 (“There is a fundamental distinction, however, between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted, on the other.”). Back to Citation
 68.
    
                             
                            *Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate use of Mitigated Findings of No Significant Impact,*76 FR 3843, 3848 (Jan. 21, 2011). Back to Citation
 69.
    
                             
                            *See, e.g., Columbia Gas Transmission, LLC,*
                             170 FERC ¶ 61,045, at P 66, app. (2020) (conditioning certificate authority on site-specific mitigation measures when crossing abandoned mine lands, including the management and disposal of contaminated groundwater, and mitigation measures for acid mine drainage); 
                            *PennEast Pipeline Co., LLC,*
                             170 FERC ¶ 61,198, at PP 29-30, app. A (2020) (conditioning certificate authority on mitigation of construction impacts on karst features); 
                            *Atl. Coast Pipeline, LLC,*
                             161 FERC ¶ 61,042 at app. A (conditioning certificate authority on the mitigation of construction impacts on karst features and on a nearby inn and mitigation of impacts from the discovery of invasive aquatic species during construction); 
                            *Port Arthur LNG, LP,*
                             115 FERC ¶ 61,344, at PP 68-71, app. A (conditioning sections 3 and 7 authority on the mitigation of construction impacts on aquatic resources and wetlands), 
                            *order on reh'g,*
                             117 FERC ¶ 61,213 (2006), 
                            *vacated,*
                             136 FERC ¶ 61,196 (2011). Back to Citation
 70.
    
                             40 CFR 1508.1(g) (defining the effects or impacts that must be considered when conducting a review under NEPA). Back to Citation
 71.
    
                             Emissions quantification also includes loss of carbon storage/sinks through land use conversions, forest clearing, wetland conversions, etc. Back to Citation
 72.
    
                             As discussed below, the vast majority of all natural gas consumed in the United States is combusted. 
                            *See infra*
                             note 101. Back to Citation
 73.
    
                             Additionally, the Commission will consider evidence regarding whether certain emissions associated with a proposed project, such as upstream and downstream emissions, are reasonably foreseeable. Back to Citation
 74.
    
                             
                            *See Certification of New Interstate Natural Gas Pipeline Facilities,*
                             178 FERC ¶ 61,107, at P 55 (2022) (explaining that project sponsors are encouraged to provide the Commission with information on estimated utilization rates and the intended end use of gas to demonstrate project need). Back to Citation
 75.
    
                             40 CFR 1508.1(g). Back to Citation
 76.
    
                             
                            *Id.*
                             § 1508.1(g)(2); 
                            *see also U.S. Dep't of Transp.*
                             v. 
                            *Pub. Citizen,*
                             541 U.S. 752, 767 (2004) (
                            *Pub. Citizen*) (finding that “NEPA requires `a reasonably close causal relationship' between the environmental effect and the alleged cause” in order “to make an agency responsible for a particular effect under NEPA” (quoting 
                            *Metro. Edison Co.*
                             v. 
                            *People Against Nuclear Energy,*
                             460 U.S. 766, 774 (1983) (
                            *Metro. Edison Co.*))). Back to Citation
 77.
    
                             40 CFR 1508.1(g)(2); 
                            *see also Metro. Edison Co.,*
                             460 U.S. at 774 (finding that “[s]ome effects that are `caused by' a change in the physical environment in the sense of `but for' causation,” will not fall within NEPA if “the causal chain is too attenuated”). Back to Citation
 78.
    
                             40 CFR 1508.1(g)(2); 
                            *see also Pub. Citizen,*
                             541 U.S. at 770 (“[W]here an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant `cause' of the effect.”). Back to Citation
 79.
    
                             
                            *EarthReports, Inc.*
                             v. 
                            *FERC,*
                             828 F.3d 949, 955 (DC Cir. 2016) (citations omitted); 
                            *see also Sierra Club*
                             v. 
                            *Marsh,*
                             976 F.2d 763, 767 (1st Cir. 1992). Back to Citation
 80.
    
                             
                            *N. Plains Res. Council, Inc.*
                             v. 
                            *Surface Transp. Bd.,*
                             668 F.3d 1067, 1079 (9th Cir. 2011) (quoting 
                            *Selkirk Conservation All.*
                             v. 
                            *Forsgren,*
                             336 F.3d 944, 962 (9th Cir. 2003)). Back to Citation
 81.
    
                             
                            *Id.*
                             at 1078. Back to Citation
 82.
    
                             
                            *Id.*
                             (quoting 
                            *Envtl. Prot. Info. Ctr.*
                             v. 
                            *U.S. Forest Serv.,*
                             451 F.3d 1005, 1014 (9th Cir. 2006)). Back to Citation
 83.
    
                             
                            *EarthReports, Inc.*
                             v. 
                            *FERC,*
                             828 F.3d at 955 (citing 
                            *Sierra Club*
                             v. 
                            *FERC,*
                             827 F.3d 36, 47, 59, 68 (D.C. Cir. 2016) (
                            *Freeport*). Back to Citation
 84.
    
                             
                            *See, e.g.,*
                             Egan Millard 2021 Comments at 3; New Jersey Conservation Foundation 2021 Comments at 21; Shayna Gleason 2021 Comments at 2. Back to Citation
 85.
    
                             New Jersey Conservation Foundation 2021 Comments at 21. Back to Citation
 86.
    
                             Construction emissions include emissions from gasoline- and diesel-powered construction equipment. Back to Citation
 87.
    
                             Operational emissions include emissions from combustion units at compressor stations and fugitive leaks from compressor stations, meter/valve stations, and the pipeline. Back to Citation
 88.
    
                             The project sponsor provides emissions information in Resource Report No. 9. 18 CFR 380.12(k). Operational emissions are also estimated in the project's air permit application, which is typically submitted to the state agency with delegated Clean Air Act authority. Further, the Commission's guidance manual for NGA certificate applications instructs project sponsors to provide the GHGs in tons per year for the construction and operation of the proposed project. 
                            *See*
                             Guidance Manual for Environmental Report Preparation for Applications Filed under the NGA, Volume I, at 4-123, 4-125 to 4-127 (Guidance Manual). Back to Citation
 89.
    
                             
                            *See, e.g.,*
                             Food and Water Watch 2021 Comments at 1; New Jersey Conservation Foundation 2021 Comments at 19; Attorneys General of Massachusetts, Illinois, Maryland, New Jersey, Rhode Island, Washington, and the District of Columbia (Attorneys General of Massachusetts et al.) 2018 Comments at 12-17. Back to Citation
 90.
    
                             For example, the Massachusetts PipeLine Awareness Network states that the Commission should consider fugitive emissions from the distribution and burning of transported gas. Massachusetts PipeLine Awareness Network 2021 Comments at 2; 
                            *see also, e.g.,*
                             Egan Millard 2021 Comments at 3; Shayna Gleason 2021 Comments at 2. Back to Citation
 91.
    
                             
                            *See, e.g.,*
                             American Petroleum Institute (API) Technical Conference Comments at 3-5 (stating the Commission and developers cannot accurately forecast downstream emissions due to lack of knowledge of the end use of the gas, variability in utilization rates and regulatory requirements, and unpredictable changes in supply and demand, among other factors); Boardwalk Pipeline Partners LP (Boardwalk) Technical Conference Comments at 21; Enbridge Gas Pipelines (Enbridge) Technical Conference Comments at 11, 25-26; Interstate Natural Gas Association of America (INGAA) 2021 Comments at 58-60; The Williams Companies, Inc. (Williams) 2021 Comments at 37-38; Natural Gas Supply Association (NGSA) 2018 Comments at 15-16. Back to Citation
 92.
    
                             The court concluded “that the EIS for the Southeast Market Project should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so.” 
                            *Sabal Trail,*
                             867 F.3d at 1374. Back to Citation
 93.
    
                             
                            *Birckhead,*
                             925 F.3d at 518-20 (criticizing the Commission for not attempting to obtain data on downstream uses). Back to Citation
 94.
    
                             932 F.3d 940 (DC Cir. 2019). Back to Citation
 95.
    
                             
                            *Id.*
                             at 945-46. Back to Citation
 96.
    
                             
                            *See, e.g.,*
                             INGAA 2021 Comments at 50-51. Back to Citation
 97.
    
                             INGAA 2021 Comments at 49-51, 57; 
                            *see also*
                             INGAA Technical Conference Comments at 14 (adding that NEPA's requirements would exclude downstream emissions occurring after a “long and attenuated chain of intermediate causal factors, as when natural gas is transported to an interconnect for further shipment on the interstate grid, eventually reaching end-use consumers only through a long intermediate path”). Back to Citation
 98.
    
                             941 F.3d 1288 (11th Cir. 2019) (
                            *Center for Biological Diversity*). Back to Citation
 99.
    
                             
                            *Id.*
                             at 1300 (citing 
                            *Pub. Citizen,*
                             541 U.S. 752 and 
                            *Metro. Edison Co.,*
                             460 U.S. 766). Back to Citation
 100.
    
                             U.S. Energy Info. Admin., 
                            *December 2021 Monthly Energy Review*
                             24, 101 (2021) (reporting 
                            
                            that, in 2020, 1,036 Bcf of natural gas had a non-combustion use compared to 30,476 Bcf of total consumption), 
                            *https://www.eia.gov/​totalenergy/​data/​monthly/​pdf/​mer.pdf*; 
                            *see also*
                             Jayni Hein et al., Institute for Policy Integrity, 
                            *Pipeline Approvals and Greenhouse Gas Emissions*
                             25 (2019) (explaining that, in 2017, 97% of all natural gas consumed was combusted). Back to Citation
 101.
    
                             
                            *See Birckhead,*
                             925 F.3d at 518; 
                            *Sabal Trail,*
                             867 F.3d at 1371-72. Back to Citation
 102.
    
                             
                            *Birckhead,*
                             925 F.3d at 518-19 (rejecting, in 
                            *dicta,*
                             that downstream emissions are always a foreseeable effect of a proposed certificate project). Back to Citation
 103.
    
                             
                            *Sabal Trail,*
                             867 F.3d at 1372-73 (emphasis in original) (explaining 
                            *Pub. Citizen,*
                             541 U.S. 752). Back to Citation
 104.
    
                             
                            *See id.*
                             at 1373 (“Because FERC could deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment, the agency is a `legally relevant cause' of the direct and indirect environmental effects of pipelines it approves.” (quoting 
                            *Freeport,*
                             827 F.3d at 47). Back to Citation
 105.
    
                             
                            *Freeport,*
                             827 F.3d at 47. Back to Citation
 106.
    
                             
                            *Pub. Citizen,*
                             541 U.S. at 767 (quoting 
                            *Metro. Edison Co.,*
                             460 U.S. at 774). Back to Citation
 107.
    
                             
                            *See Center for Biological Diversity,*
                             941 F.3d at 1292 (describing whether the U.S. Army Corps of Engineers legally declined to address, in issuing discharge permits for phosphate mining, the effects of a radioactive byproduct of fertilizer production (phosphogypsum), where the phosphogypsum is neither a byproduct of dredging and filling or phosphate mining or beneficiation). The court criticized the reasoning in 
                            *Sabal Trail*
                             but also observed that the “causal relationship between the agency action and the putative downstream effect was much closer [in 
                            *Sabal Trail*] than it is here” and that the Commission's scope of statutory authority is “much broader” than that of the U.S. Army Corps of Engineers. 
                            *Id.*
                             at 1299-1300. Back to Citation
 108.
    
                             
                            *Freeport,*
                             827 F.3d at 47 (holding that the Commission does not have to address the indirect effects of the anticipated export of natural gas because the Department of Energy, not the Commission, has sole authority to license and consider the environmental impacts of the export of any natural gas going through LNG facilities); 
                            *Freeport,*
                             827 F.3d at 62-63 (same); 
                            *EarthReports, Inc.*
                             v. 
                            *FERC,*
                             828 F.3d at 956 (same); 
                            *Sabal Trail,*
                             867 F.3d at 1372 (explaining 
                            *Freeport*). Back to Citation
 109.
    
                             
                            *Freeport,*
                             827 F.3d at 48. Back to Citation
 110.
    
                             
                            *See, e.g.,*
                             Egan Millard 2021 Comments at 3; Shayna Gleason 2021 Comments at 2. Back to Citation
 111.
    
                             
                            *See, e.g.,*
                             Institute for Policy Integrity at New York University School of Law (Policy Integrity) Technical Conference Comments at 17; Food and Water Watch 2021 Comments at 1; New Jersey Conservation Foundation 2021 Comments at 19. Back to Citation
 112.
    
                             
                            *See, e.g.,*
                             Boardwalk Technical Conference Comments at 21; Enbridge Technical Conference Comments at 11, 25-26; TC Energy Corporation (TC Energy) Technical Conference Comments at 5; Williams Technical Conference Comments at 4; INGAA 2021 Comments at 56-57; Williams 2021 Comments at 37-38. Back to Citation
 113.
    
                             EPA 2021 Comments at 5. Back to Citation
 114.
    
                             
                            *See Birckhead,*
                             925 F.3d at 516-18. 
                            *See, e.g., Double E Pipeline, LLC,*
                             173 FERC ¶ 61,074, at P 97 (2020); 
                            *Cent. N.Y. Oil & Gas Co., LLC,*
                             137 FERC ¶ 61,121, at PP 81-101 (2011), 
                            *order on reh'g,*
                             138 FERC ¶ 61,104, at PP 33-49 (2012), 
                            *petition for review dismissed sub nom., Coal. for Responsible Growth*
                             v. 
                            *FERC,*
                             485 F.App'x 472, 474-75 (2d Cir. 2012) (unpublished opinion); 
                            *see also Adelphia Gateway, LLC,*
                             169 FERC ¶ 61,220, at P 243 (2019), 
                            *order on reh'g,*
                             171 FERC ¶ 61,049, at P 89 (2020). Back to Citation
 115.
    
