prevent that effect.'' \57\ Rather, NEPA ``requires a reasonably close
causal relationship between the environmental effect and the alleged
cause,'' that is analogous to ``the familiar doctrine of proximate
cause from tort law.'' \58\ While this might leave some difficult
judgments at the margins, estimates of the potential global impacts of
possible non-jurisdictional upstream or downstream activity--as today's
orders purport to require \59\--is not a close call.
---------------------------------------------------------------------------

    \57\ Dep't. of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004)
(Pub. Citizen). This principle has been incorporated into the
implementing regulations of the Council of Environmental Quality
(CEQ), an executive branch agency. See 40 CFR 1508.1(g)(2) (2021)
(``Effects do not include those effects that the agency has no
ability to prevent due to its limited statutory authority or would
occur regardless of the proposed action'').
    \58\ Pub. Citizen, 541 U.S. at 767 (citations omitted).
    \59\ Certificate Policy Statement at PP 73-76; GHG Policy
Statement at PP 28-31.
---------------------------------------------------------------------------

    33. First off, in determining how far an agency's NEPA
responsibilities run, one ``must look to the underlying policies or
legislative intent in order to draw a manageable line between those
causal changes that may make an actor responsible for an effect and
those that do not.'' \60\ As discussed at length above, there is no way
of drawing a plausible line, much less a manageable one, from the
Commission's certificating responsibilities under the NGA and the
possible consequences of global climate change--consequences which,
however potentially grave, are remote from this agency's limited
statutory mission under the NGA.
---------------------------------------------------------------------------

    \60\ Pub. Citizen, 541 U.S. at 767 (citations omitted).
---------------------------------------------------------------------------

    34. Second, speculating about the possible future impact on global
climate change of a facility's potential GHG emissions does not assist
the Commission in its decision-making and therefore violates the ``rule
of reason'': Where an agency lacks the power to do anything about the
possible environmental impacts, it is not obligated to analyze them
under NEPA.\61\ Again, the Supreme Court has explained, ``inherent in
NEPA and its implementing regulations is a `rule of reason,' which
ensures that agencies determine whether and to what extent to prepare
an EIS based on the usefulness of any new potential

information to the decision-making process. Where the preparation of an
EIS would serve `no purpose' in light of NEPA's regulatory scheme as a
whole, no rule of reason worthy of the title would require an agency to
prepare an EIS.'' \62\
---------------------------------------------------------------------------

    \61\ See, e.g., Sabal Trail, 867 F.3d at 1372 (citing Pub.
Citizen, 541 U.S. at 770) (``when the agency has no legal power to
prevent a certain environmental effect, there is no decision to
inform, and the agency need not analyze the effect in its NEPA
review.'') (emphasis in original); Citizens Against Burlington, Inc.
v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (``an agency need
follow only a `rule of reason' in preparing an EIS . . . and . . .
this rule of reason governs both which alternatives the agency must
discuss, and the extent to which it must discuss them.'') (internal
citations and quotations omitted, emphasis in original). To state
the obvious: We have absolutely no way of knowing how much an
individual project may or may not contribute to global climate
change for any number of reasons, including because there is no way
for us to meaningfully evaluate the release of GHG emissions if the
facility in question were not to be certificated. Notwithstanding,
today, the majority boasts of forcing virtually every certificate
applicant into the EIS process. GHG Policy Statement at PP 80, 88.
    \62\ Pub. Citizen, 541 U.S. at 767 (citations omitted).
---------------------------------------------------------------------------

    35. This conclusion becomes even more obvious when considered
alongside the undeniable fact that neither NEPA nor any other statute
contains a scintilla of guidance as to which specific metrics are to be
used to determine when the Commission can or must reject a project
based on a GHG analysis. The Commission today establishes a threshold
of 100,000 metric tons of CO2e of annual project emissions
for purposes of its analysis of natural gas projects under NEPA \63\
The rationale for establishing this threshold has literally nothing to
do with the Commission's NGA obligations, or even with its NEPA
obligations. It consists of little more than piggybacking on EPA's
approach to regulating stationary sources.\64\ Today's order boasts
that this new threshold will capture projects ``transporting an average
of 5,200 dekatherms per day and projects involving the operation of one
or more compressor stations or LNG facilities'' \65\ and that this
threshold ``will capture over 99% of GHG emissions from Commission-
regulated natural gas projects.'' \66\
---------------------------------------------------------------------------

    \63\ GHG Policy Statement at P 80, 88. For purposes of
determining what emissions count toward the 100,000 metric tons per
year threshold, the majority states that this number is measured
based on ``the construction, operational, downstream, and, where
determined to be reasonably foreseeable, upstream GHG emissions that
reoccur annually over the life of the project.'' Id. P 80 & n.197.
    \64\ Id. PP 88-93 (acknowledging that the Supreme Court has
partially invalidated EPA's regulatory regime).
    \65\ Id. P 89 (emphasis added).
    \66\ Id. P 95. It appears that the majority's intent is to force
all applicants into the EIS process. This will undeniably cause each
application to become far more costly and time-consuming, both
obvious disincentives to even trying.
---------------------------------------------------------------------------

    36. These are just arbitrarily chosen numbers. A proliferation of
quantification does not constitute reasoned decision-making. All of the
important questions about the creation and application of this
threshold remain unanswered: Is there anything in either the NGA or
NEPA to indicate how much is too much and should be rejected? Or how
little is low enough to get under the red line? No. If the Commission
is attempting to quantify indirect global GHG impacts, as EPA now
suggests we do,\67\ how much global impact is too much and requires
rejection of the certificate? How much impact is not too much? Should
rejection only be based on impacts on the United States? North America?
The Western Hemisphere? The planet? Where is the line? Again, there is
absolutely no statutory provision that answers these questions as to
the application of GHG metrics in a certificate proceeding brought
under the NGA. The complete absence of any statutory guidance on the
seminal question of ``how much is too much?'' would render any action
by the Commission to reject a certificate based on any metric as
``arbitrary and capricious'' in the fullest sense.\68\
---------------------------------------------------------------------------

    \67\ EPA Comments, Iroquois Gas Transmission Sys., L.P., Docket
No. CP20-48-000 at 1-2 (filed Dec. 20, 2021) (EPA Dec. 20, 2021
Letter).
    \68\ And yet, as a practical matter, applicants must spend years
of work and possibly millions of dollars (or more) in preparatory
tasks like lining up financing, securing local political support,
obtaining permits, etc. All this extensive legwork is needed just to
put an application in to the Commission. Today's orders effectively
tell applicants that their application could be rejected for any
reason or no reason at all. Nor does the majority even do the
courtesy of providing a target for the applicant to aim at.
---------------------------------------------------------------------------

    37. I recognize that the 100,000 metric tons marker adopted in
today's orders is not a threshold for rejecting a proposed project but
only for subjecting it to further scrutiny in the form of an EIS. But
this is no small matter--completion of an EIS is extremely cost-
intensive and time-consuming and, in addition, creates a plethora of
opportunities for opponents of the project who otherwise lack
meritorious objections to it, to run up the costs, to cause delays, and
to create new grounds for the inevitable appeals challenging the
certificate even if the applicant does manage to obtain it.\69\
---------------------------------------------------------------------------

