Certification of New Interstate Natural Gas Facilities
| Published date | 24 February 2021 |
| Citation | 86 FR 11268 |
| Record Number | 2021-03808 |
| Section | Notices |
| Court | Energy Department,Federal Energy Regulatory Commission |
Federal Register, Volume 86 Issue 35 (Wednesday, February 24, 2021)
[Federal Register Volume 86, Number 35 (Wednesday, February 24, 2021)]
[Notices]
[Pages 11268-11274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03808]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
[Docket No. PL18-1-000]
Certification of New Interstate Natural Gas Facilities
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Notice of inquiry.
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SUMMARY: In this Notice of Inquiry, the Federal Energy Regulatory
Commission (Commission) seeks new information and additional
stakeholder perspectives to help the Commission explore whether it
should revise its approach under the currently effective policy
statement on the certification of new natural gas transportation
facilities to determine whether a proposed natural gas project is or
will be required by the public convenience and necessity, as that
standard is established in section 7 of the Natural Gas Act.
DATES: Comments are due April 26, 2021.
ADDRESSES: Comments, identified by docket number, may be filed in the
following ways:
Electronic Filing through http://www.ferc.gov. Documents
created electronically using word processing software should be filed
in native applications or print-to-PDF format and not in a scanned
format.
Mail/Hand Delivery: Those unable to file electronically
may mail comments via the U.S. Postal Service to: Federal Energy
Regulatory Commission, Office of the Secretary, 888 First Street NE,
Washington, DC 20426. Hand-delivered comments or comments sent via any
other carrier should be delivered to: Federal Energy Regulatory
Commission, Office of the Secretary, 12225 Wilkins Avenue, Rockville,
Maryland 20852.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Comment
Procedures Section of this document.
FOR FURTHER INFORMATION CONTACT:
Thomas Chandler (Legal Information), Office of the General Counsel,
Federal
[[Page 11269]]
Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426, 202-502-6699
Paige Espy (Legal Information), Office of the General Counsel, Federal
Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426, 202-502-6698
Brandon Cherry (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, 202-502-8328
SUPPLEMENTARY INFORMATION:
1. On April 19, 2018, the Commission issued a Notice of Inquiry
(2018 NOI) \1\ seeking information and stakeholder perspectives to help
the Commission explore whether, and if so how, it should revise its
approach under the currently effective policy statement on the
certification of new interstate natural gas transportation facilities
(Policy Statement).\2\ The 2018 NOI included an extensive background
section discussing how the legal standards and historical context
informed the creation of the Policy Statement in 1999, how the
Commission's evaluations under the Policy Statement and, relatedly,
under the National Environmental Policy Act of 1969 (NEPA) have
evolved, and how changed circumstances since 1999 have invited the
present review.\3\ Specifically, the Commission sought input on
whether, and if so how, the Commission should adjust: (1) Its
methodology for determining whether there is a need for a proposed
project, including the Commission's consideration of precedent
agreements and contracts for service as evidence of such need; (2) its
consideration of the potential exercise of eminent domain and of
landowner interests related to a proposed project; and (3) its
evaluation of the environmental impacts of a proposed project. The
Commission also sought input on whether there are specific changes the
Commission could consider implementing to improve the efficiency and
effectiveness of its certificate processes including pre-filing, post-
filing, and post-order issuance.
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\1\ Certification of New Interstate Natural Gas Facilities, 163
FERC ] 61,042 (2018) (2018 NOI).
\2\ Certification of New Interstate Natural Gas Pipeline
Facilities, 88 FERC ] 61,227 (1999), clarified, 90 FERC ] 61,128,
further clarified, 92 FERC ] 61,094 (2000) (Policy Statement). The
Commission must determine whether a proposed natural gas project is
or will be required by the present or future public convenience and
necessity, as that standard is established in section 7 of the
Natural Gas Act (NGA). 15 U.S.C. 717f.
\3\ 2018 NOI, 163 FERC ] 61,042, at PP 5-50.
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2. The Commission established a public comment period for the 2018
NOI that closed on July 25, 2018. In response to the 2018 NOI, the
Commission received more than 3,000 comments from diverse stakeholders
including landowners; tribal, federal, state, and local government
officials; non-governmental organizations; consultants, academic
institutions, and think tanks; natural gas producers, Commission-
regulated companies, local distribution companies (LDCs), and industry
trade organizations; electricity generators and utilities; and others.
The Commission has, to date, not taken any further action in this
proceeding.
Renewed Request for Comments
3. We note that there have been a range of changes since the
Commission issued the 2018 NOI. These changes include the Council on
Environmental Quality's (CEQ) promulgation of updated NEPA regulations
for implementation by all federal agencies \4\ and Executive Order
14008.\5\ Accordingly, we are providing an opportunity for stakeholders
to refresh the record and provide updated information and additional
viewpoints to help the Commission assess its policy.
