The Federal Energy Regulatory Commission’s (FERC) February policy statements on interstate natural gas projects drew strong objections from Sen. Joe Manchin (D-W.Va.) and the two out of the five FERC commissioners who voted against the statements.
Those statements, which add consideration of greenhouse gas emissions and environmental impacts, including on “environmental justice communities,” for FERC to approve natural gas infrastructure, were the subject of a March 3 hearing of the Senate Committee on Energy & Natural Resources (ENR).
While FERC previously determined project need on the basis of contracts to ship the gas from a prospective pipeline, the first new policy statement adds factors to assess “need.” In addition, it directs FERC to consider environmental impacts, landowner impacts, and impacts on “environmental justice communities,” among other factors.
The second statement presumes that a project emitting 100,000 metric tons of carbon dioxide equivalents has a significant impact on climate change, meaning the project must undergo more extensive environmental review.
Manchin, who serves as ENR chair, testified that “the recent action taken by Democratic commissioners … served to elevate environmental considerations above American energy reliability, security, and independence.”
“To deny or put up barriers to natural gas projects and the benefits they provide, while Putin is actively and effectively using energy as an economic and political weapon against our allies, is just beyond the pale,” Manchin said.
ENR Ranking Member John Barrasso (R-Wyo.) said the new policies would “make it next to impossible to build any new natural gas infrastructure or upgrade our existing facilities in the United States,” adding that they were promulgated through a “purely partisan vote” that split FERC’s commissioners.
The FERC commissioners who voted for the statements said they were intended to bring FERC in line with court rulings on the Natural Gas Act (NGA) and the National Environmental Policy Act (NEPA).
FERC Chair Richard Glick, who supported the statements, referred to three recent decisions by the D.C. Court of Appeals, Sabal Trail, Birckhead, and Vecinos, saying they confirmed FERC is required to consider greenhouse gas emissions.
“To put executive branch officials in charge of deciding which cases to follow, and which to disregard, would be an invitation to exactly the type of unchecked executive branch authority to which my colleagues rightly object,” Glick testified.
By contrast, FERC Commissioner Mark C. Christie, who voted against the statements, said FERC’s new statements seize upon authority that should ultimately rest in Congress.
“In our democracy, it is only you—the legislators elected by the people—who have the exclusive power to decide the major policy questions that impact the lives of tens of millions of Americans, not an unelected administrative agency,” Christie testified.
FERC Commissioner Anne Clements, who voted for the policy statements, testified that “it would be indefensible” for FERC to judge need based exclusively on the existence of contracts for prospective pipeline customers.
Yet, FERC Commissioner James P. Danly, an opponent of the statements, said the new approach to project need created uncertainty, describing it as “a vague multi-factor balancing test, in which it will exercise its judgment in place of the market’s, to determine whether a project is ‘needed’ or not.”
Danly also rejected the argument that recent federal court decisions necessitated the new policy statements.
“Sabal Trail has a narrow holding and cannot credibly be described as requiring FERC’s unprecedented assertion of jurisdiction over the whole of the natural gas industry’s emissions—from upstream production to downstream consumer use,” he testified.