                             We note that thresholds for Clean Air Act and state air permits are typically based on the regulated source's potential to emit, or the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design, rather than its actual emissions, and that air permits themselves are expressed in potential to emit. 
                            *See*40 CFR 70.2. This policy statement does not apply to any other air pollutants than GHGs. For all other air pollutants, we will continue to evaluate a project's air quality impacts based on its potential to emit. Back to Citation
 116.
    
                             
                            *See infra*
                             section III.A.2.a. Back to Citation
 117.
    
                             
                            *See, e.g.,*
                             American Gas Association (AGA) Technical Conference Comments at 28, 40; API Technical Conference Comments at 3; Boardwalk Technical Conference Comments at 23 (stating that the Commission should rely on local distribution companies' air permits to determine GHG emissions); Enbridge Technical Conference Comments at 31-34; Hon. Joseph T. Kelliher Technical Conference Comments at 5-6 (Commissioner Kelliher, Principal at Three Acorns, was a panelist at the GHG Technical Conference on Panel 1.); INGAA Technical Conference Comments at 17-18 (suggesting the net emissions analysis must be undertaken on a global level); Kinder Morgan Entities (Kinder Morgan) Technical Conference Comments at 12-15; National Grid Gas Companies Technical Conference Comments at 3-7 (describing the Distributed Infrastructure Solution that it has developed in coordination with the State of New York); Williams Technical Conference Comments at 7-8; Charles River Associates 2021 Comments at 4-5; Ohio Environmental Council 2021 Comments at 3. 
                            *See*
                             Environmental Assessment for the Iroquois Gas Transmission System, L.P. (Iroquois) Enhancement by Compression Project, Docket No. CP20-48-000, at B-110 (Sept. 30, 2020) (citing Iroquois' end-use GHG analysis that projected greater GHG emissions if the project was not built under scenarios where the energy needs of all new buildings are met by fuel oil as opposed to gas supplied by the project). One industrial end user expresses concern about the potential of integrating renewable natural gas due to concerns about pipeline integrity or increased costs. American Forest and Paper Association and Process Gas Consumers Group (collectively, American Forest) Technical Conference Comments at 13-14. Back to Citation
 118.
    
                             INGAA Technical Conference Comments at 19. Back to Citation
 119.
    
                             
                            *See, e.g.,*
                             New Jersey Conservation Foundation 2021 Comments at 23. Back to Citation
 120.
    
                             
                            *See, e.g.,*
                             Enbridge Technical Conference Comments at 12, 29-30; Hon. Joseph T. Kelliher Technical Conference Comments at 5-6; INGAA Technical Conference Comments at 15-16 (describing an analysis it commissioned concluding that in 2020, the maximum utilization on an average annual basis for any of the pipeline “corridors” between different regions is not higher than 65% and it is over 50% only for 7 of the 30 regional corridors); TC Energy Technical Conference Comments at 18; Charles River Associates 2021 Comments at 6; INGAA 2021 Comments at 58; 
                            *see also*
                             Boardwalk Technical Conference Comments at 3, 23; Williams Technical Conference Comments at 7. API, on the other hand, asserts that use of utilization estimates or emissions data forces the Commission to pick winners among competing pipeline projects and asserts that such decisions are best made by market forces after the Commission authorizes a project. API Technical Conference Comments at 3-4. Back to Citation
 121.
    
                             
                            *See, e.g.,*
                             New Jersey Conservation Foundation 2021 Comments at 21-22; Public Interest Organizations 2018 Comments at 91; Washington State Department of Commerce and Washington State Department of Ecology 2018 Comments at 6. Public Interest Organizations' 2018 comments represent 63 entities including Natural Resources Defense Council. Back to Citation
 122.
    
                             
                            *See, e.g.,*
                             Charles River Associates 2021 Comments at 6-8 (proposing a regional analysis to estimate downstream emissions of a gas project). Back to Citation
 123.
    
                             New Jersey Conservation Foundation 2021 Comments at 22. Back to Citation
 124.
    
                             
                            *See, e.g.,*
                             Berkshire Environmental Action Team 2021 Comments at 3; North Carolina Department of Environmental Quality 2018 Comments at 5-8. Back to Citation
 125.
    
                             Dr. Susan F. Tierney, Senior Advisor with the Analysis Group, Inc., was a panelist at the GHG Technical Conference on Panel 1. Dr. Susan F. Tierney Technical Conference Statement at 4-10. The applicant could supplement its estimate with an alternative estimate, and intervenors could also submit estimates. Back to Citation
 126.
    
                             
                            *See*
                             Environmental Assessment for the Lake City 1st Branch Line Abandonment and Capacity Replacement Project, Docket No. CP20-504-000, at 51-53 (Feb. 2021); 
                            *see also*
                             Environmental Assessment for the Philadelphia Lateral Expansion Project, Docket No. CP11-508-000, at 24 (Jan. 18, 2012) (construction emissions); Environmental Assessment for the Minisink Compressor Project, 
                            
                            Docket No. CP11-515-000, at 29 (Feb. 29, 2012) (operation emissions). Back to Citation
 127.
    
                             
                            *See Atl. Coast Pipeline, LLC,*
                             161 FERC ¶ 61,042 at P 305. Back to Citation
 128.
    
                             Some commenters point out that daily pipeline load factors vary significantly based on seasonal trends. 
                            *See, e.g.,*
                             Charles River Associates 2021 Comments at 3; Williams 2021 Comments at 46. Back to Citation
 129.
    
                             We note that for a greenfield pipeline project, historic data will not be available. In those cases, the project sponsor could use data from other similar projects or regional data. Back to Citation
 130.
    
                             For instance, in a downstream end-use analysis, Iroquois projected that its Enhancement by Compression project could result in net GHG reductions when considering the alternative fuel that may be used (
                            *e.g.,*
                             fuel oil for heating) by the end use customer in the event that gas is not available. Iroquois Gas Transmission, LP, Downstream GHG Report, Docket No. CP20-48-000 (filed May 19, 2020). Back to Citation
 131.
    
                             For example, the Commission may consider evidence that a downstream user purchases credits to offset its GHG emissions from the consumption of transported gas. The Commission will consider downstream user's mitigation measures according to the criteria outlined in 
                            *infra*
                             section III.C.3 for applicant-proposed mitigation measures. With regards to construction and operational emissions, project sponsors should continue to provide evidence of measures that minimize emissions, such as using low-sulfur diesel fuel and limiting equipment idling during construction, as outlined in the Guidance Manual. Guidance Manual at 4-124. However, as described 
                            *supra*
                             section III.A.2.a, operational emissions should now be calculated based on the project's projected utilization rate. Back to Citation
 132.
    
                             
                            *See, e.g.,*
                             Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review, 86 FR 63,110 (Nov. 15, 2020). Back to Citation
 133.
    
                             42 U.S.C. 4332(C); 40 CFR 1502.3. Back to Citation
 134.
    
                             40 CFR 1501.5, 1508.1(h). Back to Citation
 135.
    
                             
                            *See*40 CFR 1501.3, 1501.5, 1501.6, 1508.1(h), (l). Back to Citation
 136.
    
                             
                            *See Magnum Gas Storage, LLC,*
                             134 FERC ¶ 61,197 at P 114 (“[A]n impact was considered to be significant if it would result in a substantial adverse change in the physical environment or natural condition and could not be mitigated to less-than-significant level.”). Back to Citation
 137.
    
                             For example, for an impact where there are no established federal standards, the Commission makes qualitative assessments to determine whether a proposed project would have a significant impact on a particular resource. 
                            *See, e.g., Tex. LNG Brownsville LLC,*
                             169 FERC ¶ 61,130 at P 56 (“Due to the relatively undeveloped nature of the project area, the visual sensitivity of nearby recreation areas, and the lack of feasible visual screening measures, the Final EIS concluded that the project would result in a significant impact on visual resources when viewed from the adjacent Laguna Atascosa National Wildlife Refuge.”); 
                            *Alaska Gasline Dev. Corp.,*
                             171 FERC ¶ 61,134, at PP 25, 89 (describing how the final EIS for the Alaska LNG Project found that construction and operation of the project would have significant impacts on resources such as permafrost, wetlands, forests, and caribou, but less than significant impacts on resources such as scrub and herbaceous plant communities), 
                            *order on reh'g,*
                             172 FERC ¶ 61,214 (2020); 
                            *Transcon. Gas Pipe Line Co., LLC,*
                             158 FERC ¶ 61,125 at P 79 (describing how the final EIS for the Atlantic Sunrise Project concluded that the project would result in adverse impacts that would be mitigated to less than significant levels). Back to Citation
 138.
    
                             
                            *N. Nat. Gas Co.,*
                             174 FERC ¶ 61,189 at P 32. Back to Citation
 139.
    
                                 174 FERC ¶ 61,189 at P 30 (citations omitted). Back to Citation
 140.
    
                             
                            *See, e.g.,*
                             Sabin Center 2018 Comments at 8-9. Back to Citation
 141.
    
                             
                            *See, e.g.,*
                             INGAA 2021 Comments at 58-64. INGAA's 2021 comments update its 2018 position that the Commission should not presume that all GHG emissions are significant and should instead make a reasoned judgment whether: (1) A meaningful assessment can be made with reasonable effort based upon available information and (2) if so, whether a meaningful judgment can be formed regarding if the contribution of GHGs is likely to have a significant impact on the resource as a whole. INGAA 2018 Comments at 81-84. Back to Citation
 142.
    
                             Boardwalk 2021 Comments at 77-78, 86-90, 92-93. These comments are generally echoed by the Energy Infrastructure Council. Energy Infrastructure Council 2021 Comments at 15-16, 22-27. Back to Citation
 143.
    
                             
                            *See, e.g.,*
                             Enbridge 2021 Comments at 103. Back to Citation
 144.
    
                             
                            *See, e.g.,*
                             U.S. Chamber of Commerce 2021 Comments at 9. Back to Citation
 145.
    
                             
                            *See, e.g.,*
                             API 2021 Comments at 29-32; NGSA 2021 Comments at 21-22; TC Energy 2021 Comments at 52-56; U.S. Chamber of Commerce 2021 Comments at 9. Back to Citation
 146.
    
                             
                            *See, e.g.,*
                             Cheniere Energy Inc. 2021 Comments at 14-16; Enbridge 2021 Comments at 104; Williams 2021 Comments at 35-38. Energy Transfer LP and the NGSA also cite CEQ's recent NEPA regulatory update and direction to agencies to propose revisions to their NEPA procedures by September 14, 2023. Energy Transfer LP 2021 Comments at 14; NGSA 2021 Comments at 19-20. The Commission's current regulations provide that the Commission will comply with CEQ's regulations except where those regulations are inconsistent with the statutory requirements of the Commission. 18 CFR 380.1. Therefore, any action taken by the Commission in a future rulemaking pursuant to CEQ's regulatory update does not prevent the Commission from issuing this policy statement. Back to Citation
 147.
    
                             
                            *See, e.g.,*
                             BHE Pipeline Group 2021 Comments at 8-10; Cheniere Energy Inc. 2021 Comments at 17-18. Back to Citation
 148.
    
                             Ohio Environmental Council 2021 Comments at 3. Back to Citation
 149.
    
                             Attorneys General of Massachusetts et al. 2021 Comments at 6-11. The 2021 commenters are made up of a slightly different group of state attorneys general than those filing comments in 2018. Back to Citation
 150.
    
                             Sabin Center 2018 Comments at 8-9. Back to Citation
 151.
    
                             Environmental Defense Fund, Food & Water Watch, Policy Integrity, Montana Environmental Information Center, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and Western Environmental Law Center (EDF) 2021 Comments at 14-15. Back to Citation
 152.
    
                             
                            *See, e.g.,*
                             Competitive Enterprise Institute 2021 Comments at 4, 6. Back to Citation
 153.
    
                             
                            *See, e.g.,*
                             Enbridge 2021 Comments at 108; Russo on Energy 2021 Comments at 17-18. Back to Citation
 154.
    
                             Driftwood Pipeline LLC 2021 Comments at 3. Back to Citation
 155.
    
                             CEQ 2021 Comments at 1. Back to Citation
 156.
    
                             
                            *See, e.g.,*
                             Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 62; Ron Schaaf and Deb Evans 2021 Comments at 8; California Public Utilities Commission 2018 Comments at 11-12. Back to Citation
 157.
    
                             Attorneys General of Massachusetts et al. 2018 Comments at 17-20. Back to Citation
 158.
    
                             
                            *See, e.g.,*
                             Attorneys General of Massachusetts et al. 2018 Comments at 17-20; Franklin Governments 2018 Comments at 2. Back to Citation
 159.
    
                             Ohio Environment Council 2018 Comments at 12-13. Back to Citation
 160.
    
                             Natural Resources Defense Council (NRDC) also suggests the Commission use its forthcoming “Climate Test,” which is a tool being developed by NRDC to quantify the consistency of individual infrastructure projects with climate goals. NRDC 2021 Comments at 6. However, NRDC has not filed additional information on its “Climate Test.” Back to Citation
 161.
    
                             Healthy Gulf 2021 Comments at 14. Back to Citation
 162.
    
                             
                            *E.g.,*
                             Attorneys General of Massachusetts et al. 2021 Comments at 8-11; EPA 2021 Comments at 1; Attorneys General of Massachusetts et al. 2018 Comments at 12-17. Back to Citation
 163.
    
                             EDF 2021 Comments at 9-12, 16. Back to Citation
 164.
    
