# Certification of New Interstate Natural Gas Facilities

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-04148

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** March 1, 2022
- **Citation:** 87 FR 11548

## Text

DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
[Docket No. PL18-1-000]
Certification of New Interstate Natural Gas Facilities

AGENCY:

Federal Energy Regulatory Commission, Department of Energy (DOE).

ACTION:

Updated Policy Statement on Certification of New Interstate Natural Gas Facilities.

SUMMARY:

This Updated Policy Statement describes how the Commission will evaluate all factors bearing on the public interest in determining whether a new interstate natural gas transportation project is required by the public convenience and necessity under the Natural Gas Act.

DATES:

Comments that pertain to the Paperwork Reduction Act are due May 2, 2022.

FOR FURTHER INFORMATION CONTACT:

Paige Espy (Legal Information), Office of the General Counsel, 888 First Street NE, Washington, DC 20426, (202) 502-6698,
Paige.Espy@ferc.gov

Brandon Cherry (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8328,
Brandon.Cherry@ferc.gov

SUPPLEMENTARY INFORMATION:

1. On April 19, 2018, and February 18, 2021, the Commission issued Notices of Inquiry (NOI)
1

to help the Commission explore whether, and if so how, it should revise the approach established by its currently effective policy statement on the certification of new interstate natural gas transportation facilities (1999 Policy Statement)
2

to determine whether a proposed natural gas project “is or will be required by the present or future public convenience and necessity,” as that standard is established in section 7 of the Natural Gas Act (NGA).
3

1

Certification of New Interstate Natural Gas Facilities,
83 FR 18020 (Apr. 25, 2018), 163 FERC ¶ 61,042 (2018);
Certification of New Interstate Natural Gas Facilities,
86 FR 11268 (Feb. 24, 2021), 174 FERC ¶ 61,125 (2021).

2

Certification of New Interstate Natural Gas Pipeline Facilities,
88 FERC ¶ 61,227 (1999),
clarified,
90 FERC ¶ 61,128,
further clarified,
92 FERC ¶ 61,094 (2000) (1999 Policy Statement).

3
15 U.S.C. 717f(e).

2. Based on the comments received in this proceeding and the significant changes that have occurred since issuance of the 1999 Policy Statement, and in order to provide stakeholders with more clarity on the Commission's decision-making process, we are issuing this Updated Certificate Policy Statement (Updated Policy Statement).

3. This Updated Policy Statement does not establish binding rules and is intended to explain how the Commission will consider applications to construct new interstate natural gas transportation facilities.

I. Background

A. Statutory Authority and Obligations

4. Section 7 of the NGA authorizes the Commission to issue certificates of public convenience and necessity for the construction and operation of facilities transporting natural gas in interstate commerce.
4

Under section 7(e), the Commission shall issue a certificate to any qualified applicant upon finding that the construction and operation of a proposed project “is or will be required by the present or future public convenience and necessity.”
5

The public convenience and necessity standard encompasses all factors bearing on the public interest.
6

4

Id.
717f.

5

Id.
717f(e).

6

Atl. Ref. Co.
v.
Pub. Serv. Comm'n of N.Y.,
360 U.S. 378, 391 (1959) (“This is not to say that rates are the only factor bearing on the public convenience and necessity, for [section] 7(e) requires the Commission to evaluate all factors bearing on the public interest.”).

5. The NGA authorizes the Commission to attach to a certificate “such reasonable terms and conditions as the public convenience and necessity may require.”
7

The Commission can also deny an application for a certificate if a balancing of all public interest factors weighs against authorization of the proposed project.
8

If an applicant receives a certificate from the Commission, section 7(h) of the NGA authorizes the certificate holder to acquire the property rights necessary to construct and operate its project by use of eminent domain if it cannot reach an agreement with a landowner.
9

7
15 U.S.C. 717f(e).

8

See, e.g., FPC
v.
Transcon. Gas Pipe Line Corp.,
365 U.S. 1, 17 (1961) (the Commission “can only exercise a veto power over proposed transportation . . . when a balance of all the circumstances weighs against certification”).

9
15 U.S.C. 717f(h).

6. The Commission's consideration of an application generally triggers environmental review under the National Environmental Policy Act of 1969 (NEPA).
10

NEPA and its implementing regulations require that, before taking or authorizing a major Federal action that may significantly affect the quality of the human environment, Federal agencies take a “hard look” at the environmental consequences of the proposed action and disclose their analyses to the public.
11

NEPA also requires that agencies consider whether there are steps that could be taken to mitigate any adverse environmental consequences.
12

While NEPA is a procedural statute and does not require an agency to reject a proposed project based on its adverse effects or to take action to mitigate those effects,
13

an agency may require mitigation measures as a condition of its approval under the NGA,
14

or withhold approval based on significant adverse effects.
15

10
42 U.S.C. 4321-4370j.

11

Id.
4332(2)(C); 40 CFR 1500.1-1508.1;
Baltimore Gas & Elec. Co.
v.
Nat. Res. Def. Council, Inc.,
462 U.S. 87, 97 (1983) (discussing the twin aims of NEPA—to consider environmental impacts and to disclose the agency's consideration to the public).

12

Robertson
v.
Methow Valley Citizens Council,
490 U.S. 332, 351 (1989) (“To be sure, one important ingredient of an [environmental impact statement] is the discussion of steps that can be taken to mitigate adverse environmental consequences.”).

13

Id.
at 352 (“There is a fundamental distinction, however, between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted, on the other.”);
see also Baltimore Gas & Elec. Co.,
462 U.S. at 97 (citing
Stryckers' Bay Neighborhood Council
v.
Karlen,
444 U.S. 223, 227 (1980)).

14

Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate use of Mitigated Findings of No Significant Impact,
76 FR 3843, 3848 (Jan. 21, 2011).

15

See, e.g., Sierra Club
v.
FERC,
867 F.3d 1357, 1373 (D.C. Cir. 2017) (
Sabal Trail
) (explaining that the Commission may “deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment”).

B. Historical Context and the 1999 Certificate Policy Statement

7. From the enactment of the NGA in 1938 to the 1990s, as a result of statutory and regulatory revisions, the natural gas industry evolved away from a system of limited competition among vertically integrated companies selling bundled commodity and transportation services at Commission-regulated prices to one where pipelines provide open-access transportation of gas supplies purchased pursuant to non-Commission regulated agreements between producers and other parties. Consequently, consumers benefitted from competition among non-pipeline entities in an unregulated commodity market and from competition among pipeline companies providing open-access, unbundled transportation services at Commission-regulated rates or, if authorized under certain circumstances, market-based rates.

8. At the same time that natural gas commodity and transportation markets were becoming more competitive, the 1990s saw significant growth in natural gas consumption in the industrial and electric generation sectors. The resultant expansion of the pipeline system to meet this demand raised issues as to who should bear the costs of new construction. Before the Commission adopted the 1999 Policy Statement, the Commission's pricing policy for new construction generally allowed for the costs of expansion projects to be rolled into a pipeline company's existing system costs to derive rolled-in rates in a future rate case under section 4 of the NGA.
16

All shippers bore some burden of the expansion project's cost, regardless of whether they would benefit from the project. Local distribution companies (LDC) and other parties believed that this pricing policy sent the wrong price signals by masking the real costs of an expansion project and could result in overbuilding and subsidization of expansion by a pipeline's existing shippers.

16

Pricing Policy for New and Existing Facilities Constructed by Interstate Natural Gas Pipelines,
71 FERC ¶ 61,241 (1995),
order on reh'g,
75 FERC ¶ 61,105 (1996). Under this pricing policy, expansion projects received a determination for rolled-in pricing upon a showing that the new costs would not increase existing rates by more than five percent.

9. In response to these and other concerns, in 1998, the Commission issued a Notice of Proposed Rulemaking
17

and an NOI
18

to explore issues related to its policies on the certification and pricing of new pipeline projects. Based on the information received from stakeholders in response to these notices, the Commission issued the 1999 Policy Statement “to foster competitive markets, protect captive customers, and avoid unnecessary environmental and community impacts while serving increasing demands for natural gas.”
19

These objectives were realized primarily by a shift from a presumption of rolled-in pricing to a presumption of incremental pricing.
20

Under incremental pricing, existing customers using only existing facilities do not subsidize the cost of constructing and operating new projects.
21

17

Regulation of Short-Term Natural Gas Transportation Services,
Notice of Proposed Rulemaking, 63 FR 42,982 (July 29, 1998), FERC Stats. & Regs. ¶ 32,533 (1998) (cross-referenced at 84 FERC ¶ 61,085).

18

Regulation of Interstate Natural Gas Transportation Services,
NOI, 63 FR 42974 (Aug. 9, 1998), FERC Stats. & Regs. ¶ 35,533 (1998) (cross-referenced at 84 FERC ¶ 61,087).

19
1999 Policy Statement, 88 FERC at 61,743.

20
Although incremental pricing was presumed, an applicant could demonstrate that a proposed project qualified for a pre-determination of rolled-in rate treatment through showing that inexpensive expansibility was made possible because of earlier, costly construction or that the project was designed to improve existing service for existing customers.
Id.
at 61,746 and n.12.

21

Id.
at 61,746.

10. Pursuant to the 1999 Policy Statement, when reviewing applications to construct new interstate transportation facilities the Commission would first determine whether a threshold requirement of no financial subsidization from existing customers was met. If so, the Commission would next consider whether the applicant eliminated or minimized any residual adverse effects the project might have on: (1) The applicant's existing customers; (2) existing pipelines in the market and their captive customers; and (3) landowners and communities affected by the proposed project.
22

Any residual adverse effects would be balanced against the anticipated benefits from the project.
23

The Commission allowed an applicant to rely on a variety of factors to demonstrate that its proposed project was needed,
24

but, in practice, applicants generally elected to submit, and the Commission accepted, precedent agreements with prospective customers for long-term firm service as the principal factor in demonstrating project need.

22

Id.
at 61,745.

23

Id.
at 61,748.

24

Id.
at 61,747.

11. The 1999 Policy Statement introduced a sliding scale approach to balance public benefits with adverse effects, where the “more interests adversely affected or the more adverse impact a project would have on a particular interest, the greater the showing of public benefits from the project required to balance the adverse impact.”
25

The 1999 Policy Statement provided that, if the Commission found that project benefits outweighed adverse impacts on economic interests, then the Commission would proceed to consider the environmental impacts of the project.
26

25

Id.
at 61,749.

26

Id.
at 61,745-46. While the Commission only moved to the stage of balancing environmental impacts and other considerations if a proposed project passed this economic test established by the 1999 Policy Statement, Commission staff would begin review of the environmental impacts following the filing of an application. If a project did not pass this economic test, it could be rejected without further consideration of environmental factors.

C. Developments After Issuance of the 1999 Certificate Policy Statement

12. Much has changed since the Commission issued the 1999 Policy Statement. In the last decade, increases in both domestic and international demand for natural gas produced in the United States, combined with the available supply of competitively-priced gas from shale reserves, have reduced prices and price volatility and have resulted in more proposals for natural gas transportation and export projects.
27

Much of the increased production is attributable to the development of the Marcellus and Utica shale formations in Pennsylvania, West Virginia, Ohio, and New York; shale formations in the Permian Basin in West Texas and Eastern New Mexico; Eagle Ford Shale in South Texas; and Bakken Shale Formation in North Dakota, among others; as well as associated new extraction technologies.

27
In the early 2000s, there were a number of proposals for natural gas import projects. However, as natural gas supplies increased and prices decreased, the Commission began to see more proposals for natural gas export projects.

13. Contracting patterns are changing significantly as a result of this supply growth. In the past, LDCs contracted for a large percentage of interstate pipeline capacity, obtaining supplies from the production area for their customers. Increasingly, however, LDCs are purchasing gas supplies further downstream at market area pooling points or at their city gates as other parties increasingly contract for pipeline capacity. Natural gas producers are now contracting for a significant amount of firm pipeline capacity on expansion projects in an effort to provide a secured commercial outlet for their gas.

