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.

                            Modifications to FERC-537 (Gas Pipeline Certificates: Construction, Acquisition, and Abandonment)
                                                                as a Result of PL18-1-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Annual number                                          Total annual burden
                                     Number of     of responses    Total number of     Average burden &      hours & total      Cost per respondent ($)
                                    respondents   per respondent      responses       cost per response       annual cost
                                             (1)             (2)    (1) * (2) = (3)  (4)................  (3) * (4) = (5)....  (5) / (1)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Interstate Certificate and                    40               1                 40  880 hours; $76,560   35,200 hours;        $76,560 Increase.
 Abandonment Applications.                                                            Increase.            $3,062,400
                                                                                Increase.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    105. Title: FERC-537, Gas Pipeline Certificates: Construction,
Acquisition and Abandonment.
    106. Action: Proposed revisions to an existing information
collection.
    107. OMB Control No.: 1902-0060.
    108. Respondents: Entities proposing natural gas projects under
section 7 of the NGA.
    109. Frequency of Information Collection: On occasion.
    110. Necessity of Voluntary Information Collection: The
Commission's existing FERC-537 information collection pertains to
regulations implementing section 7 of the NGA, which authorizes the
Commission to issue certificates of public convenience and necessity
for the construction and operation of facilities transporting natural
gas in interstate commerce. The information collected pursuant to this
Updated Policy Statement should help the Commission in making its
public interest determinations.
    111. Internal Review: The opportunity to file the information
conforms to the Commission's plan for efficient information collection,
communication, and management within the natural gas pipeline industry.
The Commission has assured itself, by means of its internal review,
that there is specific, objective support for the burden estimates
associated with the opportunity to file the information.
    112. Interested persons may provide comments on this information
collection by one of the following methods:
     Electronic Filing (preferred): Documents must be filed in
acceptable native applications and print-to-PDF, but not in scanned or
picture format.
     USPS: Federal Energy Regulatory Commission, Office of the
Secretary, 888 First Street NE, Washington, DC 20426.
     Hard copy other than USPS: Federal Energy Regulatory
Commission, Office of the Secretary, 12225 Wilkins Avenue, Rockville,
Maryland 20852.

VII. Document Availability

    113. In addition to publishing the full text of this document in
the Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov). At
this time, the Commission has suspended access to the Commission's
Public Reference Room due to the President's March 13, 2020
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
    114. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
    115. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at<PHONE_NUMBER> (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
[email protected].
    By the Commission. Commissioner Danly is dissenting with a separate
statement attached.
    Commissioner Christie is dissenting with a separate statement
attached.

    Issued: February 18, 2022.
Kimberly D. Bose,
Secretary.

DEPARTMENT OF ENERGY FEDERAL ENERGY REGULATORY COMMISSION

Certification of New Interstate Natural Gas Facilities

Docket No. PL18-1-000
DANLY, Commissioner, dissenting:

    1. I dissent from the issuance of the Updated Policy Statement on
Certification of New Interstate Natural Gas Facilities.\1\ Before I
explain my reasons for dissenting, I would like to state from the
outset that I voted for the Commission's most recent revised Notice of
Inquiry \2\ considering changes to its Original Policy Statement.\3\
---------------------------------------------------------------------------

    \1\ Certification of New Interstate Nat. Gas Facilities, 178
FERC ] 61,107 (2022) (Updated Policy Statement).
    \2\ Certification of New Interstate Nat. Gas Facilities, 174
FERC ] 61,125 (2021).
    \3\ Certification of New Interstate Nat. Gas Pipeline
Facilities, 88 FERC ] 61,227 (1999), clarified, 90 FERC ] 61,128,
further clarified, 92 FERC ] 61,094 (2000) (Original Policy
Statement).
---------------------------------------------------------------------------

    2. I cannot, however, support today's issuance because it will, in
combination with the Interim Greenhouse Gas (GHG) Policy Statement,\4\
have profound implications for the ability of natural gas companies to
secure capital, on the timelines for Natural Gas Act (NGA) section 7
\5\ applications to be processed, and on the costs that a pipeline and
its customers will bear as a result of the potentially unmeasurable
mitigation that the majority expects each company to propose when
filing its application \6\ and the possibility of further mitigation
measures added unilaterally by the Commission. As I explain in more
detail below, this policy statement contravenes the purpose of the NGA
which, as the Supreme Court has held, is to ``encourage the orderly
development of plentiful supplies of . . . natural gas at reasonable
prices.'' \7\
---------------------------------------------------------------------------

    \4\ Consideration of Greenhouse Gas Emissions in Nat. Gas
Infrastructure Project Reviews, 178 FERC ] 61,108 (2022) (Interim
GHG Policy Statement). I note that today's issuance in Docket No.
PL21-3-000 ``is subject to revision'' and is described as an
``interim'' policy statement. Id. P 1.
    \5\ 15 U.S.C. 717f.
    \6\ See Updated Policy Statement, 178 FERC ] 61,107 at P 74
(``[W]e expect applicants to propose measures for mitigating
impacts, and we will consider those measures--or the lack thereof--
in balancing adverse impacts against the potential benefits of a
proposal.'').
    \7\ NAACP v. FPC, 425 U.S. 662, 669-70 (1976) (citations
omitted) (NAACP); accord Myersville Citizens for a Rural Cmty., Inc.
v. FERC, 783 F.3d 1301, 1307 (D.C. Cir. 2015) (quoting NAACP, 425
U.S. at 669-70) (Myersville).
---------------------------------------------------------------------------

I. The Commission's Jurisdiction and the Public Convenience and
Necessity Standard Are Not as Broad as the Updated Policy Statement
Suggests

    3. As an initial matter, the Commission ``is a `creature of
statute,' having `no constitutional or common law existence or
authority, but only those authorities conferred upon it by Congress.'
'' \8\ The applicable statute is the NGA, and the statutory standard
applicable to NGA section 7(c) certificate applications \9\ is whether
a proposed project ``is or will be required by the present or future
public convenience and necessity.'' \10\
---------------------------------------------------------------------------

    \8\ 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))
(emphasis in original).
    \9\ 15 U.S.C. 717f(c).
    \10\ Id. Sec.  717f(e) (``[A] certificate shall be issued to any
qualified applicant therefor, . . . if it is found that the
applicant is able and willing properly to do the acts and to perform
the service proposed and to conform to the provisions of this
chapter and the requirements, rules, and regulations of the
Commission thereunder, and that the proposed service, sale,
operation, construction, extension, or acquisition, to the extent
authorized by the certificate, is or will be required by the present
or future public convenience and necessity; otherwise such
application shall be denied.'') (emphasis added); see Okla. Nat. Gas
Co. v. FPC, 257 F.2d 634, 639 (D.C. Cir. 1958) (``The granting or
denial of a certificate of public convenience and necessity is a
matter peculiarly within the discretion of the Commission.'').
---------------------------------------------------------------------------

    4. Notably, public convenience and necessity is not anywhere
defined in the language of the NGA.\11\ That phrase is famously
ambiguous, and the statute fails to provide factors to be weighed in
arriving at a determination that a proposed project ``is or will be
required by the present or future public convenience and necessity.''
\12\ Accordingly, ``the Natural Gas Act `vests the Commission with
broad discretion to invoke its expertise in balancing competing
interests and drawing administrative lines.' '' \13\ This does not, of
course, mean that we are wholly without guideposts in construing the
meaning of the public convenience and necessity standard. As recognized
by my colleagues, the Supreme Court has found that NGA section ``7(e)
requires the Commission to evaluate all factors bearing on the public
interest.'' \14\ This finding, however, cannot not be read in a vacuum.
The Court has explained that the inclusion of the phrase ``public
interest'' in a statute is not ``a broad license to promote the general
public welfare''--instead, it ``take[s] meaning from the purposes of
the regulatory legislation.'' \15\ Thus, we turn, as we must, to the
purpose of the NGA: ``to encourage the orderly development of plentiful
supplies of . . . natural gas at reasonable prices.'' \16\ Any
balancing under the public convenience and necessity standard should
``take meaning'' from that purpose.
---------------------------------------------------------------------------

    \11\ Cf. ICC v. Parker, 326 U.S. 60, 65 (1945) (``Public
convenience and necessity is not defined by the statute. The nouns
in the phrase possess connotations which have evolved from the half-
century experience of government in the regulation of
transportation.''); see generally S. Rep. No. 75-1162 at 5 (1937)
(recognizing similarities in the provisions requiring certificates
for public convenience and necessity under the other statutes, e.g.,
the Interstate Commerce Act).
    \12\ 15 U.S.C. 717f(e).
    \13\ Envtl. Def. Fund v. FERC, 2 F.4th 953, 975 (D.C. Cir. 2021)
(internal quotation marks omitted).
    \14\ Updated Policy Statement, 178 FERC ] 61,107 at P 4 n.6
(quoting Atl. Ref. Co. v. Pub. Serv. Comm'n of N.Y., 360 U.S. 378,
391 (1959)).
    \15\ NAACP, 425 U.S. at 669.
    \16\ Id. at 669-70; accord Myersville, 783 F.3d at 1307 (quoting
NAACP, 425 U.S. at 669-70). I note that the Supreme Court has also
recognized the Commission has authority to consider ``other
subsidiary purposes,'' such as ``conservation, environmental, and
antitrust questions.'' NAACP, 425 U.S. at 670 & n.6 (citations
omitted). But all subsidiary purposes are, necessarily, subordinate
to the statute's primary purpose.
---------------------------------------------------------------------------