    \69\ See Bradley C. Karkkainen, Whither NEPA?, N.Y.U. Envtl. L.J
. 333, 339 & n.31 (2004) (noting that ``Department of Energy EISs
produced prior to 1994 had a mean cost of $6.3 million and a median
cost of $1.2 million; following an aggressive effort to reduce
costs, after 1994 the mean cost fell to $5.1 million, but the median
cost rose to $2.7 million.'')
---------------------------------------------------------------------------

    38. NEPA provides no statutory authority to reject a gas project
that would otherwise be approved under the NGA. How could it? As is
well-known, the duties NEPA imposes are essentially procedural and
informational.\70\ The Commission's regulations implementing NEPA
reflect its limits by noting that, ``[t]he Commission will comply with
the regulations of the Council on Environmental Quality except where
those regulations are inconsistent with the statutory requirements of
the Commission.'' \71\
---------------------------------------------------------------------------

    \70\ See, Nat. Res. Def. Council, Inc. v. EPA, 822 F.2d 104, 129
(D.C. Cir. 1987) (``NEPA, as a procedural device, does not work a
broadening of the agency's substantive powers. Whatever action the
agency chooses to take must, of course, be within its province in
the first instance.'') (citations omitted, emphasis added); Balt.
Gas & Elec. Co. v. Natural Res. Defense Council, Inc., 462 U.S. 87,
97 (1983) (acknowledging NEPA's ``twin aims'' as obligating an
agency ``to consider every significant aspect of the environmental
impact of a proposed action'' and ensuring ``that the agency will
inform the public that it has indeed considered environmental
concerns in its decision-making process,'' but noting that
``Congress in enacting NEPA, however, did not require agencies to
elevate environmental concerns over other appropriate
considerations.'') (citations, alterations omitted).
    \71\ 18 CFR 380.1 (2021) (emphasis added); see also 40 CFR
1500.3(a) (2021) (compliance with the CEQ regulations ``is
applicable to and binding on all Federal agencies . . . except where
compliance would be inconsistent with other statutory
requirements'').
---------------------------------------------------------------------------

    39. It's not actually very difficult to see how the approach the
majority adopts today is ``inconsistent with the statutory requirements
of the Commission.'' \72\ I will repeat that the purpose of the NGA is
to promote the development, transportation, and sale at reasonable
rates of natural gas. I will repeat that the NGA conveys only limited
jurisdictional authority; that NEPA conveys no jurisdictional
authority; that a different agency is responsible for regulating GHGs;
and that such regulation is a major issue that Congress would have to
speak to unambiguously, which it clearly has not done. And yet under
the analysis embraced by the majority today, this Commission purports
to impose onerous--possibly fatal--regulatory requirements on
certificate applicants in order to generate reams of highly speculative
data that have no meaningful role to play in the execution of this
agency's statutory duties.\73\ In fact, it contravenes the purposes of
the NGA in at least two obvious ways: First, by bringing extrinsic
considerations to bear on the Commission's decision-making, and second,
by causing needless delay in the process.\74\
---------------------------------------------------------------------------