14. Over the past decade, there has been greater interest and participation by affected landowners and communities, Tribes, environmental organizations, and others in natural gas project proceedings. Part of this may be attributable to the increase in proposals for new natural gas infrastructure in more densely populated areas of the eastern half of the nation. These stakeholders have raised various concerns with, among other things, the use of eminent domain, the need for new projects, and the environmental impacts of project construction and operation, including impacts on climate change and environmental justice communities.

15. The Commission's consideration of climate change and greenhouse gas emissions (GHG) has also evolved since issuance of the 1999 Policy Statement. In the last decade, the Commission began including estimates of GHG emissions from project construction (
e.g.,
tailpipe emissions from construction equipment) and operation (
e.g.,
fuel combustion at compressor stations and gas venting and leaks) in its

NEPA documents.
28

Then, starting in late 2016, the Commission began to estimate GHG emissions from downstream combustion and upstream production.
29

In 2018, however, the Commission reversed this practice,
30

resulting in a number of judicial decisions finding fault with the Commission's approach.
31

Concurrent with this Updated Policy Statement, the Commission is issuing a new policy statement to explain how it will assess project impacts on climate change in its NEPA and NGA reviews going forward (GHG Policy Statement).
32

28

See, e.g.,
Environmental Assessment for the Philadelphia Lateral Expansion Project, Docket No. CP11-508-000, at 24 (Jan. 18, 2012) (construction emissions); Environmental Assessment for the Minisink Compressor Project, Docket No. CP11-515-000, at 29 (Feb. 29, 2012) (operation emissions).

29

See, e.g., Columbia Gas Transmission, LLC,
158 FERC ¶ 61,046, at PP 116-120 (2017);
Tex. E. Transmission, LP,
157 FERC ¶ 61,223, at P 41 (2016),
reh'g granted,
161 FERC ¶ 61,226 (2017).

30

Dominion Transmission, Inc.,
163 FERC ¶ 61,128 (2018),
pet. dismissed, Otsego 2000
v.
FERC,
767 F.App'x 19 (D.C. Cir. 2019) (unpublished opinion).

31

See infra
P 70.

32

Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews,
178 FERC ¶ 61,108 (2022) (GHG Policy Statement).

16. Another development since issuance of the 1999 Policy Statement is an increasing recognition of the need for Federal agencies to focus on environmental justice and equity. In 1994, under Executive Order 12898, agencies were directed to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority and low-income populations (
i.e.,
environmental justice communities).
33

In 2021, President Biden issued two executive orders to renew and expand upon this directive. Specifically, Executive Order 13985, issued on January 20, 2021, requires agencies to conduct Equity Assessments to identify and remove barriers to underserved communities and “to increase coordination, communication, and engagement with community-based organizations and civil rights organizations.”
34

And Executive Order 14008, issued on January 27, 2021, directs agencies to develop “programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts.”
35

33
E.O. 12898,
Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,
59 FR 7629, at 7629, 7632 (Feb. 11, 1994).

34
E.O. 13985,
Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,
86 FR 7009, 7010-11.

35
E.O. 14008,
Tackling the Climate Crisis at Home and Abroad,
86 FR 7619, 7629;
see also
The White House,
Fact Sheet: President Biden Takes Executive Actions to Tackle the Climate Crisis at Home and Abroad, Create Jobs, and Restore Scientific Integrity Across Federal Government
(2021).

II. Notices of Inquiry and Comments

17. As noted above, on April 19, 2018, the Commission issued an NOI (2018 NOI) seeking information and stakeholder perspectives to help the Commission explore whether, and if so how, it should revise the approach established by the 1999 Policy Statement. The Commission identified four general areas for examination in the 2018 NOI: (1) The reliance on precedent agreements to demonstrate need for a proposed project; (2) the potential exercise of eminent domain and landowner interests; (3) the Commission's evaluation of alternatives and environmental effects under NEPA and the NGA; and (4) the efficiency and effectiveness of the Commission's certificate processes. In response to the 2018 NOI, the Commission received more than 3,000 comments from a diverse range of stakeholders.

18. On February 18, 2021, the Commission issued another NOI (2021 NOI) seeking to build upon the existing record established by the 2018 NOI. The 2021 NOI noted that a number of changes had occurred since the Commission issued the 2018 NOI, including regulatory changes, the issuance of new executive orders, and increased stakeholder interest in certain topics. Accordingly, the 2021 NOI provided stakeholders with an opportunity to refresh the record and provide updated information and additional viewpoints to help the Commission assess its policy.

19. The 2021 NOI included the four general areas of examination identified in the 2018 NOI, with modifications to the specific questions asked, including new questions on how the Commission should assess and consider the impacts of proposed projects on climate change. The 2021 NOI also identified a fifth area of examination—the Commission's identification and consideration of disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on environmental justice communities and the mitigation of those adverse impacts and burdens, as well as the Commission's identification of potentially affected environmental justice communities and measures for ensuring effective participation by these communities in the certificate review process. In response to the 2021 NOI, the Commission received more than 35,000 comments, including more than 150 unique comment letters, from a diverse range of stakeholders.

20. The comments received in response to the 2018 and 2021 NOIs are summarized at a high level below. Comments related to GHG emissions are summarized in the aforementioned GHG Policy Statement.
36

The considerable number of comments submitted in this proceeding indicates substantial public interest in the Commission's policy for reviewing proposed interstate natural gas facilities.

36
GHG Policy Statement, 178 FERC ¶ 61,108.

A. The Commission's Determination of Need

21. A wide range of commenters request that the Commission change how it makes its public need determination. Many of these commenters argue that the Commission should rely less on precedent agreements.
37

Additionally, commenters request that, in assessing need, there be greater consideration of climate change impacts,
38

increased transparency,
39

and an enlarged participatory role for stakeholders.
40

Some commenters recommend that applicants be required to provide specific evidence that need exists, the proposed facilities serve that need, and the asserted need cannot be met by existing infrastructure.
41

In contrast, regulated companies and industry trade organizations are nearly unanimous in their general support of the 1999 Policy Statement as it relates to the public need determination.
42

37

E.g.,
Public Interest Organizations (PIO) 2021 Comments at 12; Delaware Riverkeeper Network 2018 Comments at 67; Friends of the Central Shenandoah 2018 Comments at 36-38. The PIO 2021 Comments represent 54 entities from around the country that advocate for the protection of environmental resources, including Natural Resources Defense Council, Sierra Club, Public Citizen, Conservation Law Foundation, and Southern Environmental Law Center.

38

See, e.g.,
Environmental Protection Agency (EPA) 2021 Comments at 1-2.

39

E.g.,
New Jersey Conservation Foundation, Sabin Center for Climate Change Law, Watershed Institute, Clean Air Council, PennFuture, and New Jersey League of Conservation Voters (collectively, New Jersey Conservation Foundation et al.) 2021 Comments at 31-32.

40

E.g.,
Ann W. Woll 2021 Comments at 1; Jessica Greenwood 2021 Comments at 1; Rev. Betsy Sowers 2021 Comments at 1.

41

E.g.,
Environmental Defense Fund (EDF) 2021 Comments at 8-12.

42

See, e.g.,
American Gas Association (AGA) 2021 Comments at 10-11.

22. Several commenters argue that the public benefits recognized in the 1999 Policy Statement are skewed, overly

narrow, and outdated.
43

Additionally, some commenters recommend that the Commission create clear guidelines for benefits like reliability and resilience.
44

Some commenters suggest that the Commission consider additional factors in its benefits analysis, such as infrastructure security and how an applicant's proposal fits with, or advances, new Federal and State policies and goals.
45

In contrast, industry trade organizations generally support the Commission's existing benefits analysis under the 1999 Policy Statement, arguing that the Commission's responsibilities under the NGA have not changed, and, thus, any changes to the Commission's review of public benefits should not impede those responsibilities.
46

However, some regulated companies recommend that the Commission more heavily weigh certain benefits, such as reliability and resilience, in light of recent extreme cold weather events and ransomware attacks.
47

43

See, e.g.,
Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 4.

44

E.g.,
EDF 2021 Comments at 18.

45

See, e.g.,
New Jersey Division of Rate Counsel 2021 Comments at 4-8.

46

See, e.g.,
Natural Gas Supply Association (NGSA) 2021 Comments at 23.

47
Iroquois Gas Transmission System, L.P. (Iroquois) 2021 Comments at 10-11.

23. Regarding what evidence the Commission should examine to determine project need, many non-governmental organizations (NGO), individual commenters, and other entities argue that the Commission should analyze factors beyond precedent agreements, such as future markets, opportunity costs, Federal and State public policies, and effects on competition.
48

NGOs request that the Commission take a more “holistic” approach and assess proposed projects in conjunction with other projects that are designed to serve the same market, serve similar markets, or pass through the same region,
49

and that there be increased coordination with State agencies, including allowing State regulators to review and approve precedent agreements prior to the Commission making a need determination.
50

In contrast, regulated companies and industry trade organizations State that precedent agreements remain powerful indicators of need, as they represent long-term, binding contractual and financial commitments to a project and are more objective evidence than market studies.
51

48

See, e.g.,
Niskanen Center, Hopewell Township, Horizons Village Property Owners Association, Inc., and 28 affected landowners (collectively, Niskanen Center et al.) 2021 Comments at 18; Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 9; New Jersey Division of Rate Counsel 2021 Comments at 8-9; Carolyn Elefant 2021 Comments at 2-3.

49
PIO 2018 Comments at 10. The PIO 2018 Comments represent 64 entities from around the country that advocate for the protection of environmental resources; many of these entities also signed on to the PIO 2021 Comments.

50
Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 18.

51

See, e.g.,
WBI Energy Transmission, Inc. (WBI Energy) 2021 Comments at 3; National Fuel Gas Supply Corporation (National Fuel) 2021 Comments at 9; Energy Transfer LP 2021 Comments at 4-5; Interstate Natural Gas Association of America (INGAA) 2021 Comments at 17-19; Boardwalk Pipeline Partners LP (Boardwalk) 2021 Comments at 28.

24. Several commenters recommend that when applicants provide precedent agreements with affiliates as evidence of need, the Commission look beyond those agreements, given that companies with common profit interests might have incentives to inflate costs which can then be passed on to captive ratepayers.
52

Additionally, several commenters argue that the terms of precedent agreements should be subject to close scrutiny
53

and that the Commission should consider the potential for an asset to be rendered obsolete before the end of its useful life, as well as the length of time over which an asset's costs are recovered.
54

In contrast, regulated companies and industry trade organizations argue that the Commission should not distinguish between affiliate and non-affiliate agreements, as standards of conduct and nondiscrimination require pipeline companies to treat all customers equitably, regardless of whether the customer is an affiliate or a non-affiliate.
55

These entities allege that economic risk, financial obligation, and oversight by State and local regulators associated with precedent agreements demonstrate that they are clear evidence of need, regardless of whether the shipper is an affiliate.
56

52

See, e.g.,
Natural Resources Defense Council, Sierra Club, Earthjustice, GreenFaith, Southern Environmental Law Center, Conservation Law Foundation, Public Citizen, Catskill Mountainkeeper, New Jersey Conservation Foundation, Riverkeeper, Inc., and Acadia Center (collectively, Joint NGOs) April 2018 Comments at 2; Jim Steitz 2018 Comments at 2.

53

See, e.g.,
Friends of the Central Shenandoah 2018 Comments at 47-49; Upstate Forever 2018 Comments at 2.

54
New Jersey Division of Rate Counsel 2021 Comments at 10.

55

See, e.g.,
WBI Energy 2021 Comments at 5; INGAA 2021 Comments at 19-20; DTE Energy Company 2018 Comments at 5; Iroquois 2018 Comments at 12-13.

56

E.g.,
WBI Energy 2021 Comments at 5.

25. A wide range of commenters assert that the Commission must consider the end use of the natural gas to be transported in its assessment of need, even if end use could change over time.
57

Some commenters also note that climate change issues cannot be appropriately addressed without a firm understanding of end use.
58

However, regulated companies and industry trade organizations argue against consideration of expected end use given the practical challenges of dynamic gas markets,
59

the Commission's regulations prohibiting pipelines from unduly discriminating among shippers based on end use,
60

and the fact that regulating end use is outside the scope of the Commission's statutory authority.
61

57

See, e.g.,
Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 29-32; Deb Evans and Rob Schaaf 2018 Comments at 3-5.