                             
                            *See, e.g.,*
                             Boardwalk 2021 Comments at 82-83; NGSA 2021 Comments at 15. Enbridge states that comparison to these inventories would be arbitrary, but that such an approach could help contextualize the GHG emissions for the Commission and the public. Enbridge 2021 Comments at 105, 108-109. Back to Citation
 165.
    
                             Williams 2021 Comments at 38. Back to Citation
 166.
    
                             
                            *See, e.g.,*
                             Competitive Enterprise Institute 2021 Comments at 3-4. Back to Citation
 167.
    
                             The SC-GHG collectively includes the values for the SCC, the social cost of methane (SCM), and social cost of nitrous oxide (SCN). Back to Citation
 168.
    
                             
                            *See, e.g.,*
                             Policy Integrity Technical Conference Comments at 22-26; EPA 2021 Comments at 6; Ohio Environmental Council 2021 Comments at 2; Public Interest Organizations 2021 Comments at 43-45; Attorneys General of Massachusetts et al. 2018 Comments at 17-22; EDF 2018 Comments at 8-11. The 2018 EDF comments were filed by a slightly different set of entities than in 2021. Public Interest Organizations' 2021 comments represent 53 entities including Natural Resources Defense Council. Back to Citation
 169.
    
                             EDF 2021 Comments at 14-16. Back to Citation
 170.
    
                             Public Interest Organizations 2021 Comments at 43-45, 50-53, 60. Back to Citation
 171.
    
                             EDF 2021 Comments at 9. Back to Citation
 172.
    
                             
                            *See, e.g.,*
                             Kinder Morgan 2021 Comments at 32-40 (stating the Commission should use the SCC tool only as a qualitative comparison tool). Back to Citation
 173.
    
                             
                            *See, e.g.,*
                             American Forest Technical Conference Comments at 9; Competitive Enterprise Institute Technical Conference Comments at 1-2, 7-35; Enbridge 2021 Comments at 111; Energy Infrastructure Council 2021 Comments at 24-25; Williams 2021 Comments 41-43. Back to Citation
 174.
    
                             Attorneys General of Missouri et al. 2021 Comments at 2-7. A similar group, consisting of the Attorneys General of Missouri, Alabama, Alaska, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia, and Wyoming (Attorneys General of Missouri et al.), also submitted comments in response to the Commission's technical conference, 
                            *see infra*
                             section III.C.1, extensively critiquing potential use of the SCC. Attorneys General of Missouri et al. Technical Conference Comments at 3-15. Mr. Kirk Frost also provided comments on use of the SCC, urging the Commission to use the tool to assess GHG emissions impacts. Kirk Frost December 23, 2021 Technical Conference Comments at 4. Back to Citation
 175.
    
                             Public Interest Organizations 2021 Comments at 58. Back to Citation
 176.
    
                             New Jersey Conservation Foundation 2021 Comments at 23-24 (citing Exec. Order No. 13990, 86 FR 7037, 7040 (Jan. 25, 2021)). Back to Citation
 177.
    
                             New Jersey Conservation Foundation 2021 Comments at 24. Back to Citation
 178.
    
                             CEQ 2021 Comments at 2. 
                            *C.f. Louisiana*
                             v. 
                            *Biden,*
                             No. 21-cv-1074-JDC-KK (W.D. La.) Order Granting Preliminary Injunction (Feb. 11, 2022). Back to Citation
 179.
    
                             API 2021 Comment at 24-25; NGSA 2021 Comments at 20-21. Back to Citation
 180.
    
                             NGSA 2021 Comments at 20-21. Back to Citation
 181.
    
                             API 2021 Comment at 25, 27-28. Back to Citation
 182.
    
                             EPA 2021 Comments at 2-3. Back to Citation
 183.
    
                             Public Interest Organizations 2021 Comments at 58. Back to Citation
 184.
    
                             Kinder Morgan 2021 Comments at 34-35. Back to Citation
 185.
    
                             Attorneys General of Missouri et al. 2021 Comments at 9. Back to Citation
 186.
    
                             EDF 2021 Comments at 21. Back to Citation
 187.
    
                             INGAA 2021 Comments at 67. Back to Citation
 188.
    
                             INGAA 2021 Comments at 70-73. Back to Citation
 189.
    
                             New Jersey Conservation Foundation 2021 Comments at 24; 
                            *see also*
                             EDF 2021 Comments at 6-7. Back to Citation
 190.
    
                             Boardwalk 2021 Comments at 103; Kinder Morgan 2021 Comments at 32-33. Back to Citation
 191.
    
                             Kinder Morgan 2021 Comments at 32-33; Williams 2021 Comments at 44-45. Back to Citation
 192.
    
                             Energy Infrastructure Council 2021 Comments at 26-27. Back to Citation
 193.
    
                             Kinder Morgan 2021 Comments at 42. Back to Citation
 194.
    
                             
                            *Id.* Back to Citation
 195.
    
                             Seneca Resources Corp. 2018 Comments at 9; Spectra Energy Partners, LP 2018 Comments at 87. Back to Citation
 196.
    
                             Kinder Morgan 2021 Comments at 42. Back to Citation
 197.
    
                             When examining a project's GHG emissions, the Commission will consider record evidence of the construction, operational, and, where determined to be reasonably foreseeable, downstream and upstream GHG emissions that reoccur annually over the life of the project. Back to Citation
 198.
    
                             15 U.S.C. 717b(a). Back to Citation
 199.
    
                             
                            *Id.*
                             717f(c), (e). Back to Citation
 200.
    
                             
                            *Distrigas Corp.*
                             v. 
                            *FPC,*
                             495 F.2d 1057, 1065 (D.C. Cir.). Back to Citation
 201.
    
                             
                            *Atl. Ref. Co.*
                             v. 
                            *Pub. Serv. Comm'n of State of N.Y.,*
                             360 U.S. 378, 391 (1959). Back to Citation
 202.
    
                             
                            *See, e.g., Hope Nat. Gas Co.,*
                             4 FPC 59, 59, 66-67 (1944) (stating that “considerations of conservation are material to the issuance of certificates of public convenience and necessity under section 7” and authorizing a project in large part because of the particular end use of the gas); 
                            *see N. Nat. Gas Co.,*
                             15 FPC 1634, 1641 (1956) (Connole, Comm'r, dissenting) (contending that the Commission has “long held that considerations of conservation, inferior and superior uses, and related matters are relevant to determining whether the public convenience and necessity require the issuance of a certificate”). Back to Citation
 203.
    
                             
                            *Transwestern Pipeline Co.,*
                             36 FPC 176, 185-186, 189-191 (1966) (citing 
                            *FPC*
                             v. 
                            *Transcon. Gas Pipe Line Corp.,*
                             365 U.S. 1 (1961) (
                            *Transco*), for the proposition that the “end use of gas was properly of concern to [the Commission], and made it clear that air pollution was a relevant consideration”). 
                            *Cf. Am. La. Pipe Line Co.,*
                             16 FPC 897, 899-900 (1956) (“[T]here is a public need for and will be a public benefit from [the proposed] natural-gas service . . . . This need and benefit arise from the facts, among others, . . . that natural gas is a clean, convenient and efficient fuel.”). Back to Citation
 204.
    
                             
                            *See supra*
                             PP 34-37. Back to Citation
 205.
    
                             
                            *See supra*
                             P 42. Back to Citation
 206.
    
                             The Commission notes that CEQ and EPA are undertaking initiatives that may culminate in the establishment of a significance threshold for GHG emissions or that may further impact the Commission's determination of GHG significance in its NEPA analysis. If CEQ or EPA issues any future guidance regarding the evaluation of GHG emissions, the Commission may adjust its methods for determining the significance of GHG emissions consistent with that guidance. Back to Citation
 207.
    
                             EPA 2021 Comments at 6. Back to Citation
 208.
    
                             
                            *See supra*
                             PP 23-25. Back to Citation
 209.
    
                             
                            *Spiller*
                             v. 
                            *White,*
                             352 F.3d at 244 n.5. Back to Citation
 210.
    
                             IPCC Report at SPM-5. Back to Citation
 211.
    
                             
                            *See*
                             IPCC Report at SPM-17. Back to Citation
 212.
    
                             IPCC Report at SPM-23. Back to Citation
 213.
    
                             IPCC Report at SPM-23. Back to Citation
 214.
    
                             IPCC Report at SPM-19. Back to Citation
 215.
    
                             IPCC Report at SPM-19 (emphasis in original). Back to Citation
 216.
    
                             The PSD permitting program is part of the New Source Review program, which requires new stationary sources and major modifications to existing major sources to obtain preconstruction permits. PSD is designed to prevent air quality deterioration in regions that are attaining the National Ambient Air Quality Standards by requiring major sources or major modifications to install the Best Available Control Technology (BACT). Major sources under the PSD program are defined as facilities that emit or have the potential to emit 250 tons per year of any criteria air pollutant or 100 tons per year of any criteria air pollutant for specific types of facilities listed in the statute. 42 U.S.C. 7479(1). The six criteria pollutants are carbon monoxide, ground-level ozone, lead, nitrogen dioxide, particulate matter, and sulfur dioxide. 40 CFR pt. 50. Back to Citation
 217.
    
                             The Title V program requires major stationary sources to obtain a single operating permit that consolidates all of the permitting requirements in the Clean Air Act into a single permit, including PSD, New Source Performance Standards, and National Emission Standards for Hazardous Air Pollutants. Major sources under the Title V program are defined as any stationary facility that emits or has the potential to emit 100 tons per year of any hazardous air pollutant, except GHGs. 42 U.S.C. 7602(j). The Clean Air Act Amendments of 1990 originally designated over 180 chemicals as hazardous air pollutants, and EPA has the authority to modify the list through rulemaking. 42 U.S.C. 7412(b)-(c). Back to Citation
 218.
    
                             Prevention of Significant Deterioration and the Title V Greenhouse Gas Tailoring Rule, 75 FR 31514 (June 3, 2010) (Tailoring Rule). Back to Citation
 219.
    
                             BACT is used to minimize emissions based on the maximum degree of control that the facility can achieve as determined by the permitting authority on a case-by-case basis. BACT may be a design, equipment, work practice, or operational standard, such as add-on control equipment, fuel cleaning or treatment, or innovative fuel combustion techniques. Note that BACT for minimizing GHG emissions at natural gas facilities is limited. Back to Citation
 220.
    
                             EPA also planned a Step 3 to further reduce the threshold, although not below 50,000 tons per year of CO2
                            e. The Supreme Court struck down relevant portions of the Tailoring Rule before EPA finalized Step 3. Back to Citation
 221.
    
                             Tailoring Rule, 75 FR at 31533-80. Back to Citation
 222.
    
                             
                            *Util. Air Regul. Grp.*
                             v. 
                            *EPA,*
                             573 U.S. 302, 320 (2014). Back to Citation
 223.
    
                             California ARB, Preliminary Draft Staff Proposal, Recommended Approaches for Setting Interim Thresholds for Greenhouse Gases under the California Environmental Quality Act (Oct. 24, 2008) (CEQA Proposed Interim Thresholds). In addition, California ARB proposed to require these projects to meet performance standards for construction-related emissions and transportation to support a finding of less than significant impacts. CEQA Proposed Interim Thresholds at attach. A. Back to Citation
 224.
    
                             South Coast AQMD, Interim CEQA GHG Significance Threshold for Stationary Sources, Rules and Plans (Dec. 5, 2008), 
                            *http://www.aqmd.gov/​docs/​default-source/​ceqa/​handbook/​greenhouse-gases-(ghg)-ceqa-significance-thresholds/​ghgboardsynopsis.pdf?​sfvrsn=​2.* Back to Citation
 225.
    
                             
                            *Id.*
                             at 4; CEQA Proposed Interim Thresholds at attach. A. Back to Citation
 226.
    
                             Currently, two pending court cases challenge use of the IWG's interim values by federal agencies. 
                            *Mo.*
                             v. 
                            *Biden,*
                             —— F. Supp. 3d ——, 2021 WL 3885590 (E.D. Mo. Aug. 31, 2021), appeal filed, No. 21-3013 (8th Cir.); 
                            *La.*
                             v. 
                            *Biden,*
                             No. 21-cv-1074-JDC-KK (W.D. La). Back to Citation
 227.
    
                             Mitigation is measures that avoid, minimize, or counterbalance effects caused by a proposed action by: (1) Avoiding the impact altogether by not taking a certain action or parts of an action; (2) minimizing impacts by limiting the degree or magnitude of the action and its implementation; (3) rectifying the impact by repairing, rehabilitating, or restoring the affected environment; (4) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and/or (5) compensating for the impact by replacing or providing substitute resources or environments. 40 CFR 1508.1. Back to Citation
 228.
    
                             As discussed 
                            *supra*
                             P 26, NEPA contains no substantive requirement that environmental impacts be mitigated or avoided, however, the environmental document must include a mitigation discussion that provides “sufficient detail” to indicate that environmental impacts have been fairly evaluated. 
                            *S. Fork Band Couns. of W. Shoshone of Nev.*
                             v. 
                            *U.S. Dep't of Interior,*
                             588 F.3d 718, 727 (9th Cir. 2009); 
                            *see also Nat'l Parks & Conservation Ass'n*
                             v. 
                            *U.S. Dep't of Transp.,*
                             222 F.3d 677, 681 n.5 (9th Cir. 2000) (stating that mitigation measures proposed in an EIS “need not be legally enforceable, funded, or even in final form to comply with NEPA's procedural requirements”). Back to Citation
 229.
    
                             
                            *See supra*
                             P 22; 
                            *see also*15 U.S.C. 717b(e)(3)(A) (providing the authority to approve an application for an LNG Terminal, “in whole or part, with such modifications and upon such terms and conditions as the Commission find[s] necessary or appropriate”). Back to Citation
 230.
    