    \72\ 18 CFR 380.1 (2021). See The Hon. Joseph T. Kelliher Jan.
7, 2022 Comments, Technical Conference on Greenhouse Gas Mitigation:
Natural Gas Act Sections 3 and 7 Authorizations, Docket No. PL21-3-
000 at 2 (The Hon. Joseph T. Kelliher Jan. 7, 2022 Comments) (``if
imposing mitigation for direct and indirect emissions discourages or
forestalls pipeline development, the mitigation policy is directly
contrary to the principal purpose of the Natural Gas Act and must be
set aside.'').
    \73\ Bradley C. Karkkainen, Whither NEPA?, N.Y.U. Envtl. L.J. at
345-346 (noting that fear of NEPA challenges has led agencies to
```kitchen sink' EISs'' to reduce the risk of reversal, but that
almost nobody actually reads them ``and those who attempt to do so
may find it difficult to separate the good information from the
junk. Contrary to conventional wisdom, more information is not
always better.''); see also, Pub. Citizen, 541 U.S. at 768-769
(``NEPA's purpose is not to generate paperwork--even excellent
paperwork--but to foster excellent action.'') (quoting then-in
effect 40 CFR 1500.1(c) (2003)).
    \74\ The delay is clearly part of the point. Why else funnel
virtually every certificate applicant into the EIS process? See
e.g., Bradley C. Karkkainen, Whither NEPA?, N.Y.U. Envtl. L.J. at
339-40 (observing that NEPA has become ``a highly effective tool
that environmental NGOs and others can use to raise the financial
and political costs of projects they oppose and stretch out
decisions over an extended time frame, giving time to rally
political opposition.''). See also P 47, infra.

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

    40. There is no meaningful way of evaluating any of the critical
issues, and no statutory authority to actually do anything about
upstream or downstream emissions,\75\ but unlimited ways to find fault
with any analysis. Even though they aren't supposed to ``flyspeck'' an
agency's NEPA analysis, judges who wish to impose their own policy
preferences will be tempted to do exactly that. And once the agency
undertakes to address an issue in its NEPA analysis, it is subject to
the APA's ``reasoned decision-making'' standard of review.\76\ Thus the
effect is to ramp up dramatically the legal uncertainties and costs
facing any certificate applicant.
---------------------------------------------------------------------------

    \75\ In fact, even if the Commission had the authority to impose
upstream or downstream GHG emissions mitigation, or to deny
certificates of public convenience and necessity on that basis, the
majority admits that it is by no means obvious that doing so would
actually prevent or even meaningfully reduce global climate change
or the problems associated with it. See GHG Policy Statement at P 88
(noting that ``[e]ven if deep reductions in GHG emissions are
achieved, the planet is projected to warm by at least 1.5 degrees
Celsius ([deg]C) by 2050;'' and that ``even relatively minor GHG
emissions pose a significant threat'').
    \76\ Vecinos Para El Bienestar de la Comunidad Costera v. FERC,
6 F.4th 1321, 1329 (D.C. Cir. 2021) (Vecinos) (``Because the
Commission failed to respond to significant opposing viewpoints
concerning the adequacy of its analyses of the projects' greenhouse
gas emissions, we find its analyses deficient under NEPA and the
APA.'').
---------------------------------------------------------------------------

D. The Policy Statements Rest on Inadequate Legal Authority

    41. Today's orders rely to a remarkable degree on a smattering of
statements from a handful of recent orders. Simply put, these
authorities are simply ``too slender a reed'' \77\ to support the great
weight today's orders place on them.
---------------------------------------------------------------------------

    \77\ Cf. The Hon. Joseph T. Kelliher Jan. 7, 2022 Comments at 3.
---------------------------------------------------------------------------

    42. Neither Sabal Trail \78\ nor Birckhead,\79\ nor the more recent
Vecinos \80\ opinion from the D.C. Circuit changes any of the analysis
above. Indeed, to the extent language from those cases is interpreted
as requiring the Commission to exercise authority not found in
statutes--and these opinions are more confusing than clear, as well as
inconsistent with the D. C. Circuit's own precedent--then such an
interpretation would be contrary to the Supreme Court's major question
doctrine. Be that as it may, while I recognize that Sabal Trail and
Vecinos are presently applicable to this Commission, neither of those
cases individually nor both of them together provide a lawful basis for
rejecting a certificate for a facility that is otherwise found to be
needed under the NGA solely because of its estimated potential impacts
on global climate change.\81\
---------------------------------------------------------------------------

    \78\ Sabal Trail, 867 F.3d 1357. In support of its assertion of
broad discretion in attaching conditions to a certificate, the
majority also cites to ANR Pipeline Co. v. FERC, 876 F.2d 124, 129
(D.C. Cir. 1989) (ANR Pipeline). Certificate Policy Statement at P
74 & n. 190. Since the Commission's conditioning authority is
limited in the same way as its certificating authority, there is
little reason to discuss it separately. I will only note in passing
that, although the court described the Commission's conditioning
authority as ``extremely broad,'' the only issue actually before the
court in ANR Pipeline was the validity of certificate terms imposed
in furtherance of the Commission's core duty to ensure that rates
are non-discriminatory. Id.
    \79\ Birckhead v. FERC, 925 F.3d 510 (D.C. Cir. 2019)
(rejecting, for failure to raise the issue before the Commission, a
claim that NEPA requires FERC to analyze downstream GHG emissions).
Since Birckhead was decided on jurisdictional grounds, any
substantive commentary in that order is mere dicta and I will not
discuss it further.
    \80\ Vecinos, 6 F.4th 1321.
    \81\ Both orders suffer from a number of infirmities that don't
bear belaboring in this context. In brief, however, Sabal Trail
reads the Commission's duty to ``balance `the public benefits
against the adverse effects of the project, including adverse
environmental effects,''' Sabal Trail, 867 F.3d at 1373 (quoting
Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97 at
101-02 and citing Myersville Citizens for a Rural Cmty. v. FERC, 783
F.3d at 1309), far too expansively, and Vecinos compounds that
error. Both orders are discussed below.
---------------------------------------------------------------------------

    43. Virtually the entire structure of the majority's fundamental
policy changes rests on a single line from Sabal Trail.\82\ That
statement is itself predicated on an idiosyncratic reading of Public
Citizen and the D.C. Circuit's own precedents.\83\ Sabal Trail rather
facilely distinguished existing D.C. Circuit precedent on the grounds
that, in contrast to those cases, the same agency that was performing
the EIS was also authorized to approve or deny the certificate.\84\ It
reasoned that because the Commission could take ``environmental''
issues into account in its public interest analysis, and GHG emissions
raise ``environmental'' issues, it must therefore follow that the
Commission could deny a certificate based on projected GHG emissions
estimates.
---------------------------------------------------------------------------

    \82\ Namely, ``[b]ecause FERC could deny a pipeline certificate
on the ground that the pipeline would be too harmful for the
environment, the agency is a `legally relevant cause' of the direct
and indirect environmental effects of pipelines that it approves.''
Sabal Trail, 867 F.3d at 1373. The other orders the majority relies
on depend vitally on this statement. See, e.g., Certificate Policy
Statement at PP 75 & n. 192 (citing Birckhead); 86 & n. 207 (citing
Vecinos); GHG Policy Statement at PP 13, 36-38 (citing Birckhead)
and P 14 & n. 38 (citing Vecinos).
    \83\ See Ctr. for Biological Diversity, 941 F.3d at 1300 (``the
legal analysis in Sabal Trail is questionable at best. It fails to
take seriously the rule of reason announced in Public Citizen or to
account for the untenable consequences of its decision. The Sabal
Trail court narrowly focused on the reasonable foreseeability of the
downstream effects, as understood colloquially, while breezing past
other statutory limits and precedents--such as Metropolitan [Edison
Co. v. People Against Nuclear Energy, 460 U.S. 776 (1983)] and
Public Citizen--clarifying what effects are cognizable under
NEPA.'').
    \84\ Sabal Trail, 867 F.3d at 1372-1373. In each of the D.C.
Circuit orders Sabal Trail purported to distinguish, the court had
found that FERC did not have to analyze, because it could not
regulate, downstream emissions.
---------------------------------------------------------------------------

    44. Sabal Trail acknowledged that ``Freeport and its companion
cases rested on the premise that FERC had no legal authority to prevent
the adverse environmental effects of natural gas exports.'' \85\
Specifically, ``FERC was forbidden to rely on the effects of gas
exports as a justification for denying an upgrade license.'' \86\ In
contrast with those cases--all of which addressed certification of LNG
