20180724-3073 FERC PDF (Unofficial) 07/24/2018

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Millennium Pipeline Company, L.L.C. Docket No. CP16-486-001

(Issued July 24, 2018)

Attached is the statement by Commissioner LaFleur, concurring in part and

dissenting in part, to an order issued on July 19, 2018, in the above referenced
proceeding, Millennium Pipeline Company, L.L.C., 164 FERC ¶ 61,039 (2018).

Nathaniel J. Davis, Sr.,

Deputy Secretary.
20180724-3073 FERC PDF (Unofficial) 07/24/2018

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Millennium Pipeline Company, L.L.C. Docket No. CP16-486-001

(Issued July 24, 2018)

LaFLEUR, Commissioner, concurring in part and dissenting in part:

The Commission denied rehearing of the order approving Millennium’s Eastern

System Upgrade Project on July 19, 2018. I supported our original authorization of this
project, finding that on balance it was in the public interest. While I concur in part
because I continue to find the project is needed, I write separately to provide additional
context regarding a number of concerns I have with respect to the order.

As I explained in my concurrence in Broad Run,1 despite my ongoing

disagreement with the Commission’s new approach to its environmental review of
proposed pipeline projects, I have attempted to address each case based on the facts in the
record and the governing law as I read it. I do believe that many pipelines are needed and
in the public interest, and I have been focusing my efforts on determining if, and how, I
can support these projects despite my strong disagreements on the Commission’s policy
and practice on addressing climate change impacts of pipeline projects. This has become
particularly difficult in recent months since the Sabal Trail2 remand order and the
subsequent decision in New Market3 to change our policy on disclosure and consideration
of downstream and upstream greenhouse gases (GHG) emissions impacts in our pipeline
review.

1
Tennessee Gas Pipeline Company, 163 FERC ¶ 61,190 (2018) (LaFleur,
Comm’r, concurring) (Broad Run).
2
Florida Southeast Connection, LLC, 162 FERC ¶ 61,233 (2018) (LaFleur,
Comm’r, dissenting in part) (Sabal Trail).
3
Dominion Transmission Inc., 163 FERC ¶ 61,128 (2018) (LaFleur, Comm’r,
dissenting in part) (New Market).
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Docket No. CP16-486-001 2

First, with regard to the downstream GHG emissions associated with the Eastern
System Upgrade Project, I support the quantification and disclosure of the upper-bound
estimate of the GHG emissions, but I am troubled by the manner in which the majority
continues to evade a significance determination of downstream GHG emissions. The
final Environmental Assessment (EA) for the project estimated that if all 223,000
dekatherms per day (Dth/d) of natural gas were transported and combusted, it would
result in the emissions of about 4.3 million metric tpy of CO2e. These GHG emissions
would increase regional GHG emissions by 1.1 percent, and national GHG emissions by
0.01 percent.4 I recognize that this full-burn estimate is simply a mathematical derivative
of pipeline volume, but I believe it should be disclosed and considered as part of my
public interest determination, particularly where there is not more precise evidence of
downstream pipeline utilization. This upper-bound GHG quantification and analysis is
the bare minimum we should be doing as part of our environmental review of pipeline
projects.5 However, I believe we have an affirmative duty to seek more information in
the record regarding the identified end uses, before simply concluding that we do not
know where the gas going, and relying on the full-burn estimate.6 This would enable the
4
Millennium Pipeline Company, L.L.C., 161 FERC ¶ 61,229 at P 164 (2017)
(Millennium Certificate Order). Because the project would deliver gas to the Algonquin
pipeline system, Commission staff compared the 2015 GHG inventory of the states
served by the project, New Jersey, New York, Connecticut, Rhode Island and
Massachusetts, to the downstream emissions associated with the project to arrive at the
potential increase in GHG emissions volumes. Id. at P 165 & n. 228.
5
Broad Run, 163 FERC ¶ 61,190. To address my concerns about the
Commission’s decision to ignore downstream emissions impacts in the Broad Run
rehearing order, I calculated and disclosed the full-burn estimate of the downstream GHG
emissions from the project, and considered them as part of my public interest
determination.
6
In my view, it is reasonably foreseeable in the vast majority of cases that the gas
being transported by a pipeline we authorize will be burned for electric generation or
residential, commercial, or industrial end uses. In those circumstances, there is a
reasonably close causal relationship between the Commission’s action to authorize a
pipeline project that will transport gas and the downstream GHG emissions that result
from burning the transported gas. See Mid States Coalition for Progress v. Surface
Transportation Board, 345 F.3d 520, 549 (8th Cir. 2003) (Mid States). In Mid States, the
Court concluded that the Surface Transportation Board erred by failing to consider the
downstream impacts of the burning of transported coal. Even though the record lacked
specificity regarding the extent to which the transported coal would be burned, the Court
concluded the nature of the impact was clear.
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Docket No. CP16-486-001 3