58

E.g.,
Fore River Residents Against the Compressor Station, Inc. (FRRACS) 2021 Comments at 2.

59
Enbridge Gas Pipelines (Enbridge) 2021 Comments at 46; WBI Energy 2021 Comments at 6.

60
INGAA 2021 Comments at 22 (citing 18 CFR 284.7(b)).

61
Cheniere Energy, Inc. (Cheniere) 2018 Comments at 6.

26. Many commenters recommend that the Commission assess need in a regional planning context, including consideration of existing infrastructure, in order to avoid unnecessary environmental harm, “underutilized or stranded” assets, and needlessly higher rates for captive consumers.
62

Regulated companies and industry trade organizations, however, generally oppose the Commission using a regional approach to review natural gas pipeline projects, asserting that this could needlessly delay construction,
63

the proximity of pipeline projects does not necessarily indicate that projects serve the same need in a region,
64

and the open season process already serves to ensure duplicative projects are not constructed.
65

Also, these entities do not support the Commission further examining whether existing infrastructure could sufficiently meet demand.
66

62

See, e.g.,
EPA 2021 Comments at 1-3; New Jersey Division of Rate Council 2018 Comments at 13-15; Friends of Central Shenandoah 2018 Comments at 57-59.

63

E.g.,
INGAA 2021 Comments at 23.

64

E.g.,
INGAA 2021 Comments at 24.

65

E.g.,
Cheniere 2018 Comments at 8.

66

See, e.g.,
Energy Transfer LP 2021 Comments at 6; Iroquois 2021 Comments at 12.

27. Additionally, several commenters assert that the Commission must consider future demand as facilities age, as well as national and State decarbonization policies and targets.
67

In contrast, regulated companies and industry trade organizations contend that assessment of future demand is not

necessary or prudent, given that sophisticated market participants already make these calculations, and do not support the Commission performing a comparative or future-looking analysis of energy sources.
68

These entities emphasize that demand for natural gas projects will be correlated with demand for, and deployment of, variable energy resources.
69

67

See, e.g.,
New Jersey Division of Rate Counsel 2021 Comments at 13-14.

68

See, e.g.,
Williams Companies, Inc. (Williams) 2021 Comments at 14; Enbridge 2021 Comments at 51; INGAA 2021 Comments at 25-26.

69
INGAA 2021 Comments at 25-26; Boardwalk 2021 Comments at 38.

28. Generally, commenters are split on whether, and if so how, the Commission should consider the economic, energy security, and social attributes of domestic production and use of natural gas in reviewing proposed projects. Some regulated companies State that consideration of these factors should be limited;
70

however, others argue that the Commission should consider attributes such as job creation and tax revenues.
71

Several individuals and NGOs State that the Commission could consider these attributes for particular projects, but that the Commission should then also consider the costs of natural gas projects associated with increased noise, lowered property values, lowered air quality, a lowered tax base, and the loss of landowners' potential use of their land.
72

Commenters also recommend that any need analysis be focused on the specific benefits of a proposed project rather than hypothetical or general benefits
73

and that the Commission assess the magnitude or extent of both the benefits and burdens of a proposed project, including whether the jobs created are temporary or permanent, as well as the proportion of the jobs that will be filled by low- to middle-income local workers.
74

70

E.g.,
Southern Company Services, Inc. 2021 Comments at 4.

71

See, e.g.,
Williams 2021 Comments at 11-12; Boardwalk 2021 Comments at 39-40;
see also
American Forest & Paper Association, Industrial Energy Consumers of America, Process Gas Consumers Group, and the Fertilizer Institute (collectively, American Forest & Paper Association et al.) 2021 Comments at 17; INGAA 2021 Comments at 26-28; AGA 2021 Comments at 32; United Association of Journeymen and Apprentices of the Plumbing, Pipe Fitting and Sprinkler Fitting Industry of the United States and Canada, AFL-CIO (United Association) 2021 Comments at 26-28; NGSA 2021 Comments at 16.

72

See, e.g.,
PIO 2021 Comments at 12-13; Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 42; Edward Woll 2021 Comments at 2; William F. Limpert 2021 Comments at 7-8; Massachusetts PipeLine Awareness Network (PLAN) 2021 Comments at 2; Rev. Betsy Sowers 2021 Comments at 2.

73
EDF 2021 Comments at 50.

74
EPA 2021 Comments at 4.

B. The Exercise of Eminent Domain and Landowner Interests

29. Many commenters suggest that the Commission adjust its approach to considering the possible use of eminent domain. For example, some commenters assert that eminent domain should only be an option for projects that can guarantee domestic use or local benefit, or that the Commission should deny certificates that would rely on eminent domain for more than twenty percent of the proposed route.
75

In contrast, regulated companies and industry trade organizations State that the Commission should maintain its current approach, as it adequately protects landowners from the unnecessary use of eminent domain by ensuring that only projects that are needed and that do not require subsidization from existing customers are approved.
76

These entities also note that it is not possible for the Commission to reliably estimate the amount of eminent domain that will ultimately be used prior to issuance of a certificate.
77

75

See, e.g.,
Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 43; Upstate Forever 2018 Comments at 3; Jane Twitmyer 2018 Comments at 2; Franklin Regional Council of Gov'ts 2018 Comments at 2.

76

See, e.g.,
Boardwalk 2021 Comments at 61-63; TC Energy Corporation 2021 Comments at 16; INGAA 2018 Comments at 56.

77

See, e.g.,
TC Energy Corporation 2021 Comments at 19; Spectra Energy Partners LP (Spectra) 2018 Comments at 54; American Petroleum Institute (API) 2018 Comments at 13.

30. Some commenters assert that additional measures should be taken to minimize the use of eminent domain for projects, including routing pipelines in existing utility corridors when possible, requiring proof that an applicant's efforts to negotiate with landowners have failed, or reporting to the Commission each easement as it is agreed upon.
78

However, many regulated companies state that additional measures to minimize the use of eminent domain are unnecessary, as companies have already taken steps to ensure it is used infrequently.
79

78

See, e.g.,
William F. Limpert 2021 Comments at 9; Tom Russo 2021 Comments at 12; Friends of the Central Shenandoah 2018 Comments at 67.

79

See, e.g.,
Cheniere 2021 Comments at 9-10; Kinder Morgan Entities (Kinder Morgan) 2021 Comments at 18-20; API 2021 Comments at 11-13; INGAA 2021 Comments at 29.

31. Several commenters recommend that the Commission give greater weight to the concerns of impacted landowners and communities.
80

Some assert that landowners have unequal bargaining power with applicants and that the Commission should consider whether an applicant's pre-certificate actions related to landowners demonstrate that the applicant acted in good faith.
81

Additionally, some commenters argue that the Commission should expand the regulatory definition of “affected landowners” to ensure all impacted landowners and residents are included in the Commission's consideration.
82

80
EDF 2021 Comments at 5; Dr. Susan F. Tierney 2018 Comments at 8, 46-48.

81

See, e.g.,
New Jersey Conservation Foundation, Watershed Institute, and Sierra Club 2018 Comments at 35-36; Jody McCaffree 2018 Comments at 7.

82

See, e.g.,
Sari DeCesare 2021 Comments at 1; Gary Salata 2021 Comments at 1.

32. Multiple commenters state that it is the Commission's responsibility to explain the certificate process to landowners and to ensure that they have the necessary tools to fully participate.
83

Regulated companies and industry trade organizations support the creation of the Commission's Office of Public Participation (OPP) to guide landowners' understanding of, and participation in, the pipeline development and review process.
84

Several commenters recommend that the Commission designate certain staff as non-decisional to act as official procedural case managers.
85

83

See, e.g.,
Duke Energy Corporation 2018 Comments at 45; Upstate Forever 2018 Comments at 3.

84

See, e.g.,
Kinder Morgan 2021 Comments at 20-21; BHE Pipeline Group 2021 Comments at 6-8; INGAA 2021 Comments at 31-32.

85
Tom Russo 2021 Comments at 13; American Midstream Partners LP, Canyon Midstream Partners LLC, and Cureton Midstream LLC 2018 Comments at 7-8; Giles County and Roanoke County, Virginia 2018 Comments at 13-14.

33. Numerous commenters also recommend changes to the Commission's process and resources to assist landowners, including incorporating non-traditional outreach methods to notify and engage stakeholders early and throughout the process, improving the Commission's website and eLibrary system, conducting public meetings and site visits focused on landowner issues, and providing longer public comment periods.
86

Some commenters propose that the Commission automatically grant all affected landowners party status to project proceedings, or, at a minimum, provide an updated step-by-step guide for landowners on how to intervene.
87

Industry trade organizations support longer intervention periods for landowners,
88

while some regulated companies argue that the Commission

should limit interventions to entities that have a direct interest in a specific project.
89

86

See, e.g.,
Carolyn Elefant 2021 Comments at 5-6; Niskanen Center et al. 2021 Comments at 36-38; Kinder Morgan 2021 Comments at 22-26; Friends of Central Shenandoah 2018 Comments at 69; Spectra 2018 Comments at 5.

87

See
Niskanen Center et al. 2021 Comments at 28; Deb Evans and Ron Schaaf 2021 Comments at 13; Carolyn Elefant 2018 Comments at 2-3.

88

See
INGAA 2021 Comments at 32.

89

See
Adelphia Gateway LLC 2018 Comments at 13-14.

34. A wide range of commenters argue that, in order to prevent needless condemnations while routes are still subject to change and it is uncertain if a project will be authorized, the Commission could defer issuing a certificate or condition a certificate holder's exercise of eminent domain until an applicant obtains all final Federal and State permits and issuance of such permits is sustained if appeal is filed.
90

In contrast, many regulated companies and industry trade organizations assert that the Commission has no authority under the NGA to condition a certificate holder's exercise of eminent domain because eminent domain is a right that arises directly from the NGA.
91

These commenters express concern that if the Commission defers issuing a certificate until an applicant has all authorizations needed to commence construction, it would create practical challenges and could result in unintended consequences (
e.g.,
a pipeline may need survey access in order to obtain information necessary for another permit).
92

90

See, e.g.,
Land Trust Alliance 2021 Comments at 9; Jackie Freedman 2021 Comments at 1; Pipeline Safety Trust 2021 Comments at 2; Terese and Joseph Buchanan May 18, 2021 Comments at 1; Gary Salata 2021 Comments at 1.

91

See, e.g.,
INGAA 2021 Comments at 36-38; API 2021 Comments at 15-16; Enbridge 2021 Comments at 70; Cheniere 2021 Comments at 9.

92

See, e.g.,
API 2021 Comments at 17-18; Boardwalk 2021 Comments at 63-65.

C. The Commission's Consideration of Environmental Impacts

35. Many commenters suggest that the Commission revise its approach to analyzing alternatives under NEPA. Some commenters recommend that the Commission consider a broader scope of alternatives (
e.g.,
modifications to existing infrastructure, co-location with existing infrastructure, and alternative sources of energy generation)
93

or a broader range of factors to compare alternatives (
e.g.,
the quantified and monetized impact of GHG emissions; impact of natural gas exports on domestic energy prices; and cost-effectiveness when accounting for all significant health, productivity, and opportunity costs).
94

Additionally, commenters assert that the Commission should not blindly adopt a project sponsor's project purpose and, consistent with
Citizens Against Burlington, Inc.
v.
Busey,
95

must evaluate alternatives to achieve the Commission's goals, shaped by the application before it and the Commission's function in the decisional process.
96

In contrast, regulated companies and industry trade organizations state that the current scope of the Commission's alternatives analysis is appropriate and consistent with NEPA, and has been upheld by the courts.
97

These entities also assert that
Busey
prohibits the Commission from considering alternatives that would not meet the purpose and need of the proposed Federal action.
98

93

See
Friends of the Central Shenandoah 2018 Comments at 75; EPA June 21, 2018 Comments at 1; Leslie Sauer 2018 Comments at 2.

94

See
New Jersey Conservation Foundation et al. 2021 Comments at 21-22; Institute for Policy Integrity at New York University School of Law (Policy Integrity) 2018 Comments at 16, 23-24; Pennsylvania Departments of Environmental Protection, Conservation and Natural Resources, and Community and Economic Development 2018 Comments at 6; Carolyn Sellars 2018 Comments at 6.