facilities under NGA section 3 as opposed to interstate transportation
facilities under NGA section 7--the court in Sabal Trail concluded
that, under NGA section 7, by contrast, ``FERC is not so limited.
Congress broadly instructed the agency to consider `the public
convenience and necessity' when evaluating applications to construct
and operate interstate pipelines.'' \87\ It thus concluded that,
``[b]ecause FERC could deny a pipeline certificate on the ground that
the pipeline would be too harmful for the environment, the agency is a
`legally relevant cause' of the direct and indirect environmental
effects of pipelines that it approves. See Freeport, 827 F.3d at 47.
Public Citizen thus did not excuse FERC from considering these indirect
effects.'' \88\
---------------------------------------------------------------------------

    \85\ Id. at 1373 (citing Sierra Club v. FERC (Freeport), 827
F.3d 36, 47 (D.C. Cir. 2016). The ``companion cases'' are Sierra
Club v. FERC (Sabine Pass), 827 F.3d 59 (D.C. Cir. 2016) and
EarthReports, Inc. v. FERC, 828 F.3d 949 (D.C. Cir. 2016).
    \86\ Sabal Trail, 867 F.3d at 1373 (emphasis in original).
    \87\ Id. (citations omitted).
    \88\ Id.
---------------------------------------------------------------------------

    45. But the Sabal Trail court never considered with reference to
the Commission's statutory authority the proper scope of that public
interest analysis or the extent to which ``environmental'' issues could
be considered in that context. It simply assumed the Commission's
authority to be unlimited. But as discussed above, Congress drafted the
NGA for the purpose of filling a specific gap in regulatory authority.
The only way Sabal Trail would be correct is if Congress had ``clearly
authorized'' the Commission to evaluate geographically and temporally
remote impacts of non-jurisdictional activity in its ``public
convenience and necessity'' determinations. As discussed above,

that conclusion is clearly, irredeemably, wrong.\89\
---------------------------------------------------------------------------

    \89\ Supra, Section I.B. Cf. ICC v. Parker, 326 U.S. 60, 65
(1945) (construing ``public convenience and necessity'' under the
Interstate Commerce Act and recognizing that Congress' decision to
use a term with such a long history indicated Congress intended ``a
continuation of the administrative and judicial interpretation of
the language.''). Far from being ``a continuation of the
administrative and judicial interpretation of the language,''
construing it to extend to an analysis of global GHG emissions is
novel and unprecedented.
---------------------------------------------------------------------------

    46. As for Vecinos, there, the court compounds that error both by
relying uncritically on Sabal Trail and by finding fault with the
Commission for failing to connect its decision not to use the Social
Cost of Carbon to Petitioners' argument that it was required to do so
under 40 CFR 1502.21(c).\90\ That regulation sets forth an agency's
obligations when ``information relevant to reasonably foreseeable
significant adverse impacts cannot be obtained.'' \91\ But global
climate change is only a ``foreseeable significant adverse impact'' of
the Commission's action if the Commission's authority extends as far as
the Sabal Trail court said it does. For the reasons set out in this
statement, I respectfully disagree. Nor am I alone in my
disagreement.\92\
---------------------------------------------------------------------------

    \90\ Vecinos, 6 F.4th at 1328-30.
    \91\ 40 CFR 1502.21(c).
    \92\ See supra, n. 83.
---------------------------------------------------------------------------

    47. Finally, as to the contention that the Commission is bound to
follow Sabal Trail notwithstanding its errors, I would simply point out
that intervening Supreme Court precedents--such as NFIB \93\ and Ala.
Ass'n.\94\--have not just significantly weakened, but utterly
eviscerated the conceptual underpinnings of Sabal Trail's limitless
construction of the Commission's public interest inquiry under the
NGA's ``public convenience and necessity'' analysis.\95\ It is folly
for this Commission to proceed heedless of the Supreme Court's recent
rulings that agencies may not use ambiguous or limited grants of
statutory authority in unprecedented ways to make policy on major
questions that Congress has reserved for itself. But that's exactly
what the Commission does today.\96\
---------------------------------------------------------------------------

    \93\ NFIB, 142 S. Ct. 661.
    \94\ Ala. Ass'n., 141 S. Ct. 2485 at 2489.
    \95\ See generally, Allegheny Def. Project v. FERC, 964 F.3d 1,
18 (D.C. Cir. 2020) (noting that circuit court precedent may be
departed from ``when intervening developments in the law--such as
Supreme Court decisions--have removed or weakened the conceptual
underpinnings of the prior decision.'') (cleaned up, citation
omitted).
    \96\ In his NFIB concurrence, Justice Gorsuch states:
``Sometimes Congress passes broadly worded statutes seeking to
resolve important policy questions in a field while leaving an
agency to work out the details of implementation. Later, the agency
may seek to exploit some gap, ambiguity, or doubtful expression in
Congress's statutes to assume responsibilities far beyond its
initial assignment. The major questions doctrine guards against this
possibility by recognizing that Congress does not usually hide
elephants in mouseholes.'' 142 S. Ct. at 669 (Gorsuch, J.,
concurring) (citations, alterations omitted). It would be hard to
find a better description of the path the Commission has taken to
arrive at today's orders.
---------------------------------------------------------------------------

    48. We are indeed bound to follow judicial precedent, but we don't
get to ``cherry pick'' one precedent such as Sabal Trail because we
like that particular opinion, while ignoring the many other conflicting
precedents, especially those more recent rulings from the Supreme Court
itself applying the major question doctrine. These more recent opinions
light up Sabal Trail as a clear outlier.

II. The Real Debate Is About Public Policy Not Law

    49. Preventing the construction of each and every natural gas
project is the overt public-policy goal of many well-funded interest
groups working to reduce or eliminate natural gas usage.\97\ Today's
orders, whatever the intent, will have the undeniable effect of
advancing that policy goal, and we should not deny the obvious. Rather
than bringing legal certainty to the Commission's certificate
orders,\98\ today's orders will greatly increase the costs and
uncertainty associated with this Commission's own handling of
certificate applications. In fact, by purporting to apply today's new
policy retroactively on applications that have already been submitted
(and in many instances pending for years), today's action is deeply
unfair: It judges by an entirely new set of standards applications that
were prepared and submitted to meet the old standards and essentially
opens all of them to be relitigated.\99\ The undoubted effect of these
orders will be to interpose additional months or years of delay on
project applicants and to increase exponentially the vulnerability on
appeal of any Commission orders that do approve a project.
---------------------------------------------------------------------------

    \97\ See, e.g., Bloomberg Philanthropies, https://www.bloomberg.org/environment/moving-beyond-carbon/ (``Launched in
2019 with a $500 million investment from Mike Bloomberg and
Bloomberg Philanthropies, Beyond Carbon . . . . works . . . to . . .
stop the construction of proposed gas plants.'') (last visited Feb.
8, 2022) (emphasis added); Sierra Club, https://www.sierraclub.org/policy/energy/fracking, (``There are no `clean' fossil fuels. The
Sierra Club is committed to eliminating the use of fossil fuels,
including coal, natural gas and oil, as soon as possible'')
(emphases added) (last visited Feb. 8, 2022); Natural Resources
Defense Council, https://www.nrdc.org/issues/reduce-fossil-fuels
(``Oil, gas, and other fossil fuels come with grave consequences for
our health and our future. . . . NRDC is pushing America to move
beyond these dirty fuels. We fight dangerous energy development on
all fronts'') (emphases added) (last visited Feb. 8, 2022); Press
Release, NRDC Receives $100 million from Bezos Earth Fund to
Accelerate Climate Action (Nov. 16, 2020), available at https://www.nrdc.org/media/2020/201116 (``The Bezos Earth Fund grant will be
used to help NRDC advance climate solutions and legislation at the
State level, move the needle on policies and programs focused on
reducing oil and gas production'') (emphasis added) (last visited
Feb. 8, 2022); Sebastian Herrera, Jeff Bezos Pledges $10 Billion to
Tackle Climate Change, Wall Street Journal (Feb. 17, 2020) (``Mr.
Bezos . . . said the Bezos Earth Fund would help back scientists,
activists, [non-governmental organizations]'') (emphasis added); see
also, Ellie Potter, Environmentalists launch campaign to ban gas
from US clean energy program, S&P Global Platts (Sep. 2, 2021)
(quoting Collin Rees, U.S. Campaign Manager for Oil Change
International, ``Clean energy means no gas and no other fossil