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\4\ Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 FR 43,304
(2020). CEQ's final rule directs agencies to propose revisions to
their NEPA procedures consistent with the final rule by September
14, 2021. Further, the Commission's regulations provide 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.'' 18
CFR 380.1.
\5\ Exec. Order No. 14008, Sec. 219, 86 FR 7619.
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4. We seek comments that reflect additional information developed
and insights gained during the interim period. We emphasize that we
seek to build upon the existing record in this proceeding and will
consider the previously submitted comments in this proceeding, as well
as any additional comments received in response to this NOI, to inform
the Commission's decision-making. We strongly urge stakeholders to not
resubmit previously filed comments, which remain in the record of this
proceeding. Additionally, we urge stakeholders to submit new or
modified comments that clearly explain why the Commission should or
should not take a specific course of action, as discussed in the
questions posed below, and, more importantly, provide precise
recommendations for how the Commission could implement such changes.
5. The Commission identified four general areas of examination in
the 2018 NOI: (1) The reliance on precedent agreements to demonstrate
need for a proposed project; (2) the potential exercise of eminent
domain and landowner interests; (3) the Commission's evaluation of
alternatives and environmental effects under NEPA and the Natural Gas
Act (NGA); and (4) the efficiency and effectiveness of the Commission's
certificate processes. These four general issue areas identified in the
2018 NOI remain relevant to the Commission's considerations, and we
seek comments on several new questions in some of these areas that
modify or add to the 2018 NOI.
6. In addition, in this NOI we identify and pose new questions on a
fifth broad issue area of examination: The Commission's identification
and addressing of any disproportionately high and adverse human health
or environmental effects of its programs, policies, and activities on
environmental justice communities and the mitigation of those adverse
impacts and burdens.\6\ As noted above, in responding to these
questions, we ask stakeholders to build upon the record developed
through previously filed comments.
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\6\ Exec. Order No. 12898, Sec. Sec. 1-101, 6-604, 59 FR 7629,
at 7629, 7632 (1994).
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7. We seek comment on the questions set forth below, organized
according to these five broad categories. Commenters need not answer
every question enumerated below.
A. Potential Adjustments to the Commission's Determination of Need
8. The questions posed in the 2018 NOI remain relevant to the
Commission's consideration of potential adjustments to its
determination regarding whether there is a need for new projects.
Questions A1 through A9 are identical to the questions posed in this
section in the 2018 NOI. Stakeholders need not resubmit their previous
comments in response to these questions. We ask that stakeholders
respond to these questions only if they have updated information to
provide. Questions A10 through A12 include revised or new questions. In
providing an opportunity for stakeholders to submit additional
information or new viewpoints, we encourage commenters to identify with
specificity how any potential adjustments could be implemented by the
Commission.
9. Accordingly, comments are requested on the following questions.
[[Page 11270]]
A1. Should the Commission consider changes in how it determines
whether there is a public need for a proposed project?
A2. In determining whether there is a public need for a proposed
project, what benefits should the Commission consider? For example,
should the Commission examine whether the proposed project meets
market demand, enhances resilience or reliability, promotes
competition among natural gas companies, or enhances the functioning
of gas markets?
A3. Currently, the Commission considers precedent agreements,
whereby entities intending to be shippers on the contemplated
pipeline commit contractually to such shipments, to be strong
evidence that there is a public need for a proposed project. If the
Commission were to look beyond precedent agreements, what types of
additional or alternative evidence should the Commission examine to
determine project need? What would such evidence provide that cannot
be determined with precedent agreements alone? How should the
Commission assess such evidence? Is there any heightened litigation
risk or other risk that could result from any broadening of the
scope of evidence the Commission considers during a certificate
proceeding? If so, how should the Commission safeguard against or
otherwise address such risks?
A4. Should the Commission consider distinguishing between
precedent agreements with affiliates and non-affiliates in
considering the need for a proposed project? If so, how?
A5. Should the Commission consider whether there are specific
provisions or characteristics of the precedent agreements that the
Commission should more closely review in considering the need for a
proposed project? For example, should the term of the precedent
agreement have any bearing on the Commission's consideration of need
or should the Commission consider whether the contracts are subject
to state review?
A6. In its determinations regarding project need, should the
Commission consider the intended or expected end use of the natural
gas? Would consideration of end uses better inform the Commission's
determination regarding whether there is a need for the project?
What are the challenges to determining the ultimate end use of the
new capacity a shipper is contracting for? How could such challenges
be overcome?
A7. Should the Commission consider requiring additional or
alternative evidence of need for different end uses? What would be
the effect on pipeline companies, consumers, gas prices, and
competition? Examples of end uses could include: LDC contracts to
serve domestic use; contracts with marketers to move gas from a
production area to a liquid trading point; contracts for
transporting gas to an export facility; projects for reliability
and/or resilience; and contracts for electric generating resources.
