Attachment Issues: FERC’s Broad Authority to Attach Conditions to Pipeline Project Approvals

Abstract

America annually consumes enough natural gas to fill Lake Erie nearly twice. The Federal Energy Regulatory Commission (FERC) approves the interstate pipelines moving the majority of this gas. This Article argues that FERC has and should use its considerable authority to impose robust conditions on the interstate pipelines it approves. Part I examines the history of FERC's conditioning authority. Part II argues that imposing conditions is a nimbler tool than denials of pipeline projects and is more resilient to both the major questions doctrine and the vicissitudes of Congress. Part III proposes several conditions for future projects.

Acknowledgments

The author thanks his colleagues at the Commission for their insight and professor Michael Gerrard for his guidance. The views expressed herein are solely those of the author and do not necessarily represent the views of the Commission. All errors are, of course, the author’s.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Energy Information Administration. Natural Gas Explained: Use of Natural Gas. Accessed March 11, 2024. https://www.eia.gov/energyexplained/natural-gas/use-of-natural-gas.php (documenting 32.31 trillion cubic feet burned in 2022).

2 Energy Information Administration. U.S. Energy-Related Carbon Dioxide Emissions, 2022. Accessed March 11, 2024. https://www.eia.gov/environment/emissions/carbon/.

3 See Great Lakes Commissions. Lake Erie. Accessed March 11, 2024. https://www.glc.org/lakes/lake-erie (estimating Lake Erie’s volume to be 119 cubic miles).

4 Parfomak, Paul. Congressional Research Service. R45239, Interstate Natural Gas Pipeline Siting: FERC Policy and Issues for Congress 3 (2022).

5 Energy Information Administration. About U.S. Natural Gas Pipelines. Accessed March 11, 2024. https://www.eia.gov/naturalgas/archive/analysis_publications/ngpipeline/index.html. By sector, 38% of natural gas goes to electric power, 32% to industry, 15% to residential end-users, 11% to commercial customers, and 4% is used for transportation. Energy Information Administration. Natural Gas Explained. Accessed March 11, 2024. https://www.eia.gov/energyexplained/natural-gas/use-of-natural-gas.php.

6 President Biden plans to cut net emissions by fifty percent by 2030 and to reach net zero emissions economy-wide by 2050. White House. Fact Sheet: President Biden Sets 2030 Greenhouse Gas Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs and Securing U.S. Leadership on Clean Energy Technologies. Last modified April 22, 2021. Accessed March 11, 2024. https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadershipon-clean-energy-technologies.

7 15 U.S.C. § 717f(e).

8 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 Interstate Natural Gas Pipelines: Process and Timing of FERC Permit Application Review Congressional Research Service https://sgp.fas.org/crs/misc/R43138.pdf. FERC has similar authorizing power over liquified natural gas terminals under Section 3 of the NGA. Several court decisions, however, have cabined the scope of Section 3 and therefore, this article focuses on the more potent Section 7. See Sierra Club v. FERC (Freeport), 827 F.3d 36 (D.C. Cir. 2016); Sierra Club v. FERC (Sabine Pass), 827 F.3d 59 (D.C. Cir. 2016); EarthReports, Inc. v. FERC, 828 F.3d 949 (D.C. Cir. 2016).

9 White House. Remarks by President Biden on Actions to Tackle the Climate Crisis. Last modified July 20, 2022. Accessed March 11, 2024. https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/07/20/remarks-by-president-biden-on-actions-to-tackle-the-climate-crisis/.

10 “Environmental” is construed rather broadly throughout the article to encompass overlapping requirements related to environmental justice, monitoring, reporting, mitigation, and permitting. Climate conditions are a subset of environmental conditions.

11 See Part II.

12 15 U.S.C. § 717f(e); Natural Gas Act, Pub. L. No. 77-444, 56 Stat. 83 § 7(e) (1942).

