Certification of New Interstate Natural Gas Facilities, 11268-11274 [2021-03808]

Agencies

• DEPARTMENT OF ENERGY
• Federal Energy Regulatory Commission

[Federal Register Volume 86, Number 35 (Wednesday, February 24, 2021)]
[Notices]
[Pages 11268-11274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03808]


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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.

ACTION: Notice of inquiry.

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SUMMARY: In this Notice of Inquiry, the Federal Energy Regulatory 
Commission (Commission) seeks new information and additional 
stakeholder perspectives to help the Commission explore whether it 
should revise its approach under the currently effective policy 
statement on the certification of new natural gas transportation 
facilities to determine whether a proposed natural gas project is or 
will be required by the public convenience and necessity, as that 
standard is established in section 7 of the Natural Gas Act.

DATES: Comments are due April 26, 2021.

ADDRESSES: Comments, identified by docket number, may be filed in the 
following ways:
     Electronic Filing through https://www.ferc.gov. Documents 
created electronically using word processing software should be filed 
in native applications or print-to-PDF format and not in a scanned 
format.
     Mail/Hand Delivery: Those unable to file electronically 
may mail comments via the U.S. Postal Service to: Federal Energy 
Regulatory Commission, Office of the Secretary, 888 First Street NE, 
Washington, DC 20426. Hand-delivered comments or comments sent via any 
other carrier should be delivered to: Federal Energy Regulatory 
Commission, Office of the Secretary, 12225 Wilkins Avenue, Rockville, 
Maryland 20852.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Comment 
Procedures Section of this document.

FOR FURTHER INFORMATION CONTACT: 
Thomas Chandler (Legal Information), Office of the General Counsel, 
Federal

[[Page 11269]]

Energy Regulatory Commission, 888 First Street NE, Washington, DC 
20426, 202-502-6699
Paige Espy (Legal Information), Office of the General Counsel, Federal 
Energy Regulatory Commission, 888 First Street NE, Washington, DC 
20426, 202-502-6698
Brandon Cherry (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, 202-502-8328

SUPPLEMENTARY INFORMATION: 
    1. On April 19, 2018, the Commission issued a Notice of Inquiry 
(2018 NOI) \1\ seeking information and stakeholder perspectives to help 
the Commission explore whether, and if so how, it should revise its 
approach under the currently effective policy statement on the 
certification of new interstate natural gas transportation facilities 
(Policy Statement).\2\ The 2018 NOI included an extensive background 
section discussing how the legal standards and historical context 
informed the creation of the Policy Statement in 1999, how the 
Commission's evaluations under the Policy Statement and, relatedly, 
under the National Environmental Policy Act of 1969 (NEPA) have 
evolved, and how changed circumstances since 1999 have invited the 
present review.\3\ Specifically, the Commission sought input on 
whether, and if so how, the Commission should adjust: (1) Its 
methodology for determining whether there is a need for a proposed 
project, including the Commission's consideration of precedent 
agreements and contracts for service as evidence of such need; (2) its 
consideration of the potential exercise of eminent domain and of 
landowner interests related to a proposed project; and (3) its 
evaluation of the environmental impacts of a proposed project. The 
Commission also sought input on whether there are specific changes the 
Commission could consider implementing to improve the efficiency and 
effectiveness of its certificate processes including pre-filing, post-
filing, and post-order issuance.
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    \1\ Certification of New Interstate Natural Gas Facilities, 163 
FERC ] 61,042 (2018) (2018 NOI).
    \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) (Policy Statement). The 
Commission must 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). 15 U.S.C. 717f.
    \3\ 2018 NOI, 163 FERC ] 61,042, at PP 5-50.
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    2. The Commission established a public comment period for the 2018 
NOI that closed on July 25, 2018. In response to the 2018 NOI, the 
Commission received more than 3,000 comments from diverse stakeholders 
including landowners; tribal, federal, state, and local government 
officials; non-governmental organizations; consultants, academic 
institutions, and think tanks; natural gas producers, Commission-
regulated companies, local distribution companies (LDCs), and industry 
trade organizations; electricity generators and utilities; and others. 
The Commission has, to date, not taken any further action in this 
proceeding.