    5. We also know that ``[n]othing contained in [NGA section 7] shall
be construed as a limitation upon the power of the Commission to grant

certificates of public convenience and necessity for service of an area
already being served by another natural-gas company.'' \17\ Therefore,
the Commission is not barred from finding a proposed project required
by the public convenience and necessity when it is in an area that is
already served by another company.\18\
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 717f(g).
    \18\ See Panhandle E. Pipe Line Co. v. FPC, 169 F.2d 881, 884
(D.C. Cir. 1948) (``[N]othing in the Natural Gas Act suggests that
Congress thought monopoly better than competition or one source of
supply better than two, or intended for any reason to give an
existing supplier of natural gas for distribution in a particular
community the privilege of furnishing an increased supply.'').
---------------------------------------------------------------------------

    6. Another consideration relevant to the Commission's evaluation of
the public interest is our jurisdiction and, specifically, which areas
of regulation Congress identified as being reserved to states--and thus
outside of our jurisdiction. NGA section 1(b) sets forth that division
of jurisdiction, providing that,

[t]he provisions of [the NGA] shall apply to the transportation of
natural gas in interstate commerce, to the sale in interstate
commerce of natural gas for resale for ultimate public consumption
for domestic, commercial, industrial, or any other use, and to
natural-gas companies engaged in such transportation or sale, and to
the importation or exportation of natural gas in foreign commerce
and to persons engaged in such importation or exportation, but shall
not apply to any other transportation or sale of natural gas or to
the local distribution of natural gas or to the facilities used for
such distribution or to the production or gathering of natural
gas.\19\
---------------------------------------------------------------------------

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

    The Commission's authority therefore extends to: (1) The
``transportation of natural gas in interstate commerce,'' (2) the
``sale in interstate commerce of natural gas for resale,'' and (3)
``natural-gas companies engaged in such transportation or sale.'' \20\
Exempted from our jurisdiction are production, gathering and local
distribution.\21\ From these exemptions, it may be gleaned that the
Commission does not have jurisdiction over the ``gas once it moves
beyond the high-pressure mains into the hands of an end user.'' \22\
Another exemption from federal regulation is contained in NGA section
1(c), which states:
---------------------------------------------------------------------------

    \20\ Id.
    \21\ See id.
    \22\ Pub. Utils. Comm'n of Cal. v. FERC, 900 F.2d 269, 277 (D.C.
Cir. 1990).

    The provisions of this chapter shall not apply to any person
engaged in or legally authorized to engage in the transportation in
interstate commerce or the sale in interstate commerce for resale,
of natural gas received by such person from another person within or
at the boundary of a State if all the natural gas so received is
ultimately consumed within such State, or to any facilities used by
such person for such transportation or sale, provided that the rates
and service of such person and facilities be subject to regulation
by a State commission.\23\
---------------------------------------------------------------------------

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

    By declaring the foregoing exemptions from federal regulation,
Congress has carefully delineated the limits of the Commission's
jurisdiction.\24\
---------------------------------------------------------------------------

    \24\ See FPC v. Transcon. Gas Pipe Line Corp., 365 U.S. 1, 8
(1961) (Transco) (``Congress, in enacting the Natural Gas Act, did
not give the Commission comprehensive powers over every incident of
gas production, transportation, and sale. Rather, Congress was
`meticulous' only to invest the Commission with authority over
certain aspects of this field leaving the residue for State
regulation.'') (citation omitted); see also FPC v. Panhandle E. Pipe
Line Co. 337 U.S. 498, 502-03 (1949) (``[S]uffice it to say that the
Natural Gas Act did not envisage federal regulation of the entire
natural-gas field to the limit of constitutional power. Rather it
contemplated the exercise of federal power as specified in the Act,
particularly in that interstate segment which the states were
powerless to regulate because of the Commerce Clause of the Federal
Constitution.'') (footnote omitted).
---------------------------------------------------------------------------

    7. These limits on the Commission's jurisdiction are not extended
by the National Environmental Policy Act (NEPA).\25\ In fact, NEPA
cannot extend our jurisdiction because NEPA is not a means of
``mandating that agencies achieve particular substantive environmental
results''; \26\ rather, it serves to ``impose[ ] only procedural
requirements on federal agencies with a particular focus on requiring
agencies to undertake analyses of the environmental impact of their
proposals and actions.'' \27\ Indeed, ``NEPA not only does not require
agencies to discuss any particular mitigation plans that they might put
in place, it does not require agencies--or third parties--to effect
any.'' \28\ It is necessary to acknowledge the limited, procedural
nature of NEPA's requirements since it almost appears as though some of
my colleagues have become convinced that it is necessary to ensure that
environmental impacts are mitigated before one can make a finding that
a proposed project is required by the public convenience and
necessity.\29\ Neither NEPA nor the NGA establishes such a requirement.
---------------------------------------------------------------------------

    \25\ 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.'') (citations
omitted); Cape May Greene, Inc. v. Warren, 698 F.2d 179, 188 (3d
Cir. 1983) (``The National Environmental Policy Act does not expand
the jurisdiction of an agency beyond that set forth in its organic
statute.'') (citations omitted); Gage v. U.S. Atomic Energy Comm'n,
479 F.2d 1214, 1220 n.19 (D.C. Cir. 1973) (``NEPA does not mandate
action which goes beyond the agency's organic jurisdiction.'')
(citation omitted).
    \26\ Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989);
accord Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350 (1989) (Methow Valley) (``[I]t is now well settled that NEPA
itself does not mandate particular results, but simply prescribes
the necessary process.''); see also Baltimore Gas & Elec. Co. v.
Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (``Congress in
enacting NEPA . . . did not require agencies to elevate
environmental concerns over other appropriate considerations.'').
    \27\ Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57
(2004) (citation omitted); accord Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 23 (2008) (``NEPA imposes only procedural
requirements to `ensur[e] that the agency, in reaching its decision,
will have available, and will carefully consider, detailed
information concerning significant environmental impacts.' '')
(quoting Methow Valley, 490 U.S. at 349); see also Vt. Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519,
558 (1978) (``NEPA does set forth significant substantive goals for
the Nation, but its mandate to the agencies is essentially
procedural.'') (citations omitted).
    \28\ Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190,
206 (D.C. Cir. 1991) (citing Methow Valley, 490 U.S. at 353 & n.16).
    \29\ See Updated Policy Statement, 178 FERC ] 61,107 at P 74
(``We will consider environmental impacts and potential mitigation
in both our environmental reviews under NEPA and our public interest
determinations under the NGA. The Commission expects applicants to
structure their projects to avoid, or minimize, potential adverse
environmental impacts.''); id. (``Should we deem an applicant's
proposed mitigation of impacts inadequate to enable us to reach a
public interest determination, we may condition the certificate to
require additional mitigation.''); id. P 79 (``[W]e clarify that our
consideration of impacts to communities surrounding a proposed
project will include an assessment of impacts to any environmental
justice communities and of necessary mitigation to avoid or lessen
those impacts.'').
---------------------------------------------------------------------------

    8. And, any attempt to justify such action through the Commission's
conditioning authority is unsupported.\30\ Under its conditioning
authority, ``[t]he Commission shall have the power to attach to the
issuance of the certificate and to the exercise of the rights granted
thereunder such reasonable terms and conditions as the public
convenience and necessity may require.'' \31\ But the Commission's
conditioning authority cannot be used to impose conditions beyond the
Commission's jurisdiction.\32\ Nor can the Commission find support
under NEPA for its expectation that applicants propose mitigation
measures in order for a project to be deemed required by the public
convenience and necessity.\33\
---------------------------------------------------------------------------

    \30\ But see id. P 74 (concluding because the Commission's
conditioning authority is broad, if the Commission determines that
the applicant's proposed mitigation of impacts are inadequate, the
Commission has the authority to condition the certificate to require
additional mitigation).
    \31\ 15 U.S.C. 717f(e).
    \32\ See Richmond Power & Light of City of Richmond, Ind. v.
FERC, 574 F.2d 610, 620 (D.C. Cir. 1978) (``What the Commission is
prohibited from doing directly it may not achieve by indirection.'')
(footnote omitted).
    \33\ See Methow Valley, 490 U.S. at 352-53 (``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. . . . Even more
significantly, it would be inconsistent with NEPA's reliance on
procedural mechanisms--as opposed to substantive, result-based
standards--to demand the presence of a fully developed plan that
will mitigate environmental harm before an agency can act.'')
(citing Baltimore Gas & Elec. Co., 462 U.S. at 100 (``NEPA does not
require agencies to adopt any particular internal decisionmaking
structure'')).

