With the Federal Energy Regulatory Commission in a 2-2 partisan deadlock, the internal (and decorous) war between the Democrats and Republicans on the long-festering issue of incorporating greenhouse gas emissions into natural gas pipeline decision appears to be deepening.
Commissioner Robert Powelson participated in a number of pipeline cases as he departed the commission on Aug. 10, leading to 3-2 Republican decisions, and prompting a flurry of dissents from FERC’s two Democrats on the commission, Cheryl LaFleur, the most senior member of FERC, and Richard Glick, the junior member. The cases suggest that major cases on FERC’s pipeline agenda may be stymied until another commissioner – who will be a Republican – is nominated and approved by the U.S. Senate.
A key decision that drew the ire of LaFleur and Glick was the commission’s denial of a rehearing on the Atlantic Coast Pipeline project. In her dissent in FERC’s decision to deny rehearing, she raised the issue of the social cost of carbon, which is a major sticking point between the two parties at FERC. LaFleur said, “The majority also argues that the Social Cost of Carbon is not an appropriate indicator of significance because ‘the project’s incremental physical impacts on the environment caused by climate change cannot be determined, it also cannot be determined whether the projects’ contribution to cumulative impacts on climate change would be significant.’ But that is precisely the use for which the Social Cost of Carbon was developed—it is a scientifically-derived metric to translate tonnage of carbon dioxide or other GHGs to the cost of long-term climate harm.”
Commenting on the Atlantic Coast rehearing, Glick said that he refused to participate in the order “solely to enable those parties challenging the certificate to have their day in court. If I had voted, the rehearing order would have failed on a 2-2 vote (Chairman McIntyre is also not participating in this proceeding) and pursuant to the requirements of section 19 of the Natural Gas Act, the appellate courts would not have had jurisdiction to review the commission’s decision to grant the certificate.”
A wrinkle in the case is that the U.S. Court of Appeals for the 4th Circuit earlier last week revoked permits from the National Park Service (NPS) and the Fish and Wildlife Service (FWS) for the pipeline, over environmental issues. FERC’s staff promptly suspended its certificate for the project, which drew a headline from the Washington Post, but which may be considerably less than meets the uninitiated eye.
The letter from FERC’s Office of Energy Projects, issuing the stop work order, said, “There is no reason to believe that the NPS, as the land managing agency, will not be able to comply with the court’s instructions and ultimately issue a new right-of-way grant that satisfies the court’s requirements, or that FWS will not be able to issue an ‘incidental take statement’ that does likewise. LaFleur tweeted, ”I strongly support FERC staff’s decision to suspend construction of the ACPipeline in light of the recent Fourth Circuit decision.”
Overhanging the entire dispute dividing the two parties at FERC is a long-standing decision by the U.S. Court of Appeals for the District of Columbia Circuit that the commission has not adequately considered the environmental impacts on the climate of gas pipeline certifications. The Republican major has strenuously resisted that finding and repeatedly argued that it is doing all it rationally can in the face of a complex and politically fraught issue.
That played out in a series of dissents from Glick and LaFleur on Friday, as FERC, not meeting in public, disposed of a series of pipeline disputes as Powelson, who consistently sided with Chairman Kevin McIntyre and Commission Neil Chattergee on pipeline certification left the commission.
Both LaFleur and Glick dissented on FERC’s refusal to grant a rehearings on the Sabal Trail project, which was at the heart of the D.C. appeals courts’ analysis. Glick also dissented on Transco’s Rivervale South to Market project, PennEast Pipeline, and Dominion Energy’s Cove Point LNG project, citing FERC’s failure to take greenhouse gas emissions into its analysis.
— Kennedy Maize