A8. How should the Commission take into account that end uses
for gas may not be permanent and may change over time?
A9. Should the Commission assess need differently if multiple
pipeline applications to provide service in the same geographic area
are pending before the Commission? For example, should the
Commission consider a regional approach to a needs determination if
there are multiple pipeline applications pending for the same
geographic area? Should the Commission change the way it considers
the impact of a new project on competing existing pipeline systems
or their captive shippers? If so, what would that analysis look like
in practice?
A10. Should the Commission consider adjusting its assessment of
need to examine (1) if existing infrastructure can accommodate a
proposed project (beyond the system alternatives analysis examined
in the Commission's environmental review); \7\ (2) if demand in a
new project's markets will materialize; or (3) if reliance on other
energy sources to meet future demand for electricity generation
would impact gas projects designed to supply gas-fired generators?
If so, how?
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\7\ We note that the Commission has previously declined to
substitute its judgment for a company's business decision. See,
e.g., Nat. Gas Pipeline Co. of Am. LLC, 171 FERC ] 61,157, at P 50 &
n.117, reh'g denied, 172 FERC ] 61,084, at P 23 & n.42 (2020)
(finding that the acquisition and use of a retired liquids pipeline
was neither a feasible nor a practical alternative to the proposed
project) (citing Kinder Morgan Interstate Gas Transmission LLC, 133
FERC ] 61,044, at P 25 (2010) (stating that the Commission will
neither substitute its business judgment for that of the applicants
nor require the applicant to acquire facilities that a party asserts
is an alternative to the proposed project). Cf. Gulf South Pipeline
Co., LP, 132 FERC ] 61,199, at P 63 (2010) (``the Commission gives
deference to pipelines' operational experience and provides
pipelines with reasonable discretion to manage their own systems'')
(citations omitted)).
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A11. In its determination of need, should the Commission
consider the economic, energy security and social attributes of
domestic production and use of natural gas as detailed in the letter
dated February 11, 2021 from the Chairman of the Senate Energy and
Natural Resources Committee, Senator Joe Manchin III, to President
Biden? \8\
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\8\ February 11, 2021 Letter from Senator Joe Manchin III,
Chairman of the Senate Committee on Energy and Natural Resources, to
President Joseph R. Biden, https://www.energy.senate.gov/services/files/5AB138AA-9FE9-4E8A-BA84-C87F101E9B51.
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A12. In its general public interest considerations under the NGA
or other federal statutes, should the Commission consider the
interests of low to middle-income communities in which the
production or transportation of natural gas is a significant source
of jobs and/or tax revenues that fund public services?
B. The Exercise of Eminent Domain and Landowner Interests
10. Under the Policy Statement, the Commission considers impacts to
landowners and the extent to which an applicant expects to acquire
property rights by relying on eminent domain. As explained in the 2018
NOI, although, by statute, Commission authorization of a project
through the issuance of a certificate of public convenience and
necessity entitles a certificate holder to acquire property through
eminent domain, the Commission itself does not grant the use of eminent
domain across specific properties. Only after the Commission authorizes
a project can the project sponsor assert the right of eminent domain
for outstanding lands for which it could not negotiate an easement.
11. Since the issuance of the 2018 NOI, the Commission has taken
steps to protect landowner interests. First, the Commission updated its
web resources for landowners and its notice documents (e.g., Notice of
Application) to more clearly explain the Commission's role in
considering applications for natural gas infrastructure, how and when
interested entities can participate in Commission proceedings, and how
to resolve disputes that may arise during construction. Second, the
Commission established a new group within the Rehearings Section of the
Office of the General Counsel: The Landowner Rehearings Group. The
Landowner Rehearings Group gives first priority to landowner rehearing
requests and targets to issue rehearing orders involving landowner
issues within 30 days. And third, the Commission issued a final rule
that precludes the issuance of authorizations to proceed with
construction activities with respect to an NGA section 3 authorization
or section 7(c) certificate order until either the Commission acts on
the merits of any timely-filed request for rehearing or the time for
filing such a request has passed.\9\
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\9\ Limiting Authorizations to Proceed with Construction
Activities Pending Rehearing, Order No. 871, 171 FERC ] 61,201
(2020), 85 FR 40113 (July 6, 2020).
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12. We also note that Congress recently directed the Commission to
develop a report detailing how it will establish and operate an Office
of Public Participation.\10\ Such an office could ultimately help
facilitate landowner participation in Commission proceedings.
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\10\ Consolidated Appropriations Act of 2021, Pub. L. 116-260,
Explanatory Statement for Division D (2021).
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13. In natural gas infrastructure proceedings, the Commission
continues to receive comments on applicants' proposed use of eminent
domain and the Commission's use of conditional certificates--issuing a
certificate before a pipeline receives all of its federal permits.