---------------------------------------------------------------------------

II. A Number of the Changes to the Certificate Policy Statement Are
Misguided

 Changes in the Commission's Need Determination

    9. In the Original Policy Statement, the Commission stated that, in
evaluating the need for a project, it would:

consider all relevant factors reflecting on the need for the
project. These might include, but would not be limited to, precedent
agreements, demand projections, potential cost savings to consumers,
or a comparison of projected demand with the amount of capacity
currently serving the market. The objective would be for the
applicant to make a sufficient showing of the public benefits of its
proposed project to outweigh any residual adverse effects discussed
below.\34\
---------------------------------------------------------------------------

    \34\ Original Policy Statement, 88 FERC ] 61,227 at 61,747.

    Although the Commission stated in its Original Policy Statement
that it would consider other factors, the Commission has also
``explained that the [Original] Policy Statement does not require a
certain percentage of a proposed project's capacity be subscribed, and
that with respect to affiliate shippers, `it is . . . Commission policy
to not look beyond precedent or service agreements to make judgments
about the needs of individual shippers.' '' \35\
---------------------------------------------------------------------------

    \35\ NEXUS Gas Transmission, LLC, 172 FERC ] 61,199, at P 5
(2020) (citation omitted).
---------------------------------------------------------------------------

    10. In the Updated Policy Statement, the Commission now is revising
how it determines need. The Updated Policy Statement explains that
``[i]n determining whether to issue a certificate of public convenience
and necessity, the Commission will weigh the public benefits of a
proposal, the most important of which is the need that will be served
by the project, against its adverse impacts.'' \36\ The Commission
acknowledges that its prior reliance on precedent agreements to
determine need has been upheld by courts,\37\ but then proclaims that
``we cannot adequately assess project need without also looking at
evidence beyond precedent agreements.'' \38\ An expectation is then
established that applicants continue to provide precedent agreements
but ``the existence of precedent agreements may not be sufficient in
and of themselves to establish need for the project.'' \39\
---------------------------------------------------------------------------

    \36\ Updated Policy Statement, 178 FERC ] 61,107 at P 52
(emphasis added).
    \37\ See id. P 54 (citing Minisink Residents for Envtl. Pres. &
Safety v. FERC, 762 F.3d 97, 110 n.10 (D.C. Cir. 2014) (noting that
the 1999 Policy Statement ``permits'' but does not ``require[ ]''
the Commission to ``look[ ] beyond the market need reflected by the
applicant's existing contracts with shippers'')).
    \38\ Id.
    \39\ Id. P 54 (listing other considerations that it views as
relevant to a need determination, including whether the agreements
were entered into before or after an open season, the results of the
open season, the number of bidders, whether the agreements were
entered into in response to a local distribution company or
generator request for proposals (RFP), the details of any such RFP
process, demand projections underlying the capacity subscribed,
estimated capacity utilization rates, potential cost savings to
customers, regional assessments, and filings or statements from
State regulatory commissions or local distribution companies
regarding the proposed project).
---------------------------------------------------------------------------

    11. The Commission underscores what it views as necessary for the
Commission to determine need for all categories of proposed projects:
``specific information detailing how the gas to be transported by the
proposed project will ultimately be used,'' i.e., the end use and,
``why the project is needed to serve that use.'' \40\ And if the
applicant does not have information regarding the intended end use?
Applicants are ``encouraged'' to turn to their shippers to obtain
it.\41\ In the absence of such information, the Commission suggests
that the applicant may not satisfy its burden to demonstrate need for
the proposed project.\42\ The projected end use and an explanation of
the reasons why the project is needed to serve that use are not the
only information the Commission requests--``[f]or all categories of
proposed projects,'' the majority also ``encourage[s] applicants to
provide specific information detailing . . . the expected utilization
rate of the proposed project.'' \43\ The majority also suggests types
of ``evidence'' for various categories of projects.\44\
---------------------------------------------------------------------------

    \40\ Id. P 55.
    \41\ Id.
    \42\ See id.
    \43\ Id.
    \44\ See id. PP 55-59.
---------------------------------------------------------------------------

    12. And when precedent agreements are with an affiliate of the
applicant, the majority states that those precedent agreements, will
generally not be sufficient to demonstrate need.\45\
---------------------------------------------------------------------------

    \45\ Id. P 60.
---------------------------------------------------------------------------

    13. I agree that, as a legal matter, the Commission may take into
account considerations other than precedent agreements in its need
determination. I also agree that there may be circumstances--such as
when there is evidence of self-dealing in the execution of a precedent
agreement with an affiliated shipper--where ``the existence of
precedent agreements may not be sufficient in and of themselves to
establish need for the project.'' \46\
---------------------------------------------------------------------------

    \46\ Id. P 54. I am generally skeptical of affiliate
transactions and think that in most circumstances, the Commission
should scrutinize agreements with an affiliate. As I have previously
explained, I agree with the U.S. Court of Appeals for District of
Columbia Circuit's decision to remand the Commission's orders and
the court's explanation for doing so in Environmental Defense Fund
v. FERC, 2 F.4th 953. See Spire STL Pipeline LLC, 176 FERC ] 61,160
(2021) (Danly, Comm'r, dissenting at P 9).
---------------------------------------------------------------------------

    14. To the extent, however, that today's order suggests that the
Commission must look beyond precedent agreements in every circumstance
to determine need, I disagree. In my view, precedent agreements are
strong evidence of need and the Commission need not look further in
most circumstances. As my colleagues acknowledge, courts have upheld on
numerous occasions the Commission's application of its Original Policy
Statement and the Commission's reliance on precedent agreements to
support multiple findings of market need.\47\
---------------------------------------------------------------------------

    \47\ See, e.g., City of Oberlin, Ohio v. FERC, 937 F.3d 599, 606
(D.C. Cir. 2019) (``[T]his Court has also recognized that `it is
Commission policy to not look behind precedent or service agreements
to make judgments about the needs of individual shippers.' '')
(citation omitted); Minisink Residents for Envtl. Pres. & Safety v.
FERC, 762 F.3d at 111 (``Petitioners identify nothing in the policy
statement or in any precedent construing it to suggest that it
requires, rather than permits, the Commission to assess a project's
benefits by looking beyond the market need reflected by the
applicant's existing contracts with shippers. To the contrary, the
policy statement specifically recognizes that such agreements
`always will be important evidence of demand for a project.' '')
(quoting Original Policy Statement, 88 FERC ] 61,227 at 61,748); see
also Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d
1301, 1311 (D.C. Cir. 2015) (explaining that ``[f]or a variety of
reasons related to the nature of the market, `it is Commission
policy to not look behind precedent or service agreements to make
judgments about the needs of individual shippers.' . . . In keeping
with its policy, the Commission concluded that the evidence that the
Project was fully subscribed was adequate to support the finding of
market need.'') (citation omitted).
---------------------------------------------------------------------------

    15. In terms of precedent agreements with affiliates, the
Commission recently received guidance in the form of the narrow holding
in Environmental Defense Fund v. FERC.\48\ There, the court found the
Commission's public convenience and necessity determination to be
arbitrary and capricious due to the Commission's
---------------------------------------------------------------------------

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

rel[iance] solely on a precedent agreement to establish market need
for a proposed pipeline when (1) there was a single precedent
agreement for the pipeline; (2) that precedent agreement was with an
affiliated shipper; (3) all parties agreed that projected demand for
natural gas in the area to be served by the

new pipeline was flat for the foreseeable future; and (4) the
Commission neglected to make a finding as to whether the
construction of the proposed pipeline would result in cost savings
or otherwise represented a more economical alternative to existing
pipelines.\49\
---------------------------------------------------------------------------

    \49\ Id. at 976.