13 15 U.S.C. § 717t-1 (West) (emphasis added). The NGA’s language caps penalties at $1 million per day but FERC increased the value based on inflation. Melvin, J. 2021. FERC Raises Maximum civil penalties to $1.3 million as part of annual update S&P Global Commodity Insights. Accessed March 11, 2024. https://www.spglobal.com/commodityinsights/en/market-insights/latest-news/electric-power/011121-ferc-raises-maximum-civil-penalties-to-13-million-as-part-of-annual-update. The amount of the penalty varies depending of the severity of a violation and whether it was intentional. The Commission can also issue cease-and-desist orders, revoke market-based rate authority, and order disgorgement of profits acquired through violations. Jones Day. FERC’s New Penalty Guidelines: What’s the Bottom Line? Last modified April, 2010. Accessed March 11, 2024. https://www.jonesday.com/en/insights/2010/04/fercs-new-penalty-guidelines-whats-the-bottom-line.

14 Transcon. Gas Pipe Line Corp. v. FERC, 589 F.2d 186, 190 (5th Cir. 1979); Atlantic Refining Co. (CATCO) v. Public Service Commission of New York, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959); accord ANR Pipeline Co. v. Fed. Energy Regul. Comm’n, 876 F.2d 124, 129 (D.C. Cir. 1989) (“This conditioning authority is extremely broad.”); See also Twp. of Bordentown v. FERC, 903 F.3d 234, 261 n.15 (3d Cir. 2018) (finding the Commission’s authority to enforce required remediation to be supported the NGA); Sabal Trail, 867 F.3d at 1374 (finding the Commission has authority to mitigate reasonably foreseeable indirect effects).

15 Much of the history described in this section comes from Alison Gocke’s exceptional article, Pipelines and Politics. 2023. Harvard Environmental Law Review, Vol. 47, No. 116.

16 See Hall, F. 1940. The Concept of a Business Affected with a Public Interest. The Principia Press, Inc. 63.

17 Jones, W. 1979. Origins of the Certificate of Public Convenience and Necessity: Developments in the States 1870-1920. 79 Columbia Law Review. 426, 426–27 (1979); Hall, F. 1929. Certificates of Convenience and Necessity. 28 Michigan Law Review. 107, 108.

18 History of NGA at 699–700, (“Wells that are thus left open to blow the gas into the air constitute a burden on interstate commerce and should be closed by the authority of the Congress. The preventions of waste.

and the conservation of the natural pressure of gas are regulation of interstate commerce.

in natural gas.”) (citing Hearings Before the House Committee on Interstate and Foreign Commerce on H.R. 5423 (Public Utility Holding Companies), 74th Cong., 1st Sess. (1935) at 57, 190, 2212).

19 Natural Gas Act, Pub. L. No. 77-444, 56 Stat. 83 § 7(e) (1942).

20 20 Annotated Reporter, Federal Power Commission 79 (1940) (finding the United States would exhaust its natural gas reserves within thirty years, approximately the same amount of time the United States currently has to effectively cease its natural gas use to achieve net-zero); see also Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 365 U.S. 1, 10–11 (1961) (citing the Commission’s concern over its inability to consider social costs the Commission’s conclusion that “use of natural gas should be restricted by functions”).

21 Gocke at 224. See generally Freese, B. 2016. The Rise and Fall of King Coal. In Coal: A Human History, updated and rev. ed., 129–161. New York: Basic Books (documenting the relationship between coal, the railroads, and politics).

22 Gocke at 224.

23 Sanders, E. 1981. The Regulation Of Natural Gas: Policy And Politics, 1938-1978. Philadelphia: Templre University Press. 54.

24 N. Nat. Gas. Co. 10 F.P.C. 391 (1951) (limiting natural gas to use for “pilot burners, ignition purposes, and as emergency standby in case of breakdown of coal-handling and coal-burning equipment”).