                             
                            *See*
                             Transcript of Greenhouse Gas Mitigation: Natural Gas Act Sections 3 and 7 Authorizations, Docket No. PL21-3-000 (issued Dec. 22, 2021) (Technical Conference Transcript). Back to Citation
 231.
    
                             
                            *See, e.g.,*
                             Policy Integrity Technical Conference Comments at 2; Policy Integrity 2021 Comments at 14-15, 21; Public Interest Organizations 2021 Comments at 71-72; 
                            *see also*
                             American Forest Technical Conference Comments at 4-5, 7-10 (stating that to the extent the courts have clarified the Commission's duty to consider GHG emissions and require mitigation for such impacts, that it supports the Commission considering mitigation on a case-by-case basis to avoid the uncertainty posed by the threat of litigation and the possibility of a court vacating the project's certificate). Back to Citation
 232.
    
                             
                            *See, e.g.,*
                             Boardwalk Technical Conference Comments at 7; Dr. Jason Scott Johnston Technical Conference Comments at 1; TC Energy Technical Conference Comments at 4; API 2021 Comments at 
                            
                            29-30; 
                            *see also*
                             Williams Technical Conference Comments at 17 (claiming that there is no reasonable basis for the Commission to require project sponsors to submit mitigation proposals with their applications because the technical conference demonstrated a lack of evidentiary support for any specific mitigation methods, offered no specific proposals regarding the levels of fees, offsets, or caps, and proposed no concrete and cost-effective means to mitigate emissions). Back to Citation
 233.
    
                             API Technical Conference Comments at 5; Boardwalk Technical Conference Comments at 10; Consolidated Edison Company of New York, Inc. and Orange and Rockland Utilities, Inc. (collectively, Con Edison) Technical Conference Comments at 5; Hon. Joseph T. Kelliher Technical Conference Comments at 1; INGAA Technical Conference Comments at 6-7; TC Energy Technical Conference Comments at 8; API 2021 Comments at 31; INGAA 2021 Comments at 74-83; TC Energy 2021 Comments at 56-58. Back to Citation
 234.
    
                             
                            *See, e.g.,*
                             Hon. Joseph T. Kelliher Technical Conference Comments at 1 (citing 
                            *NAACP*
                             v. 
                            *FPC,*
                             425 U.S. 662, 669-70 (1976)); 
                            *id.*
                             at 8-9 (asserting that the proper place to consider GHG emissions (direct only) is under the Commission's balancing test, where a project sponsor may choose to voluntarily offset emissions); TC Energy Technical Conference Comments at 8; INGAA 2021 Comments at 74-76. Back to Citation
 235.
    
                             
                            *See, e.g.,*
                             Boardwalk Technical Conference Comments at 11-13 (arguing that 
                            *Transco*
                             does not authorize the Commission to indirectly regulate upstream and downstream emissions); Enbridge Technical Conference Comments at 5, 16, 21; Hon. Joseph T. Kelliher Technical Conference Comments at 4; INGAA 2021 Comments at 76-77. Back to Citation
 236.
    
                             
                            *See, e.g.,*
                             API Technical Conference Comments at 2, 4; Edison Electric Institute (EEI) Technical Conference Comments at 9-10; Enbridge Technical Conference Comments at 18-19, 23-24; Hon. Joseph T. Kelliher Technical Conference Comments at 5; Attorneys General of Missouri et al. Technical Conference Comments at 3 (citing 
                            *S. Coast Air Quality Mgmt. Dist.*
                             v. 
                            *FERC,*
                             621 F.3d 1085, 1092 (9th Cir, 2010)); TC Energy Technical Conference Comments at 6-7; Boardwalk 2021 Comments at 10. Commenters further argue that the NGA was not enacted to comprehensively regulate the natural gas industry, but instead to fill a regulatory gap over interstate gas transportation and sales; therefore, Congress left the regulation of upstream production and downstream consumption to the states. Enbridge Technical Conference Comments at 16-17; Hon. Joseph T. Kelliher Technical Conference Comments at 2 (citing 
                            *NAACP*
                             v. 
                            *FPC,*
                             425 U.S. at 669-70; 
                            *State of Cal.*
                             v. 
                            *Southland Royalty Co.,*
                             436 U.S. 519, 523 (1989); 
                            *ONEOK, Inc.*
                             v. 
                            *Learjet, Inc.,*
                             575 U.S. 373, 378, 384-85 (2015); 
                            *ANR Pipeline Co.*
                             v. 
                            *FERC,*
                             876 F.2d 124, 132-33 (D.C. Cir. 1989)). Back to Citation
 237.
    
                             INGAA Technical Conference Comments at 8; Boardwalk 2021 Comments at 107; Con Edison Technical Conference Comments at 6-7 (stating that the state regulators are the best positioned to determine and impose mitigation measures for upstream and downstream GHG emissions); INGAA 2021 Comments at 77-79. Back to Citation
 238.
    
                             American Public Gas Association (APGA) Technical Conference Comments at 5-6; EEI Technical Conference Comments at 9-10; Enbridge Technical Conference Comments at 23-24; TC Energy Technical Conference Comments at 9-10. Back to Citation
 239.
    
                             Specifically, commenters argue that the Commission should rely on 
                            *Center for Biological Diversity,*
                             which states that “the legal analysis in 
                            *Sabal Trail*
                             is questionable at best” and that “[i]t fails to take seriously the rule of reason announced in 
                            *Public Citizen*
                             or to account for the untenable consequences of its decision.” 
                            *Center for Biological Diversity,*
                             941 F.3d at 1300; 
                            *see also*
                             AGA Technical Conference Comments at 13-14; Boardwalk Technical Conference Comments at 16-17; Hon. Joseph T. Kelliher Technical Conference Comments at 3; INGAA Technical Conference Comments at 12-13; TC Energy Technical Conference Comments at 13-14. Back to Citation
 240.
    
                             API Technical Conference Comments at 4; EEI Technical Conference Comments at 6; INGAA Technical Conference Comments at 14; Williams Technical Conference Comments at 5. Back to Citation
 241.
    
                             
                            *See*
                             AGA Technical Conference Comments at 12-13 (arguing that the Commission should not rely on this statement of dicta because the issue of mandatory mitigation was not at issue in this case; rather, the court only addressed whether the Commission is, in some circumstances, required by NEPA to include a discussion of downstream GHG emissions when conducting its environmental review); Boardwalk Technical Conference Comments at 16 (same); Enbridge Technical Conference Comments at 20 (same); Hon. Joseph T. Kelliher Technical Conference Comments at 3-4 (same); TC Energy Technical Conference Comments at 12 (same). Back to Citation
 242.
    
                             
                            *Sabal Trail,*
                             867 F.3d at 1374. Back to Citation
 243.
    
                             
                            *Transco,*
                             365 U.S. at 17; 
                            *see also NAACP*
                             v. 
                            *FPC,*
                             425 U.S. at n.6 (stating that the Commission has the authority to consider conservation and environmental issues under the NGA's public interest determination). 
                            *See Certification of New Interstate Natural Gas Pipeline Facilities,*
                             178 FERC ¶ 61,107 at PP 71-72. Back to Citation
 244.
    
                             15 U.S.C. 717f(e); 
                            *see also id.*
                             717b(e)(3)(A) (providing the authority to approve an application for an LNG Terminal, “in whole or part, with such modifications and upon such terms and conditions as the Commission find[s] necessary or appropriate.”). Back to Citation
 245.
    
                             For examples where the Commission has conditioned approval of natural gas projects on mitigation of adverse impacts, 
                            *see supra*
                             note 69. Back to Citation
 246.
    
                             
                            *See Twp. of Bordentown*
                             v. 
                            *FERC,*
                             903 F.3d at 261 n.15 (concluding that the Commission's authority to enforce any required remediation is amply supported by provisions of the NGA); 
                            *Sabal Trail,*
                             867 F.3d at 1374 (holding that the Commission has legal authority to mitigate reasonably foreseeable indirect effects). Back to Citation
 247.
    
                             
                            *See generally Tex. Pipeline Ass'n*
                             v. 
                            *FERC,*
                             661 F.3d 258, 260 (5th Cir. 2011) (holding that the Commission lacked authority to require “major non-interstate pipelines” to post certain flow information). Back to Citation
 248.
    
                             As described 
                            *supra*
                             in section III.A.2.b, the Commission will consider GHG emission mitigation and reduction efforts taken by non-jurisdictional entities, including downstream users, when quantifying the reasonably foreseeable project GHG emissions. However, the project sponsor's GHG mitigation plan should only include its own proposed mitigation efforts. Back to Citation
 249.
    
                             
                            *See supra*
                             section III.A.1.b. Back to Citation
 250.
    
                             
                            *Pub. Citizen,*
                             541 U.S. at 767, 770 (quoting 
                            *Metro. Edison Co.,*
                             460 U.S. at 774); 
                            *see Sabal Trail,*
                             867 F.3d at 1372. Back to Citation
 251.
    
                             
                            *Pub. Citizen,*
                             541 U.S. at 767 (quoting 
                            *Metro. Edison Co.,*
                             460 U.S. at 774 n.7). Back to Citation
 252.
    
                             
                            *Sabal Trail,*
                             867 F.3d at 1373 (citing 
                            *Minisink Residents for Envtl. Pres. & Safety*
                             v. 
                            *FERC,*
                             762 F.3d 97, 101-02 (D.C. Cir. 2014); 
                            *Myersville Citizens for a Rural Cmty.*
                             v. 
                            *FERC,*
                             783 F.3d 1301, 1309 (D.C. Cir. 2015)). Back to Citation
 253.
    
                             
                            *See supra*
                             P 97. Back to Citation
 254.
    
                             
                            *Robertson*
                             v. 
                            *Methow Valley Citizens Council,*
                             490 U.S. at 351 (“To be sure, one important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences.”). Back to Citation
 255.
    
                             
                            *Id.*
                             at 352 (“There is a fundamental distinction, however, between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted, on the other.”); 
                            *S. Fork Band Couns. of W. Shoshone of Nev.*
                             v. 
                            *U.S. Dep't of Interior,*
                             588 F.3d at 727 (NEPA does not require that agencies mitigate significant environmental harms). Back to Citation
 256.
    
                             
                            *Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate use of Mitigated Findings of No Significant Impact,*76 FR 3843, 3848. Back to Citation
 257.
    
                             
                            *Sabal Trail,*
                             867 F.3d at 1373 (distinguishing 
                            *Public Citizen*). Back to Citation
 258.
    
                             
                            *See supra*
                             P 80. Back to Citation
 259.
    
                             The Attorneys General of Massachusetts, Delaware, Maryland, Michigan, Minnesota, New Jersey, Rhode Island, and the District of Columbia (Attorneys General of Massachusetts et al.) recommends that the Commission include reasonable, binding mitigation measures that incorporate any applicable state or federal regulations or permit conditions. Attorneys General of Massachusetts et al. Technical Conference Comments at 6. The technical conference commenters are made up of a slightly different group of state attorneys general than those filing comments in 2018 or 2021. As explained below, the Commission is only considering mitigation measures that reduce emissions beyond those associated with regulatory requirements in this policy statement. Back to Citation
 260.
    
                             INGAA Technical Conference Comments at 21-27; 
                            *see also*
                             Enbridge Technical Conference Comments at 12-13, 35-38 (recommending the Commission await direction from Congress in choosing a mitigation level, especially if requiring project sponsors to mitigate to less than significant levels and noting that mitigation to zero is not practicable if downstream or upstream emissions are included). Back to Citation
 261.
    
                             Attorneys General of Massachusetts et al. urges the Commission to consider the impacts of any mitigation measures on environmental justice communities. Attorneys General of Massachusetts et al. Technical Conference Comments at 5-6. Back to Citation
 262.
    
                             Jennifer Danis, Senior Fellow with the Sabin Center for Climate Change Law and a panelist at the GHG Technical Conference on Panel 1, recommends that the Commission should not consider the effect of any mitigation measures in its public interest determination but should only consider mitigation measures once the Commission has determined that public convenience and necessity absolutely requires the project. Jennifer Danis Technical Conference Statement at 8-11. As explained in the Certificate Policy Statement, the Commission considers all factors, including the extent to which adverse impacts are mitigated, to determine whether a project is in the public convenience and necessity. 
                            *Certification of New Interstate Natural Gas Pipeline Facilities,*
                             178 FERC ¶ 61,107 at PP 70, 93-95. Back to Citation
 263.
    
                             
                            *See supra*
                             section II.B. Back to Citation
 264.
    
                             Commenters emphasize the need for flexibility in assessing mitigation measures. 
                            *See, e.g.,*
                             Enbridge Pre-Conference Comments at 9; Enbridge Technical Conference Comments at 46-47 (suggesting that, depending on a variety of factors, the applicant may or may not be able to propose appropriate mitigation at the time of the project application); Hon. Joseph T. Kelliher Technical Conference Comments at 11 (recommending alternatives to imposing mitigation requirements such as revising the Commission's 2015 Modernization Policy Statement, issuing a new GHG policy statement that either allows limited section 4 rate filings to recover costs or clarifies the level of shipper support required to support establishment of a tracker surcharge and recommending that such a policy address lost and unaccounted-for fuel, or implementing a fast track certificate process for project sponsors that voluntarily commit to mitigate direct GHG emissions); INGAA Technical Conference Comments at 30; Magnolia LNG LLC Technical Conference Comments at 2; TC Energy Technical Conference Comments at 5, 21 (arguing against the Commission requiring marked-based mitigation measures). A few commenters either oppose use of the SCC in determining a required level of mitigation for project emissions, Enbridge Technical Conference Comments at 6, 38-39, or urge the Commission to use the SCC to monetize the impacts of any GHGs that are not able to be mitigated, Attorneys General of Massachusetts et al. Technical Conference Comments at 7. As described above, the Commission does not propose to mandate any particular level or type of mitigation. Back to Citation
 265.
    