    That case does not stand for the proposition that in every
circumstance, the Commission must always look beyond the precedent
agreements. Instead, that case should be read as a failure on the part
of the Commission to engage in reasoned decision making based on the
facts presented.
    16. Next, I disagree with the majority's position that the
Commission should weigh end use in its determination of need. I agree
with Enbridge Gas Pipeline that ``[p]rioritizing certain end uses in
determining project need would be inconsistent with the Commission's
policies of open access, open seasons and awarding capacity to those
that value the capacity the most.'' \50\ More importantly, the
Commission does not have jurisdiction over the end use of the gas and
has been purposefully deprived of its upstream and downstream
authorities by Congress. The breadth of the subject matters that inform
our public interest determinations must be informed by the limits of
our jurisdiction.
---------------------------------------------------------------------------

    \50\ Enbridge Gas Pipelines May 26, 2021 Comments at 42.
``[U]nder the Commission's open-access regulatory regime, pipelines
must provide transportation service without `undue discrimination or
preference of any kind.' '' NEXUS Gas Transmission, LLC, 172 FERC ]
61,199, at P 17 (2020) (quoting 18 CFR 284.7(b)). The Commission's
new consideration of the intended end use of the gas and why the gas
is needed to serve that use may also cause tension with NGA section
4. Updated Policy Statement, 178 FERC ] 61,107 at P 52. NGA section
4(b) states that ``[n]o natural-gas company shall, with respect to
any transportation or sale of natural gas subject to the
jurisdiction of the Commission, (1) make or grant any undue
preference or advantage to any person or subject any person to any
undue prejudice or disadvantage, or (2) maintain any unreasonable
difference in rates, charges, service, facilities, or in any other
respect, either as between localities or as between classes of
service.'' 15 U.S.C. 717c(b).
---------------------------------------------------------------------------

    17. I recognize that in Transco the Supreme Court stated that ``
`end-use' . . . was properly of concern to the Commission.'' \51\ As
commenters observe,\52\ however, the Transco decision was made prior to
Congress' enactment of the Natural Gas Policy Act of 1978 (NGPA) \53\
and the Natural Gas Wellhead Decontrol Act of 1989 (Wellhead Decontrol
Act).\54\ These later enactments are instructive as to whether the
Commission should consider end use as part of its public convenience
and necessity determination.
---------------------------------------------------------------------------

    \51\ Transco, 365 U.S. at 22.
    \52\ See, e.g., TC Energy Corporation May 26, 2021 Comments at
12-13 (explaining that after the Supreme Court's Transco decision
``was issued in 1961, Congress passed the NGPA, the Wellhead
Decontrol Act, EPAct 1992, and the Commission issued Orders Nos. 636
and 637. These statutes and regulatory orders fundamentally altered
the natural gas markets by acting to facilitate the development of
competitive natural gas markets served by competitive interstate
natural gas transportation.''); id. (``Under the current regulatory
framework, there is no basis for the Commission to deny a
certificate application based on end use, because the current
framework requires equal access to a plentiful gas supply for all
buyers and sellers. The end use of natural gas is outside the
objectives of the current statutory framework, and the Commission
should not take end use into consideration when assessing the public
need for a pipeline project under the NGA.''); Boardwalk Pipeline
Partners, LP May 26, 2021 Comments at 34 (``FPC v. Transco was
decided prior to the NGPA's and Wellhead Decontrol Act's creation of
a competitive natural gas market that allows all consumers to
benefit from the United States' plentiful gas supplies . . . .
[G]iven all of the changes that have occurred over the past 60
years'' and ``[u]nder the current open-access regime, there is no
legal basis for the Commission to deny a certificate application
based on end use.'') (emphasis omitted).
    \53\ 15 U.S.C. 3301-3432.
    \54\ Natural Gas Wellhead Decontrol Act of 1989, Public Law 101-
60, 103 Stat. 157 (1989).
---------------------------------------------------------------------------

    18. The NGPA ``was designed to phase out regulation of wellhead
prices charged by producers of natural gas, . . . to `promote gas
transportation by interstate and intrastate pipelines' for third
parties'' \55\ and also ``to provide investors with adequate incentives
to develop new sources of supply.'' \56\ Later, the enactment of the
Wellhead Decontrol Act resulted in deregulating upstream natural gas
production, and the legislative history suggests the enactment would
serve to encourage competition of natural gas at the wellhead.\57\ In
combination, these acts effectively deprived the Commission of
authority upstream of the jurisdictional pipeline.
---------------------------------------------------------------------------

    \55\ Gen. Motors Corp. v. Tracy, 519 U.S. 278, 283 (1997)
(quoting 57 FR 13271 (1992)).
    \56\ Pub. Serv. Comm'n of State of N.Y. v. Mid-Louisiana Gas
Co., 463 U.S. 319, 334 (1983).
    \57\ See S. Rep. No. 101-39, at 1 (1989) (``[T]he purpose . . .
is to promote competition for natural gas at the wellhead in order
to ensure consumers an adequate and reliable supply of natural gas
at the lowest reasonable price.''); H.R. Rep. No. 101-29, at 6
(1989) (``All sellers must be able to reasonably reach the highest-
bidding buyer in an increasingly national market. All buyers must be
free to reach the lowest-selling producer, and obtain shipment of
its gas to them on even terms with other supplies.'').
---------------------------------------------------------------------------

    19. In 1987, Congress repealed sections of the Power Plant and
Industrial Fuel Use Act of 1978 (Fuel Use Act), further deregulating
downstream considerations. My former colleague, Commissioner McNamee
previously explained that the Fuel Use Act had ``restricted the use of
natural gas in electric generation so as to conserve it for other
uses'' and ``[w]ith the repeal of the Fuel Use Act, Congress made clear
that natural gas could be used for electric generation and that the
regulation of the use of natural gas by power plants unnecessary.''
\58\ A House report stated:
---------------------------------------------------------------------------

    \58\ Adelphia Gateway, LLC, 169 FERC ] 61,220 (2019) (McNamee,
Comm'r, concurring at P 36).

    By amending [the Fuel Use Act], H.R. 1941 will remove artificial
government restrictions on the use of oil and gas; allow energy
consumers to make their own fuel choices in an increasingly
deregulated energy marketplace; encourage multifuel competition
among oil, gas, coal, and other fuels based on their price,
availability, and environmental merits; preserve the `coal option'
for new baseload electric powerplants which are long-lived and use
so much fuel; and provide potential new markets for financially
distressed domestic oil and gas producers.\59\
---------------------------------------------------------------------------

    \59\ H.R. Rep. 100-78, at 2 (1987).

    These later, deregulatory enactments were not at play in Transco.
And I agree that ``the current framework requires equal access to a
plentiful gas supply for all buyers and sellers.'' \60\ Taking the
foregoing into account, I am not convinced that the Commission has
authority to deny a certificate of public convenience and necessity on
the basis of end use, and the Commission should not consider end use in
its need determination.
---------------------------------------------------------------------------

    \60\ TC Energy Corporation May 26, 2021 Comments at 13.
---------------------------------------------------------------------------

b. Consideration of Adverse Effects
    20. The Commission explains in its Updated Policy Statement that it
will consider four categories of adverse impacts from the construction
and operation of new projects: (1) The interests of the applicant's
existing customers; (2) the interests of existing pipelines and their
captive customers; (3) environmental interests; and (4) the interests
of landowners and surrounding communities, including environmental
justice communities.\61\ The Commission also states that it may deny an
application based on any of the foregoing types of adverse impacts.\62\
Further, the Commission will ``consider environmental impacts and
potential mitigation in both our environmental reviews under NEPA and
our public interest determinations under the NGA.'' \63\ And the
Commission ``expects applicants to structure their projects to avoid,
or minimize, potential adverse environmental impacts.'' \64\
---------------------------------------------------------------------------

    \61\ Updated Policy Statement, 178 FERC ] 61,107 at P 62.
    \62\ Id.
    \63\ Id. P 74 (emphasis added).
    \64\ Id.
---------------------------------------------------------------------------

    21. First, regarding the interests of the applicant's existing
customers, the Commission announces that while our

policy of no financial subsidies remains unchanged, the Commission will
no longer treat this as a threshold requirement.\65\ This
reprioritization is fine; it is merely a policy choice with no obvious
legal infirmity.
---------------------------------------------------------------------------

    \65\ Id. P 63.
---------------------------------------------------------------------------

    22. Next, the Commission turns to its considerations of existing
pipelines and their customers with an emphasis on the prevention of
overbuilding. In an order clarifying the Original Policy Statement, the
Commission discussed the consideration of overbuilding and explained
that ``[s]ending the wrong price signals to the market can lead to
inefficient investment and contracting decisions which can cause
pipelines to build capacity for which there is not a demonstrated
market need,'' and that ``[s]uch overbuilding, in turn, can exacerbate
adverse environmental impacts, distort competition between pipelines
for new customers, and financially penalize existing customers of
expanding pipelines and customers of the pipelines affected by the
expansion.'' \66\ I agree that the concern of overbuilding is worthy of
consideration in the Commission's balancing and consistent with the
purpose of ``encourag[ing] the orderly development of plentiful
supplies of . . . natural gas at reasonable prices.'' \67\
---------------------------------------------------------------------------

    \66\ Certification of New Interstate Nat. Gas Pipeline
Facilities, 90 FERC ] 61,128, at 61,391.
    \67\ NAACP, 425 U.S. at 670 (emphasis added).
---------------------------------------------------------------------------

    23. The Commission also states that ``[t]o the extent that a
proposed project is designed to substantially serve demand already
being met on existing pipelines, that could be an indication of
potential overbuilding.'' \68\ In my view, the Commission should weigh
this consideration with NGA section 7(g) in mind, which provides that
``[n]othing contained in [NGA section 7] shall be construed as a
limitation upon the power of the Commission to grant certificates of
public convenience and necessity for service of an area already being
served by another natural-gas company.'' \69\ In considering whether a
proposed project is designed to substantially serve demand that is
already met, the Commission should also consider whether the proposed
project would allow for further competition, send appropriate price
signals and improve the efficiency or reliability of service to
existing customers. This is worth noting because of the statement in
today's order that states that ``[t]he Commission may deny an
application based on any of these types of adverse impacts,'' \70\
including impacts to existing pipelines and their customers.
---------------------------------------------------------------------------