Renewed Request for Comments

    3. We note that there have been a range of changes since the 
Commission issued the 2018 NOI. These changes include the Council on 
Environmental Quality's (CEQ) promulgation of updated NEPA regulations 
for implementation by all federal agencies \4\ and Executive Order 
14008.\5\ Accordingly, we are providing an opportunity for stakeholders 
to refresh the record and provide updated information and additional 
viewpoints to help the Commission assess its policy.
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    \4\ Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act, 85 FR 43,304 
(2020). CEQ's final rule directs agencies to propose revisions to 
their NEPA procedures consistent with the final rule by September 
14, 2021. Further, the Commission's regulations provide that ``[t]he 
Commission will comply with the regulations of the Council on 
Environmental Quality except where those regulations are 
inconsistent with the statutory requirements of the Commission.'' 18 
CFR 380.1.
    \5\ Exec. Order No. 14008, Sec.  219, 86 FR 7619.
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    4. We seek comments that reflect additional information developed 
and insights gained during the interim period. We emphasize that we 
seek to build upon the existing record in this proceeding and will 
consider the previously submitted comments in this proceeding, as well 
as any additional comments received in response to this NOI, to inform 
the Commission's decision-making. We strongly urge stakeholders to not 
resubmit previously filed comments, which remain in the record of this 
proceeding. Additionally, we urge stakeholders to submit new or 
modified comments that clearly explain why the Commission should or 
should not take a specific course of action, as discussed in the 
questions posed below, and, more importantly, provide precise 
recommendations for how the Commission could implement such changes.
    5. The Commission identified four general areas of 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 Natural Gas 
Act (NGA); and (4) the efficiency and effectiveness of the Commission's 
certificate processes. These four general issue areas identified in the 
2018 NOI remain relevant to the Commission's considerations, and we 
seek comments on several new questions in some of these areas that 
modify or add to the 2018 NOI.
    6. In addition, in this NOI we identify and pose new questions on a 
fifth broad issue area of examination: The Commission's identification 
and addressing of any 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.\6\ As noted above, in responding to these 
questions, we ask stakeholders to build upon the record developed 
through previously filed comments.
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    \6\ Exec. Order No. 12898, Sec. Sec.  1-101, 6-604, 59 FR 7629, 
at 7629, 7632 (1994).
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    7. We seek comment on the questions set forth below, organized 
according to these five broad categories. Commenters need not answer 
every question enumerated below.

A. Potential Adjustments to the Commission's Determination of Need

    8. The questions posed in the 2018 NOI remain relevant to the 
Commission's consideration of potential adjustments to its 
determination regarding whether there is a need for new projects. 
Questions A1 through A9 are identical to the questions posed in this 
section in the 2018 NOI. Stakeholders need not resubmit their previous 
comments in response to these questions. We ask that stakeholders 
respond to these questions only if they have updated information to 
provide. Questions A10 through A12 include revised or new questions. In 
providing an opportunity for stakeholders to submit additional 
information or new viewpoints, we encourage commenters to identify with 
specificity how any potential adjustments could be implemented by the 
Commission.
    9. Accordingly, comments are requested on the following questions.


[[Page 11270]]