fuels, period.'') (emphases added); Sean Sullivan, FERC sets sights
on gas infrastructure policy in 2022, S&P Capital IQ (Dec. 31, 2021)
(quoting Maya van Rossum, head of Delaware Riverkeeper Network, ``we
are not changing course at all: We continue to take on every
pipeline, LNG, and fracked gas project as urgently as we did before,
knowing we will have to invest heavily to stop it . . .'') (emphases
added).
    \98\ See Letter of Chairman Richard Glick to Sen. John Barasso,
M.D. (Feb. 1, 2022) (``Preparing an EIS to consider the reasonably
foreseeable GHG emissions that may be attributed to a project
proposed under section 7 of the NGA allows the Commission to issue
more legally durable orders on which all stakeholders can depend,
including project developers.''); Letter of Commissioner Allison
Clements to Sen. John Barasso, M.D. (Feb. 1, 2022) (``I will do my
part to assure that the updated policy will be a legally durable
framework for fairly and efficiently considering certificate
applications--one that serves the public interest and increases
regulatory certainty for all stakeholders.''); see also, Corey Paul,
FERC Dems argue legal benefits from climate reviews outweigh gas
project delays, S&P Capital IQ Pro (Feb. 3, 2022).
    \99\ Certificate Policy Statement at P 100 (``the Commission
will apply the Updated Policy Statement to any currently pending
applications for new certificates. Applicants will be given the
opportunity to supplement the record and explain how their proposals
are consistent with this Updated Policy Statement, and stakeholders
will have an opportunity to respond to any such filings.'')
---------------------------------------------------------------------------

    50. Recently I said the Commission's new rule on unlimited late
interventions in certificate cases was ``not a legal standard, but a
legal weapon.'' \100\ The new certificate policy approved today is the
mother of all legal weapons. There is no question that it will be
wielded against each and every natural gas facility both at the
Commission and in the inevitable appeals, making the costs of even
pursuing a natural gas project insuperable.
---------------------------------------------------------------------------

    \100\ Adelphia Gateway, LLC, 178 FERC ] 61,030 (2022) (Christie,
Comm'r concurring at P 4) (available at: https://www.ferc.gov/news-events/news/item-c-3-commissioner-christies-partial-concurrence-and-partial-dissent-adelphia).
---------------------------------------------------------------------------

    51. Let me emphasize that every person or organization pursuing the
policy goal of ending the use of natural gas by opposing every natural
gas facility has an absolute right under the First Amendment to engage
in such advocacy. However, whether to end the use of natural gas by
banning the construction of all new natural gas projects is a public
policy question of

immense importance, one that affects the lives and livelihoods of tens
of millions of Americans and their communities, as well as the
country's national security. In a democracy, such a huge policy
question should only be decided by legislators elected by the people,
not by unelected judges or administrative agencies.\101\
---------------------------------------------------------------------------

    \101\ See Am. Lung Ass'n v. EPA, 985 F.3d at 1003 (Walker, J.,
concurring in part and dissenting in part) (``whatever multi-
billion-dollar regulatory power the federal government might enjoy,
it's found on the open floor of an accountable Congress, not in the
impenetrable halls of an administrative agency--even if that agency
is an overflowing font of good sense.'') (citing U.S. Const. art I,
section 1).
---------------------------------------------------------------------------

    52. This public-policy context is absolutely relevant to these
orders because it illustrates that the long-running controversy at this
Commission over the use of GHG analyses in natural-gas certificate
cases, whether it's a demand to quantify indirect impacts from upstream
production and downstream use,\102\ or a demand to apply an
administratively-constructed metric such as the Social Cost of Carbon
\103\--and then use GHG analyses to reject (or mitigate to death, or
impose costly delays on) a gas project--has far less to do with the law
itself and far more to do with promoting preferred public policy goals.
---------------------------------------------------------------------------

    \102\ GHG Policy Statement at PP 27-28, 31, & n.97. See also,
EPA Dec. 20, 2021 Letter.
    \103\ GHG Policy Statement at P 96. See also, e.g., Vecinos, 6
F.4th at 1328-1329.
---------------------------------------------------------------------------

    53. EPA admits as much in a remarkably (perhaps unwittingly)
revealing passage in a letter to this Commission:

    EPA reaffirms the suggestion that the Commission avoid
expressing project-level emissions as a percentage of national or
State emissions. Conveying the information in this way
inappropriately diminishes the significance of project-level GHG
emissions. Instead, EPA continues to recommend disclosing the
increasing conflict between GHG emissions and national, State, and
local GHG reduction policies and goals . . .\104\
---------------------------------------------------------------------------

    \104\ EPA Dec. 20, 2021 Letter at 4 (emphases added).

    54. So according to EPA, this Commission--which is supposed to be
independent of the current (or any) presidential administration, by the
way--should literally manipulate how it presents GHG data in order to
avoid ``inappropriately'' diminishing the impact. As EPA reveals, this
is really not about data or any specific GHG metric at all, but is
really about pursuing public policy goals, especially those of the
current presidential administration that runs EPA.\105\
---------------------------------------------------------------------------

    \105\ This Commission's independence reflects a conscious choice
on Congress' part to insulate certain of its functions from the
vicissitudes of political pressure. See generally, Sharon B. Jacobs,
The Statutory Separation of Powers, 129 Yale L.J. 378 (2019)
(explaining that some but not all of the Federal Power Commission's
authorities were transferred to FERC, which was intended at least in
part to counterbalance presidential influence). Succumbing to the
pressure of EPA and others would sacrifice that crucial independence
in meaningful ways.
---------------------------------------------------------------------------

    55. The EPA's purported guidance to this Commission illustrates
that the real debate here is not over the minutiae of one methodology
versus another, or whether one methodology is ``generally accepted in
the scientific community'' and another is not,\106\ or whether one
particular esoteric formula is purportedly required by a regulation
issued by the CEQ \107\ and another does not meet the CEQ's directives.
---------------------------------------------------------------------------

    \106\ Cf. Vecinos, 6 F.4th at 1329.
    \107\ It has been observed that the values associated with the
imputed social costs of GHG emissions have fluctuated dramatically
from one administration to the next. See, e.g., Garrett S. Kral,
What's In a Number: The Social Cost of Carbon, Geo. Envtl. L. Rev.
Online 1 (Aug. 19, 2021) (comparing the social cost of GHG emissions
under the Trump administration with the interim social cost under
the Biden administration and noting ``the value of SC-GHGs have
fluctuated. A lot.''). This degree of abrupt fluctuation--e.g., the
social cost of carbon increasing from $7 per ton to $51 per ton--can
only be explained by politics, not science.
---------------------------------------------------------------------------

    56. The real debate over the use of GHG analyses in certificate
proceedings is about public policy, not law, and ultimately comes down
to these questions: Who makes major decisions of public policy in our
constitutional system? Legislators elected by the people or unelected
administrative agencies or judges? Who decides? \108\
---------------------------------------------------------------------------

    \108\ NFIB, 142 S. Ct. at 667 (Gorsuch, J. Concurring). (``The
central question we face today is: Who decides?'') (emphasis added).
---------------------------------------------------------------------------

III. Conclusions

    57. Based on the analysis above the following legal conclusions can
be drawn:
    58. First, the Commission may not reject a certificate based solely
on an estimate of the impacts of GHG emissions, indirect or direct.
Nor, on the basis of such GHG estimates, may the Commission attach to a
certificate (or coerce through deficiency letters) conditions that
represent a de facto rejection by rendering the project financially or
technically unfeasible.
    59. Second, the Commission can consider the direct GHG impacts of
the specific facility for which a certificate is sought, just as it
analyzes other direct environmental impacts of a project, and can
attach reasonable and feasible conditions to the certificate designed
to reduce or minimize the direct GHG impacts caused by the facility,
just as it does with other environmental impacts.