    \68\ Updated Policy Statement, 178 FERC ] 61,107 at P 69.
    \69\ 15 U.S.C. 717f(g).
    \70\ Updated Policy Statement, 178 FERC ] 61,107 at P 62
(emphasis added); see also id. P 99 (``[T]here may be proposals
denied solely on the magnitude of a particular adverse impact to any
of the four interests described above if the adverse impacts, as a
whole, outweigh the benefits of the project and cannot be mitigated
or minimized.'').
---------------------------------------------------------------------------

    24. Third, the majority addresses environmental impacts, stating:
``While the 1999 Policy Statement focused on economic impacts, the
consideration of environmental impacts is an important part of the
Commission's responsibility under the NGA to evaluate all factors
bearing on the public interest.'' \71\ As explained by the majority,
the Original Policy Statement ``included an analytical framework for
how the Commission would evaluate the effects of certificating new
projects on economic interests,'' and it ``did not describe how the
Commission would consider environmental interests in its decision-
making process and, more specifically, how it would balance these
interests with the economic interests of a project.'' \72\ The
Commission now adjusts that framework to include environmental impacts
as a consideration in its Updated Policy Statement.
---------------------------------------------------------------------------

    \71\ Id. P 72 (citation omitted).
    \72\ Id. P 71.
---------------------------------------------------------------------------

    25. The Commission explains that it will consider environmental
impacts and potential mitigation in both our environmental reviews
under NEPA and our public interest determinations under the NGA.\73\
The majority ``expect[s] applicants to propose measures for mitigating
impacts,'' for consideration in the Commission's balancing of adverse
impacts against the potential benefits of a proposal.\74\ The
Commission may condition the certificate with further mitigation.\75\
Moreover, the Commission states that it may ``deny an application based
on . . . environmental impacts, if the adverse impacts as a whole
outweigh the benefits of the project and cannot be mitigated or
minimized.'' \76\ Finally, the majority indicates its intent when
making its public convenience and necessity determination to fully
consider climate impacts.\77\
---------------------------------------------------------------------------

    \73\ Id. P 74.
    \74\ Id.
    \75\ Id.
    \76\ Id.
    \77\ Id. P 76.
---------------------------------------------------------------------------

    26. I discuss the reasons why I disagree with the majority's
Interim GHG Policy Statement in my dissent to that order.\78\ In terms
of the change from an economic focus in the Original Policy Statement,
my view is that the Commission should retain its economic framework as
the basis of its policy statement. I am concerned that several of the
changes made in today's Updated Policy Statement include issues outside
the scope of that which the Commission is able to consider under the
NGA. Though time has passed since the NGA's enactment, it is Congress'
role to amend the statute should it see fit to include in the
Commission's authority matters such as the conditioning of certificates
to mitigate GHG emissions. Congress has done so before and could do so
again.\79\ To restate the approach that should be taken to determine
the public convenience and necessity: Any balancing under that standard
must ``take meaning'' from the interests articulated in the NGA.
---------------------------------------------------------------------------

    \78\ See Interim GHG Policy Statement, 178 FERC ] 61,108 (Danly,
Comm'r, dissenting).
    \79\ See Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468
(2001) (``Congress, we have held, does not alter the fundamental
details of a regulatory scheme in vague terms or ancillary
provisions--it does not, one might say, hide elephants in
mouseholes.'') (citations omitted).
---------------------------------------------------------------------------

    27. Although courts have recognized that the Commission's NGA
section 7(e) ``conditioning authority is `extremely broad,' '' \80\
such authority is not without limit. ``The Commission may not, however,
when it lacks the power to promote the public interest directly, do so
indirectly by attaching a condition to a certificate that is, in
unconditional form, already in the public convenience and necessity.''
\81\ There have been circumstances where the courts have found the
Commission exceeded its conditioning authority.\82\ Its use must be

consistent with the other provisions of the NGA and the Commission may
not use conditions under the guise of acting in the public interest in
order to do something it would otherwise not have authority to do.
---------------------------------------------------------------------------

    \80\ ANR Pipeline Co. v. FERC, 876 F.2d 124, 129 (D.C. Cir.
1989) (citation omitted).
    \81\ Nat'l Fuel Gas Supply Corp. v. FERC, 909 F.2d 1519, 1522
(D.C. Cir. 1990) (citing Sunray Mid-Continent Oil Co. v. FPC, 364
U.S. 137, 152 (1960) (``once want of power to do this directly were
established, the existence of power to achieve the same end
indirectly through the conditioning power might well be doubted'');
Richmond Power & Light v. FERC, 574 F.2d 610, 620 (D.C. Cir. 1978)
(the Commission may not achieve indirectly through conditioning
power of Federal Power Act what it is otherwise prohibited from
achieving directly)); see also Am. Gas Ass'n v. FERC, 912 F.2d 1496,
1510 (D.C. Cir. 1990) (``[T]he Commission may not use its section 7
conditioning power to do indirectly . . . things that it cannot do
at all.'').
    \82\ See, e.g., Nat'l Fuel Gas Supply Corp. v. FERC, 909 F.2d at
1520, 1522 (D.C. Cir. 1990) (finding that the Commission exceeded
the scope of its NGA section 7(e) authority in conditioning the
approval of an off-system sales certificate upon certificate
holder's acceptance of a blanket transportation certificate because
``the Commission squarely found that National's proposed `sales are
required by the public convenience and necessity,' quite apart from
conditioning their certification upon the pipeline's filing for a
blanket transportation certificate.''); N. Nat. Gas Co., Div. of
InterNorth v. FERC, 827 F.2d 779, 792-93 (D.C. Cir. 1987) (granting
rehearing en banc, reaffirming the holding in Panhandle E. Pipe Line
Co. v. FERC, 613 F.2d 1120, 1133 (D.C. Cir. 1979), which provides
``that `the Commission does not have authority under section 7 to
compel flow-through of revenues to customers of services not under
consideration in that proceeding for certification,' '' and vacating
a condition that violates that holding).
---------------------------------------------------------------------------

    28. There are also practical considerations in the Commission
finding in today's policy statement that ``[s]hould [the Commission]
deem an applicant's proposed mitigation of impacts inadequate to enable
us to reach a public interest determination, we may condition the
certificate to require additional mitigation.'' \83\ The costs that
attend the proposed mitigation of GHG emissions may be unmeasurable,
may not be readily apparent, and may also be more than the natural gas
companies and its shippers are willing or able to bear. There will
perhaps be difficulty in measuring the costs of conditions, such as
market-based mitigation,\84\ when the costs are determined based on a
changing market. For instance, the cost of purchasing renewable energy
credits may be different at the time an application is filed in
comparison to when the certificate is issued. And there is no guarantee
that the potentially extraordinary costs incurred by a pipeline to
comply with the Commission's public interest determination will be
recovered in the pipeline's rates.\85\ These practical considerations
have not been taken into account by the Commission. Without these
considerations, I am not convinced that the Commission has engaged in
reasoned decision making.
---------------------------------------------------------------------------

    \83\ Updated Policy Statement, 178 FERC ] 61,107 at P 74.
    \84\ See Interim GHG Policy Statement, 178 FERC ] 61,108 at PP
114-115 (encouraging project sponsors to propose mitigation
measures, stating that project sponsors ``are free to propose any
type of mitigation mechanism,'' and providing the following examples
of market-based mitigation: ``[the] purchase [of] renewable energy
credits, participat[ion] in a mandatory compliance market (if
located in a State that requires participation in such a market), or
participat[ion] in a voluntary carbon market'').
    \85\ See id. P 129 (``Pipelines may seek to recover GHG
emissions mitigation costs through their rates, similarly to how
they seek to recover other costs associated with constructing and
operating a project, such as the cost of other construction
mitigation requirements or the cost of fuel. Additionally, the
Commission's process for section 7 and section 4 rate cases is
designed to protect shippers from unjust or unreasonable rates and
will continue to do so with respect to the recovery of costs for
mitigation measures.'').
---------------------------------------------------------------------------

    29. Turning to the Commission's consideration of impacts on
landowners and surrounding communities, as the majority recognizes, the
Original Policy Statement's primary focus was on economic impacts
associated with a permanent right-of-way on a landowner's property.\86\
Going forward, the consideration ``of impacts to landowners will be
more expansive.'' \87\ The majority clarifies that the ``consideration
of impacts to communities surrounding a proposed project will include
an assessment of impacts to any environmental justice communities and
of necessary mitigation to avoid or lessen those impacts.'' \88\ And
``expectations'' are established ``for how pipeline applicants will
engage with landowners.'' \89\
---------------------------------------------------------------------------