                             For example, Mountain Valley Pipeline, LLC, proposed to offset the operational emissions of the Mountain Valley Pipeline Project by purchasing carbon offset credits equivalent to 90% of GHG emissions associated with the project's operations in its first 10 years of service from a new methane abatement project located at a mine in southwest Virginia. Mountain Valley Pipeline, LLC, Carbon Offset Commitment for Mountain Valley Pipeline Project Operations, Docket No. CP21-57-000 (filed July 12, 2021). Back to Citation
 266.
    
                                 Regulatory requirements include those imposed by the Commission and other federal and state regulatory agencies. However, project sponsors may include participation in voluntary regulatory programs that reduce GHG emissions. Back to Citation
 267.
    
                             
                            *See, e.g.,*
                             INGAA Technical Conference Comments at 38-39. Dr. Carl Pechman, Director of the National Regulatory Research Institute and a panelist at the GHG Technical Conference on Panel 3, provides extensive comments on how the Commission could establish accounting protocols and offset tracking. Dr. Carl Pechman Technical Conference Statement at 1-15. Back to Citation
 268.
    
                             APGA Technical Conference Comments at 8-9; Enbridge Technical Conference Comments at 48-49; INGAA Technical Conference Comments at 40-41; TC Energy Technical Conference Comments at 5-6, 22-23. Similarly, commenters state that the Commission should defer to other agencies, such as the EPA and state environmental agencies, that are already taking regulatory action regarding emissions, express concern over the potential for inconsistent mitigation requirements between agencies, and/or point to EPA's methane regulation proposal to reduce GHG emissions from new, reconstructed, modified, and existing facilities in the oil and gas source category under section 111 of the Clean Air Act. APGA Technical Conference Comments at 5; EEI Technical Conference Comments at 10-11; INGAA Technical Conference Comments at 30-32; NGSA Technical Conference Comments at 6-7. Conversely, one commenter encourages the Commission to use resources from the EPA's pending rulemaking. Attorneys General of Massachusetts et al. Technical Conference Comments at 6-7 (referencing Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review, 86 FR 63110 (Nov. 15, 2021)). Back to Citation
 269.
    
                             EEI Technical Conference Comments at 12-14. Back to Citation
 270.
    
                             INGAA Technical Conference Comments at 40-41. Back to Citation
 271.
    
                             
                            *See, e.g.,*
                             Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review, 86 FR 63110 (Nov. 15, 2020). Back to Citation
 272.
    
                             For more information, see EPA Green Power Partnership, 
                            *Offsets and RECs: What's the Difference*
                             (Feb. 2018), 
                            *https://www.epa.gov/​sites/​default/​files/​2018-03/​documents/​gpp_​guide_​recs_​offsets.pdf.* Back to Citation
 273.
    
                             Enbridge Pre-Conference Comments at 6-7; Enbridge Technical Conference Comments at 42-46; Enbridge 2021 Comments at 145-148; INGAA Technical Conference Comments at 33. Back to Citation
 274.
    
                             Enbridge 2021 Comments at 23, 148 n. 406 (stating that the lack of a federal REC program coupled with the patchwork of state and regional, as well as voluntary and mandatory, REC programs brings into question whether project sponsors could participate in these existing programs). Back to Citation
 275.
    
                             RGGI includes: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont, and Virginia. Back to Citation
 276.
    
                             Any entity is eligible to participate in CO2
                             allowance auctions including, but not limited, to corporations, individuals, non-profit corporations, environmental organizations, brokers, and other interested parties. The Regional Greenhouse Gas Initiative, 
                            *CO**2**Allowance Auctions, Frequently Asked Questions*
                             1 (Apr. 6, 2021), 
                            *https://www.rggi.org/​sites/​default/​files/​Uploads/​Auction-Materials/​54/​FAQS_​Apr_​6_​2021.pdf.* Back to Citation
 277.
    
                             23.5 million CO2
                             allowances (short tons) sold at RGGI auction in March 2021 at clearing price of $7.60/allowance. Back to Citation
 278.
    
                             54.7 million CO2
                             allowances (metric tons) sold at settlement price of $17.8/allowance during a February 2021 auction. Back to Citation
 279.
    
                             EPA Green Power Partnership, 
                            *supra*
                             note 272. Back to Citation
 280.
    
                             In 2019, 104 million metric tons of CO2
                            e offsets were sold and the price per metric ton CO2
                            e was $1.40 to $4.30, depending on type of project (renewable energy and forestry/land use, respectively). S&P Global Platts, 
                            *Voluntary Carbon Market Grows 6% on Year in 2019: Ecosystem Marketplace*
                             (Sep. 22, 2020), 
                            *https://www.spglobal.com/​platts/​en/​market-insights/​latest-news/​coal/​092220-voluntary-carbon-market-grows-6-on-year-in-2019-ecosystem-marketplace.* Back to Citation
 281.
    
                             Typical offset projects include ozone depleting substances destruction, landfill gas capture/combustion, livestock gas capture/combustion, improved forest management, avoided grassland conversion, and improved forest management, among others. For more information, see generally 
                            *https://www.climateactionreserve.org/​.* Back to Citation
 282.
    
                             Typical offset projects include renewable energy, forest and wetland conservation and restoration, transport efficiency improvement, nitrous oxide abatement, clean cookstoves, methane capture and use/combustion, and waste heat recovery. For more information, see generally 
                            *https://verra.org/​.* Back to Citation
 283.
    
                             Typical offset projects include ozone depleting substances destruction, industrial process emissions, fuel switching, livestock waste management, transport fleet efficiency, landfill gas capture and combustion, wetland restoration, forest management, and coal mine methane capture. For more information, see generally 
                            *https://americancarbonregistry.org/​.* Back to Citation
 284.
    
                             Policy Integrity 2021 Comments at 14-15, 19. Back to Citation
 285.
    
                             Policy Integrity 2021 Comments at 23-26 (citing 40 CFR 1508.1(s)(5)). Back to Citation
 286.
    
                             Policy Integrity 2021 Comments at 20. Back to Citation
 287.
    
                             Enbridge Pre-Conference Comments at 7-8; INGAA 2021 Comments at 79-82. Back to Citation
 288.
    
                             INGAA Technical Conference Comments at 34-36; INGAA 2021 Comments at 79-82; 
                            *see also*
                             Enbridge Pre-Conference Comments at 8-9; Enbridge Technical Conference Comments at 46-47. Back to Citation
 289.
    
                             Hon. Joseph T. Kelliher Technical Conference Comments at 7; 
                            *see also id.*
                             (asserting that this process would be complicated because credits could originate outside the U.S. and the Commission has no verification expertise). Back to Citation
 290.
    
                             
                            *E.g.,*
                             AGA Technical Conference Comments at 28-30; API Technical Conference Comments at 6-8; Boardwalk Technical Conference Comments at 5-6; Con Edison Technical Conference Comments at 7-10 (detailing other efforts reduce emissions using renewable natural gas, certified natural gas, and hydrogen); Enbridge Pre-Conference Comments at 5; Enbridge Technical Conference Comments at 13-14, 39-41; INGAA Technical Conference Comments at 28-30 (citing its 2021 Climate Report); Magnolia LNG LLC Technical Conference Comments at 2 (describing its proprietary technology to reduce emissions during the liquefaction process); Scott A. Hallam Technical Conference Statement at 2 (Scott A. Hallam, Senior Vice President of Transmission and Gulf of Mexico at Williams, was a panelist at the GHG Technical Conference on Panel 1.); Stephen Mayfield Technical Conference Statement at 1-2 (Stephen Mayfield, AGM of Gas Operations at City of Tallahassee, was a panelist at the GHG Technical Conference on Panel 3.); Texas LNG Brownsville LLC Technical Conference Comments at 6; William F. Donahue Technical Conference Statement at 3 (William F. Donahue, Manager of Natural Gas Resources at Puget Sound Energy, was a panelist at the GHG Technical Conference on Panel 2.); INGAA 2021 Comments at 79-82. Some commenters note, however, that use of electric compressors may increase indirect emissions depending on the generation mix and existing infrastructure or cite concerns about the impact to the reliability of gas service during power outages. 
                            *E.g.,*
                             American Forest Technical Conference Comments at 13; Enbridge Pre-Conference Comments at 5-6; Enbridge Technical Conference Comments at 41; Kinder Morgan Technical Conference Comments at 22-23. Back to Citation
 291.
    
                             Delaware Riverkeeper 2021 Comments at 66; Kirk Frost 2021 Comments at 11. Back to Citation
 292.
    
                             Delaware Riverkeeper 2021 Comments at 66. Back to Citation
 293.
    
                             Rachel Dawn Davis, the Public Policy and Justice Organizer at Waterspirit, was a panelist at the GHG Technical Conference on Panel 3. Rachel Dawn Davis Technical Conference Statement at 1; Waterspirit Technical Conference Comments at 1-2; 
                            *see also*
                             Technical Conference Transcript at 106-107 (transcribing remarks made by Dr. Nicky Sheats, Director of the Center for Urban Environment at the John S. Watson Institute for Public Policy and panelist on Panel 2). Back to Citation
 294.
    
                             
                            *E.g.,*
                             TC Energy Technical Conference Comments at 20. Back to Citation
 295.
    
                             Dr. Anna Scott, Co-Founder and Chief Science Officer of Project Canary, was a panelist at the GHG Technical Conference on Panel 2. Dr. Anna Scott Technical Conference Statement at 1-2, 5 (mentioning key engineering components such as operational venting or flaring, electrification of facilities and equipment, low bleed and/or zero bleed process controls, leak detection and repair programs, produced water treatment and reuse, and infrastructure and facility efficiency investments and describing how the company uses on-site sensors and algorithm technology to provide continuous monitoring). Along with pursuing carbon capture and storage solutions, Ivan Van der Walt, Chief Operating Officer at NextDecade Corporation and a panelist at the GHG Technical Conference on Panel 2, describes the joint pilot 
                            
                            project NextDecade has formed with Project Canary for measuring and certifying the GHG intensity of LNG sold from the Rio Grande LNG Project export facility. Ivan Van der Walt Technical Conference Statement at 2-3. Back to Citation
 296.
    
                             Gary Choquette, Executive Director of Research and IT at PRCI, was a panelist at the GHG Technical Conference on Panel 2. Gary Choquette Technical Conference Statement at 3-4. Back to Citation
 297.
    
                             
                            *See, e.g.,*
                             AGA Technical Conference Comments at 17-20; API Technical Conference Comments at 7-8; Boardwalk Technical Conference Comments at 5-6; NGSA Technical Conference Comments at 5; Scott A. Hallam Technical Conference Statement at 2-3; Stephen Mayfield Technical Conference Statement at 1; William F. Donahue Technical Conference Statement at 3-4; BHE Pipeline Group 2021 Comments at 12-14; Cheniere Energy Inc. 2021 Comments at 17. Back to Citation
 298.
    
                             Boardwalk Technical Conference Comments at 3; Enbridge Technical Conference Comments at 15, 49; INGAA Technical Conference Comments at 42-45; TC Energy Technical Conference Comments at 6. Back to Citation
 299.
    
                             Enbridge Technical Conference Comments at 15, 49; INGAA Technical Conference Comments at 45 (noting that the Commission should be clear that “recovery of costs related to an ongoing obligation to purchase market-based mitigation is akin to a fuel tracker and would not be subject to the modernization cost recovery tracker policy or the Commission's policy against cost recovery trackers for regulatory compliance costs,” and incremental operating costs to reduce GHG emissions should also be recoverable through a tracker); 
                            *see also*
                             Hon. Joseph T. Kelliher Technical Conference Comments at 7 (suggesting that, while burdensome to stakeholders, the Commission could adopt a true-up mechanism requiring project sponsors to deposit offsets, which would later be compared to actual emissions). Back to Citation
 300.
    
                             American Forest Technical Conference Comments at 15-16; APGA Technical Conference Comments at 6-8 (urging the Commission to consider the effects of cost-recovery on end-users, particularly low-income communities, who may not directly reap any local environmental benefits); American Forest and Paper Association et al. 2021 Comments at 26. Back to Citation
 301.
    
                             American Forest Technical Conference Comments at 14 (asserting that there is little transparency for customers with respect to Lost and Unaccounted for Fuel Charges, which are recoverable by shippers). Back to Citation
 302.
    
                             
                            *Ruby Pipeline, LLC,*
                             131 FERC ¶ 61,007, at P 34 (2010). Back to Citation
 303.
    
                             Unless required by law or regulation, the Commission will not apply a presumptive significance threshold below 100,000 metric tons of CO2e to applications filed prior to issuance of a final policy statement. If the Commission adopts a new lower threshold in a final policy statement, that threshold will only apply to applications filed after issuance of that statement. Back to Citation
 304.
    
                             
                            *Certification of New Interstate Natural Gas Pipeline Facilities,*
                             178 FERC ¶ 61,107 at PP 70-72, 93-95. Back to Citation
 305.
    
                             44 U.S.C. 3507(d). Back to Citation
 306.
    
                             5 CFR 1320. Back to Citation
 307.
    
                             This 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. Back to Citation
 308.
    
                             Burden 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. Back to Citation
 309.
    
                             Commission 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. Back to Citation
 1.
    
                             
                            *Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews,*
                             178 FERC ¶ 61,108 (2022) (Interim Policy Statement). Back to Citation
 2.
    