95
938 F.2d 190, 199 (D.C. Cir. 1991).

96

See, e.g.,
PIO 2021 Comments at 21-22.

97

E.g.,
INGAA 2021 Comments at 39-41.

98
INGAA 2021 Comments at 41; Iroquois 2021 Comments at 13-14; API 2021 Comments at 19-20; Competitive Enterprise Institute 2021 Comments at 2-3;
see also
Kinder Morgan 2021 Comments at 26-28.

36. Many commenters request that the Commission change how it conducts its cumulative effects analysis under NEPA. For example, NGOs and other commenters recommend that the Commission conduct regional evaluations
99

and prepare programmatic environmental impact statement (EIS)
100

to address cumulative effects. To determine the geographic scope for regional evaluations, commenters recommend that the Commission use a radius around the proposed project (
e.g.,
100 miles)
101

or consider the project scale, gas source, and end-use location.
102

In contrast, industry trade organizations and regulated companies recommend that the Commission continue to use a project-specific geographic scope for its cumulative effects analysis.
103

These entities assert that the Commission does not have the authority under section 7 of the NGA to conduct regional evaluations, as the Commission only reviews individual pipeline applications, not broader Federal programs or regional actions where a programmatic review might be appropriate.
104

99

See, e.g.,
Joint NGOs April 2018 Comments at 2.

100

E.g.,
Nature Conservancy 2018 Comments at 2-3; Appalachian Trail Conservancy 2018 Comments at 3.

101
Kirk Frost May 26, 2021 Comments at 8.

102
Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 57.

103

See, e.g.,
INGAA 2018 Comments at 75; Duke Energy Corporation 2018 Comments at 51-53; Edison Electric Institute 2018 Comments at 16.

104

E.g.,
Williams 2021 Comments at 34; INGAA 2021 Comments at 44-45; Boardwalk 2021 Comments at 73.

37. NGOs and individual commenters state that how the Commission balances environmental impacts against favorable economic impacts is unclear, lacks transparency, and requires updating.
105

Several commenters request that the Commission give environmental impacts greater weight.
106

Other commenters criticize the Commission's phased approach to addressing project impacts under the 1999 Policy Statement, and recommend that the Commission balance economic and environmental impacts together.
107

In contrast, industry trade organizations state that the Commission's approach under the 1999 Policy Statement properly balances economic and environmental impacts, giving proportionate consideration to all impacted stakeholders.
108

These entities contend that broadening the balancing would exceed the Commission's discretion under the NGA
109

and that the NEPA requirement to take a “hard look” at environmental consequences should remain separate from consideration of economic impacts.
110

105

See, e.g.,
Delaware Riverkeeper Network 2018 Comments at 92-93; Friends of the Central Shenandoah 2018 Comments at 92-94; Deb Evans and Rob Schaaf 2018 Comments at 12.

106

E.g.,
PIO 2021 Comments at 56; Elaine Mroz 2018 Comments at 4.

107

See, e.g.,
New Jersey Conservation Foundation et al. 2021 Comments at 18-22; Policy Integrity 2021 Comments at 4; Chesapeake Bay Foundation 2018 Comments at 4.

108

E.g.,
API 2021 Comments at 23.

109
Williams 2021 Comments at 39.

110
INGAA 2018 Comments at 85-89.

38. Regulated companies and industry trade organizations support the adoption of other agencies' categorical exclusions under NEPA, including those referenced in Commission staff's presentation at the January 19, 2021 Commission meeting (Docket No. RM21-10-000).
111

Additionally, these entities state that a categorial exclusion should apply to certain actions that do not currently qualify for the Commission's blanket certificate authority (
e.g.,
project amendments that would result in no, or minimal, changes to the environment).
112

In contrast, NGOs suggest that there is no need for the Commission to expand its existing categorical exclusions, and they request that the Commission provide a public notice and comment period for all

projects in which an applicant proposes to use a categorical exclusion.
113

111
INGAA 2021 Comments at 83-85; Enbridge 2021 Comments at 149-150.

112

E.g.,
INGAA 2021 Comments at 84; Enbridge 2021 Comments at 150.

113
PIO 2021 Comments at 72-76.

D. The Efficiency and Effectiveness of the Commission's Review Process

39. Many commenters recommend changes to the Commission's application review process. For example, some commenters recommend that all affected stakeholders be brought into the process as early as possible,
114

that decisions regarding information requirements be summarized in a comprehensive application completeness checklist, and that the Commission's regulations be amended to encourage applicants to submit complete applications at the outset.
115

Additionally, several commenters recommend changes to the Commission's environmental review process, including that the Commission not prepare a NEPA document absent substantive environmental data for the entirety of the proposed route,
116

that the Commission consider issuing final EISs and certificates at the same time,
117

or, alternatively, that the Commission issue certificates within 90 days of issuance of a final NEPA document.
118

Some commenters also state that the Commission should not inject additional regulatory uncertainty into its review process by requiring open-ended or unduly expansive environmental reviews.
119

114
PIO 2021 Comments at 78;
see also
Dr. Susan F. Tierney 2021 Comments at 41-42.

115
New Jersey Conservation Foundation et al. 2021 Comments at 30-31.

116
New Jersey Conservation Foundation et al. 2021 Comments at 31.

117
Energy Infrastructure Council (EIC) 2021 Comments at 33; Spectra 2018 Comments at 95.

118
WBI Energy 2021 Comments at 11; INGAA 2018 Comments at 94.

119

See, e.g.,
GPA Midstream Association 2021 Comments at 1; Laborers' International Union of North America 2021 Comments at 2.

40. Commenters also make a variety of recommendations to increase transparency in the Commission's review process and schedules. For example, some commenters propose that the Commission issue a public notice when a draft order has been circulated by Commission staff to the Commissioners,
120

establish “permitting timetables” for NGA section 7(c) projects,
121

and clarify deadlines for parties to intervene or submit studies.
122

Some commenters also recommend that there be a “cooling off” period after the issuance of a draft EIS to resolve disputes between an applicant and stakeholders with assistance from the Commission's Dispute Resolution Service.
123

120
Kinder Morgan 2021 Comments at 46.

121
WBI Energy 2021 Comments at 11.

122
Carolyn Elefant 2021 Comments at 7; Spectra 2018 Comments at 94-95; INGAA 2018 Comments at 96.

123
Tom Russo 2021 Comments at 23.

41. Several commenters recommend changes to the duration of the pre-filing process. Recommendations include shortening the pre-filing process and extending the application review process,
124

collapsing pre-filing into the post-filing process to eliminate lengthy processing times,
125

and condensing the application review process by consolidating as much activity as possible in the pre-filing process and requiring all interested parties planning to object to a project to do so during pre-filing.
126

124
Carolyn Elefant 2021 Comments at 6.

125
American Forest & Paper Association et al. 2021 Comments at 26-27; Spectra 2018 Comments at 98-99.

126
United Association 2021 Comments at 35-36; INGAA 2018 Comments at 102.

42. Many commenters also propose ways to make stakeholder participation more effective. For example, some commenters propose that applicants provide transportation or access to public transportation to public meetings, adequate parking at venues, and options for remote participation.
127

Several commenters also recommend that the Commission provide notices and related materials in multiple languages
128

and issue guidance to ensure that pipeline project developers provide sufficient and timely information.
129

Additionally, some commenters recommend that the Commission's new OPP be a neutral resource to landowners and other stakeholders seeking more information on the Commission's review process.
130

Other commenters recommend that staff prioritize input provided by stakeholders that will be directly impacted by a project,
131

and that all comments submitted to a docket receive a response or some other indication that a member of Commission staff has read the comments.
132

127

E.g.,
PLAN 2021 Comments at 3; Edward Woll 2021 Comments at 4; Rev. Betsy Sowers 2021 Comments at 3; Kim Robinson 2021 Comments at 2; Surfrider Foundation 2018 Comments at 2; Delaware Riverkeeper Network 2018 Comments at 57.

128
Egan Millard 2021 Comments at 3; Robert Kearns 2021 Comments at 3; Inbal Goldstein 2021 Comments at 4.

129
Dr. Susan F. Tierney 2021 Comments at 42.

130
WBI Energy 2021 Comments at 10.

131
Kinder Morgan 2021 Comments at 47-48.

132

See, e.g.,
Kim Robinson 2021 Comments at 2; Leslie Sauer Jones and Stephanie Jones June 2021 Comments at 1; James and Kathy Chandler 2018 Comments at 1.

43. Several commenters note the importance of transparency and coordination in the interagency review process. Some regulated companies recommend that the Commission strengthen its role as the lead agency under NEPA by focusing on educating and training cooperating agencies to be better prepared to meet their own statutory deadlines.
133

Other commenters suggest that the Commission consider standardized schedules for its review processes, such as publishing timelines that include pre-filing, preparation of the NEPA document, and issuance of final orders and authorizations by other agencies,
134

and that the Commission create a dedicated task force for coordinating with other agencies.
135

133

E.g.,
Kinder Morgan 2021 Comments at 42-43.

134
Enbridge 2021 Comments at 157.

135
Kirk Frost May 26, 2021 Comments at 13.

44. Many commenters support the separate treatment of different classes of projects, recommending that the Commission provide more timely review of projects with minimal impacts and certain qualifying benefits,
136

or expedite approvals for projects where only an environmental assessment is required and there is no opposition.
137

However, other commenters oppose the separate treatment of different classes of projects, expressing concern that separate treatment would be arbitrary or discriminatory
138

and that some projects would be left in limbo while the Commission takes action on what it perceives as priority projects.
139

Some commenters also suggest changes to the Commission's blanket certificate program, including changing the filing requirements to reduce the number of required resource reports, eliminating the need for weekly reports,
140

increasing both the automatic and prior notice cost limits,
141

and adding consideration of other factors such as a project's acreage to determine eligibility for blanket certificate authority.
142

136
Iroquois 2021 Comments at 18-19.

137
Kinder Morgan 2021 Comments at 44.

138
Americans for Prosperity 2021 Comments at 2.

139
AGA 2021 Comments at 39.

140
EIC 2021 Comments at 34; TransCanada Corporation 2018 Comments at 32.

141
API 2021 Comments at 36.

142
WEC Energy Group, Inc. 2018 Comment at 6-7.

E. The Commission's Consideration of Effects on Environmental Justice Communities

45. Many commenters suggest that the Commission revise its approach for identifying environmental justice communities in certificate proceedings. For example, some commenters recommend that the Commission use

census block-level data;
143

on-the-ground surveys;
144

social, environmental, and health indicators;
145

and other data and tools to identify such communities.
146

Additionally, several commenters recommend that the Commission consult with other Federal and State agencies for assistance with identifying environmental justice communities
147

or allow communities to identify themselves as environmental justice communities.
148

143

See, e.g.,
PIO 2021 Comments at 86-87; New Jersey Conservation Foundation et al. 2021 Comments at 38-40.

144

See, e.g.,
Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 69; Tom Russo 2021 Comments at 24-25; William F. Limpert 2021 Comments at 19.

145
New Jersey Conservation Foundation et al. 2021 Comments at 35-38; North Carolina Department of Environmental Quality 2021 Comments at 2; EDF 2021 Comments at 57.

146
Quincy Democratic City Committee 2021 Comments at 1-2; Natural Resources Defense Council May 2021 Comments at 14-15.

147
EPA 2021 Comments at 7; Jeannie Ambrose 2021 Comments at 2.

148

See
Save Our Illinois Land (SOIL) 2021 Comments at 1; William F. Limpert 2021 Comments at 19; Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 69.

46. Many commenters also recommend changes to how the Commission evaluates project impacts on environmental justice communities. For example, NGOs assert that the Commission should always use a reference or comparison group when evaluating disproportionately high and adverse impacts on such communities
149

and ensure that such a group is neither too geographically narrow nor too demographically similar to avoid masking disproportionate impacts.
150

NGOs and individual commenters recommend that the Commission consider the existing burden from specific environmental and health indicators when it evaluates cumulative and historic exposures, including the presence of other infrastructure and existing pollution levels in the project area.
151

Additionally, these commenters recommend changes to how the Commission evaluates the impacts of direct and indirect air pollution on environmental justice communities.
152

In contrast, regulated companies and industry trade organizations state that the Commission should not make substantive changes to how it evaluates impacts on environmental justice communities at this time, and recommend that the Commission wait for further guidance from the White House, EPA, and the Council on Environmental Quality (CEQ) to ensure consistency across the Federal Government.
153

149
New Jersey Conservation Foundation et al. 2021 Comments at 39-40.

150
Policy Integrity 2021 Comments at 49-52.

151

See, e.g.,
New Jersey Conservation Foundation et al. 2021 Comments at 36-37; Ann W. Woll 2021 Comments at 5; SOIL 2021 Comments at 3.