Commenters have argued that the Commission should not issue conditional
certificates and allow the exercise of eminent domain in cases where it
is unlikely that a pipeline may
[[Page 11271]]
receive the necessary permits.\11\ The Commission precedent is that it
lacks the authority to restrict a certificate holder's use of eminent
domain once a certificate of public convenience and necessity is
received.\12\ In addition, the Commission has justified its policy for
issuing conditional certificates on the basis that it:
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\11\ See, e.g., Jordan Cove Energy Project L.P., 170 FERC ]
61,202, at P 191 (2020).
\12\ See, e.g., PennEast Pipeline Co., LLC, 174 FERC ] 61,056,
at P 10 & n.17 (2021) (collecting cases); Midcoast Interstate
Transmission, Inc. v. FERC, 198 F.3d 960, 973 (D.C. Cir. 2000)
(``Once a certificate has been granted, the statute allows the
certificate holder to obtain needed private property by eminent
domain. . . . The Commission does not have the discretion to deny a
certificate holder the power of eminent domain.'' (citations
omitted)); Atl. Coast Pipeline, 161 FERC ] 61,042 at P 78 (``[O]nce
a natural gas company obtains a certificate of public convenience
and necessity, it may exercise the right of eminent domain in a U.S.
District Court or a state court.'').
is a practical response to the reality that, in spite of the best
efforts of those involved, it may be impossible for an applicant to
obtain all approvals necessary to construct and operate a natural
gas project in advance of the Commission's issuance of its
certificate without unduly delaying the project. To rule otherwise
could place the Commission's administrative process indefinitely on
hold until states with delegated federal authority choose to act.
Such an approach, which would preclude companies from engaging in
what are sometimes lengthy pre-construction activities while
awaiting state or federal agency action, would likely delay the in-
service date of natural gas infrastructure projects to the detriment
of consumers and the public in general.\13\
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\13\ Northwest Pipeline, GP, 145 FERC ] 61,013, at P 16 (2013).
See, e.g., Jordan Cove Energy Project L.P., 171 FERC ] 61,136, at P
81 (2020); PennEast Pipeline Co., LLC, 164 FERC ] 61,098, (2018);
Algonquin Gas Transmission, LLC, 161 FERC ] 61,255, at P 22 (2017);
Tenn. Gas Pipeline Co., L.L.C., 154 FERC ] 61,191, at P 34 (2016);
Ruby Pipeline, L.L.C., 133 FERC ] 61,015, at P 20 (2013); AES
Sparrows Point LNG, LLC, 129 FERC ] 61,245, at P 60 (2009); Crown
Landing, LLC, 117 FERC ] 61,209, at P 26 (2006).
14. The Commission's policy on issuing conditional certificates has
been affirmed by the courts.\14\
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\14\ See Delaware Riverkeeper Network v. FERC, 857 F.3d 388
(D.C. Cir. 2017); Myersville Citizens for a Rural Cmty., Inc. v.
FERC, 783 F.3d 1301 (D.C. Cir. 2015).
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15. Therefore, we invite new or revised comments on the following
questions regarding whether, and if so how, the Commission should
consider adjusting its consideration of the potential exercise of
eminent domain and its consideration of landowner interests. Questions
B1 through B5 are identical to the questions posed in this section in
the 2018 NOI. Stakeholders need not resubmit their previous comments in
response to these questions. We ask that stakeholders respond to these
questions only if they have updated information to provide. Question B6
is a new question not included in the 2018 NOI.
B1. Should the Commission consider adjusting its consideration
of the potential exercise of eminent domain in reviewing project
applications? If so, how should the Commission adjust its approach?
B2. Should applicants take additional measures to minimize the
use of eminent domain? If so, what should such measures be? How
would that affect a project's overall costs? How could such a
requirement affect an applicant's ability to adjust a proposed route
based on public input received during the Commission's project
review?
B3. For proposed projects that will potentially require the
exercise of eminent domain, should the Commission consider changing
how it balances the potential use of eminent domain against the
showing of need for the project? Since the amount of eminent domain
used cannot be established with certainty until after a Commission
order is issued, is it possible for the Commission to reliably
estimate the amount of eminent domain a proposed project may use
such that the Commission could use that information during the
consideration of an application?
B4. Does the Commission's current certificate process adequately
take landowner interests into account? Are there steps that
applicants and the Commission should implement to better take
landowner interests into account and encourage landowner
participation in the process? If so, what should the steps be?
B5. Should the Commission reconsider how it addresses
applications where the applicant is unable to access portions of the
right-of-way? Should the Commission consider changes in how it
considers environmental information gathered after an order
authorizing a project is issued?