    A1. Should the Commission consider changes in how it determines 
whether there is a public need for a proposed project?
    A2. In determining whether there is a public need for a proposed 
project, what benefits should the Commission consider? For example, 
should the Commission examine whether the proposed project meets 
market demand, enhances resilience or reliability, promotes 
competition among natural gas companies, or enhances the functioning 
of gas markets?
    A3. Currently, the Commission considers precedent agreements, 
whereby entities intending to be shippers on the contemplated 
pipeline commit contractually to such shipments, to be strong 
evidence that there is a public need for a proposed project. If the 
Commission were to look beyond precedent agreements, what types of 
additional or alternative evidence should the Commission examine to 
determine project need? What would such evidence provide that cannot 
be determined with precedent agreements alone? How should the 
Commission assess such evidence? Is there any heightened litigation 
risk or other risk that could result from any broadening of the 
scope of evidence the Commission considers during a certificate 
proceeding? If so, how should the Commission safeguard against or 
otherwise address such risks?
    A4. Should the Commission consider distinguishing between 
precedent agreements with affiliates and non-affiliates in 
considering the need for a proposed project? If so, how?
    A5. Should the Commission consider whether there are specific 
provisions or characteristics of the precedent agreements that the 
Commission should more closely review in considering the need for a 
proposed project? For example, should the term of the precedent 
agreement have any bearing on the Commission's consideration of need 
or should the Commission consider whether the contracts are subject 
to state review?
    A6. In its determinations regarding project need, should the 
Commission consider the intended or expected end use of the natural 
gas? Would consideration of end uses better inform the Commission's 
determination regarding whether there is a need for the project? 
What are the challenges to determining the ultimate end use of the 
new capacity a shipper is contracting for? How could such challenges 
be overcome?
    A7. Should the Commission consider requiring additional or 
alternative evidence of need for different end uses? What would be 
the effect on pipeline companies, consumers, gas prices, and 
competition? Examples of end uses could include: LDC contracts to 
serve domestic use; contracts with marketers to move gas from a 
production area to a liquid trading point; contracts for 
transporting gas to an export facility; projects for reliability 
and/or resilience; and contracts for electric generating resources.
    A8. How should the Commission take into account that end uses 
for gas may not be permanent and may change over time?
    A9. Should the Commission assess need differently if multiple 
pipeline applications to provide service in the same geographic area 
are pending before the Commission? For example, should the 
Commission consider a regional approach to a needs determination if 
there are multiple pipeline applications pending for the same 
geographic area? Should the Commission change the way it considers 
the impact of a new project on competing existing pipeline systems 
or their captive shippers? If so, what would that analysis look like 
in practice?
    A10. Should the Commission consider adjusting its assessment of 
need to examine (1) if existing infrastructure can accommodate a 
proposed project (beyond the system alternatives analysis examined 
in the Commission's environmental review); \7\ (2) if demand in a 
new project's markets will materialize; or (3) if reliance on other 
energy sources to meet future demand for electricity generation 
would impact gas projects designed to supply gas-fired generators? 
If so, how?
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    \7\ We note that the Commission has previously declined to 
substitute its judgment for a company's business decision. See, 
e.g., Nat. Gas Pipeline Co. of Am. LLC, 171 FERC ] 61,157, at P 50 & 
n.117, reh'g denied, 172 FERC ] 61,084, at P 23 & n.42 (2020) 
(finding that the acquisition and use of a retired liquids pipeline 
was neither a feasible nor a practical alternative to the proposed 
project) (citing Kinder Morgan Interstate Gas Transmission LLC, 133 
FERC ] 61,044, at P 25 (2010) (stating that the Commission will 
neither substitute its business judgment for that of the applicants 
nor require the applicant to acquire facilities that a party asserts 
is an alternative to the proposed project). Cf. Gulf South Pipeline 
Co., LP, 132 FERC ] 61,199, at P 63 (2010) (``the Commission gives 
deference to pipelines' operational experience and provides 
pipelines with reasonable discretion to manage their own systems'') 
(citations omitted)).
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    A11. In its determination of need, should the Commission 
consider the economic, energy security and social attributes of 
domestic production and use of natural gas as detailed in the letter 
dated February 11, 2021 from the Chairman of the Senate Energy and 
Natural Resources Committee, Senator Joe Manchin III, to President 
Biden? \8\
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    \8\ February 11, 2021 Letter from Senator Joe Manchin III, 
Chairman of the Senate Committee on Energy and Natural Resources, to 
President Joseph R. Biden, https://www.energy.senate.gov/services/files/5AB138AA-9FE9-4E8A-BA84-C87F101E9B51.
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    A12. In its general public interest considerations under the NGA 
or other federal statutes, should the Commission consider the 
interests of low to middle-income communities in which the 
production or transportation of natural gas is a significant source 
of jobs and/or tax revenues that fund public services?