25 N. Nat. Gas Co., 4 F.P.C. 1099, 1101 (1945).

26 In Consol. Edison Co. of N. Y. v. Fed. Power Comm’n, 271 F.2d 942, 944 (3d Cir. 1959),.

the third circuit collected cases in which the Commission considered end use. Northern Natural Gas Co. 4 F.P.C. 1099 (1945), 7 F.P.C. 296 (1948) (use as boiler fuel by a power company); East Tennessee Natural Gas Co., 8 F.P.C. 836 (1949), aff’d sub nom., National Coal Ass’n v. FPC, 1951, 89 U.S.App.D.C. 135, 191 F.2d 462 (use as boiler fuel by Atomic Energy Commission); Piedomont Natural Gas Corp., 9 F.P.C. 629, 70, 83–90 (1950) (use as boiler fuel by a power company); Texas Gas Transmission Corp., 10 F.P.C. 391 (1951) (use as boiler fuel by Tennessee Valley Authority and by a power company); Transcontinental Gas Pipe Line Corp., 11 F.P.C. 605, 615 (1952) (use as boiler fuel by a power company); Texas Gas Transmission Corp., 12 F.P.C. 658 (1953) (use as boiler fuel by a power company); Mississippi River Fuel Corp., 12 F.P.C. 109, 114 (1953) (use as boiler fuel by a power company); Panhandle Eastern Pipe Line Co., F.P.C. Opinion No. 274 (1954), aff’d on other grounds sub nom., Panhandle Eastern Pipe Line Co. v. FPC, 3 Cir., 232 F.2d 467, certiorari denied, 1956, 352 U.S. 891, 77 S.Ct. 129, 1 L.Ed.2d 86 (use as boiler fuel by a paper company and three others); Southern Natural Gas Co., 14 F.P.C. 243 (1955), aff’d sub nom., Charleston & W.C. Ry. v. FPC, 1956, 98 U.S.App.D.C. 241, 234 F.2d 62 (use as boiler fuel by power company serving three customers one of which devotes all power obtained to an Atomic Energy Commission project); Northern Natural Gas Co., 15 F.P.C. 682, rev’d 15 F.P.C. 1634 (1956), aff’d sub nom., National Coal Ass’n v. FPC, 1957, 101 U.S.App.D.C. 95, 247 F.2d 86 (use as boiler fuel by a power company); Houston Texas Gas & Oil Corp., 16 F.P.C. 118 (1956) (use as a boiler fuel by two Florida power companies); Cities Service Gas Co., 17 F.P.C. 516 (1957) (use as boiler fuel by a power company).

27 Castaneda, C. and C. Smith. 1996. Gas Pipelines And The Emergence Of America’s Regulatory State. Cambridge University Press. 94.

28 H.R. 2956, 80th Cong., (1st Sess. 1947); S. 1028, 80th Cong., (1st Sess. 1947); Natural Gas Act, Pub. L. No. 80-245, 61 Stat. 459 (1947) (codified at 15 U.S.C.§ 717f(h)).

29 For example, the Commission can require companies to remediate land disrupted during construction. See Spire STL Pipeline LLC, 164 FERC ¶ 61,085 (2018) (requiring a remediation plan).

30 18 C.F.R. § 157.20. The conditions deal predominately with procedures and deadlines.

31 Federal Energy Regulatory Commission. Blanket Certificates. Accessed March 11, 2024. https://www.ferc.gov/natural-gas/blanket-certificates.

32 18 C.F.R. § 157.206. The regulations expressly require compliance with the Clean Water Act, the Clean Air Act, the National Historic Preservation Act, the Archeological and Historic Preservation Act, the Endangered Species Act, the Wild and Scenic Rivers Act, the Wilderness Act, the National Parks and Recreation Act, and the Magnuson-Stevens Fishery Conservation and Management Act. Id.