B6. Under the NGA, does the Commission have authority to
condition a certificate holder's exercise of eminent domain? Should
the Commission defer issuing a section 7 certificate until an
applicant has all other authorizations needed to commence
construction? If so, can the Commission reconcile such inaction with
section 7(e) of the NGA, which provides that the Commission shall
issue a certificate to any qualified applicant upon finding that the
proposed construction and operation of the project ``is or will be
required by the present or future public convenience and
necessity''? \15\ Are there circumstances when an applicant may need
a certificate of public convenience and necessity prior to receiving
certain permits or authorizations, making it difficult for an
applicant to obtain all other authorizations needed to commence
construction prior to the Commission's issuance of a section 7
certificate?
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\15\ 15 U.S.C. 717f(e) (emphasis added).
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C. The Commission's Consideration of Environmental Impacts
16. As explained in the 2018 NOI, the Commission performs an
environmental review under NEPA and considers a proposed project's
environmental impacts when determining whether a project is required by
the public convenience and necessity. There continues to be stakeholder
interest regarding the alternatives that the Commission evaluates in
its environmental review and how the Commission addresses climate
change, including the impact of greenhouse gas (GHG) emissions. In
addition, is it appropriate for the Commission to review how it
implements NEPA, including its consideration of categorical exclusions?
17. Therefore, the Commission invites new or revised comments
regarding whether and if so how, the Commission should consider
adjusting its environmental evaluations. Questions C1 through C11
include revised or new questions.
C1. NEPA and its implementing regulations require an agency to
consider reasonable alternatives to the proposed action. Currently
the Commission considers the no-action alternative, system
alternatives, design alternatives, and route alternatives. Should
the Commission consider broadening its environmental analysis to
consider alternatives beyond those that are currently included? If
so, how does the Commission reconcile broadening its environmental
analysis to consider alternatives beyond those currently included
with Citizens Against Burlington, Inc. v. Busey? \16\ The U.S. Court
of Appeals for the District of Columbia Circuit clarified that,
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\16\ See Citizens Against Burlington, Inc. v. Busey, 938 F.2d
190, 199 (D.C. Cir. 1991).
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[i]n commanding agencies to discuss ``alternatives to the
proposed action,'' . . . NEPA plainly refers to alternatives to the
``major Federal actions significantly affecting the quality of the
human environment,'' and not to alternatives to the applicant's
proposal. NEPA Sec. 102(2)(C), 42 U.S.C. 4332(2)(C) (emphasis
added). An agency cannot redefine the goals of the proposal that
arouses the call for action; it must evaluate alternative ways of
achieving its goals, shaped by the application at issue and by the
function that the agency plays in the decisional process. Congress
did expect agencies to consider an applicant's wants when the agency
formulates the goals of its own proposed action. Congress did not
expect agencies to determine for the applicant what the goals of the
applicant's proposal should be.\17\
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\17\ Id.
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What specific types of additional alternatives should the
Commission consider and how would such additional alternatives be
consistent with the D.C. Circuit's guidance in Citizens Against
Burlington, Inc. v. Busey? \18\ How would the Commission obtain
reliable information to perform an analysis of these alternatives?
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\18\ Id.
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C2. Are there any environmental impacts that the Commission does
not currently
[[Page 11272]]
consider in its cumulative impact analysis that could be captured
with a broader regional evaluation? If so, how broadly should
regions be defined (e.g., which states or geographic boundaries best
define different regions), and which environmental resources
considered in NEPA would be affected on a larger, regional scale?
Does the text of NGA section 7 permit the Commission to do this? If
this is contemplated by the NGA, would one applicant's section 7
application prejudice another applicant's section 7 application?
C3. In conducting an analysis of a project, how could the
Commission consider upstream impacts (e.g., from the drilling of
natural gas wells) and downstream end-use impacts? Should applicants
be required to provide information on the origin and end use of the
gas? How would the Commission determine end-use impacts if the gas
is sent to a pooling point or a mid-stream shipper? If the end use
is electric generation or an LDC, how would the Commission determine
the GHG emissions of existing and anticipated gas usage attributed
to a project? How would additional information related to upstream
or downstream impacts of a proposed project inform the Commission's
decision on an application? Should shippers who have subscribed
capacity on a project (or potentially, the shippers' customers) be
encouraged to provide the type of information contemplated above? If
so, how might this be done? How could such a policy be squared with
CEQ's final rule? \19\
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\19\ See Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 FR 43,304-01
(``CEQ proposed to simplify the definition of effects by striking
the specific references to direct, indirect, and cumulative effects
and providing clarity on the bounds of effects consistent with the
Supreme Court's holding in Public Citizen, 541 U.S. at 767-68.'');
40 CFR 1508.1 (2020) (``Effects or impacts means changes to the
human environment from the proposed action or alternatives that are
reasonably foreseeable and have a reasonably close causal
relationship to the proposed action or alternatives, including those
effects that occur at the same time and place as the proposed action
or alternatives and may include effects that are later in time or
farther removed in distance from the proposed action or
alternatives.'').