    60. Third, the conditions the Commission can impose are, like its
other powers, limited to the authorities granted to it by Congress and
the purposes for which they are given. So, no, the Commission may not
impose conditions on a certificate to mitigate upstream or downstream
GHG emissions arising from non-jurisdictional activity.
    61. These legal conclusions do not mean that responding to climate
change is not a compelling policy necessity for the nation. In my view
it is, as I stated above.\109\
---------------------------------------------------------------------------

    \109\ See P 5 and n.12, supra.
---------------------------------------------------------------------------

    62. However, neither my policy views--nor those of any other member
of this Commission--can confer additional legal authority on FERC.\110\
For in our democracy, it is the elected legislators who have the
exclusive power to determine the major policies that respond to a
global challenge such as climate change. Further, the argument that
administrative agencies must enact policies to address major problems
whenever Congress is too slow, too polarized, or too prone to
unsatisfying compromises, must be utterly rejected.\111\ That is not
how it is supposed to work in a democracy.
---------------------------------------------------------------------------

    \110\ Office of Consumers Counsel, 655 F.2d at 1142 (``an agency
may not bootstrap itself into an area in which it has no
jurisdiction by violating its statutory mandate'') (quoting FMC v.
Seatrain Lines, Inc., 411 U.S. 726, 745 (1973)) (ellipsis omitted);
see also In re MCP No. 165, 20 F.4th 264, 269 (6th Cir. 2021)
(Sutton, C.J., dissenting) (``As the Supreme Court recently
explained in invalidating an eviction moratorium promulgated by the
Center for Disease Control, `our system does not permit agencies to
act unlawfully even in pursuit of desirable ends.' Ala. Ass'n of
Realtors, 141 S. Ct. at 2490. Shortcuts in furthering preferred
policies, even urgent policies, rarely end well, and they always
undermine, sometimes permanently, American vertical and horizontal
separation of powers, the true mettle of the U.S. Constitution, the
true long-term guardian of liberty.'') (emphasis added).
    \111\ This argument is often put forth by the legal, academic,
and corporate elites who assume that an administrative agency will
enact the public policies they prefer when Congress will not. Such
an expectation is perfectly rational since these elites
disproportionately have the resources that are most effective in
achieving desired outcomes in the administrative process, which is
largely an insiders' game. The body of work on the economic theory
of regulatory capture over the past half-century is relevant to this
topic. See generally, Susan E. Dudley, Let's Not Forget George
Stigler's Lessons about Regulatory Capture, Regulatory Studies
Center (May 20, 2021) (available at https://regulatorystudies.columbian.gwu.edu/let%E2%80%99s-not-forget-george-stigler%E2%80%99s-lessons-about-regulatory-capture). And it is not
just for-profit corporate elites at work here, so are other special
interests who seek desired policy outcomes from administrative
action rather than from the often messy and hard democratic
processes of seeking to persuade voters to elect members of Congress
who agree with you. See, e.g., n. 97, supra.
---------------------------------------------------------------------------

    63. For if democracy means anything at all, it means that the
people have an inherent right to choose the legislators to whom the
people grant the power to

decide the major questions of public policy that impact how the people
live their daily lives. Unelected Federal judges and executive-branch
administrators, no matter how enlightened they and other elites may
regard themselves to be, do not have the power to decide such
questions; they only have the power to carry out the duly-enacted laws
of the United States, including the most important law of all, the
Constitution. That is the basic constitutional framework of the United
---------------------------------------------------------------------------
States and it is the same for any liberal democracy worth the name.

    For these reasons, I respectfully dissent.

Mark C. Christie,

Commissioner.

[FR Doc. 2022-04148 Filed 2-28-22; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 80, Number 16 (Monday, January 26, 2015)]
[Notices]
[Pages 3962-3964]
[FR Doc No: 2015-01277]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL 9922-00-OCFO; EPA-HQ-OEI-2015-0039]

E-Enterprise for the Environment Portal

AGENCY: Environmental Protection Agency.

ACTION: Notice: request for comment.

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

SUMMARY: The Environmental Protection Agency (EPA) Office of the Chief
Financial Officer is requesting comments on the development of an E-
Enterprise for the Environment portal and announcing three public
meetings in the form of internet webinars. E-Enterprise is a
transformative 21st- century strategy for rethinking how government
agencies deliver environmental protection in the United States. Through
joint governance at the federal, state, and tribal levels, EPA, the
states, and tribes are collaboratively modernizing business processes
and driving and sharing innovations. These changes will improve
environmental results and enhance services to the regulated community
and the public by making government more efficient and effective.
    The portal, a Web site that functions as a point of access to
information and tools, may provide consolidated entry points for
businesses and citizens to efficiently locate, obtain access to, and
interact with relevant EPA, state, and tribal environmental programs
and resources. EPA and our state and tribal partners ultimately may
choose to provide a different name than ``portal'' to better
characterize the functionalities provided. The goal is to reduce
regulatory burden and optimize information technology resources across
government entities. Further detail on

the portal is provided in the Background section below and also at
www2.epa.gov/e-enterprise/e-enterprise-portal.
    EPA is seeking comment on the value of establishing a portal and
the functions that it should provide. The EPA will host a series of
webinars for the public to learn about the portal, ask questions and
learn how to provide comments. While open to any participants, the
first webinar on 2/19/15 will be oriented towards states and other co-
regulators; the second webinar on 2/23/15 will be for theregulated
community; and the third on 3/5/15 will be aimed atthe general public .
In parallel with this Federal Register notice, EPA will conduct tribal
consultation to obtain input from tribes.

DATES: Webinars will be held on February 19, 2015, February 23, 2015
and March 5, 2015 from 1 p.m. to approximately 3 p.m. Eastern Time.
Comments may be submitted 90 days from date of publication in the
Federal Register.

ADDRESSES: The webinars will be conducted via the Internet.
    To register for the sessions, please visit www2.epa.gov/e-enterprise/portal-scoping or the links below.

February 19, 2015 From 1-3 p.m. EST

    If you are a co-regulator, please register here: https://attendee.gotowebinar.com/rt/1359012128777800450.

February 23, 2015 From 1-3 p.m. EST

    If you are a regulated entity please register here: https://attendee.gotowebinar.com/rt/2565860280640724481.

March 5, 2015 From 1-3 p.m. EST

    If you are a member of the public, please register here: https://attendee.gotowebinar.com/rt/983075909101638402.
    After registering you will receive a confirmation email containing
information about how to join the Webinar. Registration is strongly
encouraged but you may also join the meetings using the links above.
    Comments: Submit your written comments, identified by Docket ID No.
EPA-HQ-OEI-2015-0039, by Internet: http://www.regulations.gov: Follow
the online instructions for submitting comments.
    Email<EMAIL_ADDRESS>    Instructions: EPA's policy is that all comments will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information or other information the disclosure
of which is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or by email. The http://www.regulations.gov Web
site is an ``anonymous access'' system, which means EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an email comment directly to EPA without
going through http://www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
electronic storage media you submit. If EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses.

FOR FURTHER INFORMATION CONTACT: Anyone interested in further
information may contact Shana Harbour at telephone number (202) 566-
2959; fax:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
mailing address Environmental Protection Agency, Office of the Chief
Financial Officer, Mail code 2732A, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460. General information concerning E-Enterprise can
be found on the Web at www2.epa.gov/e-enterprise/e-enterprise-portal.

SUPPLEMENTARY INFORMATION:

A. Background

    Consistent with Executive Orders 13571, 13576, 13563 and 13610 and
the 2012 White House Digital Government and Shared Services Strategies,
