Docket No. CP21-470-000

I concur with this order and write separately to (1) elaborate on the relationship between the action the Commission is taking today and future safety measures we may require Freeport LNG to implement in the wake of the explosion and fire at its LNG facility on June 8, 2022, and (2) clarify why I agree with the decision not to characterize the significance of the increased greenhouse gas (GHG) emissions associated with the Capacity Amendment Project.[1] 

The public may question – as I did – whether the Commission is putting the cart before the horse in approving a substantial increase in the annual production limit at an LNG facility that is shut down while the Commission and other relevant agencies await the results of the root cause investigation of an accident that occurred while the facility was operating within its existing, lower limit.  While it would be reasonable to wait to issue this order until those results arrive, several considerations helped get me comfortable with approving the requested increase at this time.  First, the Commission’s original review of the Freeport LNG facility’s safety and reliability was based on a 2.38 Bcf per day production rate, which equates to the 870 Bcf per year limit we are authorizing today.[2]  Second, our approval of the increase in no way constrains the Commission’s authority to require Freeport LNG to implement additional safety measures deemed necessary or advisable based on the results of the root cause investigation.[3]  Those measures may include restricting the facility’s production limit to whatever level we and other jurisdictional agencies deem safe.  Third, today’s order is expressly conditioned on the Commission’s Director of the Office of Energy Projects finding that the LNG facilities are fit for service and that the requisite safety measures are in place, including those needed to operate the facility safely at the maximum output level we are approving today.[4]  Last, but not least, is the confidence I have in the dedicated, expert Commission staff who are working with other jurisdictional agencies to oversee the root cause investigation and determine what specific measures may be needed to assure safe operation of Freeport LNG’s facilities.  Their review will encompass Freeport LNG’s overall safety management system, as well as the effectiveness of the multiple layers of protection incorporated into the design and operation of Freeport LNG’s facilities.         

As to GHG emissions, I have explained at greater length in my concurrences in other recent orders[5] that, so long as the Commission meets its substantive obligations under the National Environmental Policy Act (NEPA), it is appropriate to decline to label GHG emissions as significant or insignificant while we are considering comments on our Draft GHG Policy Statement and deciding on a final policy.[6] 

The Commission has met its substantive NEPA obligations with respect to the proposed Capacity Amendment Project.  To begin with, NEPA requires us to prepare an Environmental Impact Statement (EIS) for a project with impacts that might significantly affect the quality of the human environment.[7]  Here, the Commission prepared an environmental assessment (EA) on the Capacity Amendment Project.[8]  Based on the EA, as supplemented by the analysis in the Commission’s order and with the conditions imposed by the order, the Commission has reasonably concluded that approval of the Capacity Amendment Project will not have a significant environmental impact.  As the courts have held NEPA requires,[9] the EA describes the climate impacts caused by GHG emissions.[10]  The courts have further determined that quantifying emissions and comparing them to national and state emissions levels is a “reasonable proxy” for assessing climate impacts from GHG emissions.[11]  The EA does this as well.[12]

After careful consideration, I conclude that approval of the Capacity Amendment Project, with the conditions included in our order, is not inconsistent with the public interest.

For these reasons, I respectfully concur.


[1] See Freeport LNG Development, L.P., et al., 180 FERC ¶ 61,055, at P 26 (2022). 

[2] Id. at PP 15-16.     

[3] Id. at P 21.

[4] See id. at Ordering Paragraph B.

[5] See, e.g., Columbia Gulf Transmission, LLC, 178 FERC ¶ 61,198 (2022) (Clements, Comm’r, concurring); Tenn. Gas Pipeline Co., 178 FERC ¶ 61,199 (2022) (Clements, Comm’r, concurring); Iroquois Gas Transmission Sys., L.P., 178 FERC ¶ 61,200 (2022) (Clements, Comm’r, concurring); Atlantic Coast Pipeline, LLC, 178 FERC ¶ 61,201 (2022) (Clements, Comm’r, concurring).

[6] See Order on Draft Policy Statements, 178 FERC ¶ 61,197, at P 2 (2022); Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Reviews, 178 FERC ¶ 61,108 (2022).

[7] See 42 U.S.C. § 4332(C); 40 C.F.R. § 1502.3 (2012); Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 985 F.3d 1032, 1039 (D.C. Cir. 2021), cert. denied, 2022 WL 516382 (Feb. 22, 2022). 

[8] Freeport LNG Capacity Amendment Project Environmental Assessment, Docket No. CP21-470-000 (May 12, 2022) (EA).

[9] See, e.g., WildEarth Guardians v. Jewell, 738 F.3d 298, 308-311 (D.C. Cir. 2013). 

[10] EA at pp. 5-10.         

[11] See WildEarth Guardians, 738 F.3d at 309; Sierra Club v. FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017). 

[12] EA at p. 8.

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