33 Specifically, Executive Order 11988 requiring Federal agencies to evaluate the potential effects of any actions it may take on a floodplain and Executive Order 11990 requiring an evaluation of the potential effects of construction on wetlands. 157.206(b)(vii), (viii).

34 § 380.15(a) and (b).

35 Id.

36 Id.

37 Twp. of Bordentown, New Jersey v. FERC, 903 F.3d 234, 246 (3d Cir. 2018).

38 Id.

39 See e.g., Corpus Christi Liquefaction Stage III, 169 FERC ¶ 61,135, 62,015 (2019) (“[W]e find that Cheniere Pipeline’s proposal is consistent with the Certificate Policy Statement, and, as conditioned in this order, is required by the public convenience and necessity.”) (emphasis added). Former FERC Chairman Richard Glick has expressed concern with conditioning a Certificate on compliance with environmental laws because it allows the Commission to grant Certificates prior to an applicant receiving necessary environmental permits. Rather, Glick argues, FERC should refrain from granting Certificates conditioned on additional submissions or analysis and consider denying those applications instead. See Watson, M. 2018. Understanding FERC’s Natural Gas Certificate Policy Review. Steptoe & Johnson LLP, February 8. Accessed March 11, 2024. https://www.steptoe.com/en/news-publications/understanding-fercs-natural-gas-certificate-policy-review.html (addressing Glick’s concern over the issuance of “conditional” Certificates).

40 Midcoast Interstate Transmission, Inc. v. Fed. Energy Regul. Comm’n, 198 F.3d 960, 968 (D.C. Cir. 2000).

41 Comments of the Institute for Policy Integrity at NYU School of Law, Technical Conference on Greenhouse Gas Mitigation: Natural Gas Act Section 3 and 7 Authorizations (citing S. Coast Air Quality Mgmt. Dist. v. FERC, 621 F.3d 1085, 1099 (9th Cir. 2010) (“FERC adequately considered the environmental effects of end-use consumption of North Baja gas when it conditioned its certificate on the pipeline only delivering gas that meets the strictest applicable gas quality standards imposed by state regulatory agencies on downstream local distribution companies and pipelines.”) (internal quotation marks and alterations omitted).

42 Sierra Club v. Fed. Energy Regul. Comm’n (Sabal Trail), 867 F.3d 1357, 1374 (D.C. Cir. 2017). In the process of acknowledging FERC’s considerable power under section 7, the court in Sabal Trail also reiterated the ways in which the Commission’s authority is limited under section 3—i.e., the section concerning FERC’s approval and conditioning authority over LNG projects. In this way, Sabal Trail operates as a sort of double-edged sword: expanding the scope of one section while reducing the scope of another.

43 Sabal Trail, 867 F.3d at 1373.

44 Birckhead v. Fed. Energy Regul. Comm’n, 925 F.3d 510, 519 (D.C. Cir. 2019).

45 See e.g., GHG Policy Statement, Christie Dissent at 42 (“[T]o the extent language from those cases [Sabal Trail and Birckhead] 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.”).

46 Some scholars have also argued for a tightening of FERC’s conditioning authority. E.g. Wheat, C. 1945. Administration by the Federal Power Commission of the Certificate Provisions of the Natural Gas Act. 14 Washington Law Review 194, 214–215 (“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.”).

47 See NAACP v. Fed. Power Comm’n, 425 U.S. 662, 669 (1976).

48 Id.

49 See e.g., N.J. Zinc Co. v. FERC 843 F.2d 1497, 1501 (D.C. Cir. 1988) (upholding the granting of a Certificate lasting only one year because it “reasonably related to FERC’s concern to assure nondiscriminatory access to transportation” and the court “ha[d] no cause to second-guess the Commission’s expert judgment”).

50 See, e.g., GHG Policy Statement at n. 234 (listing commentors raising concerns over FERC’s conditioning authority including 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.).