                             
                            *But see*
                             Chairman Glick September 24, 2021 Response to Senator Barrasso September 15, 2021 Letter, Docket Nos. CP17-40-000, et al., at 1 (“When courts find flaws in the Commission's analysis, it can lead to lengthy delays and cost developers substantially more than they originally forecasted.”) (Accession No. 20210927-4003); 
                            *id.*
                             at 9 (“Ultimately, I believe that performing thorough permitting reviews and providing developers with legally durable certificates on which they can rely will do more than just about anything else to satisfy the purposes of the Natural Gas Act.”); Chairman Glick May 21, 2021 Response to Senator Hoeven April 29, 2021 Letter, Docket No. PL18-1-000, at 1 (“I believe we can make changes to the Certificate Process that enhance our efficiency in processing applications and better address various directives we have received from the appellate courts.”) (Accession No. 20210524-4014). Back to Citation
 3.
    
                             Chairman Glick February 2, 2022 Response to Senator Barrasso December 15, 2021 Letter at 4 (Accession No. 20220202-4003); 
                            *see also*
                             Commissioner Clements February 2, 2022 Response to Senator Barrasso December 15, 2021 Letter at 2 (Accession No. 20220202-4000) (“I will do my part to assure that the updated policy will be a legally durable framework for fairly and efficiently considering certificate applications—one that serves the public interest and increases regulatory certainty for all stakeholders.”). Back to Citation
 4.
    
                             
                            *See, e.g., Algonquin Gas Transmission, LLC,*
                             174 FERC ¶ 61,126 (2021) (Danly and Christie, Comm'rs, dissenting) (Briefing Order), 
                            *terminated,*
                             178 FERC ¶ 61,029 (2022) (Danly and Christie, Comm'rs, concurring in part and dissenting in part); 
                            *see also*
                             Commission Staff May 27, 2021 Notice in Tenn. Gas Pipeline Co., L.L.C., Docket No. CP20-493-000 (Accession No. 20210527-3054) (announcing schedule for Environmental Impact Statement (EIS) for project with previously prepared Environmental Assessment (EA)); Commission Staff May 27, 2021 Notice in North Baja Pipeline, LLC, Docket No. CP20-27-000 (Accession No. 20210527-3052) (same); Commission Staff May 27, 2021 Notice in Columbia Gulf Transmission, LLC, Docket No. CP20-527-000 (Accession No. 20210527-3049) (same); Commission Staff May 27, 2021 Notice in Iroquois Gas Transmission System, L.P., Docket No. CP20-48-000 (Accession No. 20210527-3047) (same). Back to Citation
 5.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 1. Back to Citation
 6.
    
                             
                            *Id.* Back to Citation
 7.
    
                             For example, the D.C. Circuit in 
                            *Vecinos para Bienestar de la Comunidad Costera*
                             v. 
                            *FERC*
                             (
                            *Vecinos*) found that the Commission failed to “respond to significant opposing viewpoints” regarding its analysis of GHG emissions. 
                            *Vecinos,*
                             6 F.4th 1321, 1329 (D.C. Cir. 2021). It did not find “that the Commission failed to appropriately analyze the significance of three natural gas projects' contribution to climate change . . . .” Interim Policy Statement, 178 FERC ¶ 61,108 at P 14. Back to Citation
 8.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 28. Back to Citation
 9.
    
                             
                            *Id.*
                             (emphasis added) (footnotes omitted). I interpret “in most cases” as meaning the Commission will quantify and consider downstream emissions for NGA section 7 projects unless it is shown that the gas will not be burned. 
                            *See id.*
                             P 28 n.72. Back to Citation
 10.
    
                             
                            *See id.*
                             P 43. Back to Citation
 11.
    
                             It should be noted that the majority cites 
                            *Sierra Club*
                             v. 
                            *FERC*
                             (
                            *Sabal Trail*) to argue downstream emissions have a reasonably close causal relationship to NGA section 7 projects. 
                            *Id.*
                             P 39 & 
                            
                            n.103 (citing 867 F.3d 1357, 1372-73 (D.C. Cir. 2017) (Brown, J., concurring in part and dissenting in part)). Below I explain how 
                            *Sabal Trail*
                             must not be given too much weight. Back to Citation
 12.
    
                             
                            *Id.*
                             P 45. Back to Citation
 13.
    
                             
                            *See id.*
                             P 52. Back to Citation
 14.
    
                             
                            *See Midship Pipeline Co., LLC*
                             (
                            *Midship*), 177 FERC ¶ 61,186 (2021) (Danly, Comm'r, dissenting at P 5) (“I, for one, am willing to consider the parties' arguments and make a decision.”). Back to Citation
 15.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 79. Back to Citation
 16.
    
                             
                            *See id.*
                             P 81. Back to Citation
 17.
    
                             Despite the fact that CEQ's regulations no longer distinguish between “direct” and “indirect” effects, in order to reduce confusion I use the term “direct” to be consistent with the Interim Policy Statement. 
                            *See*
                             Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 43304, 43343 (Jul. 16, 2020). Back to Citation
 18.
    
                             
                            *But see*
                             18 CFR. §§ 380.5-380.6 (setting forth when the Commission will prepare an EIS). Back to Citation
 19.
    
                             
                            *See*
                             Interim Policy Statement, 178 FERC ¶ 61,108 at PP 104-06. Back to Citation
 20.
    
                             
                            *Id.*
                             P 107; 
                            *see also id.*
                             (“The Commission plans to evaluate proposed mitigation plans on a case-by-case basis . . . .”). Back to Citation
 21.
    
                             
                            *See id.*
                             P 108. Back to Citation
 22.
    
                             
                            *See id.*
                             P 106 (“However, as detailed below, the Commission's priority is for project sponsors to mitigate, to the greatest extent possible, a project's direct GHG emissions.”). Back to Citation
 23.
    
                             
                            *Id.*
                             P 110. Back to Citation
 24.
    
                             
                            *See id.*
                             P 126. Back to Citation
 25.
    
                             
                            *See id.* Back to Citation
 26.
    
                             
                            *See id.*
                             PP 115-26; 
                            *see also id.*
                             P 129 (“project sponsors 
                            *wishing*
                             to purchase offsets”) (emphasis added). Back to Citation
 27.
    
                             “As soon as the coin in the coffer rings, the soul from purgatory springs.” 
                            *See*
                             Robert King, 
                            *Only in America: Tax Patents and the New Sale of Indulgences,*
                             60 Tax Law 761, 761 (2007) (citing Ronald H. Bainton, Here I Stand: A Life of Martin Luther 60 (1950)). Back to Citation
 28.
    
                             
                            *See*
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 107 (“The Commission plans to evaluate proposed mitigation plans on a case-by-case basis and is not mandating a standard level of mitigation.”). Back to Citation
 29.
    
                             For example, the Commission does not explain how the construction of a renewable energy or energy efficiency project reduces carbon emissions unless it could be shown that such construction will cause the retirement of, or prevent the construction of, a specific carbon emitting generation facility. Nor does the Commission describe how, in the absence of the identification of a specific facility to be displaced, it would be possible to determine the amount of mitigation provided by renewable energy or energy efficiency projects. Back to Citation
 30.
    
                             
                            *See*
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 113 (“[W]e believe it best to allow project sponsors to demonstrate that their proposed mitigation measures are verifiable and propose means for the Commission to monitor or track the proposed measures through the life of the project.”). Back to Citation
 31.
    
                             
                            *Id.*
                             P 106. Back to Citation
 32.
    
                             
                            *See Certification of New Interstate Nat. Gas Facilities,*
                             174 FERC ¶ 61,125, at P 17 (2021) (“C10. How could the Commission impose GHG emission limits or mitigation to reduce the significance of impacts from a proposed project on climate change? . . . If the Commission decides to impose GHG emission limits, how would the Commission determine what limit, if any, is appropriate?”). Back to Citation
 33.
    
                             
                            *See*
                             Greenhouse Gas Mitigation, Technical Conference Transcript, Docket No. PL21-3-000 (Nov. 19, 2021). Back to Citation
 34.
    
                             
                            *See*
                             Commission Staff November 16, 2021 Notice Inviting Technical Conference Comments, Docket No. PL21-3-000. Back to Citation
 35.
    
                             18 CFR. § 385.2201. Back to Citation
 36.
    
                             I have anticipated a couple possible questions and will hazard answers that may be of interest: 
                            *Will an EIS assess the adequacy of GHG mitigation or recommend GHG mitigation measures?*
                             My understanding is no. The Commission will 
                            
                            determine the adequacy of mitigation on a case-by-case basis in its orders. 
                            *Will mitigation that was not considered in an environmental document require the Commission to supplement its environmental review?*
                             A clear answer was not provided. It is worth noting that section 1502.9(d)(1)(i) of CEQ's regulations state “Agencies . . . [s]hall prepare supplements to either draft or final environmental impact statements if a major Federal action remains to occur, and . . . [t]he agency makes substantial changes to the proposed action that are relevant to environmental concerns . . . .” 40 CFR. § 1502.9(d)(1)(i). Back to Citation
 37.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 99. Back to Citation
 38.
    
                             
                            *Double E Pipeline, LLC,*
                             173 FERC ¶ 61,074, at P 32 (2020). Back to Citation
 39.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 110. Back to Citation
 40.
    
                             
                            *See, e.g., Algonquin Gas Transmission, LLC,*
                             174 FERC ¶ 61,126 (2021) (Danly and Christie, Comm'rs, dissenting) (order establishing briefing to reopen final, non-appealable certificate order); 
                            *Algonquin Gas Transmission, LLC,*
                             178 FERC ¶ 61,029 (2022) (Danly and Christie, Comm'rs, concurring in part and dissenting in part) (order terminating briefing order but suggesting can reopen certificates to impose new terms). Back to Citation
 41.
    
                             
                            *Id.*
                             P 129. Back to Citation
 42.
    
                             
                            *Id.* Back to Citation
 43.
    
                             
                            *Id.*
                             P 130. Back to Citation
 44.
    
                             
                            *Id.* Back to Citation
 45.
    
                             
                            *Id.*
                             P 1. Back to Citation
 46.
    
                             
                            *But see*
                             Voltaire, Candide 125 (J.H. Brumfitt ed., Oxford Univ. Press 1968) (1759) (“. . . pour encourager les autres.”). Back to Citation
 47.
    
                             40 CFR. § 1508.1(g). Back to Citation
 48.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 1. Back to Citation
 49.
    
                             
                            *Id.*
                             P 6. Back to Citation
 50.
    
                             
                            *Id.*
                             P 7 (citation omitted). Back to Citation
 51.
    
                             
                            *Id.*
                             P 28. It is worth recalling that the Court has likened NEPA's “reasonably close causal relationship” requirement to the “familiar doctrine of proximate cause from tort law,” 
                            *Dep't of Transp.*
                             v. 
                            *Pub. Citizen,*
                             541 U.S. 752, 767 (2004) (
                            *Public Citizen*), and that a federal district court has found effects of climate change too attenuated for tort liability under state law. 
                            *See Comer*
                             v. 
                            *Murphy Oil USA, Inc.,*
                             839 F. Supp. 2d 849, 868 (S.D. Miss. 2012) (“The assertion that the defendants' emissions combined over a period of decades or centuries with other natural and man-made gases to cause or strengthen a hurricane and damage personal property is precisely the type of remote, improbable, and extraordinary occurrence that is excluded from liability.”). Back to Citation
 52.
    
                             
                            *See, e.g., Trans-Foreland Pipeline Co. LLC,*
                             173 FERC ¶ 61,253, at P 31 (2020). Back to Citation
 53.
    
                             
                            *See*
                             CEQ, 
                            *Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions,*
                             at P 3 (2010), 
                            *https://obamawhitehouse.archives.gov/​sites/​default/​files/​microsites/​ceq/​20100218-nepa-consideration-effects-ghg-draft-guidance.pdf*. Back to Citation
 54.
    
                             15 U.S.C. 717f(e). Back to Citation
 55.
    
                             
                            *NAACP*
                             v. 
                            *FPC,*
                             425 U.S. 662, 669 (1976). Back to Citation
 56.
    
                             
                            *Atl. 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)). Back to Citation
 57.
    
                             
                            *NAACP*
                             v. 
                            *FPC,*
                             425 U.S. at 669; 
                            *see also FPC*
                             v. 
                            *Transcon. Gas Pipe Line Corp.,*
                             365 U.S. 1, 17 (1961) (
                            *Transco*) (“[I]t must be realized that the Commission's powers under § 7 are, by definition, limited.”) (citing H.T. Koplin, 
                            *Conservation and Regulation: The Natural Gas Allocation Policy of the Federal Power Commission,*
                             64 Yale L.J. 840, 862 (1955)). Back to Citation
 58.
    
                             
                            *NAACP*
                             v. 
                            *FPC,*
                             425 U.S. at 670 (emphasis added) (footnote omitted). As noted by Former Commissioner Bernard L. McNamee, this purpose was affirmed by later acts of Congress. 
                            *See Adelphia Gateway, LLC,*
                             169 FERC ¶ 61,220 (2019) (McNamee, Comm'r, concurring at PP 32-40). Back to Citation
 59.
    
                             
                            *See Whitman*
                             v. 
                            *Am. Trucking Ass'ns, Inc.,*
                             531 U.S. 457, 468 (2001). Back to Citation
 60.
    
                             
                            *NAACP*
                             v. 
                            *FPC,*
                             425 U.S. at 670 (“While there are undoubtedly other subsidiary purposes contained in these Acts . . . .”) (footnote omitted); 
                            *see also id.*
                             at 670 n.6. Back to Citation
 61.
    
                             
                            *NAACP*
                             v. 
                            *FPC,*
                             425 U.S. at 670 (emphasis added). Back to Citation
 62.
    