    \86\ See Updated Policy Statement, 178 FERC ] 61,107 at P 78
(citing Original Policy Statement, 88 FERC ] 61,227 at 61,749 (``The
balancing of interests and benefits that will precede the
environmental analysis will largely focus on economic interests such
as the property rights of landowners.''))
    \87\ Id.
    \88\ Id. P 79.
    \89\ Id. P 80.
---------------------------------------------------------------------------

    30. The majority also commits itself to ``robust early engagement
with all interested landowners, as well as continued evaluation of
input from such parties during the course of any given proceeding'' and
states that the Commission ``will, to the extent possible, assess a
wider range of landowner impacts.'' \90\ Further, the majority states
that it ``expect[s] pipeline applicants to take all appropriate steps
to minimize the future need to use eminent domain,'' including
``engage[ment] with the public and interested stakeholders during the
planning phase of projects to solicit input on route concerns and
incorporate reroutes, where practicable, to address landowner concerns,
as well as providing landowners with all necessary information.'' \91\
---------------------------------------------------------------------------

    \90\ Id. P 81.
    \91\ Id. P 82.
---------------------------------------------------------------------------

    31. The majority states that it ``expect[s] pipelines to take
seriously their obligation to attempt to negotiate easements
respectfully and in good faith with impacted landowners'' and indicates
that ``[t]he Commission will look unfavorably on applicants that do not
work proactively with landowners to address concerns.'' \92\ Does this
mean that the majority plans to weigh, in its balancing of interests,
allegations concerning whether the applicant has engaged in good faith
negotiation of easements and collaboration with landowners to address
concerns? It appears so. The Commission later states that ``[i]n
assessing potential impacts to landowners, the Commission will consider
the steps a pipeline applicant has already taken to acquire lands
through respectful and good faith negotiation, as well as the
applicant's plans to minimize the use of eminent domain upon receiving
a certificate.'' \93\
---------------------------------------------------------------------------

    \92\ Id.
    \93\ Id. P 85.
---------------------------------------------------------------------------

    32. It is worth reminding my colleagues that on the very same
meeting that this order is issued, the Commission also issues an order
\94\ that reaffirms a decision to deny landowners' request for the
Commission to interpret the scope of NGA section 7(h) because, in my
colleagues' view, NGA section 7(h) is ``a provision that gives courts a
particular implementing role'' and therefore ``is better resolved by
the courts than the Commission.'' \95\ And yet here, the Commission
contemplates considering in its balancing whether applicants have
engaged in good faith negotiations for easements pursuant to NGA
section 7(h).
---------------------------------------------------------------------------

    \94\ See Spire STL Pipeline LLC, 178 FERC ] 61,109 at P 10
(2022) (citation omitted).
    \95\ Spire STL Pipeline LLC, 177 FERC ] 61,147, at P 70 (2021)
(citation omitted); see id. (Danly, Comm'r, concurring in part and
dissenting in part) (disagreeing with the Commission's decision to
not interpret NGA section 7(h) in the first instance and to leave
the interpretation to the courts).
---------------------------------------------------------------------------

    33. Finally, the Commission discusses how it will consider impacts
to environmental justice communities. In explaining its objectives, the
majority states that ``[t]he consideration of cumulative impacts is
particularly important when it comes to conducting an environmental
justice analysis.'' \96\ In support, the Commission has the following
footnote:
---------------------------------------------------------------------------

    \96\ Updated Policy Statement, 178 FERC ] 61,107 P 90 (relying
on a repealed definition for ``cumulative impacts,'' formerly 40 CFR
1508.7 (1978), in the Council on Environmental Quality's (CEQ)
regulations) (citations omitted).

    `` `Cumulative impact' is the impact on the environment which
results from the incremental impact of the action when added to
other past, present, and reasonably foreseeable future actions
regardless of what agency (Federal or non-Federal) or person
undertakes such other actions. Cumulative impacts can result from
individually minor but collectively significant actions taking place
over a period of time.'' 40 CFR 1508.7 (1978).\97\
---------------------------------------------------------------------------

    \97\ Id. P 90 n.213.

    34. There is no problem with announcing the paradigm by which a
particular type of analysis will be conducted, but this looks very much
as though my colleagues have decided that they can disregard currently-
effective regulations and adopt their own definition of the ``effects''
that should be considered in the Commission's

analysis.\98\ The current NEPA regulations repealed the definition of
``Cumulative impact'' previously contained in 40 CFR 1508.7.\99\ The
Commission, in attempting to go farther than the CEQ's regulations,
reasons that ``[t]o adequately capture the effects of cumulative
impacts, it is essential that the Commission consider those pre-
existing conditions and how the adverse impacts of a proposed project
may interact with and potentially exacerbate them.'' \100\
---------------------------------------------------------------------------

    \98\ Cf. Updated Policy Statement, 178 FERC ] 61,107 at P 74
n.189 (``Recognizing that CEQ is in the process of revising its NEPA
regulations, the Commission will consider the comments in this
docket regarding NEPA in our future review of our regulations,
procedures, and practices for implementing NEPA.)
    \99\ See 40 CFR 1508.1(g)(3) (``An agency's analysis of effects
shall be consistent with this paragraph (g). Cumulative impact,
defined in 40 CFR [Sec.  ] 1508.7 (1978), is repealed.'').
    \100\ Updated Policy Statement, 178 FERC ] 61,107 at P 90.
---------------------------------------------------------------------------

    35. I disagree with the Commission's decision to disregard CEQ's
regulations.\101\ The Commission, in its own regulations, states that
it ``will comply with the regulations of the [CEQ] except where those
regulations are inconsistent with the statutory requirements of the
Commission.'' \102\ Regardless of the latitude the majority thinks we
may enjoy when conducting our analyses, it is a matter of black letter
law that we are constrained by our regulations which adopt CEQ's
regulations; we are also unable to conjure rubrics out of thin air
without explanation.
---------------------------------------------------------------------------

    \101\ See 40 CFR 1508.1(g) (defining ``effects or impacts'').
    \102\ 18 CFR 380.1.
---------------------------------------------------------------------------

III. The Commission's Approach of ``Expecting'' Self-Imposed Mitigation
Appears Calculated To Circumvent Statutory Limits on the Commission's
Authority

    36. In the Updated Policy Statement, as well as in the Interim GHG
Policy Statement, the Commission has asserted a dramatic expansion of
its conditioning authority. As explained above, the Commission likely
does not have the statutory authority to enter this new territory. It
is not surprising, therefore, to see a consistent theme in the Updated
Policy Statement that the Commission has expectations of
applicants.\103\ The Commission expects more of applicants going
forward. Should those expectations not be met to the Commission's
satisfaction, the Commission suggests that it will weigh that against
finding that the project is required by the public convenience and
necessity.\104\
---------------------------------------------------------------------------

    \103\ See Updated Policy Statement, 178 FERC ] 61,107 at P 53
(stating that ``the Commission's expectations and requirements for
how applicants should demonstrate project need have evolved over
time'').
    \104\ See, e.g., id. P 74 (``Should we deem an applicant's
proposed mitigation of impacts inadequate to enable us to reach a
public interest determination, we may condition the certificate to
require additional mitigation. We may also deny an application based
on any of the types of adverse impacts described herein, including
environmental impacts, if the adverse impacts as a whole outweigh
the benefits of the project and cannot be mitigated or
minimized.''); id. P 82 (``[W]e expect pipelines to take seriously
their obligation to attempt to negotiate easements respectfully and
in good faith with impacted landowners. The Commission will look
unfavorably on applicants that do not work proactively with
landowners to address concerns.'').
---------------------------------------------------------------------------

    37. Instead of saying that it is imposing or requiring the legally
dubious conditions itself, the Commission is expecting the natural gas
companies to play a game of ``sentence first--verdict afterwards,''
\105\ where the applicants choose their own sentence--their proposed
mitigation measures--in an effort to guess at the Commission's
expectations. Only then will the Commission rule on whether the project
is required by the public convenience and necessity and reveal whether
the proposed mitigation is sufficient.
---------------------------------------------------------------------------

    \105\ Lewis Carroll, Alice's Adventures in Wonderland and
Through the Looking-Glass 107 (Hugh Haughton ed., Penguin Classics
1998).
---------------------------------------------------------------------------

    38. It works in the Commission's favor for applicants to impose
their own mitigation measures. If the applicant proposes the mitigation
instead of having it imposed by the Commission, it is less likely that
a court would deem such condition unreasonable or beyond the
Commission's authority should it come to be challenged at all.\106\ How
can a condition be unreasonable or beyond the Commission's jurisdiction
if it is imposed at the suggestion of the applicant--the party who
needs to satisfy such conditions?
---------------------------------------------------------------------------

    \106\ See 15 U.S.C. 717f(e) (``The Commission shall have the
power to attach to the issuance of the certificate and to the
exercise of the rights granted thereunder such reasonable terms and
conditions as the public convenience and necessity may require.'')
(emphasis added).
---------------------------------------------------------------------------

IV. It Is Unclear Whether the Updated Policy Statement Is Actually
Binding and Whether the Commission Should Have Proceeded Through
Rulemaking

