We cannot allow FERC to ignore our climate crisis

As the agency responsible for permitting interstate natural gas pipelines and electric transmission, the Federal Energy Regulatory Commission (FERC) is the gatekeeper of America’s transition to a carbon-free future — a future desperately needed, given the dire warnings the global scientific community has issued concerning climate change. Which is why it is so astonishing that the agency does not even consider the climate impacts of the projects that it approves. 

Right now, FERC has two unfilled seats, following the passing of former Chairman Kevin McIntyre and the departure of Obama nominee Cheryl LaFleur. But the Trump administration appears determined to transform the historically bipartisan commission into a partisan vehicle to serve the interests of fossil fuel companies. With the nomination of James Danly, FERC will be made up of three Republican appointees and an intentionally empty seat, bucking a decades-long trend of appointing Republican and Democratic commissioners together.

Given this partisan reality, it is perhaps no surprise that FERC has begun to refuse to abide by binding judicial decrees requiring the agency to adequately assess the climate impacts of its permitting before approval. It goes without saying that the next FERC commissioner must be someone who will comply with these judicial directives.

The courts are very clear. In its 2017 decision, Sierra Club v. FERC (Sabal Trail), the U.S. Court of Appeals for the D.C. Circuit stated that since downstream emissions are indirect effects of permitting, the commission must assess all reasonably foreseeable emissions and climate impacts resulting from its approval of expanded natural gas pipeline infrastructure. By refusing to review the effects of these emissions, FERC failed to adequately balance “the public benefits against the adverse effects” of natural gas pipelines — effectively putting a finger on the scale in favor of locking America into decades of fossil fuel dependence.

Despite this, FERC continues to turn a blind eye to the looming climate crisis. This disregard was on display in recent litigation, dismissed on procedural grounds by the D.C. Circuit, brought about because FERC, in an order on a single project, introduced a sweeping new policy that would no longer evaluate greenhouse gas emissions upstream (that is, methane emissions from increased fracking facilitated by expanded pipeline capacity) or downstream (the combustion of natural gas for electric generation) from pipeline projects. That lawsuit explained that FERC violated several federal laws by shirking its responsibility to consider emissions facilitated by expanded pipeline capacity during its environmental review, and that the agency decreed that its entire environmental review policy has changed — an action in clear violation of the Administrative Procedure Act, which requires such significant policies to be changed through a transparent notice and comment rulemaking that includes public participation.

FERC has continued this radical policy shift by refusing to assess upstream and downstream emissions in subsequent environmental reviews, and segmenting larger infrastructure buildouts so that each smaller section appears as though they result in no environmental impact.

This is a dangerous path. Not only does it show a flagrant violation of federal law by the commission, it demonstrates a willful disregard of the grave repercussions of continued fossil fuel extraction and combustion outlined in the federal government’s own research — including severe threats to the food system, increased scarcity of fresh water, and potential disruptions of the very fossil fuel supply chain that FERC seeks to expand through its faulty project review process. 

It is vitally important that the Senate refuse the Trump administration’s partisan nomination of Danly, and instead confirm a commissioner who will uphold statutory environmental review requirements and the directives of the federal judiciary. The stakes could not be higher, and the wrong choice to fill out this commission could have wide-reaching detrimental impacts.

Now is the time to begin a just transition to a carbon neutral society; intelligent FERC policy must foster that transition.

Adam Carlesco is a climate and energy attorney with Food & Water Justice, the legal division of Food & Water Watch, which works for corporate and government accountability.