51 Id. at 669–70 n.6 (“[T]he Commission has authority to consider conservation, environmental, and antitrust questions.”); See also 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); see also FPC v. Transco Gas Pipeline Corp., 365 U.S. at 17

52 Pure Oil Co. v. Fed. Power Comm’n, 292 F.2d 350, 353 (7th Cir. 1961).

53 See e.g., GHG Policy Statement, Christie Dissent at n. 55.

54 The blanket transportation certificate would require the company to provide open access transportation and to allow its customers to exercise certain contract demand conversion rights. Nat’l Fuel Gas Supply Corp. v. FERC, 909 F.2d 1519, 1519 (D.C. Cir. 1990).

55 Nat’l Fuel Gas Supply Corp. v. FERC, 909 F.2d 1519, 1522 (D.C. Cir. 1990) (internal citation omitted).

56 Id. at 1522.

57 See San Diego Gas & Elec. Co., Complainant, 93 FERC ¶ 61,294, 62,010 (2000) (“In [National Fuel Gas and another case], the courts held that the Commission had improperly used its conditioning authority under section 7 of the Natural Gas Act to circumvent the procedural requirements of sections 4 and 5 of that Act.”).

58 Atlantic Coast Pipeline, LLC, 161 FERC ¶ 61,042, app. A (2017).

59 Federal Energy Regulatory Commission. Approved Major Pipeline Projects (1997-Present). Accessed March 11, 2024. https://www.ferc.gov/industries-data/natural-gas/approved-major-pipeline-projects-1997-present. FERC has a rather liberal definition of “major.” The database lists several pipelines less than.a mile long.

60 Fla. Gas Transmission Co., LLC (Phase VIII), 129 FERC ¶ 61,150 (2009) at 56.

61 The Commission occasionally adopted EA recommendations to preclude the preparation an EIS, which is required when a project has a significant impact. Double E Pipeline, LLC, 173 FERC ¶ 61,074 (2020) at 59 (“[I]f constructed and operated … in compliance with the environmental conditions in … this order, our approval of this proposal would not constitute a major federal action significantly affecting the quality of the human environment.”).

62 One Certificate declined one recommendation because the Fish and Wildlife Service had concluded its analysis after the EA was submitted. See Double E Pipeline, LLC, 173 FERC ¶ 61,074 (2020).

63 This article doesn’t include an analysis of pipeline environmental reviews, but such an analysis could provide more insight as to the reasoning behind the recommendations the agency makes.

64 See e.g. Webb, R. 2020. Climate Change, FERC, and Natural Gas Pipelines: The Legal Basis for Considering Greenhouse Gas Emissions Under Section 7 of the Natural Gas Act. Sabin Center for Climate Change Law. https://climate.law.columbia.edu/sites/default/files/content/Webb_Climate%20Change%2C%20FERC%20%26%20Natural%20Gas%20Pipelines.pdf (arguing for Section 7 denials on climate grounds).

65 Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews (Interim), 178 FERC ¶ 61,108 (2022) (hereinafter “GHG Policy Statement”).

66 Ideally, FERC could impose climate-related conditions and deny projects based on GHG emissions. The combination of both powers would incentivize applicants to voluntarily propose climate conditions it was willing to follow so that the Commission wouldn’t deny its application.

67 Gocke at 236; see also Tierny, S. 2019. FERC’s Certification of New Interstate Natural Gas Facilities: Revising the 1999 Policy Statement for 21^st Century Conditions. Analysis Group, 8. Some commissioners who advocate for the inclusion of GHG emissions in making public interest determinations don’t weigh the impact of emissions very highly. For example, Commissioner Cheryl LaFleur frequently concurred with orders granting Certificates, conducting a GHG analysis as part of the public interest determination and still coming out in favor of approval. Tenn. Gas Pipeline Co., 163 FERC ¶ 61,190 (2018) (LaFleur, Comm’r, concurring); see, e.g., Tex. E. Transmission, LP, 165 FERC ¶ 61,132, 61,536 (2018) (same); Transcon. Gas Pipeline Co., 167 FERC ¶ 61,110, 61,190 (2019) (same).

