The Federal Energy Regulatory Commission last week (Feb. 17) moved in new direction on a partisan issue that has dogged the agency for years: whether and how to account for greenhouse gas emissions in approving new natural gas pipelines. By a 3-2 vote, with all of the Democratic members in support and neither of the two Republican members approving, the agency voted to change its over 20-year policy on how to review gas pipeline siting requests.
The new policy, outlined in the commission vote, added several items to how it will review pipeline certification cases, updating its prior 1999 guidance. The key to the change is that the commission will include an analysis of the impact of projects on greenhouse gas emissions.
Democrats on the commission have been pushing for this policy, in accordance to a series of federal court rulings, including by the U.S. Court of Appeals for the D.C. Circuit, but were unable to get them adopted when they were in the minority during the Trump administration, which generally viewed greenhouse gas issues as a distraction from their desire to push energy development.
That changed when the Biden administration took office. Under the law governing the FERC, the party that controls the White House is entitled to three of the five members of the commission and to name the chairman. The new administration quickly named sitting commissioner Rich Glick to be chairman, and then added Allison Clements and Willie Phillips to give the Democrats the majority on the commission. Glick quickly took control of the commission, and outlined an agenda that included changing how the agency would review pipeline siting cases.
In 2018 and 2021, FERC sought public comment on its 1999 gas pipeline certification process. Glick was unable to persuade the GOP members to go along with any changes.
Glick said, “I believe today’s long overdue policy statements are essential to ensuring the Commission’s natural gas siting decisions are reflective of all stakeholder concerns and interests. We have witnessed the impact on pipeline projects when federal agencies, including the Commission, fail to fulfill their statutory responsibilities assessing the potential effects of a project on the environment, landowners and communities. If we are going to ensure legal durability of our orders, it is essential that the Commission satisfy its statutory obligations the first time. I’m proud of these policy statements because they provide a forward-looking declaration on how the Commission intends to execute its authority to consider proposed infrastructure projects in a manner that is responsive both to all the interests at stake and to the direction of the courts.”
Republican commissioner James Danly, a Trump appointee who had previously been FERC general, said the new FERC policy is “amorphous,” and could slow the delivery of natural gas by stifling investment in new gas projects. He said the new policy could “have profound implications for the ability of natural gas companies to secure capital, on the timelines for Natural Gas Act (NGA) section 7 applications to be processed, and on the costs that a pipeline and its customers will bear as a result of the potentially unmeasurable mitigation that the majority expects each company to propose when filing its application and the possibility of further mitigation measures added unilaterally by the Commission.”
Republican commissioner Mark Christie, a former Virginia energy regulator, said, “what the majority does today is arrogate to itself the power to rewrite both the Natural Gas Act (NGA) and the National Environmental Policy Act (NEPA), 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. The fundamental changes the majority imposes today to the Commission’s procedures governing certificate applications are wrong as both law and policy.”
–Kennedy Maize
(kenmaize@gmail.com)