                             
                            *See Transco,*
                             365 U.S. at 8 (“However, respondents correctly point out that Congress, in enacting the Natural Gas Act, did not give the Commission comprehensive powers over every incident of gas production, transportation, and sale. Rather, Congress was `meticulous' only to invest the Commission with authority over certain aspects of this field leaving the residue for state regulation. Therefore, it is necessary to consider with care whether, despite the accepted meaning of the term `public convenience and necessity,' the Commission has trod on forbidden ground in making its decision.”) (citation omitted); 
                            *FPC*
                             v. 
                            *Panhandle E. Pipe Line Co.,*
                             337 U.S. 498, 503 (1949) (“Congress . . . not only prescribed the intended reach of the Commission's power, but also specified the areas into which this power was 
                            *not*
                             to extend.”), 
                            *accord ExxonMobil Gas Mktg. Co.*
                             v. 
                            *FERC,*
                             297 F.3d 1071, 1076 (D.C. Cir. 2002); 
                            *S. Coast Air Quality Mgmt. Dist.*
                             v. 
                            *FERC,*
                             621 F.3d 1085, 1092 (9th Cir. 2010) (“In sum, the history and judicial construction of the Natural Gas Act suggest that all aspects related to the direct consumption of gas—such as passing tariffs that set the quality of gas to be burned by direct end-users—remain within the exclusive purview of the states.”); 
                            *Pub. Utils. Comm'n. of Cal.*
                             v. 
                            *FERC,*
                             900 F.2d 269, 277 (D.C. Cir. 1990) (“[T]he state . . . has authority over the gas once it moves beyond the high-pressure mains into the hands of an end user.”). Back to Citation
 63.
    
                             
                            *See*
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 104 n.243 (discussing 
                            *Transco,*
                             365 U.S. at 17). Back to Citation
 64.
    
                             
                            *Transco,*
                             365 U.S. at 4-7. In discussing whether consideration of end use was proper in the context of conservation, the Court also noted, “[t]he Commission said that it had not been given `comprehensive' authority to deal with `the end uses for which natural gas is consumed' and that it would not deny certification on that ground alone.” 
                            *Id.*
                             at 15-16 (discussing F.P.C., The First Five Years Under the Natural Gas Act). Back to Citation
 65.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 104. Nor does the Federal Power Commission precedent, which the majority cites, support this proposition. 
                            *See Adelphia Gateway, LLC,*
                             169 FERC ¶ 61,220 (McNamee, Comm'r, concurring at P 29 n.64). Back to Citation
 66.
    
                             541 U.S. 752, 767-69. Back to Citation
 67.
    
                             
                            *Id.*
                             at 767. Back to Citation
 68.
    
                             
                            *Sierra Club*
                             v. 
                            *FERC,*
                             827 F.3d 36, 49 (D.C. Cir. 2016). Back to Citation
 69.
    
                             
                            *See*
                             867 F.3d at 1380 (Brown, J., concurring in part and dissenting in part) (“More significantly, today's opinion completely omits any discussion of the role Florida's state agencies play in the construction and expansion of power plans within the state—a question that should be dispositive.”). Back to Citation
 70.
    
                             
                            *See Ctr. for Biological Diversity*
                             v. 
                            *U.S. Army Corps of Eng's,*
                             941 F.3d 1288, 1299-1300 (11th Cir. 2019). Back to Citation
 71.
    
                             40 CFR. § 1508.1(g)(3) (“An agency's analysis of effects shall be consistent with this paragraph (g).”); 
                            *id.*
                             § 1508.1(g)(2) (“A `but for' causal relationship is insufficient to make an agency responsible for a particular effect under NEPA. Effects should generally not be considered if they are remote in time, geographically remote, or the product of a lengthy causal chain. Effects do not include those effects that the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action.”). Back to Citation
 72.
    
                             The relevant question on whether the Commission should prepare an EIS is whether the proposed action “[i]s 
                            *likely*
                             to have significant effects.” 40 CFR. § 1501.3(a)(3). Back to Citation
 73.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 87 (“Establishing such a threshold will provide the Commission a workable and consistent path forward to analyze proposed projects. Further, a numerical threshold is a clear, consistent standard that can be easily understood and applied by the regulated community and interested stakeholders.”). Back to Citation
 74.
    
                             
                            *Id.*
                             PP 90-95. Back to Citation
 75.
    
                             
                            *Id.*
                             P 80. Back to Citation
 76.
    
                             
                            *Id.*
                             P 95. Back to Citation
 77.
    
                             
                            *Id.*
                             P 88. Back to Citation
 78.
    
                             CEQ, 
                            *Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions,*
                             at P 3 (2010), 
                            *https://obamawhitehouse.archives.gov/​sites/​default/​files/​microsites/​ceq/​20100218-nepa-consideration-effects-ghg-draft-guidance.pdf*. Back to Citation
 79.
    
                             
                            *See supra*
                             P 22 n.52. Back to Citation
 80.
    
                             5 U.S.C. 553; 
                            *see also Shell Offshore Inc.*
                             v. 
                            *Babbitt,*
                             238 F.3d 622, 629 (5th Cir. 2001) (“[T]he APA requires an agency to provide an opportunity for notice and comment before substantially altering a well established regulatory interpretation.”). Back to Citation
 81.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 3. Back to Citation
 82.
    
                             18 CFR 380.5-380.6; 
                            *see also*
                             Commissioner Danly November 29, 2021 Response to Senator Barrasso September 15, 2021 Letter, Docket Nos. CP20-27-000, et al., at 12, Fig. 2 (Accession No. 20211214-4001). Back to Citation
 83.
    
                             18 CFR. § 380.5(a) (emphasis added). Back to Citation
 84.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 1; 
                            *see also id.*
                             P 81. Back to Citation
 85.
    
                             
                            *Id.*
                             P 106. Back to Citation
 86.
    
                             
                            *Id.*
                             P 103 (“For example, commenters argue that Congress has delegated authority to the EPA and state agencies to regulate GHGs under the [Clean Air Act].”) (citation omitted); 
                            *see also id.*
                             P 103 n.238 (citing American Public Gas Association Technical Conference Comments at 5-6; EEI Technical Conference Comments at 9-10; Enbridge Technical Conference Comments at 23-24; TC Energy Technical Conference Comments at 9-10). Back to Citation
 87.
    
                             
                            *Am. Elec. Power Co., Inc.*
                             v. 
                            *Connecticut,*
                             564 U.S. 410, 426 (2011) (emphasis added) (discussing in the context of power plants but would apply equally here); 
                            *see also Adelphia Gateway, LLC,*
                             169 FERC ¶ 61,220 (2019) (McNamee, Comm'r, concurring at PP 52-61). Back to Citation
 88.
    
                             Whether EPA or CEQ have raised “objections” is not relevant. 
                            *See*
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 85. Back to Citation
 89.
    
                             Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review, 86 FR 63110 (Nov. 15, 2021). Commenters make the point, to which the majority does not respond, that the Commission should defer to EPA's rulemaking. 
                            *See, e.g.,*
                             EEI Technical Conference Comments at 11 n.29. Back to Citation
 90.
    
                             
                            *See id.*
                             P 102. Back to Citation
 91.
    
                             
                            *See id.*
                             P 105 (“we recognize, as many commenters assert, that the Commission does not have the statutory authority to impose conditions on downstream users or other entities outside the Commission's jurisdiction . . . rather, the Commission encourages each 
                            *project sponsor*
                             to propose measures . . . .”) (emphasis in original). Back to Citation
 92.
    
                             
                            *See Altamont Gas Transmission, Co.*
                             v. 
                            *FERC,*
                             92 F.3d 1239, 1248 (D.C. Cir. 1996) (“Although the Commission ordinarily has the authority to consider a matter beyond its jurisdiction if the matter affects jurisdictional sales—at least if there would otherwise be a regulatory gap—here there is no such gap but, on the contrary, an express congressional reservation of jurisdiction to another body.”); 
                            *Am. Gas Ass'n*
                             v. 
                            *FERC,*
                             912 F.2d 1496, 1510 (“[T]he Commission may not use its § 7 conditioning power to do indirectly . . . things that it cannot do at all.”); 
                            *see also Calpine Corp.,*
                             171 FERC ¶ 61,035 (2020) (Glick, Comm'r, dissenting at P 7) (“In recent years, the Supreme Court has repeatedly admonished both the Commission and the states that the FPA prohibits actions that `aim at' or `target' the other sovereign's exclusive jurisdiction.”). Back to Citation
 93.
    
                             
                            *See*
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 107 (“[T]he Commission plans to 
                            *evaluate*
                             proposed mitigation plans on a case-by-case basis . . . .”) (emphasis added); 
                            *id.*
                             P 131 (“the Commission will then consider the project's impact on climate change, including the project sponsor's mitigation proposal to reduce direct GHG emissions and, to the extent practicable, to reduce any reasonably foreseeable project emissions . . . .”). Back to Citation
 94.
    
                             15 U.S.C. 717b(a). Back to Citation
 95.
    
                             
                            *Id.*
                             § 717f(e). Back to Citation
 96.
    
                             
                            *See also Michigan*
                             v. 
                            *EPA,*
                             576 U.S. 743, 752 (2015) (explaining that the phrase “appropriate and necessary” in the Clean Air Act “requires at least some attention to cost”); 
                            *id.*
                             (“One would not say that it is even rational, never mind `appropriate,' to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”); 
                            *id.*
                             752-53 (“Agencies have long treated cost as a centrally relevant factor when deciding to regulate.”). Back to Citation
 97.
    
                             
                            *See*
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 5, n.6. Back to Citation
 98.
    
                             I recognize that project sponsors have previously reserved their right to appeal when accepting a certificate, which the Commission has not opposed. However, in the context of hydropower cases, the Commission has taken a different approach. 
                            *See Rivers Elec. Co., Inc.,*
                             178 FERC ¶ 61,027, P 9 n.25 (2022) (Danly, Comm'r, concurring in part and dissenting in part) (“If the transferee accepts this order, it is thereby agreeing to the new condition. It may decline to do so if it does not wish to accept the condition.”). Back to Citation
 99.
    
                             
                            *Am. Trucking Ass'n, Inc.*
                             v. 
                            *I. C. C.,*
                             659 F.2d 452, 463 (5th Cir. 1981), 
                            *opinion clarified on other grounds,*
                             666 F.2d 167 (5th Cir. 1982) (
                            *Am. Trucking*). Back to Citation
 100.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 130. Back to Citation
 101.
    
                             
                            *Id.* Back to Citation
 102.
    
                             
                            *Cf. Am. Trucking,*
                             659 F.2d at 463-464 (“The manner of dealing with applicants who do not follow what is declared to be the `normal' course demonstrates graphically that the carrier who does not conform will incur both delay and potentially vast litigation expense”). Back to Citation
 103.
    
                             For example, on August 24, 2020, Commission staff issued an EA for Tennessee Gas Pipeline Company, LLC et al.'s Evangeline Pass Expansion Project which concluded, “[w]e recommend that the Commission Order contain a finding of no significant impact.” Commission Staff, Environmental Assessment for Tenn. Gas Pipeline Co., LLC et al.'s Evangeline Pass Expansion Project, Docket Nos. CP20-50-000 et al., at 168 (Aug. 24, 2020). Despite this recommendation, which would have normally been adopted by the Commission, Commission staff, at the direction of the Chairman, issued supplemental Draft and Final Environmental Impact Statements. 
                            *See*
                             Commission Staff, Final Environmental Impact Statement for Tenn. Gas Pipeline Co., LLC et al.'s Evangeline Pass Expansion Project, Docket Nos. CP20-50-000 et al. (Oct. 8, 2021); Commission Staff, Draft Environmental Impact Statement for Tenn. Gas Pipeline Co., LLC et al.'s Evangeline Pass Expansion Project, Docket Nos. CP20-50-000 et al. (July 16, 2021). Back to Citation
 104.
    
                             
                            *See Brown Exp., Inc.*
                             v. 
                            *United States,*
                             607 F.2d 695, 701 (5th Cir. 1979) (“An announcement stating a change in the method by which an agency will grant substantive rights is not a `general statement of policy.' ”). Back to Citation
 105.
    
                             
                            *See Nat. Res. Def. Council, Inc.*
                             v. 
                            *NRC,*
                             539 F.2d 824 (2d Cir. 1976) (“Further, it is clear that NEPA legal consequences flow from that decision since the order below sets forth rules concerning how the agency will comply with the environmental laws.”), 
                            *cert. granted,*
                             430 U.S. 944 (1977), 
                            *judgment vacated and case remanded for consideration of mootness,*
                             434 U.S. 1030 (1978). Back to Citation
 106.
    
                             Interim Policy Statement, 178 FERC ¶ 61,108 at P 3 (“For purposes of assessing the appropriate level of NEPA review, Commission staff 
                            *will apply*
                             the 100% utilization or `full burn' rate for the proposed project's emissions to determine whether to prepare an Environmental Impact Statement (EIS) or an environmental assessment (EA). Commission staff 
                            *will proceed*
                             with the preparation of an EIS, if the proposed project may result in 100,000 metric tons per year of CO2
                            e or more.”) (emphasis added); 
                            *see also Tex.*
                             v. 
                            *Equal Emp't Opportunity Comm'n,*
                             933 F.3d 433, 441-44 (5th Cir. 2019); 
                            *id.*
                             at 442 (“That the agency's action binds its staff . . . demonstrates that legal consequences flow from it . . . .”). Back to Citation
 107.
    
                             
                            *See, e.g., Interstate Nat. Gas Ass'n of Am.*
                             v. 
                            *FERC,*
                             285 F.3d 18, 59 (D.C. Cir. 2002). Back to Citation
 1.
    