68 Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews (Interim), 178 FERC ¶ 61,108 (2022) at 3 (“This policy statement … describes how the Commission will integrate climate considerations into its public interest determinations under the NGA.”). The proposed and then rescinded policy statement updated a 1999 policy statement the Commission had been relying on to guide the certification of natural gas pipelines. 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).

69 See GHG Policy Statement, Danly Dissent and Christie Dissent.

70 GHG Policy Statement, Danly Dissent at 156 (“[FERC] 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.”).

71 Order on Draft Policy Statements 178 FERC ¶ 61,197 (2022); Full Committee Hearing To Review FERC’s Recent Guidance On Natural Gas Pipelines.

https://www.energy.senate.gov/hearings/2022/3/full-committee-hearing-to-review-ferc-s-recent-guidance-on-natural-gas-pipelines.

72 Republicans and Joe Manchin were very critical of FERC, one senator threatened to dissolve the agency via legislation. See Full Committee Hearing To Review FERC’s Recent Guidance On Natural Gas Pipelines.

https://www.energy.senate.gov/hearings/2022/3/full-committee-hearing-to-review-ferc-s-recent-guidance-on-natural-gas-pipelines.

73 Wilson, M. 2022. FERC Climate Reviews in Limbo as Glick Departs. E&E News. December 15. Accessed March 11, 2024. https://www.eenews.net/articles/ferc-climate-reviews-in-limbo-as-chair-departs/.

74 Howland, E. Manchin withholds confirmation hearing for FERC Chairman Glick, throwing second term in doubt. Utility Dive. November 11. Accessed March 11, 2024. https://www.utilitydive.com/news/manchin-ferc-chairman-richard-glick-confirmation-hearing/636342/.

75 FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159–160.

76 Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324. (“[Courts] expect Congress to speak clearly if it wishes to assign to an agency decision of vast economic and political significance.”).

77 WV v. EPA at 17, 19.

78 Id. at 12 (quoting Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014)).

79 See Richardson, N. 2022. Antideference: Covid, Climate, and the Rise of the Major Questions Canon. 108 Virginia Law Review Online 174, 175 https://virginialawreview.org/articles/antideference-covid-climate-and-the-rise-of-the-major-questions-canon/; See also Metzger, G. 2017. Foreword: 1930s Redux: The Administrative State Under Siege. 131 Harvard Law Review 2, 3–6. (addressing judicial curtailment of the administrative state); Lisa Heinzerling, L. 2017. The Power Canons. 58 William & Mary Law Review1933, 1969–71 (2017) (noting several Justices have “constitutionally inspired anxieties about the modern administrative state”).

80 Generation shifting refers to a shift in electricity production from higher GHG emitting fuels to lower GHG emitting alternatives. So, for example, a coal powered facility could generation shift by transitioning to natural gas or carbon-free sources of electricity.

81 WV v. EPA at 6 (listing past uses of Section 111(d)).

82 Id. at 26 (describing Section 111(d) as a “previously little-used backwater”).

83 Precedent agreements are integral to the section 7 process because they show a pipeline will bring a public benefit. See 1999 Certificate Policy Statement at 25 (discussing public benefits and precedent agreements).

84 Gocke at 231–33 (examining 425 certificate decision for pipeline projects from 2000 to 2021 and concluding that precedent agreements are the most important factor in FERC’s approval process).

85 WV v. EPA concurrence at 10 (quoting King v. Burwell, 576 U. S. 473, 485 (2015)).

86 See Environmental Protection Agency. Inventory Of U.S. Greenhouse Gas Emissions And Sinks: 1990–2021 at ES-12.

87 Id. at ES-13 (accounting for 181.4 MMT CO2 Eq. of methane which is 24.9 percent of total methane emissions and 2.9 percent of total gross emissions).