    39. Whether the Commission can impose mitigation as contemplated
here, or whether the Commission lacks authority to do so with its
conditioning authority will ultimately be addressed by the courts. I
recognize the Commission's assertion that the Updated Policy Statement
is not binding.\107\ I question whether that is actually the case.\108\
---------------------------------------------------------------------------

    \107\ Updated Policy Statement, 178 FERC ] 61,107 at P 3
(stating that the Updated Policy Statement does not establish
binding rules, but rather it is intended to explain how the
Commission will consider NGA section 7 certificate applications).
    \108\ See Interstate Nat. Gas Ass'n of Am. v. FERC, 285 F.3d 18,
59 (D.C. Cir. 2002) (``The distinction between substantive rule and
policy statement is said to turn largely on whether the agency
position is one of `present binding effect,' i.e., whether it
`constrains the agency's discretion.' '') (citations omitted); Brown
Express, Inc. v. United States, 607 F.2d 695, 701 (5th Cir. 1979)
(``An announcement stating a change in the method by which an agency
will grant substantive rights is not a `general statement of
policy.' '').
---------------------------------------------------------------------------

    40. Given the non-binding designation, there may indeed be well-
founded concerns by parties seeking to challenge the Updated Policy
Statement.\109\ But as explained above, the Commission has established
its expectations regarding what information it wants included in
certificate applications and plans to apply the Updated Policy
Statement to both currently-pending \110\ and future applications for a
certificate of public convenience and necessity. For parties hesitant
to challenge a ``non-binding'' policy statement, I submit that a court
may perhaps be receptive to arguments of aggrievement based on the
interests of shippers who will now likely have to renegotiate their
agreements for proposed projects with currently-pending certificate
applications.
---------------------------------------------------------------------------

    \109\ See Panhandle E. Pipe Line Co. v. FERC, 198 F.3d 266, 270
(D.C. Cir. 1999) (denying the petition for review because ``[t]he
challenged opinions [were] non-binding policy statements'' and
therefore, the court found that the party petitioning for review was
``not aggrieved and has not suffered an injury-in-fact.'').
    \110\ See Updated Policy Statement, 178 FERC ] 61,107 at P 100
(``[T]he Commission will apply the Updated Policy Statement to any
currently pending applications for new certificates. Applicants will
be given the opportunity to supplement the record and explain how
their proposals are consistent with this Updated Policy Statement,
and stakeholders will have an opportunity to respond to any such
filings.'').
---------------------------------------------------------------------------

    41. Moreover, natural gas companies \111\ and their shippers likely
have not contemplated the increased costs that will come with the
Commission's new policies. It is likely that companies with pending
applications have not yet presented proposals for mitigation of the
proposed project's GHG emissions. But the need for developing such
proposals will arise--the Commission has requested that companies with
pending applications supplement their

applications.\112\ The resulting cost increases will, at a minimum,
make these projects more expensive and thus increase pipeline rates
that may ultimately be passed on to consumers. But it is entirely
possible that, in at least some cases, applicants will not accept the
certificate.
---------------------------------------------------------------------------

    \111\ `` `Natural-gas company' means a person engaged in the
transportation of natural gas in interstate commerce, or the sale in
interstate commerce of such gas for resale.'' 15 U.S.C. 717a(6).
    \112\ See Updated Policy Statement, 178 FERC ] 61,107 at P 100.
---------------------------------------------------------------------------

    42. One final thought is that it may have been more appropriate for
the Commission to have proceeded through rulemaking instead of through
a policy statement. The Commission details the types of information
that it expects to be included in applications. However, the
Commission's regulations already address what the ``General content[s]
of [an] application'' should include in 18 CFR 157.6(b). Nothing in
that section supports the Commission's expectation for information
regarding end use and proposals for mitigation measures.\113\ Our
regulations do state that ``[a]pplications under section 7 of the
Natural Gas Act shall set forth all information necessary to advise the
Commission fully concerning the operation, sales, service,
construction, extension, or acquisition for which a certificate is
requested . . . .'' \114\ But nowhere do our regulations permit the
Commission to add to the requirements set forth therein regarding the
contents necessary for an NGA section 7(c) application. The Commission
may, of course, request information from an applicant through a data
request to assist with its determination of whether the project is
required by the public convenience and necessity. But to expect (in
other words require) information, such as that regarding end use and
proposals for mitigation of impacts, is perhaps something that should
have been done through a rulemaking. Can a party ignore the
Commission's requests for additional information? Yes, but the cost
would be the potential further delay to the issuance of already stalled
certificates and perhaps the ultimate rejection of a proposal that
fails to meet the Commission's expectations.
---------------------------------------------------------------------------

    \113\ See 18 CFR 157.6(b) (``Each application filed other than
an application for permission and approval to abandon pursuant to
section 7(b) shall set forth the following information . . . .'').
    \114\ Id. Sec.  157.5(a).
---------------------------------------------------------------------------

V. Today's Decision Will Have Profound Reliability Implications

    43. I cannot overstate the implications of the Updated Policy
Statement.\115\ It will subvert the purpose of the NGA: To ``encourage
the orderly development of plentiful supplies of . . . natural gas at
reasonable prices.'' \116\ Further, we leave the public and the
regulated community--including investors upon whom we rely to provide
billions of dollars for critical infrastructure--with profound
uncertainty regarding how the Commission will determine whether a
proposed project is required by the public convenience and necessity.
With that uncertainty comes reliability concerns.
---------------------------------------------------------------------------

    \115\ Cf. MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S.
218, 228 (1994) (``It might be good English to say that the French
Revolution `modified' the status of the French nobility--but only
because there is a figure of speech called understatement and a
literary device known as sarcasm.'').
    \116\ NAACP, 425 U.S. at 669-70 (citations omitted); accord
Myersville, 783 F.3d at 1307 (quoting NAACP, 425 U.S. at 669-70).
---------------------------------------------------------------------------

    44. The North American Electric Reliability Corporation (NERC)
recently highlighted just how important natural gas is to our electric
system when it explained in its most recent Long Term Reliability
Assessment that ``[n]atural gas is the reliability `fuel that keeps the
lights on,' and natural gas policy must reflect this reality.'' \117\
Today's issuance is unlikely to allay NERC's reliability concerns. I
began this statement with the consequences that could attend today's
issuance of the Updated Policy Statement. As a reminder those
consequences include, but are not limited to, further delay in the
issuance of certificates, the incurrence of unmeasurable and
unrecoverable costs that may result from the Commission's imposition of
mitigation measures to address GHG and environmental justice impacts
(which are now both considered in the Commission's balancing), and
difficulty in securing capital for proposed projects. It is foreseeable
that the result will be to cause a reliability crisis in areas that
need the gas the most. This arises because of the uncertain criteria to
be applied by the Commission, the delays in obtaining the Commission's
approval, and the resulting increases in costs--including the cost of
mitigation. Individually and collectively, these could be so severe
that a natural gas company might be unable to accept the conditions of
its certificate and proceed with a project that otherwise is needed to
maintain reliability.
---------------------------------------------------------------------------

    \117\ NERC, Long Term Reliability Assessment, at 5 (Dec. 2021),
https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_LTRA_2021.pdf (emphasis added).
---------------------------------------------------------------------------

VI. Conclusion

    45. Many in the industry have asked for certainty. The majority
says that they have provided it.\118\ Regrettably, the majority is
wrong on that point, as well. The only certainty to be found in the
Updated Policy Statement is that confusion will reign hereafter, at the
expense of those who depend on natural gas.
---------------------------------------------------------------------------

    \118\ See Updated Policy Statement, 178 FERC ] 61,107 at P 51
(asserting that the Commission is ``providing more regulatory
certainty in the Commission's review process and public interest
determinations''); id. P 73 (``To provide more clarity and
regulatory certainty to all participants in certificate proceedings,
we explain here how the Commission will consider environmental
impacts.''); id. P 100 (``A major purpose of this Updated Policy
Statement is to provide clarity and regulatory certainty regarding
the Commission's decision-making process.'').

---------------------------------------------------------------------------
    For these reasons, I respectfully dissent.