                             
                            *Certification of New Interstate Natural Gas Facilities,*
                             174 FERC ¶ 61,125 (2021). Back to Citation
 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. Back to Citation
 3.
    
                             
                            *See 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.” Back to Citation
 4.
    
                             
                            *See Joint Anti-Fascist Refugee Comm.*
                             v. 
                            *McGrath,*
                             341 U.S. 123 (1951) (Frankfurter, J., concurring). Back to Citation
 5.
    
                             
                            *Certificate Policy Statement; Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews,*
                             178 FERC ¶ 61,108 (2022) (GHG Policy Statement). Although styled as an “interim” policy statement, it goes into effect immediately and will inflict major new costs and uncertainties on certificate applications that have been pending with the Commission for months or years. 
                            *Id.*
                             at PP 1, 130. I consider both policy statements to be indivisible parts of a new policy governing certificates. Thus, my statement applies to both, and I am entering this dissent in both dockets. Back to Citation
 6.
    
                             15 U.S.C. 717 
                            *et seq. See, e.g.,*
                             Certificate Policy Statement at P 62. Back to Citation
 7.
    
                             42 U.S.C. 4321 
                            *et seq.* Back to Citation
 8.
    
                             
                            *Nat'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.* Back to Citation
 9.
    
                             
                            *See, 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-ukraine-invasion/​index.html https://www.cnn.com/​2022/​01/​23/​politics/​us-gas-production-strategy-russia-ukraine-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-s-lng-exports-top-rivals-for-first-time-on-shale-revolution.* Back to Citation
 10.
    
                             
                            *See 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*). Back to Citation
 11.
    
                             Letter 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). Back to Citation
 12.
    
                             Since 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-aeic-report-recommends-doe-combine-loan-and-demonstration-offices-jumpstart-american-clean-energy-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 market-distorting 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. Back to Citation
 13.
    
                             15 U.S.C. 717f. Back to Citation
 14.
    
                             Certificate Policy Statement at P 62; GHG Policy Statement at PP 4, 99. Back to Citation
 15.
    
                             
                            *See*
                             Certificate Policy Statement at P 6, GHG Policy Statement at P 27. Back to Citation
 16.
    
                             Certificate Policy Statement at P 62; GHG Policy Statement at PP 27, 99. Back to Citation
 17.
    
                             15 U.S.C. 717f(e). Back to Citation
 18.
    
                             
                            *See*
                             Certificate Policy Statement at P 74; GHG Policy Statement at P 99. Back to Citation
 19.
    
                             Certificate Policy Statement at P 62. Back to Citation
 20.
    
                             
                            *Id.* Back to Citation
 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 § 7(h), 15 U.S.C. 717f(h). Bringing such extra-jurisdictional considerations into the Commission's public convenience and necessity analyses under NGA § 7 is just another expansion of Commission power far beyond anything justified in law. Back to Citation
 22.
    
                             
                            *Sabal Trail,*
                             867 F.3d 1357, 1382 (DC Cir. 2017) (
                            *Sabal Trail*) (Brown, J., dissenting in part and concurring in part). Back to Citation
 23.
    
                             
                            *Atl. 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)). Back to Citation
 24.
    
                             
                            *NAACP*
                             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). Back to Citation
 25.
    
                             NGA § 1(b), 15 U.S.C. 717(b). Back to Citation
 26.
    
                             
                            *ONEOK, 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). Back to Citation
 27.
    
                             
                            *Ofc. 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). Back to Citation
 28.
    
                             
                            *City 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). Back to Citation
 29.
    
                             
                            *City 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. Back to Citation
 30.
    
                             Congress could easily have conferred that authority if it had wanted to. There is no indication that Congress intended or expected FERC to perform any environmental regulation when it created the agency. 
                            *See generally,*
                             Clark Byse, 
                            *The Department of Energy Organization Act: Structure and Procedure,*
                             30 Admin. L. Rev. 193 (1978). This Commission's predecessor, the Federal Power Commission, existed for decades before EPA was created in 1970. And Congress began enacting legislation bearing on emissions decades before then as well. 
                            *See*
                             Christopher D. Ahlers, 
                            *Origins of the Clean Air Act: A New Interpretation,*
                             45 Envtl. L. 75 (2015). Nor were the effects of GHG emissions unknown at that time. 
                            *See*
                             Danny Lewis, 
                            *Scientists Have Been Talking About Greenhouse Gases for 191 Years, Smithsonian Magazine*
                             (Aug. 3, 2015) (citing to Nobel Laureate Svante Arrhenius' 1896 paper “On the Influence of Carbonic Acid in the Air upon the Temperature of the Ground”). Back to Citation
 31.
    
                             
                            *See 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). Back to Citation
 32.
    
                             
                            *NAACP*
                             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). Back to Citation
 33.
    
                             
                            *Office of Consumers' Counsel*
                             v. 
                            *FERC,*
                             655 F.2d at 1147 (emphases added). Back to Citation
 34.
    
                             
                            *See, e.g.,*
                             NGA §§ 7(e), 15 U.S.C. 717f(e) (apart from statutory exceptions, “a certificate 
                            *shall*
                             be issued to any qualified applicant . . . if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed,” and, among other things, to comply with “the requirements, rules and regulations of the Commission . . .”) (emphasis added). Back to Citation
 35.
    
                             Certificate Policy Statement at PP 4-6; GHG Policy Statement at P 39 (citing 
                            *Sabal Trail,*
                             867 F.3d at 1372-73). Back to Citation
 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). Back to Citation
 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. Back to Citation
 38.
    
                             
                            *Miller*
                             v. 
                            *California,*
                             413 U.S. 15 (1973). Back to Citation
 39.
    
                             
                            *NFIB,*
                             142 S. Ct. at 667 (Gorsuch, J., concurring) (citations omitted). Back to Citation
 40.
    
                             
                            *UARG,*
                             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). Back to Citation
 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). Back to Citation
 42.
    
                             
                            *Panhandle 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”). Back to Citation
 43.
    
                             
                            *Am. Elec. Power Co.*
                             v. 
                            *Conn.,*
                             564 U.S. 410, 426 (2011). Back to Citation
 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. Back to Citation
 45.
    
                             
                            *See 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.”). Back to Citation
 46.
    
                             
                            *U.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.”). Back to Citation
 47.
    
                             We 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. Back to Citation
 48.
    
                             
                            *Ala. Ass'n.,*
                             141 S. Ct. at 2489. Back to Citation
 49.
    
                             Congress 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). Back to Citation
 50.
    
                             
                            *Mountain Valley,*
                             171 FERC ¶ 61,232 (McNamee, Comm'r, concurring at P 41); 
                            *see also id.*
                             PP 15-47. Back to Citation
 51.
    
                             
                            *See 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). Back to Citation
 52.
    
                             The first such statute appears to have been the Interstate Commerce Act (ICA). The Supreme Court explicitly held that the use of the term “public convenience and necessity” was chosen in the knowledge that it would be understood against the background of its historical usage. 
                            *ICC*
                             v. 
                            *Parker,*
                             326 U.S. 60, 65 (1945) (construing “public convenience and necessity” under the ICA and recognizing that Congress' decision to use a term with such a long history indicated Congress intended “a continuation of the administrative and judicial interpretation of the language.”) When it passed the NGA, Congress was similarly cognizant of having employed the same concept as in the ICA. 
                            *See,*
                             Robert Christin et al., 
                            *Considering the Public Convenience and Necessity in Pipeline Certificate Cases under the Natural Gas Act,*
                             38 Energy L.J. 115, 120 (2017) (citing Comm. on Interstate Commerce, Interstate Transportation and Sale of Natural Gas, S. Rep. No. 75-1162, at 5 (Aug. 9, 1937) and noting that “the concept of a regulatory agency determining whether a private entity's proposal was in the public convenience and necessity was an established practice when the NGA was enacted.”). Back to Citation
 53.
    
                             
                            *See 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.”) Back to Citation
 54.
    
                             NEPA, 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 information-forcing” 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)). Back to Citation
 55.
    
                             NGA § 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.”) Back to Citation
 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). Back to Citation
 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”). Back to Citation
 58.
    
                             
                            *Pub. Citizen,*
                             541 U.S. at 767 (citations omitted). Back to Citation
 59.
    
                             Certificate Policy Statement at PP 73-76; GHG Policy Statement at PP 28-31. Back to Citation
 60.
    
                             
                            *Pub. Citizen,*
                             541 U.S. at 767 (citations omitted). Back to Citation
 61.
    
                             
                            *See, 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. Back to Citation
 62.
    
                             
                            *Pub. Citizen,*
                             541 U.S. at 767 (citations omitted). Back to Citation
 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. Back to Citation
 64.
    
                             
                            *Id.*
                             PP 88-93 (acknowledging that the Supreme Court has partially invalidated EPA's regulatory regime). Back to Citation
 65.
    
                             
                            *Id.*
                             P 89 (emphasis added). Back to Citation
 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. Back to Citation
 67.
    
                             EPA Comments, 
                            *Iroquois Gas Transmission Sys., L.P.,*
                             Docket No. CP20-48-000 at 1-2 (filed Dec. 20, 2021) (EPA Dec. 20, 2021 Letter). Back to Citation
 68.
    
                             And 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. Back to Citation
 69.
    
                             
                            *See*
                             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.”) Back to Citation
 70.
    
                             
                            *See, 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). Back to Citation
 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”). Back to Citation
 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.”). Back to Citation
 73.
    
                             Bradley 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)). Back to Citation
 74.
    
                             The delay is clearly part of the point. Why else funnel virtually every certificate applicant into the EIS process? 
                            *See e.g.,*
                             Bradley C. Karkkainen, 
                            *Whither NEPA?,*
                             N.Y.U. Envtl. L.J. at 339-40 (observing that NEPA has become “a highly effective tool that environmental NGOs and others can use to raise the financial and political costs of projects they oppose and stretch out decisions over an extended time frame, giving time to rally political opposition.”). 
                            *See also*
                             P 47, 
                            *infra.* Back to Citation
 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”). Back to Citation
 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.”). Back to Citation
 77.
    
                             
                            *Cf.*
                             The Hon. Joseph T. Kelliher Jan. 7, 2022 Comments at 3. Back to Citation
 78.
    
                             
                            *Sabal 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.* Back to Citation
 79.
    
                             
                            *Birckhead*
                             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. Back to Citation
 80.
    
                             
                            *Vecinos,*
                             6 F.4th 1321. Back to Citation
 81.
    
                             Both 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. Back to Citation
 82.
    
                             Namely, “[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*). Back to Citation
 83.
    
                             
                            *See 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.”). Back to Citation
 84.
    
                             
                            *Sabal 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. Back to Citation
 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). Back to Citation
 86.
    
                             
                            *Sabal Trail,*
                             867 F.3d at 1373 (emphasis in original). Back to Citation
 87.
    
                             
                            *Id.*
                             (citations omitted). Back to Citation
 88.
    
                             
                            *Id.* Back to Citation
 89.
    
                             
                            *Supra,*
                             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. Back to Citation
 90.
    
                             
                            *Vecinos,*
                             6 F.4th at 1328-30. Back to Citation
 91.
    
                             40 CFR. § 1502.21(c). Back to Citation
 92.
    
                             
                            *See supra,*
                             n. 83. Back to Citation
 93.
    
                             
                            *NFIB,*
                             142 S. Ct. 661. Back to Citation
 94.
    
                             
                            *Ala. Ass'n.,*
                             141 S. Ct. 2485 at 2489. Back to Citation
 95.
    
                             
                            *See 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). Back to Citation
 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. Back to Citation
 97.
    
                             
                            *See, e.g.,*
                             Bloomberg Philanthropies, 
                            *https://www.bloomberg.org/​environment/​moving-beyond-carbon/​*
                             (“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). Back to Citation
 98.
    
                             
                            *See*
                             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). Back to Citation
 99.
    
                             Certificate 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.”) Back to Citation
 100.
    
                             
                            *Adelphia 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-partial-concurrence-and-partial-dissent-adelphia*). Back to Citation
 101.
    
                             
                            *See Am. Lung Ass'n*
                             v. 
                            *EPA,*
                             985 F.3d at 1003 (Walker, J., concurring in part and dissenting in part) (“whatever multi-billion-dollar regulatory power the federal government might enjoy, it's found on the open floor of an accountable Congress, not in the impenetrable halls of an administrative agency—even if that agency is an overflowing font of good sense.”) (citing U.S. Const. art I, § 1). Back to Citation
 102.
    
                             GHG Policy Statement at PP 27-28, 31, & n.97. 
                            *See also,*
                             EPA Dec. 20, 2021 Letter. Back to Citation
 103.
    
                             GHG Policy Statement at P 96. 
                            *See also, e.g., Vecinos,*
                             6 F.4th at 1328-1329. Back to Citation
 104.
    
                                 EPA Dec. 20, 2021 Letter at 4 (emphases added). Back to Citation
 105.
    
                             This 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. Back to Citation
 106.
    
                             
                            *Cf. Vecinos,*
                             6 F.4th at 1329. Back to Citation
 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. Back to Citation
 108.
    
                             
                            *NFIB,*
                             142 S. Ct. at 667 (Gorsuch, J. Concurring). (“The central question we face today is: 
                            *Who decides?*
                            ”) (emphasis added). Back to Citation
 109.
    
                             
                            *See*
                             P 5 and n.12, 
                            *supra.* Back to Citation
 110.
    
                             
                            *Office 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). Back to Citation
 111.
    
                             This 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-george-stigler%E2%80%99s-lessons-about-regulatory-capture*). 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.* Back to Citation


[FR Doc. 2022-04536 Filed 3-10-22; 8:45 am] BILLING CODE 6717-01-P