On March 22, 2021, the Federal Energy Regulatory Commission (FERC or Commission) for the first time issued an order that assessed whether greenhouse gas emissions related to a natural gas pipeline certificate project would significantly contribute to climate change. FERC purported to perform the assessment pursuant to its obligation under the National Environmental Policy Act (NEPA) to take a “hard look” at a project’s environmental impacts.
On Friday, the White House Council on Environmental Quality (CEQ) rescinded draft guidance published by the Trump administration in June 2019 discussing how agencies should consider greenhouse gas (GHG) emissions when evaluating proposed major federal actions under the National Environmental Policy Act (NEPA). In that draft guidance, CEQ rescinded its 2016 Obama-era guidance and suggested that agencies may perform a more limited review of a project’s GHG emissions and impact on climate change, stating that “[a]gencies preparing NEPA analyses need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment.” That draft guidance had further stated that agencies do not need to account for the “social cost of carbon” when quantifying the direct and reasonably foreseeable indirect greenhouse gas emissions from proposed actions.
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.