B. The Exercise of Eminent Domain and Landowner Interests

    10. Under the Policy Statement, the Commission considers impacts to 
landowners and the extent to which an applicant expects to acquire 
property rights by relying on eminent domain. As explained in the 2018 
NOI, although, by statute, Commission authorization of a project 
through the issuance of a certificate of public convenience and 
necessity entitles a certificate holder to acquire property through 
eminent domain, the Commission itself does not grant the use of eminent 
domain across specific properties. Only after the Commission authorizes 
a project can the project sponsor assert the right of eminent domain 
for outstanding lands for which it could not negotiate an easement.
    11. Since the issuance of the 2018 NOI, the Commission has taken 
steps to protect landowner interests. First, the Commission updated its 
web resources for landowners and its notice documents (e.g., Notice of 
Application) to more clearly explain the Commission's role in 
considering applications for natural gas infrastructure, how and when 
interested entities can participate in Commission proceedings, and how 
to resolve disputes that may arise during construction. Second, the 
Commission established a new group within the Rehearings Section of the 
Office of the General Counsel: The Landowner Rehearings Group. The 
Landowner Rehearings Group gives first priority to landowner rehearing 
requests and targets to issue rehearing orders involving landowner 
issues within 30 days. And third, the Commission issued a final rule 
that precludes the issuance of authorizations to proceed with 
construction activities with respect to an NGA section 3 authorization 
or section 7(c) certificate order until either the Commission acts on 
the merits of any timely-filed request for rehearing or the time for 
filing such a request has passed.\9\
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    \9\ Limiting Authorizations to Proceed with Construction 
Activities Pending Rehearing, Order No. 871, 171 FERC ] 61,201 
(2020), 85 FR 40113 (July 6, 2020).
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    12. We also note that Congress recently directed the Commission to 
develop a report detailing how it will establish and operate an Office 
of Public Participation.\10\ Such an office could ultimately help 
facilitate landowner participation in Commission proceedings.
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    \10\ Consolidated Appropriations Act of 2021, Pub. L. 116-260, 
Explanatory Statement for Division D (2021).
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    13. In natural gas infrastructure proceedings, the Commission 
continues to receive comments on applicants' proposed use of eminent 
domain and the Commission's use of conditional certificates--issuing a 
certificate before a pipeline receives all of its federal permits. 
Commenters have argued that the Commission should not issue conditional 
certificates and allow the exercise of eminent domain in cases where it 
is unlikely that a pipeline may

[[Page 11271]]

receive the necessary permits.\11\ The Commission precedent is that it 
lacks the authority to restrict a certificate holder's use of eminent 
domain once a certificate of public convenience and necessity is 
received.\12\ In addition, the Commission has justified its policy for 
issuing conditional certificates on the basis that it:
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    \11\ See, e.g., Jordan Cove Energy Project L.P., 170 FERC ] 
61,202, at P 191 (2020).
    \12\ See, e.g., PennEast Pipeline Co., LLC, 174 FERC ] 61,056, 
at P 10 & n.17 (2021) (collecting cases); Midcoast Interstate 
Transmission, Inc. v. FERC, 198 F.3d 960, 973 (D.C. Cir. 2000) 
(``Once a certificate has been granted, the statute allows the 
certificate holder to obtain needed private property by eminent 
domain. . . . The Commission does not have the discretion to deny a 
certificate holder the power of eminent domain.'' (citations 
omitted)); Atl. Coast Pipeline, 161 FERC ] 61,042 at P 78 (``[O]nce 
a natural gas company obtains a certificate of public convenience 
and necessity, it may exercise the right of eminent domain in a U.S. 
District Court or a state court.'').

is a practical response to the reality that, in spite of the best 
efforts of those involved, it may be impossible for an applicant to 
obtain all approvals necessary to construct and operate a natural 
gas project in advance of the Commission's issuance of its 
certificate without unduly delaying the project. To rule otherwise 
could place the Commission's administrative process indefinitely on 
hold until states with delegated federal authority choose to act. 
Such an approach, which would preclude companies from engaging in 
what are sometimes lengthy pre-construction activities while 
awaiting state or federal agency action, would likely delay the in-
service date of natural gas infrastructure projects to the detriment 
of consumers and the public in general.\13\
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    \13\ Northwest Pipeline, GP, 145 FERC ] 61,013, at P 16 (2013). 
See, e.g., Jordan Cove Energy Project L.P., 171 FERC ] 61,136, at P 
81 (2020); PennEast Pipeline Co., LLC, 164 FERC ] 61,098, (2018); 
Algonquin Gas Transmission, LLC, 161 FERC ] 61,255, at P 22 (2017); 
Tenn. Gas Pipeline Co., L.L.C., 154 FERC ] 61,191, at P 34 (2016); 
Ruby Pipeline, L.L.C., 133 FERC ] 61,015, at P 20 (2013); AES 
Sparrows Point LNG, LLC, 129 FERC ] 61,245, at P 60 (2009); Crown 
Landing, LLC, 117 FERC ] 61,209, at P 26 (2006).

