Last week, the Federal Energy Regulatory Commission changed the rules about pending and future natural gas pipelines and related projects, citing the threat of catastrophic climate change and raising environmental justice concerns. Now with a 3-2 Democratic majority under President Joe Biden, the vote has gone the party line.
One of these votes came from Mark Christie, formerly a member of the Virginia State Corporation Commission and not one to pull punches. His Dissent and follow declare, that this new policy is “the mother of all legal weapons” has made several news reports.
Below find portions of his remarks from the bench summarizing the longer statement. Any emphasis noted in the text is:
“What the majority do today is basically assuming they have the right rewrite both the Natural Gas Act (NGA) and the National Environmental Policy Act (NEPA), but it is the power that we Not Yes; only one legislators elected in Congress have that right and they have Not delivered it to us.
And the result, particularly of greenhouse gas policy aimed at addressing climate change, is such a confusing policy that most people label it “temporary”. But don’t be fooled by the “temporary” label. This new policy – confusing – applies right awaynot only to New application, but for all not resolved application and it will cause significant harm to all pending applications right away. Changing the rules mid-game violates any serious principles of due process, regulatory certainty, and just basic fairness.
Let’s now debunk two suggested myths to support this action today.
The first is the report that the courts are “ask us to do this.” This claim is almost entirely based on a case from DC Circuits, Sabal Trail, but since Sabal Trail More recent comments from the US Supreme Court itself reaffirmed its doctrine of key questions. And the big question doctrine holds that under the Constitution the main issues of public policy are left to Congress, so unless Congress has explicitly empowered by law directing an agency to deal with a major issue big book, that agency can’t simply assume it has. power.
And can this Commission Refuse A certificate of construction of a natural gas facility, a facility that meets the criteria for approval under the Natural Gas Act, because of its impact on global climate change, is clearly a big question about public policy. I can’t think of a more important policy question – not just energy policy, but economic policy and yes, even National security policy…
Now the second fallacy is that this new policy is needed to provide “legal durability” to the certificates we approve. Serious? This new policy statement will make our certificate orders more durable when appeals are Orwellian positive.
Preventing the construction of any new natural gas projects is an overt policy goal of many interest groups waging a national campaign of legal warfare – “law” for short – against again each single natural gas project. There’s no doubt about that campaign. And today’s new policy, whatever the purpose, will be undeniably effective in promoting policy scored.
So instead of giving our certificate orders legal durability, today’s new policy will certainly increase both the costs and uncertainties involved in pursuing natural gas projects, both here at this Commission during the certification proceedings, but even more so upon appeal. And since we know that every certificate to build a natural gas project will be contested in every forum, both in the courts of appeals and other licensing authorities, this new policy opens up a new avenues to attack every certificate this Commission approves.
Now last month in Ad Philadelphia where I said the Commission’s new rule allowing unlimited late intervention in certificate cases was “not a legal standard, but a legal weapon.Well, this new certificate policy approved today is mother of all legal weapons. And it will no doubt be used against every natural gas project, making the cost and uncertainty of pursuing a project exponentially more difficult.
We now know that a reliable supply of natural gas is essential here in order to have a reliable electricity grid, to heat homes and support jobs, especially homes. production work. But literally, at this point, events in Europe and Ukraine graphically illustrate that domestic gas supplies are also essential to our national security.
Finally, this debate about how to handle climate impacts in certificate cases, is really over public policy a question of enormous significance to millions of Americans.
I happen to agree that reducing carbon emissions that have an impact on the climate is attractive policy scored. But the Commission does not have an open license under the US Constitution or the NGA to address climate change or any other issue a majority might want to address.
Now, to those who say “well, times have changed, and Congress didn’t think about climate change when it passed Russia, but it’s an urgent need now that FERC should address it”, here is an inconvenient fact: If Congress wants to change the mandate of the Commission under the NGA over which it has such power; FERC does not.
Let me highlight every individual and organization pursuing policy The goal of banning the use of natural gas has a First Amendment right to advocate for that policy. However, a policy that prevents the construction of each The natural gas project is a public policy question of immense importance, one that affects the lives and livelihoods of tens of millions of Americans and their communities. In a democracy, such a colossal policy question should be decided only by legislators chosen by the people, not by unelected administrative bodies.
Therefore, the real debate about the use of GHG climate impact analyzes in our certification procedures is more about public policy than about law, and ultimately comes down to questions after: Who makes the main public policy decisions in our constitutional system? Who decides?
And in our democracy it is gourd legislators have to exclude, to expel power to decide on big policy questions that affect the lives of millions of Americans, such as policy to respond to climate change…”
https://www.ferc.gov/news-events/news/statement-com Commissioner-christie-certificate-policy-orders