Commission to more accurately assess indirect impacts of downstream GHG emissions

by calculating gross and net GHG emissions as part of our National Environmental
Policy Act (NEPA) analysis as the Commission did in Sabal Trail.7

I am frustrated by the majority’s continued assertion that there is “no standard

established by international or federal policy, or by a recognized scientific body that
would assist us to ascribe significance to a given rate or volume of GHG emissions.”8
One way the Commission could assess the significance of a given rate or volume of GHG
emissions is to compare the downstream GHG emissions associated with an individual
project to the total state, regional, and/or national emission inventories.9 Indeed, the
Commission did conduct this analysis in this case and thus, could have assessed whether
the measured impacts were significant. We could also translate the GHG emissions from
a particular project into monetized climate damages using the Social Cost of Carbon,
allowing the Commission to provide context to the quantified rate or volume of GHG
emissions of a pipeline project and ascribe significance as part of our NEPA review.10

While the Commission has yet to reach a significance determination regarding

downstream GHGs emissions, and such a determination would require thoughtful
analysis and decision-making by the Commission, I note that the Commission makes
challenging determinations on quantitative and qualitative issues in other areas of our
work.11 Just because making a significance determination on downstream GHG

7
Sabal Trail, 162 FERC ¶ 61,233.
8
Millennium Pipeline Company, L.L.C., 164 FERC ¶ 61,039 at n. 49 (2018)
(Millennium Rehearing Order).
9
While the Millennium Certificate Order did disclose the regional and national
comparison data, it did not ascribe significance to the percent increase in GHG emissions,
and instead concludes that it cannot making a finding on whether a particular amount of
GHG emissions is significant.
10
Social Cost of Carbon is meant to measure the physical, incremental impacts
from a project including changes in net agricultural productivity, human health, property
loss and damages from increased flood risk, and energy demand changes.
11
Many of the core areas of the Commission’s work have required the
development of analytical frameworks, often a combination of quantitative measurements
and qualitative assessments, to fulfill the Commission’s responsibilities under its broad
authorizing statutes. This work regularly requires that the Commission exercise
judgment, based on its expertise, precedent, and the record before it. For example, to
help determine just and reasonable returns on equity (ROEs) under the Federal Power
(continued ...)
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Docket No. CP16-486-001 4

emissions would be difficult does not relieve the Commission of its responsibility.

Second, I continue to reject the majority’s assertion that there is not a “standard
methodology to determine how a project’s contribution to GHG emissions would
meaningfully translate into physical effects on the environment for purposes of
evaluating the Project’s impacts on climate change.”12 But that is precisely the use for
which the Social Cost of Carbon was developed—it is a scientifically-derived metric to
translate tonnage of carbon dioxide or other GHGs to the cost of long-term climate
harm.13 In fact, the U.S. Environmental Protection Agency (EPA) submitted comments
in our Notice of Inquiry the Certificate Policy Statement docket14 explaining the virtue of
the Social Cost of Carbon as a tool for quantifying and monetizing GHG emissions