EPA seeks to transform the business of environmental protection. E-
Enterprise is a transformative 21st century strategy for rethinking how
government agencies deliver environmental protection in the United
States. Through joint governance at the federal, state, and tribal
levels, EPA, the states, and tribes are collaboratively modernizing
business processes and driving and sharing innovations. These changes
will improve environmental results and enhance services to the
regulated community and the public by making government more efficient
and effective. Additional information concerning E-Enterprise can be
found at www2.epa.gov/e-enterprise/e-enterprise-portal.
    A portal is central to the E-Enterprise vision. Ultimately, the
portal could provide consolidated entry points for businesses and
citizens to efficiently locate, obtain access to, and interact with
relevant EPA, state, and tribal environmental programs and web
resources. The goal is to integrate information across government
entities to provide a seamless experience when accessing EPA or partner
portals or applications.
    In the delivery of EPA's mission to protect human health and the
environment through regulatory implementation and open government
initiatives, the EPA seeks to coordinate and streamline interaction
within and across federal, state, and tribal environmental agencies.
The portal is needed to help address inefficiencies that have grown as
environmental programs developed under statutes passed over the course
of more than 40 years. The public and the regulated community
rightfully expect transactions under these programs, some of which
still employ paper-based methods or outdated technologies, to be modern
and efficient. A main purpose of the portal is to provide better
customer service to the public and to the regulated community. EPA and
state regulators will also benefit by having easier access to
comprehensive environmental information.
    A goal of the portal is to reduce regulatory burden and optimize
and share information technology resources. EPA would like to develop
the portal with input from the public. This may include feedback on
needed enhancements to existing services or information on services
that are delivered inefficiently with significant overlap, redundancy,
or inconsistency across offices and agencies. Through this notice,
consideration of public comments, interaction through the
aforementioned webinars, and consultation with tribes, the EPA will
gain important information on the needs of stakeholders and how we can
best serve the American public in bringing the environmental protection
business enterprise into the 21st century.

B. Public Meeting

Does this action apply to me?

    This action is directed to the general public. However, this notice
may be of particular interest to: persons who submit reporting
information to EPA,

such as regulated companies and facilities; academic researchers and
non-governmental organizations; information technologists; and members
of the public interested in environmental conditions. EPA has not
attempted to describe all the specific entities that may have interest
in the E-Enterprise portal. If you have any questions regarding this
notice, consult Shana Harbour, whose contact information is listed
under FOR FURTHER INFORMATION CONTACT.

C. Written Comments

What should I consider as I prepare my comments for EPA?

    To ensure proper receipt by EPA, please be sure to identify the
Docket ID number assigned to this action [EPA-HQ-OEI-2015-0039] in the
subject line on the first page of your response. You may also provide
the name, date, and Federal Register citation.
    Your comments will be particularly helpful if you identify yourself
and your sector (regulated entity, non-governmental organization,
academic, general public, other (explain). For more information on the
E-Enterprise portal, please visit www2.epa.gov/e-enterprise/e-enterprise-portal. EPA is particularly interested in comments on the
following:
    1. How frequently and for what purpose do you visit epa.gov, state
and other government environmental Web sites?
    2. List the government Web sites you frequently visit for
environmental information and identify opportunities for potential
integration of information from those Web sites.
    3. Cite examples of successful portals or portal-like information
systems.
    4. Discuss what you consider to be significant obstacles to
business information transactions with EPA and state co-regulators.
    5. Discuss what you view as significant opportunities for
streamlining transactions with EPA or states and how a portal may or
may not facilitate them.
    6. Identify requirements for capabilities of the portal and for
each requirement indicate:
    a. The extent to which the requirement involves transactions or
aspects of transactions that are common across organizational or
programmatic units when reporting to environmental regulatory agencies
(e.g. registration, logging in, resubmitting common contact or facility
information, etc.).
    b. Relationship of the requirement to regulatory obligations.
    c. Priority of the requirement, and whether the requirement is
``must-have'' or ``nice-to-have.''
    d. Urgency of the requirement, as in how soon the capability is
needed.
    e. Any information on how a portal could reduce the time you spend
to report environmental information or process transactions and an
estimate of this time.
    7. Discuss any positive/negative impacts of using a portal as the
required or voluntary means for interacting with EPA and states for
business transactions required to fulfill environmental regulatory
obligations.
    8. In order to provide a more streamlined/personalized/customized
experience in the portal for retrieving publically available
information, would you be willing to establish an electronic credential
(user ID) or reuse an existing ID such as one used on social media?
    You may find the following suggestions helpful for preparing your
comments:
--Explain your views as clearly as possible.
--Describe any assumptions that you used.
--Provide copies of any technical information and/or data that you used
to support your views.

    Dated: January 16, 2015.
David A. Bloom,
Acting Chief Financial Officer.
[FR Doc. 2015-01277 Filed 1-23-15; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 86, Number 77 (Friday, April 23, 2021)]
[Notices]
[Pages 21773-21775]
[FR Doc No: 2021-08420]

=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91609; File No. SR-CBOE-2021-024]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
the Automated Price Improvement Auction Rule Relating to Stop Price

April 19, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on April 13, 2021, Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe
Options'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Exchange filed the proposal as a ``non-controversial'' proposed rule
change pursuant to Section 19(b)(3)(A)(iii) of the Act \3\ and Rule
19b-4(f)(6) thereunder.\4\ The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe Options'') proposes
to amend its automated price improvement auction rule. The text of the
proposed rule change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange's Office of the
Secretary, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Rule 5.37 (Automated Price
Improvement Mechanism (``AIM'' or ``AIM Auction'')) to change the
requirements for providing price improvement for Agency Orders of less
than 50 standard option contracts (or 500 mini-option contracts).
    By way of background, the AIM auction is an electronic auction
intended to provide an Agency Order with the opportunity to receive
price improvement (over the National Best Bid or Offer (``NBBO''). More
specifically, AIM includes functionality in which a Trading Permit
Holder (``TPH'') (an ``Initiating TPH'') may electronically submit for
execution an order it represents as agent on behalf of

a customer,\5\ broker dealer, or any other person or entity (``Agency
Order'') against any other order it represents as agent, as well as
against principal interest (except for an order for the account of any
Market-Maker with an appointment in the applicable class on the
Exchange in all classes except SPX) in AIM (an ``Initiating Order''),
provided it submits the Agency Order for electronic execution into an
AIM Auction.\6\ AIM Auctions take into account AIM Responses to the
applicable Auction as well as contra interest resting on the Cboe
Options Book at the conclusion of the Auction (``unrelated orders''),
regardless of whether such unrelated orders were already present on the
Book when the Agency Order was received by the Exchange or were
received after the Exchange commenced the applicable Auction. If
contracts remain from one or more unrelated orders at the time the
Auction ends, they are considered for participation in the AIM order
allocation process.
---------------------------------------------------------------------------

    \5\ The term ``customer'' means a Public Customer or a broker-
dealer. The term ``Public Customer'' means a person that is not a
broker-dealer. See Rule 1.1.
    \6\ See Rule 5.37.
---------------------------------------------------------------------------

    Additionally, Rule 5.37(b) provides that the Initiating Order must