152
Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 77-82; EDF 2021 Comments at 58.

153
API 2021 Comments at 37-39; Enbridge 2021 Comments at 167-168.

47. Many commenters state that there are barriers to the participation of environmental justice communities in Commission proceedings, including inadequate translation services and the Commission's reliance on electronic media.
154

Other commenters state that Commission proceedings can be highly technical in nature, rendering them inaccessible to the general public unless a participant can invest significant time and resources.
155

A wide range of commenters recommend changes to the Commission's public notice and outreach processes to ensure meaningful engagement with environmental justice communities,
156

including the Commission's process for consulting with Tribes.
157

Many commenters also support the Commission's formation of OPP
158

and recommend that the Commission coordinate with community-based organizations and institutions to further encourage the participation of environmental justice communities in Commission proceedings.
159

154
Terese and Joseph Buchanan May 18, 2021 Comments at 1; PIO 2021 Comments at 87-89; Robert Kearns 2021 Comments at 4; Jackie Freedman 2021 Comments at 1; Deborah Brown 2021 Comments at 1.

155
New Jersey Conservation Foundation et al. 2021 Comments at 34.

156

See, e.g.,
Kinder Morgan 2021 Comments at 58-59; Ohio Environmental Council 2021 Comments at 3.

157
Coharie Intra-Tribal Council, Haliwa-Saponi Indian Tribe, Lumbee Tribe of North Carolina, Meherrin Indian Nation of North Carolina, Nottoway Indian Tribe of Virginia, and Occaneechi Band of Saponi Nation 2021 Comments at 2; Haliwa-Saponi Indian Tribe 2021 Comments at 2; Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 71.

158

See, e.g.,
API 2021 Comments at 41; EPA 2021 Comments at 8; National Fuel 2021 Comments at 22.

159
New Jersey Conservation Foundation et al. 2021 Comments at 33-35; Delaware Riverkeeper Network & Berks Gas Truth 2021 Comments at 73-74.

48. Several commenters assert that section 7(e) of the NGA provides the Commission with broad conditioning authority to address project impacts on environmental justice communities in its certificates.
160

Some commenters state that the Commission should use its NEPA alternatives analysis to identify and evaluate ways to mitigate impacts on environmental justice communities.
161

If mitigating adverse impacts on environmental justice communities is not possible, other commenters assert that the Commission should deny a certificate.
162

160
New Jersey Division of Rate Counsel 2021 Comments at 23; PIO 2021 Comments at 105.

161
INGAA 2021 Comments at 98-99; EPA 2021 Comments at 8-9.

162

See, e.g.,
Attorneys General of Massachusetts, Connecticut, Maryland, Minnesota, New Jersey, New York, Oregon, Rhode Island, and the District of Columbia 2021 Comments at 32-33 (Attorneys General of Massachusetts et al.);
see also
PLAN 2021 Comments at 5; Katherine Manuel 2021 Comments at 5; Elizabeth Moulds 2021 Comments at 4; Jessica Greenwood 2021 Comments at 4; Shayna Gleason 2021 Comments at 3; Rick Mattila 2021 Comments at 3.

49. In contrast, many regulated companies and industry trade organizations state that no Federal statute requires the Commission to implement specific remedial measures to address project impacts on environmental justice communities, but they assert that NEPA provides an appropriate framework in which to analyze such impacts.
163

These entities also contend that that the Commission's conditioning authority under section 7(e) of the NGA is limited to direct project impacts and the Commission could not require measures to redress prior industrial impacts on environmental justice communities or impacts outside of the Commission's jurisdiction.
164

163

See, e.g.,
Williams 2021 Comments at 60-62, 65; Enbridge 2021 Comments at 178-180, 186; Kinder Morgan 2021 Comments at 48, 57; INGAA 2021 Comments at 88-90.

164

See, e.g.,
Enbridge 2021 Comments at 181; API 2021 Comment at 44-45.

III. Goals and Objectives of the Updated Certificate Policy Statement

50. While significant changes have occurred in the past 23 years, the Commission's goals and objectives with this Updated Policy Statement remain consistent with those of the 1999 Policy Statement, including to: (1) “appropriately consider the enhancement of competitive transportation alternatives, the possibility of over building, the avoidance of unnecessary disruption of the environment, and the unneeded exercise of eminent domain;”
165

(2) “provide appropriate incentives for the optimal level of construction and efficient customer choices;”
166

and (3) “provide an incentive for applicants to structure their projects to avoid, or minimize, the potential adverse impacts that could result from construction of the project.”
167

165
1999 Policy Statement, 88 FERC at 61,737.

166

Id.
at 61,743.

167

Id.

51. As discussed above, the 1999 Policy Statement included an analytical framework for how the Commission would evaluate the effects of certificating new projects on economic interests. With this Updated Policy Statement, the Commission intends to provide a more comprehensive analytical framework for its decision-making process. Specifically, we provide clarity on how the Commission will evaluate all factors bearing on the public interest, including the balancing of economic and environmental interests in determining whether a project is required by the public convenience and necessity, thus providing more regulatory certainty in the Commission's review process and public interest determinations.

IV. Updated Certificate Policy Statement

A. Factors To Be Balanced in Assessing the Public Convenience and Necessity

52. In determining whether to issue a certificate of public convenience and necessity, the Commission will weigh the public benefits of a proposal, the most important of which is the need that will be served by the project, against its adverse impacts.

1. Consideration of Project Need

53. To demonstrate that a project is required by the public convenience and necessity, an applicant must first establish that the proposed project is needed. As indicated above, the Commission's expectations and requirements for how applicants should demonstrate project need have evolved over time. In the 1999 Policy Statement, the Commission noted concerns associated with relying “primar[ily]”
168

or “almost exclusively”
169

on contracts to establish need for a new project. Those concerns included the “additional issues [that arise] when the contracts are held by pipeline affiliates”
170

and the difficulty such a policy creates for “articulat[ing] to landowners and community interests why their land must be used for a new pipeline project.”
171

Thus, the 1999 Policy Statement provided that:

168

Id.
at 61,744.

169

Id.

170

Id.

171

Id.

[r]ather than relying only on one test for need, the Commission will consider
all relevant factors
reflecting on the need for the project. These might include, but would not be limited to, precedent agreements, demand projections, potential cost savings to consumers, or a comparison of projected demand with the amount of capacity currently serving the market.
172

172

Id.
at 61,747 (emphasis added).

54. However, in practice, the Commission has relied almost exclusively on precedent agreements to establish project need. Although courts have upheld the Commission's practice in certain contexts,
173

we find that we cannot adequately assess project need without also looking at evidence beyond precedent agreements. After all, as the Commission's 1999 Policy Statement noted, many different factors may indicate the need—or lack thereof—for a new interstate pipeline. While precedent agreements may indicate one or more shipper's willingness to contract for new capacity, such willingness may not in all circumstances be sufficient to sustain a finding of need—
e.g.,
in the face of contrary evidence or where there is reason to discount the probative value of those precedent agreements. Accordingly, we find that looking only to precedent agreements, and ignoring other, potentially contrary, evidence may cause the Commission to reach a determination on need that is inconsistent with the weight of the evidence in any particular proceeding, in violation of both the NGA and the Commission's responsibilities under the Administrative Procedure Act.
174

We reaffirm the Commission's commitment to consider
all
relevant factors bearing on the need for a project. Although precedent agreements remain important evidence of need, and we expect that applicants will continue to provide precedent agreements, the existence of precedent agreements may not be sufficient in and of themselves to establish need for the project. The Commission will also consider, as relevant, the circumstances surrounding the precedent agreements (
e.g.,
whether the agreements were entered into before or after an open season and the results of the open season, including the number of bidders, whether the agreements were entered into in response to LDC or generator requests for proposals (RFP) and, if so, the details around that RFP process, including the length of time from RFP to execution of the agreement), as well as other evidence of need, as discussed below.

173

See, e.g., Minisink Residents for Envtl. Pres. & Safety
v.
FERC,
762 F.3d 97, 110 n.10 (D.C. Cir. 2014) (noting that the 1999 Policy Statement “permits” but does not “require[ ]” the Commission to ” look[ ] beyond the market need reflected by the applicant's existing contracts with shippers”).
But see Environmental Defense Fund
v.
FERC,
2 F.4th 953, 973 (D.C. Cir. 2021) (finding that is was arbitrary and capricious for the Commission to rely solely on a single precedent agreement with an affiliate shipper to establish need when demand for natural gas in the area was flat and the Commission neglected to make a finding as to whether the proposed pipeline would result in a more economical alternative to existing pipelines).

174
Under the Administrative Procedure Act, an agency cannot ignore substantial evidence bearing on the agency decision.
See
5 U.S.C. 706;
see also, e.g., Motor Vehicles Mfrs. Ass'n of U.S., Inc.
v.
State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (holding that an agency decision is arbitrary and capricious if it “entirely fail[s] to consider an important aspect of the problem”).

55. For all categories of proposed projects, we encourage applicants to provide specific information detailing how the gas to be transported by the proposed project will ultimately be used, why the project is needed to serve that use, and the expected utilization rate of the proposed project. To the extent applicants do not have information on the end use of the gas, they are encouraged to work with their prospective shippers to obtain it. The absence of this information may prevent an applicant from meeting its burden to demonstrate that a project is needed.

56. For a market-driven project that is responding to increased natural gas demand, the evidence relating to the need for the project could include a market study that projects volumetric or peak day load growth. An applicant may rely on publicly available analyses by the Energy Information Administration or other third parties showing projections of market growth. The applicant could also provide its best assessment, based on publicly available information or data, of whether other transportation suppliers may be able to meet the incremental demand with existing capacity to demonstrate why new pipeline construction is necessary. For individual shippers, load growth profiles, gas supply portfolios, and any advanced approval of contracts by State public service commissions would also be helpful in showing evidence of project need.

57. Some projects may not directly serve a customer but rather are being undertaken to add supplies of natural gas to the market. Such projects may be driven by natural gas producers or natural gas utilities attempting to provide supply at lower cost or support reliability by increasing the volumes of natural gas available to customers. For these projects, evidence to demonstrate consumer benefits may include projections of the net benefits, for example projected lower natural gas prices for consumers due to increased supply competition, compared to the incremental costs of transportation on the new pipeline. The Commission will consider record evidence of regional projections for both gas supply and market growth, as well as pipeline-specific studies in these areas.

58. Other pipeline projects may be intended to support more efficient system operations by replacing older and inefficient facilities (
e.g.,
compressors and leak-prone pipes) and performing other infrastructure improvements, or to respond to changing State and Federal Government pipeline safety or environmental requirements. For these projects, applicants may document how proposed facilities, for example pipeline or compressor replacements, provide expected system benefits, such as reduced operating costs, improved pipeline integrity, or reduced natural gas leaks. In addition, an applicant may document how a project avoids adverse impacts or satisfies any changing State or Federal Government regulations.

59. The Commission will consider both current and projected future demand for a project based on the evidence in the record. Applicants are encouraged to submit analyses showing how market trends as well as current and expected policy and regulatory developments would affect future need for the project. Applicants are also encouraged to provide a thorough assessment of alternatives, including supporting data, to facilitate the Commission's review. In assessing the strength of the applicant's need showing, the Commission will consider record evidence of alternatives to the proposed project. The Commission's evaluation will include information indicating that other suppliers would be able to meet some or all of the needs to be served by the proposed project on a timely, competitive basis or whether other factors may eliminate or curtail such needs.

