Docket No. CP21-463-000

I concur with issuing the certificate and approving abandonment as set forth in this order.  I write separately to emphasize the following. 

On June 30 of this year, the U.S. Supreme Court issued its decision in West Virginia v. EPA.[1]  In West Virginia v. EPA, the Court explained yet again that under the Constitution of the United States major questions of public policy at the federal level are reserved to Congress — which is elected by the people — not to unelected administrative agencies.[2]    

Several months before West Virginia v. EPA was decided, I cited the major questions doctrine in my dissent to the majority’s two proposed policy statements regarding certificates under the Natural Gas Act (NGA).[3]

Whether this Commission can reject a certificate under the NGA due to a facility’s purported impact on global climate change, stemming from an estimate of the greenhouse gas (GHG) emissions from that facility, is clearly a major question of public policy.[4]  Congress could amend the NGA to give this Commission such clear authority and guidelines on when and how to use it, but it has not.[5] 

So where do we stand after West Virginia v. EPA

The Commission can estimate and consider the direct GHG emissions from the facility itself and consider reasonable measures to avoid or minimize those direct emissions, as it does with other direct environmental impacts.  The Commission can also formulate an upper-bound estimate of indirect GHG emissions from a facility, as the U.S. Court of Appeals for the D.C. Circuit has found will satisfy our NEPA obligations,[6] but it cannot reject a certificate based on the purported impact on global climate change of the project, nor can the Commission require an applicant to attempt to mitigate indirect global emissions from activities that are not even under the jurisdiction of the Commission, essentially a de facto rejection.  This order’s recitation of such GHG emissions data should not be interpreted as implying or insinuating that the Commission has the authority to reject a certificate based on those estimates and their purported impact on global climate change.[7]  Doing so would simply be inconsistent with West Virginia v. EPA and the text of the NGA.[8]

“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.”[9]  However, choosing the policy response is an authority the Constitution reserves to Congress — not to the Commission, any other administrative agency, or the courts.

For these reasons, I respectfully  concur.


[1] 142 S. Ct. 2587 (2022).

[2] Those who said they were surprised by the Court’s decision in West Virginia v. EPA or claimed it was a major departure from past precedent have not been paying attention, or have a very different view of executive power.  See, e.g., Richard L. Revesz, SCOTUS Ruling in West Virginia v. EPA Threatens All Regulation, Bloomberg Law, July 8, 2022 (“The court turned on its head the normal approach to statutory interpretation,” and the major questions doctrine “casts an ominous pall over the nation’s regulatory future.”),  On the contrary, the Court has been discussing the tenets of the major questions doctrine for years, including cases such as Utility Air Regulatory Group. v. EPA, 573 U.S. 302 (2014) and FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).  Further, the major questions doctrine is entirely consistent with much earlier Supreme Court opinions that articulated the constitutional limits on the authority of the executive branch to make up law, such as the landmark opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).  The major questions doctrine reflects nothing more than the basic framework of the U.S. Constitution, in which “all” legislative powers are vested in the Congress.  U.S. Const. art. I (emphasis added).

[3] Certification of New Interstate Natural Gas Facilities, 178 FERC ¶ 61,107 (2022) (Christie, Comm’r, dissenting at P 63) (Christie Dissent) (“[I]f 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. . . .  That is the basic constitutional framework of the United States and it is the same for any liberal democracy worth the name.”),  I issued the same dissent in Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews, 178 FERC ¶ 61,108 (2022).

[4] Christie Dissent at P 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.”) 

[5] Some of my colleagues disagree.  See, e.g., Columbia Gulf Transmission, 178 FERC ¶ 61,198 (2022) (Glick, Chairman, concurring at PP 5-7); id. (Clements, Comm’r, concurring at PP 2-5). 

[6] Appalachian Voices v. FERC, 2019 WL 847199 (D.C. Cir. Feb. 19, 2019).  As an information-forcing statute, NEPA can require the disclosure of information on GHG emissions.  But the fact that information may be required to be disclosed under NEPA does not mean that such information can create new substantive authority for the Commission to reject a certificate where public need has otherwise been proven under the NGA.

[7] Order at P 27. 

[8] I will not reiterate herein the discussion of why the terms “public convenience” or “public interest” in the NGA do not create some new fount of authority to reject a certificate based on a GHG estimate and its purported impact on global climate change. See Christie Dissent at PP 11-21; see also id. PP 42-48 (discussing Sierra Club v. FERC, 867 F.3d 1357, 1373 (D.C. Cir. 2017) (Sabal Trail)).  Any continuing claim that Sabal Trail created some new authority for this Commission to reject a certificate based on an estimate of global GHG impacts on climate change is clearly inconsistent with West Virginia v. EPA

[9] Christie Dissent at P 61.

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