stop the entire Agency Order at a price that satisfies certain
conditions. More specifically, Rule 5.37(b)(1)(A) provides that if a
buy (sell) Agency Order is for less than 50 standard option contracts
(or 500 mini-option contracts), the stop price must be at least one
minimum increment better than the then-current NBO (NBB) or the Agency
Order's limit price (if the order is a limit order), whichever is
better. Rule 5.37(b)(1)(B) provides that if a buy (sell) Agency Order
is 50 standard option contracts (or 500 mini-option contracts) or more,
the stop price must be at or better than the then-current NBO (NBB) or
the Agency Order's limit price (if the order is a limit order),
whichever is better.
    In order to allow TPHs to offer greater price improvement
opportunities for Agency Orders under 50 standard options contracts (or
500 mini-option contracts), the Exchange now proposes to amend Rule
5.37(b)(1)(A) to require that, if the Agency Order is for less than 50
standard option contracts (or 500 mini-option contracts), and if the
difference between the NBBO is $0.01 (i.e., NBBO width is $0.01),\7\
the stop price must be at least one minimum price improvement increment
better than the NBBO on the opposite side of the market from the Agency
Order (or the Agency Order's limit price (if the order is a limit
order), whichever is better). Thus, the Exchange would require that the
Agency Order receive at least $0.01 price improvement if that Agency
Order is for less than 50 contracts and if the difference between the
NBBO is $0.01. For all other orders, regardless of size, the stop price
must be at or better than the then current NBO (NBB). In light of the
proposed change, the Exchange proposes to make a corresponding
amendment to Rule 5.37(b)(1)(B) to provide that the stop price must be
the better of the Agency Order's limit price (if the order is a limit
order) or at or better than the then current NBBO if the Agency Order
is for more than 50 standard options contracts (or 500 mini-option
contracts) or if the NBBO width is greater than $0.01. The Exchange
notes the proposed rule change aligns the Exchange's AIM functionality
with the functionality of AIM on its affiliate exchange, Cboe EDGX
Exchange, Inc (``Cboe EDGX'') and is consistent with other exchanges'
rules with similar price improvement mechanisms.\8\
---------------------------------------------------------------------------

    \7\ The ``NBBO width'' means the difference between the National
Best Bid and National Best Offer.
    \8\ See Cboe EDGX Rule 21.19(b)(1). See also, e.g., Nasdaq PHLX
LLC Options 3, Section 13(a) and Nasdaq ISE LLC Options 3, Section
13(b).
---------------------------------------------------------------------------

Implementation Date
    The Exchange proposes to announce the implementation date of the
proposed rule change in an Exchange Notice, to be published no later
than thirty (30) days following the operative date. The implementation
date will be no later than sixty (60) days following the operative
date.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\9\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \10\ requirements that the rules of an exchange be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest. Additionally,
the Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \11\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
    \11\ Id.
---------------------------------------------------------------------------

    In particular, the Exchange believes its proposal will continue to
promote opportunities for price improvement for Agency Orders for less
than 50 standard options contracts (or 500 mini-option contracts) when
the NBBO is $0.01 wide, while also continuing to provide opportunities
for price improvement when spreads are wider than $0.01, regardless of
order size, which helps to perfect the mechanism of a free and open
market and, in general, helps to protect investors and the public
interest. The Exchange believes that the changes to AIM requiring price
improvement of at least one minimum price improvement increment over
the NBBO for Agency Orders of less than 50 standard options contracts
(or 500 mini-option contracts) where the difference in the NBBO is
$0.01 will ensure that these particular small orders receive at least
minimal price improvement. Additionally, the Exchange believes the
proposal will result in more orders of less than 50 standard contracts
(or 500 mini-option contracts) where the NBBO width is greater than
$0.01 being executed in AIM, thus providing an increased probability of
price improvement for small orders. By removing the requirement that
the stop price must be at least one minimum increment better than the
then NBBO for all orders of less than 50 standard option contracts (or
500 mini-options contracts) regardless of what the NBBO width is, as
proposed, market participants would be incentivized to introduce more
orders to AIM for the opportunity to receive price improvement, thereby
providing an increased probability of price improvement. The Exchange
also notes the AIM Auction is now open to all Users, which also
promotes and fosters competition, and may provide for additional
liquidity in these auctions, which could lead to additional price
improvement. The Exchange also notes that the AIM auction generally
delivers a meaningful opportunity for price improvement to orders,
including orders for fewer than 50 standard options contracts (or 500
mini-option contracts), when the spread in the option is $0.02 or
more.\12\ Conversely, there is generally

not significant price improvement when the NBBO has a bid/ask
differential of $0.01. Accordingly, the Exchange believes the proposed
rule change to continue to require price improvement of at least one
minimum price increment over the NBBO for Agency orders for less than
50 standard options contracts (or 500 mini-option contracts) when the
difference in NBBO is $0.01 will help ensure that these small orders
receive at least minimal price improvement, while also providing
further price improvement opportunities in smaller-sized orders that
have a NBBO spread wider than $0.01, which ultimately benefits
investors and retail customers in particular.
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    \12\ See, e.g., Securities Exchange Release No. 79835 (January
18, 2017) 82 FR 8445 (January 25, 2017) (SR-Phlx-2016-119).
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    Lastly, the Exchange notes the proposed rule change is generally
intended to align system functionality currently offered by the
Exchange with Cboe EDGX functionality in order to provide a consistent
technology offering across the Exchange's affiliated exchanges. A
consistent technology offering, in turn, will simplify the technology
implementation, changes, and maintenance by TPHs that are also
participants on Cboe EDGX. The Exchange believes this consistency will
promote a fair and orderly national options market system.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange does not
believe the proposed rule change will impose any burden on intramarket
competition that is not necessary or appropriate in furtherance of the
purposes of the Act, because it will apply uniformly to TPHs.
Additionally, the Exchange notes that participation in the AIM process
is completely voluntary. The Exchange believes all market participants
may benefit from any additional liquidity and price improvement in the
AIM Auctions that may result from the proposed rule change.
    The Exchange does not believe the proposed rule change will impose
any burden on intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as the proposed
rule change relates to an Exchange-specific auction mechanism. The
Exchange also notes that other options exchanges maintain similar
requirements for their respective price improvement auctions.\13\
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    \13\ See Cboe EDGX Rule 21.19(b)(1). See also, e.g., Nasdaq PHLX
LLC Options 3, Section 13(a) and Nasdaq ISE LLC Options 3, Section
13(b).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange neither solicited nor received comments on the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not:
    A. Significantly affect the protection of investors or the public
interest;
    B. impose any significant burden on competition; and
    C. become operative for 30 days from the date on which it was
filed, or such shorter time as the Commission may designate, it has
become effective pursuant to Section 19(b)(3)(A) of the Act \14\ and
Rule 19b-4(f)(6) \15\ thereunder. At any time within 60 days of the
filing of the proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission will institute proceedings to determine whether the proposed
rule change should be approved or disapproved.
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    \14\ 15 U.S.C. 78s(b)(3)(A).
    \15\ 17 CFR 240.19b-4(f)(6).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CBOE-2021-024 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-CBOE-2021-024. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-CBOE-2021-024, and should be submitted
on or before May 14, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-08420 Filed 4-22-21; 8:45 am]
BILLING CODE 8011-01-P