60. As the Commission noted in the 1999 Policy Statement, projects supported by precedent agreements with affiliates raise unique concerns regarding need for the project.
175

And, as the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) recently held in
Environmental Defense Fund
v.
FERC,
“evidence of `market need' is too easy to manipulate when there is a corporate affiliation between the proponent of a new pipeline and a single shipper who have entered into a precedent agreement.”
176

Given those concerns, affiliate precedent agreements will generally be insufficient to demonstrate need. Instead, where projects are backed primarily by precedent agreements with affiliates, the Commission will consider additional information, such as the evidence outlined above.
177

We will determine how much additional evidence is required on a case-by-case determination.

175
1999 Policy Statement, 88 FERC at 61,739-40 (noting that the “use of contracts with affiliates to demonstrate market support for projects has generated opposition from affected landowners and competitor pipelines who question whether the contracts represent real market demand”) and 61,744 (stating that “[u]sing contracts as the primary indicator of market support for the proposed pipeline project also raises additional issues when the contracts are held by pipeline affiliates.”).

176
2 F.4th at 973.

177

See supra
P 55.

61. To the extent the Commission receives information in the record from third parties addressing the need for a project, that too will be considered in our analysis. Where an applicant fails to carry its burden of demonstrating the proposed project is needed, the Commission will not undertake any further consideration of the project's benefits or adverse effects.

2. Consideration of Adverse Effects

62. In determining whether to issue a certificate of public convenience and necessity, the Commission will consider four major interests that may be adversely affected by the construction and operation of new projects: (1) The interests of the applicant's existing customers; (2) the interests of existing pipelines and their captive customers; (3) environmental interests; and (4) the interests of landowners and surrounding communities, including environmental justice communities. The Commission may deny an application based on any of these types of adverse impacts.

a. Impacts on Existing Customers of the Pipeline Applicant

63. Existing customers of the pipeline applicant may be adversely affected if a proposed project causes an increase in rates or a degradation in service. Regarding potential rate increases, although we are no longer characterizing this issue as a “threshold question” in this Updated Policy Statement, our policy of no financial subsidies remains unchanged.
178

That is, the pipeline applicant must be prepared to financially support its proposed project without relying on subsidization by its existing customers. As to other potential impacts to existing customers, like a degradation in service, we will consider the applicant's efforts to eliminate or minimize any such impacts.

178
1999 Policy Statement, 88 FERC at 61,746-47,
clarified,
90 FERC at 61,391-96.

64. As the Commission stated in the 1999 Policy Statement, the policy of no financial subsidies does not mean that a project sponsor has to bear all the financial risk of the project; the risk can be shared with new customers, but it generally cannot be shifted to existing customers.
179

One of the Commission's regulatory goals is to protect captive customers from rate increases during the terms of their contracts that are unrelated to the costs associated with their service. And existing customers of the expanding pipeline should not have to subsidize a project that does not serve them.

179
1999 Policy Statement, 88 FERC at 61,746. For new pipeline companies, without existing customers, this requirement has no application.

65. The 1999 Policy Statement also stated that the requirement that a new project must be financially viable without subsidies does not eliminate the possibility that, in some instances, project costs should be rolled into the rates of existing customers.
180

In most instances, incremental pricing will avoid subsidies for the new project, but the situation may be different in cases of inexpensive expansibility that is made possible because of earlier, costly construction.
181

In that instance, because the existing customers bear the cost of the earlier, more costly construction in their rates, incremental pricing could result in the new customers receiving a subsidy from the existing customers because the new customers would not face the full cost of the construction that makes their new service possible.

180

Id.

181

Id.

66. Additionally, expansion costs could still be included in existing shippers' rates when proposed projects are designed to improve service for existing customers.
182

Increasing the rates of existing customers to pay for projects designed to benefit those customers (
i.e.,
by replacing existing capacity, improving reliability, or providing flexibility) is not a subsidy.
183

182

Order Clarifying Statement of Policy,
90 FERC at 61,391.

183

Id.
at 61,393.

b. Impacts on Existing Pipelines and Their Customers

67. As the Commission stated in the 1999 Policy Statement, existing pipelines that already serve the market to be served by the proposed new capacity may be affected by the potential loss of market share and the possibility that they may be left with unsubscribed capacity investment.
184

Additionally, captive customers of existing pipelines may be affected if they must pay for the resulting unsubscribed capacity in their rates. These remain important concerns.

184
1999 Policy Statement, 88 FERC at 61,748.

68. It has been the Commission's long-standing position that it has an obligation to ensure fair competition, but that it is not the role of the Commission to protect existing pipelines from the effects of competition.
185

While we continue to maintain this position, we also emphasize that it is not just unfair competition that can harm captive customers. The Commission must consider the possible harm to captive customers that can result from a new pipeline, regardless of whether there is evidence of unfair competition.

185

See Ruby Pipeline, L.L.C.,
128 FERC ¶ 61,224, at PP 37-39 (2009);
see also
1999 Policy Statement, 88 FERC at 61,748.

69. Congress enacted the NGA “with the principal aim of encouraging the orderly development of plentiful supplies of . . . natural gas at reasonable prices, and protecting consumers against exploitation at the hands of natural gas companies.”
186

Ensuring the orderly development of natural gas supplies includes preventing overbuilding. One way that the Commission can prevent overbuilding is through careful consideration of a proposed project's impacts on existing pipelines. To the extent that a proposed project is designed to substantially serve demand already being met on existing pipelines, that could be an indication of potential overbuilding. Nevertheless, in such instances, the Commission will also consider whether the proposed project would offer certain advantages (
e.g.,
providing lower costs to consumers or enhancing system reliability).

186

City of Clarksville, Tennessee
v.
FERC,
888 F.3d at 479 (quoting
NAACP
v.
FPC,
425 U.S. at 669-70 and
FPC
v.
Hope Nat. Gas Co.,
320 U.S. at 610).

70. Comments from existing pipelines and their captive customers about the potential impacts from a proposed project will be an important piece of our review. Additionally, comments from State utility or public service commissions as to how a proposed project may impact existing pipelines will be particularly useful.

c. Environmental Impacts

71. As noted above, the 1999 Policy Statement included an analytical framework for how the Commission would evaluate the effects of certificating new projects on economic interests. However, the 1999 Policy Statement did not describe how the Commission would consider environmental interests in its decision-making process and, more specifically, how it would balance these interests with the economic interests of a project. Instead, it stated that environmental interests would be “separately considered” in a certificate proceeding after the balancing of public benefits against the residual adverse effects on economic interests.
187

187
1999 Policy Statement, 88 FERC at 61,747.

72. While the 1999 Policy Statement focused on economic impacts, the consideration of environmental impacts is an important part of the Commission's responsibility under the NGA to evaluate all factors bearing on the public interest.
188

In the years immediately following issuance of the 1999 Policy Statement, the Commission would sometimes issue a preliminary determination on the non-environmental issues associated with a proposed project, and then issue a subsequent decision on the certificate application following the environmental review process; however, in practice, Commission staff would begin review of both the economic and environmental impacts following the filing of an application. Today, the Commission no longer issues preliminary determinations on non-environmental issues, and the Commission and staff continue to review the economic and environmental impacts of projects concurrently. Thus, the sequential framing of these analyses in the 1999 Policy Statement has created some confusion and incorrectly conveyed how the Commission considers environmental impacts. In addition to questions about sequencing, we have seen a significant increase in comments from a range of stakeholders expressing concerns about how the Commission considers environmental impacts, including impacts on climate change and environmental justice communities, in its public interest determinations.

188

See Atl. Ref. Co.
v.
Pub. Serv. Comm'n of N.Y.,
360 U.S. at 391 (holding that the NGA requires the Commission to consider “all factors being on the public interest”);
see also Sabal Trail,
867 F.3d at 1373 (explaining that the Commission must consider a pipeline's direct and indirect GHG emissions because the Commission may “deny a pipeline certificate on the ground that the pipeline would be too harmful to the environment”).

73. To provide more clarity and regulatory certainty to all participants in certificate proceedings, we explain here how the Commission will consider environmental impacts.
189

The Commission will balance all impacts, including economic and environmental impacts, together in its public interest determinations under the NGA. As discussed further below, the potential adverse impacts will be weighed against the evidence of need and other potential benefits of a proposal in determining whether to issue a certificate of public convenience and necessity.

189
Recognizing that CEQ is in the process of revising its NEPA regulations, the Commission will consider the comments in this docket regarding NEPA in our future review of our regulations, procedures, and practices for implementing NEPA.

74. We will consider environmental impacts and potential mitigation in both our environmental reviews under NEPA and our public interest determinations under the NGA. The Commission expects applicants to structure their projects to avoid, or minimize, potential adverse environmental impacts. Additionally, we expect applicants to propose measures for mitigating impacts, and we will consider those measures—or the lack thereof—in balancing adverse impacts against the potential benefits of a proposal. Further, the NGA grants the Commission broad authority to attach reasonable terms and conditions to certificates of public convenience and necessity.
190

Should we deem an applicant's proposed mitigation of impacts inadequate to enable us to reach a public interest determination, we may condition the certificate to require additional mitigation. We may also deny an application based on any of the types of adverse impacts described herein, including environmental impacts, if the adverse impacts as a whole outweigh the benefits of the project and cannot be mitigated or minimized.

190
15 U.S.C. 717f(e);
see also, e.g., ANR Pipeline Co.
v.
FERC,
876 F.2d 124, 129 (D.C. Cir. 1989) (noting the Commission's “extremely broad” conditioning authority).

75. As noted above, since issuance of the 1999 Policy Statement, the Commission's policy for considering climate impacts has evolved.
191

In addition to the significant increase in comments from stakeholders, the courts have issued several decisions addressing the Commission's evaluation of GHG emissions in certificate proceedings. The D.C. Circuit recently held that reasonably foreseeable downstream GHG emissions are an indirect effect of the Commission authorizing proposed projects
192

and are relevant to the Commission's determination of whether proposed projects are required by the public convenience and necessity.
193

191

Supra
P 15.

192

Sabal Trail,
867 F.3d at 1374.

193

Id.
at 1373. In
Birckhead
v.
FERC,
925 F.3d 510, 518 (D.C. Cir. 2019), the D.C. Circuit rejected the Commission's position that
Sabal Trail
is limited to the narrow facts of that case. While the court in
Birckhead
acknowledged that downstream emissions may not always be a foreseeable effect of natural gas projects, it rejected the notion that downstream GHG emissions are a reasonably foreseeable indirect effect of a natural gas project only if a specific end destination is identified. The court further noted that the Commission should attempt to obtain information on downstream uses

to determine whether downstream GHG emissions are a reasonably foreseeable effect of the project.
Birckhead,
925 F.3d at 518-19.

76. Concurrently with this Updated Policy Statement, we are issuing a separate policy statement to explain how the Commission will assess project impacts on climate change in certificate proceedings going forward.
194

This separate policy statement describes Commission procedures for evaluating climate impacts under NEPA and explains how the Commission will integrate climate considerations into its public convenience and necessity findings under the NGA, including how the Commission will consider measures to mitigate climate impacts. When making public interest determinations, we intend to fully consider climate impacts, in addition to other environmental impacts.

194
GHG Policy Statement, 178 FERC ¶ 61,108.

d. Impacts on Landowners and Surrounding Communities

77. The construction and operation of new natural gas infrastructure has the potential to result in adverse impacts on the landowners and communities surrounding a project. As the Commission stated in the 1999 Policy Statement:

[l]andowners whose land would be condemned for the new pipeline right-of-way, under eminent domain rights conveyed by the Commission's certificate, have an interest as does the community surrounding the right-of-way. The interest of these groups is to avoid unnecessary construction, and any adverse effects on their property associated with a permanent right-of-way.
195

195
1999 Policy Statement, 88 FERC at 61,748.

In the over 20 years that have passed since issuance of the 1999 Policy Statement, the Commission has seen an increase in proposals for projects in more densely populated areas, as well as a significant increase in comments from landowners raising a multitude of economic, environmental, and others concerns with proposed projects.

78. While the 1999 Policy Statement focused primarily on the economic impact associated with a permanent right-of-way on a landowner's property,
196

going forward, and as discussed below, our analysis of impacts to landowners will be more expansive. This fuller consideration of landowner impacts is consistent with the Commission's approach in recent years of more fully engaging with landowners to ensure that their concerns are properly considered in our proceedings. For example, in June 2021, the Commission established OPP, in part, to facilitate public participation in Commission proceedings.