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C4. In conducting an analysis of the impact of a project's GHG
emissions, how could the Commission determine the significance of
these emissions' contribution to climate change? Should significance
criteria be based on a specific fraction of existing carbon budgets
in international agreements; state or regional targets; a specific
fraction of natural carbon sinks; or other metrics? If so, how and
why would that basis be appropriate? Alternatively, should the
Commission focus its analysis on GHG emission impacts on global
climate metrics (e.g., CO2 levels, ocean acidification,
sea level rise) or regional impacts (e.g., snowpack, storm events,
local temperature changes)? If so, how and why would that basis be
appropriate? What would be an appropriate GHG climate model for use
on a project-level basis? Is there any level of GHG emissions that
would constitute a de minimis impact? If so, how much and why would
such number be appropriate? How would such analysis meaningfully
inform the Commission's decision making?
C5. As part of the Commission's public interest determination,
how would the Commission weigh a proposed project's adverse impacts
against favorable impacts to determine whether the proposed project
is required by the public convenience and necessity and still
provide regulatory certainty to stakeholders?
C6. Does the NGA, NEPA, or other federal statute authorize or
mandate the use of Social Cost of Carbon (SCC) analysis by the
Commission in its consideration of certificate applications? If so,
how does the statute direct or authorize the Commission to use SCC?
Does the statute set forth specific metrics or quantitative analyses
that the Commission must or may use and/or specific findings of fact
the Commission must or may make with regard to SCC analysis of a
certificate application? Does the statute set forth specific
remedies the Commission must or may implement based on specific SCC
findings of fact?
C7. If the Commission chooses to use the SCC tool, how could it
be used to determine whether a proposed project is required by the
public convenience and necessity? \20\ How would the Commission
determine the appropriate discount rate to use? Should the
Commission consider multiple discount rates or one discount rate?
Please provide support for each option. How could the Commission use
the SCC tool in the weighing of the costs versus benefits of a
proposed project? How could the Commission acquire complete
information to appropriately quantify all of the monetized costs/
negative impacts and monetized benefits of a proposed project?
Should the Commission use the tool to determine whether a project
has significant effects on climate? If so, how could the Commission
connect the SCC estimate with the actual effects of the project?
What level of cost would be significant and why?
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\20\ See, e.g., EarthReports, Inc. v. FERC, 828 F.3d 949, 956
(D.C. Cir. 2016) (finding that ``petitioners provide no reason to
doubt the reasonableness of the Commission's conclusion'' that ``
`it would not be appropriate or informative to use for this project'
for three reasons: the lack of consensus on the appropriate discount
rate leads to `significant variation in output[,]' the tool `does
not measure the actual incremental impacts of a project on the
environment[,]' and `there are no established criteria identifying
the monetized values that are to be considered significant for NEPA
purposes.' '') (citation omitted).
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C8. Are there alternatives to the SCC tool that the Commission
should consider using? If so, how could the Commission use those
tools?
C9. How could the Commission determine whether a proposed
project's GHG emissions are offset by reduced GHG emissions
resulting from the project's operations (e.g., displacing a more
carbon-intensive fuel source such as coal or fuel oil)?
C10. How could the Commission impose GHG emission limits or
mitigation to reduce the significance of impacts from a proposed
project on climate change? Can the Commission interpret its
authority under NGA section 7(e) to permit it to mitigate GHG
emissions? \21\ If the Commission decides to impose GHG emission
limits, how would the Commission determine what limit, if any, is
appropriate? Should GHG mitigation be considered only for direct
project GHG emissions or should downstream end-use, or upstream
emissions also be evaluated? What are the options or methods
applicants could propose to mitigate GHG emissions through offsets
or other means?
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\21\ See American Elec. Power Co., Inc. v. Connecticut, 564 U.S.
410, 428 (``It is altogether fitting that Congress designated an
expert agency, here, EPA, as best suited to serve as primary
regulator of greenhouse gas emissions.'').
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C11. What categorical exclusions established by other agencies
should the Commission consider adopting? \22\ Why is it appropriate
for the Commission to adopt those categorical exclusions? Should the
Commission consider establishing new categorical exclusions that
modify the existing categorical exclusions of other agencies? Should
the Commission consider adding new categorical exclusions for
actions where there is no construction or restoration activities and
the environment is not involved? Those actions could include, but
are not limited to, modifications to certificated capacity that
involve no construction or ground disturbance, modifications to
export/import volumes at border crossing facilities if there are no
changes to the facilities, rate amendments, NGA section 7(f) service
area determinations, conversion of NGA section 7 facilities to
section 3 authorizations, limited jurisdiction certificates, etc.