Act, Natural Gas Act (NGA), and Interstate Commerce Act, the Commission identifies a
proxy group of comparably risky companies, applies a discounted cash flow method to
determine a range of potentially reasonable ROEs (i.e., the zone of reasonableness), and
then considers various factors to determine the just and reasonable ROE within that
range. See also, e.g., Promoting Transmission Investment through Pricing Reform, Order
No. 679, FERC Stats. & Regs. ¶ 31,222, order on reh’g, Order No. 679-A, FERC Stats.
& Regs. ¶ 31,236 (2006), order on reh’g, 119 FERC ¶ 61,062 (2007) (establishing
Commission regulations and policy for reviewing requests for transmission incentives);
Transmission Planning and Cost Allocation by Transmission Owning and Operating
Public Utilities, Order No. 1000, FERC Stats. & Regs. ¶ 31,323 (2011), order on reh’g,
Order No. 1000-A, 139 FERC ¶ 61,132, order on reh’g and clarification, Order No.
1000-B, 141 FERC ¶ 61,044 (2012), aff’d sub nom. S.C. Pub. Serv. Auth. v. FERC, 762
F.3d 41 (D.C. Cir. 2014) (requiring, among other things, the development of regional cost
allocation methods subject to certain general cost allocation principles); BP Pipelines
(Alaska) Inc., Opinion No. 544, 153 FERC ¶ 61,233 (2015) (conducting a prudence
review of a significant expansion of the Trans Alaska Pipeline System).
12
Millennium Rehearing Order at P 22.
13
https://www/epa.gov/sites/production/files/2016-
12/documents/social_cost_of_carbon_fact_sheet.pdf; See, e.g., Sabal Trail, 162 FERC
¶ 61,233 (LaFleur, Comm’r, dissenting in part); New Market, 163 FERC ¶ 61,128
(LaFleur, Comm’r, dissenting in part); Florida Southeast Connection, LLC, 163 FERC
¶ 61,158 (2018) (LaFleur, Comm’r, concurring); and Broad Run, 163 FERC ¶ 61,190
(LaFleur, Comm’r, concurring).
14
Notice of Inquiry on the Certificate Policy Statement, 163 FERC ¶ 61,042
(2018).
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Docket No. CP16-486-001 5

changes.15 EPA concludes that “even absent a full benefit cost analysis [BCA], Social
Cost of Carbon and other greenhouse gases [SC-GHG] estimates may be used for project
analysis when FERC determines that a monetary assessment of impacts associated with
the estimated net change in GHG emissions provides useful information in its
environmental review or public interest determination.”16 I am particularly troubled by
what I consider to be the majority’s mischaracterization of the EPA’s comments as not
supportive of the use of Social Cost of Carbon.17 As I have stated before, I believe the
Social Cost of Carbon can meaningfully inform the Commission’s decision-making to
reflect the climate change impacts of a particular project.18

I recognize I am taking the unusual step of issuing a late statement on this order,
following its issuance at the July 2018 Commission open meeting. I have always tried to
support a majority order by concurring if possible, even if I articulate in my concurrence
significant differences with the language of the order. However, where there are
elements of an order (including late changes) with which I strongly disagree, and I am not
able to negotiate language I can support, at some point I must exercise my right to
dissent.19

15
See also, EPA, Comments, Certification of New Interstate Natural Gas
Facilities, Notice of Inquiry, 163 FERC ¶ 61,042 (2018), Docket No. PL18-1-000 (filed
June 21, 2018). In the comments, EPA explains that estimates of the Social Cost of
Carbon allow an agency to “incorporate the societal value of changes in carbon dioxide
and other GHG emissions into benefit-cost analyses of actions that have small, or
marginal, impacts on cumulative global emissions.”
16
Id.
17
The majority order cherry-picks one sentence to imply that EPA’s comments are
not supportive of using the Social Cost of Carbon where we have not developed a full
cost-benefit analysis. Millennium Rehearing Order at n. 75.
18
I also disagree with the majority’s discussion of Montana Environmental
Information Center v. U.S. Office of Surface Mining. The Court explains the
circumstances when an agency should use the Social Cost of Carbon as part of a NEPA
review to give context to projected GHG emissions by considering the cost of those GHG
emissions. 274 F. Supp. 3d 1074 (D. Mont. 2017), amended in part, adhered to in part
sub nom. Montana Envtl. Info. Ctr. v. U. S. Office of Surface Mining, No. CV 15-106-M-
DWM, 2017 WL 5047901 (D. Mont. Nov. 3, 2017). I believe the Court’s discussion on
the Social Cost of Carbon demonstrates that the Social Cost of Carbon is an appropriate
metric for agencies to use as part of an environmental review.
19
See, DTE Midstream Appalachia, LLC, 162 FERC ¶ 61,238 (2018) (LaFleur,
(continued ...)
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Docket No. CP16-486-001 6

For all of these reasons, I concur in part and dissent in part.

________________________
Cheryl A. LaFleur
Commissioner

Comm’r, dissenting in part) (dissenting in part, noting strong disagreement with the
Commission’s new policy approach towards motions to intervene out of time); New
Market, 163 FERC ¶ 61,128 (LaFleur, Comm’r, dissenting in part) (dissenting in part on
the policy change announced limiting the Commission’s review and disclosure of
upstream and downstream GHG impacts as part of our responsibilities under NEPA and
the NGA).
20180724-3073 FERC PDF (Unofficial) 07/24/2018
Document Content(s)

CP 16-486-001 Concurrence and Dissent.DOCX............................1-7