88 ANR Pipeline Co., 179 FERC ¶ 61,122, 61,920 (2022) (discussing a pipeline’s participation in the Methane Challenge Program but denying the EPA’s request for even more methane-related conditions).

89 Methane Challenge Program Partnership Agreement ONE Future Emissions Intensity Commitment, available at https://www.epa.gov/system/files/documents/2021-12/mc-one-future-commitment-partnership-agreement2021-12.pdf.

90 EPA’s Voluntary Methane Program for the Oil and Natural Gas Industry, available at https://www.epa.gov/natural-gas-star-program.

91 Methane Challenge Program Partnership Agreement ONE Future Emissions Intensity Commitment, available at https://www.epa.gov/system/files/documents/2021-12/mc-one-future-commitment-partnership-agreement2021-12.pdf (addressing the requirements for ONE Future Commitment Partners).

92 Friedman, L. 2021. Biden Administration Moves to Limit Methane, a Potent Greenhouse Gas. New York Times. November 2, 2021; See also White House. President Biden Tackles Methane Emissions, Spurs Innovations, and Supports Sustainable Agriculture to Build a Clean Energy Economy and Create Jobs. Accessed March 11, 2024. https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/02/fact-sheet-president-biden-tackles-methane-emissions-spurs-innovations-and-supports-sustainable-agriculture-to-build-a-clean-energy-economy-and-create-jobs/; See also 81 Fed. Reg. 35824 (2016). (detailing the methane leak detection and repair rules under the Clean Air Act, oftentimes called “Quad O” rules). FERC doesn’t need to stop at these methane management programs, other methane mitigation activities include routing gas to a compressor or capture system for beneficial use, flaring the gas, or routing the gas to low pressure systems. These activities could be make requirements.

93 See Part I.D.

94 N. Nat. Gas Co., 4 F.P.C. 1099, 1101 (1945).

95 State climate goals may be more appropriately raised during rate case proceedings when utilities are determining the depreciation rates of fossil fuel infrastructure.

96 E.g., Fla. Gas Transmission Co., LLC (Phase VIII), 129 FERC ¶ 61,150 (2009).

97 E.g., 2021 U.S. Billion-dollar Weather and Climate Disasters in Historical Context. https://www.climate.gov/news-features/blogs/beyond-data/2021-us-billion-dollar-weather-and-climate-disasters-historical (tracking the increase in the number of natural disasters causing over a billion dollars).

98 See e.g., Cheniere Creole Trail LNG Prject at 49 (imposing various conditions on the management of “hazardous fluids” used at the liquefaction facility).

99 E.g. Haggag, N, Webb, R, and Panfil, M. Advancing Climate Resilience Planning Through Rate Case Proceedings. Environmental Defense Fund, Sabin Center. Accessed March 11, 2024. https://www.icrrl.org/files/2022/06/Advancing-Climate-Resilience-Planning-through-Rate-Case-Proceedings-Supplement.pdf. (describing Con Edison’s preparation of a climate vulnerability assessment).

100 Five farmers successfully advocated for the pipeline to be buried deeper exclusively on their land.

101 This project was authorized under Section 3 because it concerned an LNG terminal. Section 3’s conditioning power is similar to Section 7’s.

102 The Commission disregarded the EA’s recommendation to delay construction until completion of Section 7 consultation with FWS pursuant to the ESA because after the EA was filed, the FWS found no adverse effects on listed species. Double E Pipeline, LLC, 173 FERC ¶ 61,074 (2020) at 56.

Additional information

Notes on contributors

Jack Sherrick

Jack Sherrick is an attorney-advisor for the Federal Energy Regulatory Commission. He works in the energy projects section, preparing Commission orders and other documents in natural gas and hydropower proceedings. The views he expresses herein are solely his own and do not necessarily represent the views of the Commission. Jack is a graduate of Carleton College and Columbia Law School.