Are there other actions that could benefit from a categorical
exclusion and would be consistent with the Commission's obligations
under NEPA?
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\22\ See, e.g., National Environmental Policy Act--Categorical
Exclusions, 74 FR 33,204 (July 10, 2009) (Department of Commerce);
National Park Service, Department of the Interior Departmental
Manual, Series 31, Part 516, Chapter 12, at 12.5(B)(1) (May 27,
2004); Department of Transportation, Order No. 5610.1C, at 4.c(3)
(Sept. 18, 1979, subsequently amended on July 13, 1982 and July 30,
1985); 43 CFR 46.210(i) (Department of the Interior); 10 CFR part
1021, subpart D, Appendix A, A 5 (Department of Energy). See also
Staff Presentation on Categorical Exclusions under the National
Environmental Policy Act (RM21-10-000), FERC (Jan. 19, 2021),
https://cms.ferc.gov/news-events/news/staff-presentation-categorical-exclusions-under-national-environmental-policy-act
(listing examples of other agencies' categorical exclusions).
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D. Improvements to the Efficiency of the Commission's Review Process
18. As explained in the 2018 NOI, the Commission desires to improve
the transparency, efficiency, and predictability of the Commission's
certification process.\23\ Inefficiencies in project decision-making
can delay infrastructure investments, increase project costs, and block
infrastructure that would benefit the economy. Since issuance of the
2018 NOI, there have been several administrative (e.g., Executive
Orders), regulatory, and statutory changes that impact the Commission's
review process.
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\23\ E.g., Tenn. Gas Pipeline Co., L.L.C., 162 FERC ] 61,167, at
PP 49-51 (2018) (order addressing timely intervention).
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19. The Commission invites new or revised comments on the following
[[Page 11273]]
questions regarding its certificate application review process.
Questions D2 and D3 are identical to the questions posed in this
section in the 2018 NOI. Stakeholders need not resubmit their previous
comments in response to these questions. We ask that stakeholders
respond to these questions only if they have updated information to
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provide. Questions D1 and D4 include revised questions.
D1. Should certain aspects of the Commission's application
review process (i.e., pre-filing, post-filing, and post-order-
issuance) be condensed, performed concurrently with other
activities, or eliminated, to make the overall process more
efficient? If so, what specific changes could the Commission
consider implementing?
D2. Should the Commission consider changes to the pre-filing
process? How can the Commission ensure the most effective
participation by interested stakeholders during the pre-filing
process and how would any such changes affect the implementation and
duration of the pre-filing process?
D3. Are there ways for the Commission to work more efficiently
and effectively with other agencies, federal and state, that have a
role in the certificate review process? If so, how?
D4. Are there classes of projects that should appropriately be
subject to a more efficient process? What would the more efficient
process entail?
E. The Commission's Consideration of Effects on Environmental Justice
Communities
20. The term ``environmental justice community'' could encompass
(i) populations of color; (ii) communities of color; (iii) Native
communities; and (iv) and low-income rural and urban communities, who
are exposed to a disproportionate burden of the negative human health
and environmental impacts of pollution or other environmental
hazards.\24\ While not mandatory, Executive Order 12898 encourages
independent agencies to identify and address, as part of their NEPA
review, ``disproportionately high and adverse human health or
environmental effects'' of their actions on minority and low-income
populations.\25\ The order does not explain how an agency should
satisfy this goal, instead the specific implementation has been
developed in guidance documents.\26\
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\24\ Cf. Exec. Order No. 14008, Sec. 219, 86 FR 7619, at 7629
(2021); see also EPA, EJ 2020 Glossary (Aug. 2, 2019), https://www.epa.gov/environmentaljustice/ej-2020-glossary.
\25\ Exec. Order No. 12898, Sec. Sec. 1-101, 6-604, 59 FR 7629,
at 7629, 7632.
\26\ E.g., CEQ, Environmental Justice: Guidance Under the
National Environmental Policy Act (1997); Federal Interagency
Working Group for Environmental Justice and NEPA Committee,
Promising Practices for EJ Methodologies in NEPA Reviews (2016).
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21. Executive Order 14008, issued by President Biden on January 27,
2021, directs federal agencies to develop ``programs, policies, and
activities to address the disproportionately high and adverse human
health, environmental, climate-related and other cumulative impacts on
disadvantaged communities, as well as the accompanying economic
challenges of such impacts.'' \27\ Among other things, the order also
creates a government-wide Justice40 Initiative with the goal of
delivering 40% of the overall benefits of relevant federal investments
to disadvantaged communities and tracks agency performance toward that
goal through the establishment of an Environmental Justice
Scorecard.\28\
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\27\ Exec. Order No. 14008, Sec. 219, 86 FR 7619, 7629; see
also The White House, Fact Sheet: President Biden Takes Executive
Actions to Tackle the Climate Crisis at Home and Abroad, Create
Jobs, and Restore Scientific Integrity Across Federal Government
(2021).