James P. Danly,

Commissioner

DEPARTMENT OF ENERGY FEDERAL ENERGY REGULATORY COMMISSION

Certification of New Interstate Natural Gas Facilities

Docket No. PL18-1-000
CHRISTIE, Commissioner, dissenting:

    1. Last year I voted to re-issue this Notice of Inquiry (NOI) for
another round of comment \1\ because I believed--and still do--that
there are reasonable updates to the 1999 policy statement that would be
worthwhile.\2\ For example, I agree that precedent agreements between
corporate affiliates, because of the obvious potential for 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.
---------------------------------------------------------------------------

    \1\ Certification of New Interstate Natural Gas Facilities, 174
FERC ] 61,125 (2021).
    \2\ I also voted for the 2021 changes to the procedures for
imposing a stay on the certificate and use of eminent domain during
periods when petitions for reconsideration and appeals were pending.
Limiting Authorizations to Proceed with Construction Activities
Pending Rehearing, Order No. 871-B, 175 FERC ] 61,098 (2021). These
changes were largely opposed by the pipeline industry, but in my
opinion represented a reasonable approach to bring more certainty
and fairness to our procedures for handling petitions for
reconsideration and the use of eminent domain during the pending
period.
    \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 Sec.  56-76 et seq., known as the ``Virginia Affiliates Act.''
    \4\ See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S.
123 (1951) (Frankfurter, J., concurring).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
    \6\ 15 U.S.C. 717 et seq. See, e.g., Certificate Policy
Statement at P 62.
    \7\ 42 U.S.C. 4321 et seq.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
    \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).
    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 717f.
    \14\ Certificate Policy Statement at P 62; GHG Policy Statement
at PP 4, 99.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \15\ See Certificate Policy Statement at P 6, GHG Policy
Statement at P 27.
    \16\ Certificate Policy Statement at P 62; GHG Policy Statement
at PP 27, 99.
---------------------------------------------------------------------------

    9. Third, which, if any, conditions related to a GHG analysis may
be attached to a certificate under NGA section 7(e),\17\ or demanded
through the use of deficiency letters? Today's orders seem to assume
that there is essentially no limit to the conditions the Commission can
impose.\18\
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 717f(e).
    \18\ See Certificate Policy Statement at P 74; GHG Policy
Statement at P 99.
---------------------------------------------------------------------------

    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
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.
---------------------------------------------------------------------------

    \19\ Certificate Policy Statement at P 62.
    \20\ Id.
    \21\ Id. The notion that a certificate could be rejected based
solely on the interests of ``landowners'' or ``environmental justice
communities'' (a term the majority leaves largely undefined)
illustrates the radical divergence from both law and long Commission
practice of what the Commission purports to do today. While a
regulatory commission should always be mindful of and sensitive to
the impacts on affected property owners and communities in every
case involving the potential use of eminent domain--particularly on
the question of the project's route or siting--and should generally
seek wherever possible to reduce or minimize such impacts, specific
measures to reduce or minimize such impacts are governed by the
statutes applicable to each proceeding. Under both the Constitution
and the NGA, if a project is needed for a public purpose, then
landowners are made whole through just compensation. U.S. Const.
amend. V. Questions of compensation are adjudicated in State or
Federal court--not by this Commission. NGA section 7(h), 15 U.S.C.
717f(h). Bringing such extra-jurisdictional considerations into the
Commission's public convenience and necessity analyses under NGA
section 7 is just another expansion of Commission power far beyond
anything justified in law.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \22\ Sabal Trail, 867 F.3d 1357, 1382 (D.C. Cir. 2017) (Sabal
Trail) (Brown, J., dissenting in part and concurring in part).
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \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
Sec.  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)).
    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \25\ NGA section 1(b), 15 U.S.C. 717(b).
    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
    \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).
    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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'').
    \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).
---------------------------------------------------------------------------

    17. To those who say ``well, times have changed and Congress was
not thinking about climate change when it passed the NGA,'' here's an
inconvenient truth: If Congress wants to change the Commission's
mission under the NGA it has that power; FERC does not.
    18. Any authority to perform a public interest analysis under the
NGA must be construed with reference to the animating purposes of the
Act. It is not a free pass to pursue any policy objective--however
important or compelling it may be--that is related in some way to
jurisdictional facilities.\32\ As the Court of Appeals for the D.C.
Circuit has explained:
---------------------------------------------------------------------------

    \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).

    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\
---------------------------------------------------------------------------

    \33\ Office of Consumers' Counsel v. FERC, 655 F.2d at 1147
(emphases added).

    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\
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    \34\ See, e.g., NGA section 7(e), 15 U.S.C. 717f(e) (apart from
statutory exceptions, ``a certificate shall be issued to any
qualified applicant . . . if it is found that the applicant is able
and willing properly to do the acts and to perform the service
proposed,'' and, among other things, to comply with ``the
requirements, rules and regulations of the Commission . . .'')
(emphasis added).
    \35\ Certificate Policy Statement at PP 4-6; GHG Policy
Statement at P 39 (citing Sabal Trail, 867 F.3d at 1372-73).
    \36\ I won't belabor the point, but just to reiterate: A
``public convenience and necessity'' analysis is not a generalized
``public interest'' analysis, as courts have recognized. See, supra,
P 13 & n.24 and infra, P 27. The ``environmental'' impacts
appropriately considered in a certification proceeding must surely
be limited in some way to the proposed facility itself since both
upstream gathering and downstream use are beyond the Commission's
statutory jurisdiction. See City of Clarksville, 888 F.3d at 479
(identifying ``environmental'' concerns as a ``subsidiary'' purpose
of the NGA).
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    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\
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    \37\ Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,
concurring); see also Catherine Morehouse, Glick, Danly spar over
gas pipeline reviews as FERC considers project's climate impacts for
first time, Utility Dive (Mar. 19, 2021) (quoting Chairman Glick
regarding use of GHG emissions analysis in N. Natural Gas Co., 174
FERC ] 61,189 (2021): ``We essentially used the eyeball test. . .
.''). Shorn of its irrelevant disquisition on EPA's stationary
source regulations, today's GHG policy statement enshrines an
eyeball test as the trigger for subjecting virtually all certificate
applicants to the time-consuming and costly EIS process. GHG
Statement at PP 88-95.
    \38\ Miller v. California, 413 U.S. 15 (1973).
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    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\
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    \39\ NFIB, 142 S. Ct. at 667 (Gorsuch, J., concurring)
(citations omitted).

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 power demand
unmistakable legislative support.'' \41\
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    \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).
    \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).
---------------------------------------------------------------------------

    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\
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    \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'').
    \43\ Am. Elec. Power Co. v. Conn., 564 U.S. 410, 426 (2011).
    \44\ Id. (``Congress delegated to EPA the decision whether and
how to regulate carbon-dioxide emissions from powerplants'')
(emphasis added); Am. Lung Ass'n. v. EPA, 985 F.3d at 959-60 (D.C.
Cir. 2021) (``there is no question that the regulation of greenhouse
gas emissions by power plants across the Nation falls squarely
within the EPA's wheelhouse.''). Consider for a moment how strange
it would be for Congress to delegate regulation of GHG emissions
from electric power plants to EPA, while somehow delegating
regulation of GHG emissions from natural gas fired power plants to
FERC. Yet that is what today's orders presuppose.
    \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.'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.'').
    \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.
    \48\ Ala. Ass'n., 141 S. Ct. at 2489.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
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    \50\ Mountain Valley, 171 FERC ] 61,232 (McNamee, Comm'r,
concurring at P 41); see also id. PP 15-47.
    \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).
    \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.'').
    \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.'')
---------------------------------------------------------------------------

    28. To summarize: Whether and how to regulate GHG emissions is a
major question of vast economic and political significance. Congress
has not explicitly authorized the Commission to regulate in this area
as required under the major questions doctrine, nor has it laid down an
intelligible principle for the Commission to follow as required by the
non-delegation doctrine. Moreover, EPA, in coordination with the
states, already has authority to regulate in this area as specified in
Federal statutes, which is far removed from this Commission's core
expertise and traditional responsibilities.
    29. Let's now turn to the second major question.

C. GHG Analysis Under NEPA

    30. Is this Commission required or allowed by NEPA \54\ to reject a
certificate for a natural gas facility--one that would otherwise be
approved under the NGA--based on a GHG analysis conducted as part of
the NEPA environmental review? And rejection includes attaching
mitigation conditions so onerous (or coercing through deficiency
letters) that they render the project unfeasible.\55\
---------------------------------------------------------------------------

    \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)).
    \55\ NGA section 7(e), 15 U.S.C. 717f(e), authorizes the
Commission to attach to a certificate ``such reasonable terms and
conditions as the public convenience and necessity may require.''
There is no analytical difference between the Commission's authority
to reject a certificate application and its authority to mitigate
it. See Nat'l Fuel Gas Supply Corp. v. FERC, 909 F.2d 1519, 1522
(D.C. Cir. 1990) (``The Commission may not, . . . when it lacks the
power to promote the public interest directly, do so indirectly by
attaching a condition to a certificate that is, in its unconditional
form, already in the public convenience and necessity.'') (citations
omitted). That the Commission may be tempted to abuse its
conditioning authority has long been recognized. See Carl I. Wheat,
Administration by the Federal Power Commission of the Certificate
Provisions of the Natural Gas Act, 14 Geo. Wash. L. Rev. 194, 214-
215 (1945) (``It is particularly important that the Commission . . .
steel itself against the somewhat natural temptation to attempt to
use such `conditions' as substitutes or `shortcuts' for other (and
more appropriate) methods of regulation prescribed in the statute. .
. . . [W]hatever may be said with respect to conditions concerning
rates and other matters over which the Commission has specific
authority under other provisions of the Act, it would appear clear
that the power to prescribe `reasonable conditions' in certificates
cannot be greater in scope than the statutory authority of the
Commission.'')
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
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    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