196

Id.
at 61,749 (“The balancing of interests and benefits that will precede the environmental analysis will largely focus on economic interests such as the property rights of landowners.”).

79. In addition to the increase in comments from landowners since issuance of the 1999 Policy Statement, the Commission has also seen a significant increase in comments raising environmental justice concerns. In recent years, issues surrounding environmental justice and equity have received increased focus and attention at both the State and Federal levels, as demonstrated by the recent issuance of Executive Orders 13985 and 14008, referenced above.
197

The Commission is committed to ensuring that environmental justice and equity concerns are better incorporated into our decision-making processes. Accordingly, we clarify that our consideration of impacts to communities surrounding a proposed project will include an assessment of impacts to any environmental justice communities and of necessary mitigation to avoid or lessen those impacts.

197

Supra
P 16.

80. The Commission and applicants have a shared responsibility to engage communities that may be impacted by a proposed project. This responsibility includes ensuring effective communication with landowners and environmental justice communities about potential impacts and giving careful consideration to the input of such parties during the agency proceeding. Below, we further discuss our expectations for how pipeline applicants will engage with landowners, steps the Commission has taken to protect landowner interests, and how the Commission will consider potential impacts to landowners and environmental justice communities.

i. Impacts on Landowners

81. As noted above, once the Commission grants a certificate of public convenience and necessity, section 7(h) of the NGA authorizes a certificate holder to acquire the necessary land or property to construct the approved facilities by exercising the right of eminent domain for those lands for which it could not negotiate an easement with landowners.
198

As the Commission has previously recognized:

198
15 U.S.C. 717f(h).

[t]here is no question that eminent domain is among the most significant actions that a government may take with regard to an individual's private property. And the harm to an individual from having their land condemned is one that may never be fully remedied, even in the event they receive their constitutionally-required compensation.
199

199

Limiting Authorizations to Proceed with Construction Activities Pending Rehearing,
Order 871-B, 86 FR 26150 (May 13, 2021), 175 FERC ¶ 61,098, at P 47 (2021).

Thus, looking only at the economic impacts associated with eminent domain does not sufficiently account for the full scope of impact on landowners. Landowners whose property is subject to eminent domain often experience intangible impacts, which cannot always be monetized. Our consideration of landowner impacts will be based upon robust early engagement with all interested landowners, as well as continued evaluation of input from such parties during the course of any given proceeding. And we will, to the extent possible, assess a wider range of landowner impacts.

82. Given the serious impacts associated with the use of eminent domain, we expect pipeline applicants to take all appropriate steps to minimize the future need to use eminent domain. This includes engaging with the public and interested stakeholders during the planning phase of projects to solicit input on route concerns and incorporate reroutes, where practicable, to address landowner concerns, as well as providing landowners with all necessary information. Additionally, we expect pipelines to take seriously their obligation to attempt to negotiate easements respectfully and in good faith with impacted landowners. The Commission will look unfavorably on applicants that do not work proactively with landowners to address concerns.

83. Additionally, we note that that, while a certificate provides the holder with significant rights and privileges, it also imposes concomitant responsibilities, including complying with all certificate conditions. Specifically, certificate holders must comply with requirements regarding restoration of the pipeline right-of-way. Failure to comply with such requirements could mean that a pipeline is out of compliance with its certificate, and could lead to compliance action by the Commission, including referral to the Commission's Office of Enforcement for further investigation and potential civil penalties.
200

200

See, e.g., Midship Pipeline Co., LLC,
177 FERC ¶ 61,187 (2021).

84. Although the Commission does not have the authority to deny or restrict the power of eminent domain in a section 7 certificate,
201

or to oversee the

acquisition of property rights through eminent domain, including issues regarding the timing of and just compensation for the acquisition of property rights,
202

the Commission has recently taken steps within its authority to protect landowner interests. Specifically, the Commission issued Order No. 871-B, which precludes authorization of construction during the rehearing period for certificate orders and pending resolution of rehearing requests reflecting opposition to project construction, operation, or need (subject to a time limitation), and which establishes a general policy, subject to a case-by-case determination, of staying certificate orders during the rehearing period and pending Commission resolution of any timely requests for rehearing filed by landowners (also subject to a time limitation).
203

201

See Midcoast Interstate Transmission, Inc.
v.
FERC,
198 F.3d 960, 973 (D.C. Cir. 2000) (“The

Commission does not have the discretion to deny a certificate holder the power of eminent domain.”).

202

PennEast Pipeline Co., LLC,
174 FERC ¶ 61,056, at P 10 (2021) (citing
Atl. Coast Pipeline, LLC,
164 FERC ¶ 61,100, at P 88 (2018);
Mountain Valley Pipeline, LLC,
163 FERC ¶ 61,197, at P 76 (2018);
PennEast Pipeline Co., LLC,
164 FERC ¶ 61,098, at P 33 n.82 (2018)).

203

Limiting Authorizations to Proceed with Construction Activities Pending Rehearing,
Order 871-B, 86 FR 26150 (May 13, 2021), 175 FERC ¶ 61,098,
order on reh'g,
Order 871-C, 86 FR 43077 (Aug. 6, 2021), 176 FERC ¶ 61,062 (2021).

85. We acknowledge that in many cases pipeline applicants will not be able to acquire all the necessary right-of-way by negotiation and in such instances may need to use eminent domain. In assessing potential impacts to landowners, the Commission will consider the steps a pipeline applicant has already taken to acquire lands through respectful and good faith negotiation, as well as the applicant's plans to minimize the use of eminent domain upon receiving a certificate. And, as discussed further below, the potential adverse impacts to landowners, along with other adverse impacts, will be weighed against the evidence of need and potential benefits of a proposal in determining whether to issue a certificate of public convenience and necessity.

ii. Impacts on Environmental Justice Communities

86. Our evaluation of the impacts of a proposed interstate natural gas pipeline will include a robust consideration of its impacts on environmental justice communities.
204

We recognize that environmental justice communities have long borne a disproportionate share of the impacts associated with industrial development near their residences, workplaces, religious institutions, and schools. That history often comes with significant, deleterious consequences. For example, environmental justice communities frequently experience health disparities, such as higher rates of asthma and certain cancers relative to society at large, which can render individuals in those communities particularly susceptible to incremental pollution and other adverse impacts that may be caused by a new project.
205

The Commission's public interest responsibility demands that we seriously evaluate these considerations and incorporate them into the balancing test outlined below.
206

204
We recognize that the Commission's environmental justice analysis will also apply to the Commission's authorization of liquefied natural gas facilities, pursuant to section 3 of the NGA. While those authorizations are not the subject of this Updated Policy Statement, this commitment is worth noting in this discussion of impacts on environmental justice communities.

205
Policy Integrity 2021 Comments at 46-47, 55-56.

206

Vecinos para el Bienestar de la Comunidad Costera
v.
FERC,
6 F.4th 1321 (D.C. Cir. 2021) (
Vecinos
) (remanding a Commission order based in part on a “deficient” environmental justice analysis).

87. For the Commission to adequately evaluate the impacts of a proposed project on environmental justice communities, it is essential to promptly and properly identify such communities. Commenters noted the insufficiency of relying only on initial screening tools to identify environmental justice communities.
207

While data from screening tools such as the EPA's EJSCREEN may be useful, additional data collection methods may be necessary to properly identify environmental justice communities. We encourage applicants to consult with guidance provided by EPA, CEQ, and other authoritative sources,
208

to ensure that the Commission has before it all the data needed to adequately identify environmental justice communities potentially affected by a proposed project. We will evaluate and incorporate, as appropriate, any subsequently issued guidance when considering how to identify environmental justice communities affected by a proposed project. We encourage project developers to do the same.

207
For example, screening tool data “may need to be supplemented with additional or more localized information and/or ground truthing.” EPA 2021 Comments at 7, 9.

208
This may include, for example, relevant State or local agencies. We also note that Federal agencies, including EPA and CEQ, are in the process of updating their guidance regarding environmental justice.

88. Many commenters encourage the Commission to factor in demographic considerations—such as disability, age, household income, pre-existing health conditions, and level of education.
209

We recognize that such demographic considerations may be appropriate to consider on a project-by-project basis or as Federal guidance evolves.

209
North Carolina DEQ 2018 Comments at 8.
See also
Niskanen Center 2018 Comments at 17-19.

89. Additionally, we recognize that proper selection of both the geographic unit of analysis (
e.g.,
census block group) within the affected environment and the reference community (
e.g.,
county/parish, or State) is necessary to ensure that affected environmental justice communities are properly identified for consideration in the Commission's analysis.
210

The affected environment for environmental justice analysis purposes may vary according to the characteristics of the particular project and the surrounding communities.
211

Accordingly, the Commission will ensure that the delineation of the affected area, selected geographic unit of analysis, and reference community are consistent with best practices and Federal guidance and will not be limited to a one-size-fits-all approach.
212

210
An overly broad geographic unit of analysis, for example, could dilute the presence of environmental justice communities.
See
Policy Integrity 2021 Comments at 46-48;
see also
Federal Interagency Working Group on Environmental Justice & NEPA Committee,
Promising Practices for EJ Methodologies in NEPA Reviews
at 21, 26 (March 2016),
https://www.epa.gov/sites/production/files/2016-08/documents/nepa_promising_practices_document_2016.pdf
(EJ IWG & NEPA Committee).

211

See Vecinos,
6 F.4th at 1330 (“When conducting an environmental justice analysis, an agency's delineation of the area potentially affected by the project must be `reasonable and adequately explained,' . . . and include `a rational connection between the facts found and the decision made.' ” (citations omitted)).

212

See
EJ IWG & NEPA Committee at 21-28.

90. The consideration of cumulative impacts
213

is particularly important when it comes to conducting an environmental justice analysis.
214

An environmental analysis that, for example, considers incremental impacts of a project in isolation will, almost by definition, fail to adequately consider the project's impact on a community that already experiences elevated levels of pollution or other adverse impacts. To adequately capture the effects of

cumulative impacts, it is essential that the Commission consider those pre-existing conditions and how the adverse impacts of a proposed project may interact with and potentially exacerbate them. To that end, several commenters provide recommendations for specific health and environmental indicators that the Commission should consider when it evaluates cumulative exposures. These include factors such as air pollution, heat vulnerability, as well as the effects of pre-existing infrastructure (
e.g.,
bus depots, highways, and waste facilities).
215

That analysis can be informed by a wide range of data, including, for example, health statistics such as cancer clusters, asthma rates, social vulnerability data, and community resilience data.
216

We will carefully examine cumulative impacts on environmental justice communities and encourage applicants to identify and submit any such data that may be relevant for the particular environmental justice communities affected by their proposed project.

213
“ `Cumulative impact' is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 CFR 1508.7 (1978).

214

See
EDF 2021 Comments at 58; Attorneys General of Massachusetts et al. 2021 Comments at 31; Delaware Riverkeeper & Berks Gas Truth 2021 Comments at 78 and 83; and SOIL 2021 Comments at 3.

215
New Jersey Conservation Foundation et al. 2021 Comments 2021 at 36-37.

216
EPA,
EnviroAtlas Interactive Map, https://www.epa.gov/enviroatlas/enviroatlas-interactive-map
(last visited Feb. 1, 2022); Centers for Disease Control and Prevention,
Social Vulnerability Index Interactive Map, https://svi.cdc.gov/map.html
(last visited Feb. 1, 2022).

91. The Commission will also consider measures to eliminate or mitigate a project's adverse impacts on environmental justice communities. We recognize that mitigation must be tailored to the needs of different environmental justice communities. This will require close consultation between the project developer, the communities in question, and the Commission, consistent with our
ex parte
regulations.
217

We will look with disfavor on mitigation proposals that are proposed without sufficient community input. In addition, we note that effective mitigation will require the Commission to consider, among other things, the feasibility of proposed mitigation and methods for ensuring compliance, the timing of proposed mitigation, and, where useful, a range of potential mitigation options.

217
18 CFR 385.2201.

