FERC Revisits Certificate Policy Statement With New Focus on Environmental Justice and Greenhouse Gas Emissions

On February 18, 2021, the U.S. Federal Energy Regulatory Commission (FERC) reopened the comment period for its Notice of Inquiry (NOI) on the Certification of New Interstate Natural Gas Facilities. FERC applies its current policy, issued in 1999, to assess whether to issue interstate natural gas transportation facilities a Certificate of Public Convenience and Necessity (CPCN), a foundational permit required for their construction and operation. FERC must abide with its obligations under the Natural Gas Act and National Environmental Policy Act when considering pipeline certificate applications. FERC initially issued the NOI in April 2018, seeking comment on whether, and if so how, it should revise its approach to evaluating CPCN applications. The docket has been pending for nearly three years.

The revised NOI asks a new category of questions to address whether FERC’s programs, policies, and activities disproportionately affect environmental justice communities. FERC also seeks new input on its role in conditioning a certificate holder’s exercise of eminent domain and revises its questions on the analysis necessary to consider the impact of a project’s direct and indirect greenhouse gas emissions.  This includes whether FERC has statutory authority to perform a Social Cost of Carbon (SCC) analysis in determining whether infrastructure is in the public interest. FERC also invites comment on the option to use it, even if not required, but under either scenario FERC posits a series of questions regarding how the SCC could be used and how it would interpret or respond to the costs calculated with that tool.  FERC invites commenters to revise their prior comments to account for changed circumstances in facts, law, and policy to the extent applicable. There have already been over 3,000 comments filed in this docket.

FERC’s focus on environmental justice aligns with President Joe Biden’s January 27, 2021, Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, which set forth a governmentwide strategy on addressing environmental justice, including the governmentwide Justice40 Initiative. While FERC acknowledged that it is not beholden to the order’s directives as an independent agency, FERC has indicated that it intends to take a stronger role on evaluating the environmental justice effects of its actions.

The new comment period ends 60 days from publication in the Federal Register.

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