\28\ Exec. Order No. 14008, Sec. 223, 86 FR 7619, 7631-32.
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22. The Commission conducts its environmental justice analyses in
several steps. First, when evaluating proposed projects, the Commission
has used the Environmental Protection Agency's Environmental Justice
Mapping and Screening Tool (EJSCREEN) to inform its assessment of the
potential presence of environmental justice communities in the chosen
areas of analysis.\29\ The Commission also identifies any potentially
affected environmental justice communities based on annual statistical
information from the U.S. Census Bureau. Next, the Commission
determines which, if any, of the project's impacts could affect the
identified communities. Then the Commission determines whether the
impacts on these environmental justice communities would be
disproportionately high and adverse. This analysis involves comparing
the impacts on these communities to the impacts on a reference group.
The analysis also varies based on the project scope and based on
population-specific factors that could amplify the population's
experienced effect of a given project impact on the affected
environment. Concerns raised in certificate proceedings regarding
environmental justice in addition to the recent issuance of Executive
Order 14008 have prompted the Commission to examine whether and if so
how, the Commission should consider adjusting its approach to analyzing
the impacts of a proposed project on environmental justice communities.
The Commission seeks comment on the following questions:
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\29\ See, e.g., Jordan Cove Energy Project L.P., 171 FERC ]
61,136, at P 128 (2020).
E1. Should the Commission change how it identifies potentially
affected environmental justice communities? Why and if so, how?
Specifically, what criteria should the Commission consider?
E2. Are there concerns regarding environmental justice
communities' participation in past Commission proceedings? If so,
what are the concerns? Please provide concrete examples.
E3. What measures can the Commission take to ensure effective
participation by environmental justice communities in the
certificate review process?
E3. When evaluating disproportionately high and adverse effects
on environmental justice communities, should the Commission change
how it considers the location or distribution of a project's
impacts? If so, how?
E4. When evaluating disproportionately high and adverse effects
on environmental justice communities, should the Commission change
how it considers population-specific factors that can amplify the
experienced effect, such as ecological, visual, historical,
cultural, economic, social, or health factors? If so, how? Should
the Commission change how it considers multiple or cumulative
adverse exposures and historical patterns of exposure to pollution
or other environmental hazards? If so, how? How can the Commission
obtain high-quality information about cumulative impacts (e.g., data
on cancer clusters and asthma rates)?
E5. Does the NGA, NEPA, or other federal statute set forth
specific duties for the Commission to fulfill regarding
environmental justice analyses in certificate proceedings under the
NGA?
E6. Should the Commission establish a method for evaluating
mitigation for impacts on environmental justice communities (e.g.,
development projects in the local area)? If so, how should it
mitigate to ensure the least disproportionate impact or eliminate
the disproportionate burden on environmental justice communities?
Would such mitigation be consistent with NGA section 7(e), which
provides that ``[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''? \30\
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\30\ 15 U.S.C. 717f(e).
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E7. Does the NGA, NEPA, or other federal statute set forth
specific remedies for the Commission to implement based on factual
findings of environmental justice metrics or defined impacts? Do
these statutory remedies include rejection of a proposed project
otherwise found to be needed to serve the public interest? Which
other remedies are authorized by statute?
Comment Procedures
23. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice, including any related
matters or
[[Page 11274]]
alternative proposals that commenters may wish to discuss. Comments are
due April 26, 2021. Comments must refer to Docket No. PL18-1-000, and
must include the commenter's name, the organization they represent, if
applicable, and their address in their comments.
24. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word-processing
formats. Documents created electronically using word-processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
25. In lieu of electronic filing, you may submit a paper copy.
Submissions sent via the U.S. Postal Service must be addressed to:
Federal Energy Regulatory Commission, Office of the Secretary, 888
First Street NE, Washington, DC 20426. Submissions sent via any other
carrier must be addressed to: Federal Energy Regulatory Commission,
Office of the Secretary, 12225 Wilkins Avenue, Rockville, Maryland
20852. The first page of any filing should include docket number PL18-
1-000.
26. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
Document Availability
27. 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 proclamation declaring a National
Emergency concerning the Novel Coronavirus Disease (COVID-19), issued
by the President on March 13, 2020.
28. 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.
29. User assistance is available for eLibrary and the Commission's
website during normal business hours. For assistance, please contact
the Commission's Online Support at 202-502-6652 (toll free at 1-866-
208-3676) or email at [email protected], or the Public
Reference Room at (202) 502-8371, TTY (202) 502-8659 or email at
[email protected].
By direction of the Commission.
Issued: Issued February 18, 2021.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2021-03808 Filed 2-23-21; 8:45 am]
BILLING CODE 6717-01-P