92. As described above, in June 2021, the Commission established OPP to help facilitate public participation in Commission proceedings. We anticipate that OPP will similarly play an important role in ensuring that environmental justice communities are able to participate meaningfully in section 7 certificate proceedings that affect their interests. We also recognize the adverse impacts that natural gas infrastructure can have on Native American Tribes and Tribal resources, and we will continue to review our existing processes to ensure that the Commission is engaging in effective government-to-government consultation with Tribes and receiving and considering Tribal input on proposals.

93. In sum, we recognize that “environmental justice is not merely a box to be checked”
218

and we commit to ensuring that such concerns are fully considered in our public interest analysis under NGA section 7. We expect the principles and concerns outlined above will guide that consideration as the Commission continues to develop its environmental justice precedent. Finally, as noted above, we recognize that Federal agencies, including EPA and CEQ, are in the process of updating their guidance regarding environmental justice and we will review and incorporate, as appropriate, any future guidance in our case-by-case decision-making process.

218

Friends of Buckingham
v.
State Air Pollution Control Bd.,
947 F.3d 68, 92 (4th Cir. 2020).

B. Assessing Public Benefits and Adverse Effects

94. In deciding whether to issue a certificate of public convenience and necessity, the Commission must decide whether, on balance, the project will serve the public interest. In order to make such a determination, the Commission must consider all of the benefits of a proposal together with all of the adverse impacts, including the economic and environmental impacts.

95. As discussed above, under the 1999 Policy Statement, the Commission would first determine whether, given an applicant's efforts to mitigate or minimize impacts, there would be any residual adverse effects on the economic interests of the existing customers of the pipeline applicant, existing pipelines in the market and their captive customers, or landowners and communities affected by the proposal. If so, the Commission would balance the evidence of public benefits to be achieved by the project against those residual adverse effects on economic interests. If the benefits outweighed the adverse economic effects, the Commission would then consider the environmental impacts associated with the proposal.
219

219
1999 Policy Statement, 88 FERC at 61,745-46.

96. As noted above, today, the Commission and staff review the economic and environmental impacts of projects concurrently. Thus, the sequential framing of these analyses in the 1999 Policy Statement has created some confusion and incorrectly conveyed how the Commission considers economic and environmental impacts. Accordingly, to provide clarity regarding our decision-making process, we explain that, in order to determine whether a proposed project is in the public interest, we must look at the entirety of a proposal and balance all its benefits against all of its adverse impacts.

97. In assessing the public benefits of a project, the Commission intends to consider all benefits that will be provided by the project. The most important consideration in assessing benefits will be the evidence demonstrating that a project is needed, as discussed in more detail above. The Commission will also consider any benefits beyond demand that are alleged by the applicant and supported in the record, which may include evidence that the project will displace more pollution-heavy generation sources, facilitate the integration of renewable energy sources, and/or result in a significant source of jobs or tax revenues (we note that temporary impacts associated with a proposal will generally be given less weight).

98. In assessing the adverse impacts of a proposal, we will consider the range of impacts to: (1) Existing customers of the pipeline applicant; (2) existing pipelines in the market and their captive customers; (3) environmental resources; and (4) landowners and surrounding communities, including environmental justice communities. In reviewing those adverse impacts, the Commission will carefully consider the extent to which an applicant will be able to mitigate any adverse impacts through applicant-proposed measures or additional measures that the Commission could require.

99. Consistent with the 1999 Policy Statement, we believe that “[t]he more interests adversely affected or the more adverse impact a project would have on a particular interest, the greater the showing of public benefits from the project required to balance the adverse impact.”
220

And, as the Commission did in the 1999 Policy Statement, we decline to adopt any bright-line standards for how we will carry out this balancing;
221

rather, the approach must remain flexible enough for the Commission to resolve specific cases and take into account the different interests that must be considered. We do make clear, however, that there may be proposals denied solely on the magnitude of a particular adverse

impact to any of the four interests described above if the adverse impacts, as a whole, outweigh the benefits of the project and cannot be mitigated or minimized. On the other hand, there may be proposals that have significant impacts but are still found to be in the public interest if the public benefits outweigh those impacts.

220

Id.
at 61,749.

221

Id.

V. Applicability of the Updated Certificate Policy Statement

100. A major purpose of this Updated Policy Statement is to provide clarity and regulatory certainty regarding the Commission's decision-making process. Therefore, the Updated Policy Statement will not be applied retroactively to cases where a certificate has already been issued and investment decisions have been made. However, the Commission will apply the Updated Policy Statement to any currently pending applications for new certificates. Applicants will be given the opportunity to supplement the record and explain how their proposals are consistent with this Updated Policy Statement, and stakeholders will have an opportunity to respond to any such filings.

VI. Information Collection Statement

101. The collection of information discussed in the Updated Policy Statement is being submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995
222

and OMB's implementing regulations.
223

OMB must approve information collection requirements imposed by agency rules.
224

Respondents will not be subject to any penalty for failing to comply with a collection of information if the collection does not display a valid OMB control number.

222
44 U.S.C. 3507(d).

223
5 CFR 1320.

224
This Updated Policy Statement does not require the collection of any information, but rather discusses information that entities may elect to provide. The Commission is following Paperwork Reduction Act procedures to ensure compliance with that act.

102. The Commission solicits comments from the public on the Commission's need for this information, whether the information will have practical utility, the accuracy of the burden estimates, recommendations to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.
Public comments are due
May 2, 2022. The burden estimates are focused on implementing the voluntary information collection pursuant to this Updated Policy Statement. The Commission asks that any revised burden estimates submitted by commenters include the details and assumptions used to generate the estimates.

103. The following estimate of reporting burden is related only to this Updated Policy Statement.

104.
Public Reporting Burden:
The collection of information related to this Updated Policy Statement falls under FERC-537 and impacts the burden estimates associated with the “Interstate Certificate and Abandonment Applications” component of FERC-537. The Updated Policy Statement will not impact the burden estimates related to any other component of FERC-537.
225

The estimated annual burden
226

and cost
227

follow.

225
The Updated Policy Statement will not impact burden estimates to the following components of FERC-537: Pipeline Purging/Testing Exemptions, Blanket Certificates Prior Notice Filings, Blanket Certificates-Annual Reports, Section 311 Construction-Annual Reports, Request for Waiver of Capacity Release Regulations, Interstate and Intrastate Bypass Notice, Blanket Certificates, or Hinshaw Blanket Certificates.

226
Burden is defined as the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency.
See
5 CFR 1320 for additional information on the definition of information collection burden.

227
Commission staff estimates that the industry's average hourly cost for this information collection is approximated by the Commission's average hourly cost (for wages and benefits) for 2021, or $87.00/hour.

Modifications to FERC-537 (Gas Pipeline Certificates: Construction, Acquisition, and Abandonment)
as a Result of PL18-1-000

Number of
respondents

Annual
number of
responses per
respondent

Total number
of responses

Average burden & cost per response
Total annual burden hours & total annual cost

Cost per
respondent
($)

(1)
(2)
(1) * (2) = (3)
(4)
(3) * (4) = (5)
(5) ÷ (1)

Interstate Certificate and Abandonment Applications
40
1
40
880 hours; $76,560 Increase
35,200 hours; $3,062,400 Increase
$76,560 Increase.

105.
Title:
FERC-537, Gas Pipeline Certificates: Construction, Acquisition and Abandonment.

106.
Action:
Proposed revisions to an existing information collection.

107.
OMB Control No.:
1902-0060.

108.
Respondents:
Entities proposing natural gas projects under section 7 of the NGA.

109.
Frequency of Information Collection:
On occasion.

110.
Necessity of Voluntary Information Collection:
The Commission's existing FERC-537 information collection pertains to regulations implementing section 7 of the NGA, which authorizes the Commission to issue certificates of public convenience and necessity for the construction and operation of facilities transporting natural gas in interstate commerce. The information collected pursuant to this Updated Policy Statement should help the Commission in making its public interest determinations.

111.
Internal Review:
The opportunity to file the information conforms to the Commission's plan for efficient information collection, communication, and management within the natural gas pipeline industry. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimates associated with the opportunity to file the information.

112. Interested persons may provide comments on this information collection by one of the following methods:

•
Electronic Filing (preferred):
Documents must be filed in acceptable native applications and print-to-PDF, but not in scanned or picture format.

•
USPS:
Federal Energy Regulatory Commission, Office of the Secretary, 888 First Street NE, Washington, DC 20426.

•
Hard copy other than USPS:
Federal Energy Regulatory Commission, Office of the Secretary, 12225 Wilkins Avenue, Rockville, Maryland 20852.

VII. Document Availability

113. In addition to publishing the full text of this document in the
Federal Register
, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission's Home Page (
http://www.ferc.gov
). At this time, the Commission has suspended access to the Commission's Public Reference Room due to the President's March 13, 2020 proclamation declaring a National Emergency concerning the Novel Coronavirus Disease (COVID-19).

114. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

115. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
ferconlinesupport@ferc.gov,
or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at
public.referenceroom@ferc.gov.

By the Commission.
Commissioner Danly is dissenting with a separate statement attached.

Commissioner Christie is dissenting with a separate statement attached.

Issued: February 18, 2022.
Kimberly D. Bose,
Secretary.

DEPARTMENT OF ENERGY FEDERAL ENERGY REGULATORY COMMISSION

Certification of New Interstate Natural Gas Facilities

Docket No. PL18-1-000

DANLY, Commissioner,
dissenting:

1. I dissent from the issuance of the
Updated Policy Statement on Certification of New Interstate Natural Gas Facilities.
1

Before I explain my reasons for dissenting, I would like to state from the outset that I voted for the Commission's most recent revised Notice of Inquiry
2

considering changes to its Original Policy Statement.
3

1

Certification of New Interstate Nat. Gas Facilities,
178 FERC ¶ 61,107 (2022) (Updated Policy Statement).

2

Certification of New Interstate Nat. Gas Facilities,
174 FERC ¶ 61,125 (2021).

3

Certification of New Interstate Nat. Gas Pipeline Facilities,
88 FERC ¶ 61,227 (1999),
clarified,
90 FERC ¶ 61,128,
further clarified,
92 FERC ¶ 61,094 (2000) (Original Policy Statement).

2. I cannot, however, support today's issuance because it will, in combination with the Interim Greenhouse Gas (GHG) Policy Statement,
4

have profound implications for the ability of natural gas companies to secure capital, on the timelines for Natural Gas Act (NGA) section 7
5

applications to be processed, and on the costs that a pipeline and its customers will bear as a result of the potentially unmeasurable mitigation that the majority
expects
each company to propose when filing its application
6

and the possibility of further mitigation measures added unilaterally by the Commission. As I explain in more detail below, this policy statement contravenes the purpose of the NGA which, as the Supreme Court has held, is to “encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices.”
7

4

Consideration of Greenhouse Gas Emissions in Nat. Gas Infrastructure Project Reviews,
178 FERC ¶ 61,108 (2022) (Interim GHG Policy Statement). I note that today's issuance in Docket No. PL21-3-000 “is subject to revision” and is described as an “interim” policy statement.
Id.
P 1.

5
15 U.S.C. 717f.

6

See
Updated Policy Statement, 178 FERC ¶ 61,107 at P 74 (“[W]e expect applicants to propose measures for mitigating impacts, and we will consider those measures—or the lack thereof—in balancing adverse impacts against the potential benefits of a proposal.”).

7

NAACP
v.
FPC,
425 U.S. 662, 669-70 (1976) (citations omitted) (
NAACP
);
accord Myersville Citizens for a Rural Cmty., Inc.
v.
FERC,
783 F.3d 1301, 1307 (D.C. Cir. 2015) (quoting
NAACP,
425 U.S. at 669-70) (
Myersville
).

I. The Commission's Jurisdiction and the Public Convenience and Necessity Standard Are Not as Broad as the Updated Policy Statement Suggests

3. As an initial matter, the Commission “is a `creature of statute,' having `no constitutional or common law existence or authority, but
only
those authorities conferred upon it by Congress.' ”
8

The applicable statute is the NGA, and the statutory standard applicable to NGA section 7(c) certificate applications
9

is whether a proposed project “is or will be required by the present or future public convenience and necessity.”
10

8

Atl. City Elec. Co.
v.
FERC,
295 F.3d 1, 8 (D.C. Cir. 2002) (quoting
Michig

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-04148. Public record. Not legal advice.