    14. The Commission's policy on issuing conditional certificates has 
been affirmed by the courts.\14\
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    \14\ See Delaware Riverkeeper Network v. FERC, 857 F.3d 388 
(D.C. Cir. 2017); Myersville Citizens for a Rural Cmty., Inc. v. 
FERC, 783 F.3d 1301 (D.C. Cir. 2015).
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    15. Therefore, we invite new or revised comments on the following 
questions regarding whether, and if so how, the Commission should 
consider adjusting its consideration of the potential exercise of 
eminent domain and its consideration of landowner interests. Questions 
B1 through B5 are identical to the questions posed in this section in 
the 2018 NOI. Stakeholders need not resubmit their previous comments in 
response to these questions. We ask that stakeholders respond to these 
questions only if they have updated information to provide. Question B6 
is a new question not included in the 2018 NOI.

    B1. Should the Commission consider adjusting its consideration 
of the potential exercise of eminent domain in reviewing project 
applications? If so, how should the Commission adjust its approach?
    B2. Should applicants take additional measures to minimize the 
use of eminent domain? If so, what should such measures be? How 
would that affect a project's overall costs? How could such a 
requirement affect an applicant's ability to adjust a proposed route 
based on public input received during the Commission's project 
review?
    B3. For proposed projects that will potentially require the 
exercise of eminent domain, should the Commission consider changing 
how it balances the potential use of eminent domain against the 
showing of need for the project? Since the amount of eminent domain 
used cannot be established with certainty until after a Commission 
order is issued, is it possible for the Commission to reliably 
estimate the amount of eminent domain a proposed project may use 
such that the Commission could use that information during the 
consideration of an application?
    B4. Does the Commission's current certificate process adequately 
take landowner interests into account? Are there steps that 
applicants and the Commission should implement to better take 
landowner interests into account and encourage landowner 
participation in the process? If so, what should the steps be?
    B5. Should the Commission reconsider how it addresses 
applications where the applicant is unable to access portions of the 
right-of-way? Should the Commission consider changes in how it 
considers environmental information gathered after an order 
authorizing a project is issued?
    B6. Under the NGA, does the Commission have authority to 
condition a certificate holder's exercise of eminent domain? Should 
the Commission defer issuing a section 7 certificate until an 
applicant has all other authorizations needed to commence 
construction? If so, can the Commission reconcile such inaction with 
section 7(e) of the NGA, which provides that the Commission shall 
issue a certificate to any qualified applicant upon finding that the 
proposed construction and operation of the project ``is or will be 
required by the present or future public convenience and 
necessity''? \15\ Are there circumstances when an applicant may need 
a certificate of public convenience and necessity prior to receiving 
certain permits or authorizations, making it difficult for an 
applicant to obtain all other authorizations needed to commence 
construction prior to the Commission's issuance of a section 7 
certificate?
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    \15\ 15 U.S.C. 717f(e) (emphasis added).
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C. The Commission's Consideration of Environmental Impacts

    16. As explained in the 2018 NOI, the Commission performs an 
environmental review under NEPA and considers a proposed project's 
environmental impacts when determining whether a project is required by 
the public convenience and necessity. There continues to be stakeholder 
interest regarding the alternatives that the Commission evaluates in 
its environmental review and how the Commission addresses climate 
change, including the impact of greenhouse gas (GHG) emissions. In 
addition, is it appropriate for the Commission to review how it 
implements NEPA, including its consideration of categorical exclusions?
    17. Therefore, the Commission invites new or revised comments 
regarding whether and if so how, the Commission should consider 
adjusting its environmental evaluations. Questions C1 through C11 
include revised or new questions.

    C1. NEPA and its implementing regulations require an agency to 
consider reasonable alternatives to the proposed action. Currently 
the Commission considers the no-action alternative, system 
alternatives, design alternatives, and route alternatives. Should 
the Commission consider broadening its environmental analysis to 
consider alternatives beyond those that are currently included? If 
so, how does the Commission reconcile broadening its environmental 
analysis to consider alternatives beyond those currently included 
with Citizens Against Burlington, Inc. v. Busey? \16\ The U.S. Court 
of Appeals for the District of Columbia Circuit clarified that,
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    \16\ See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 
190, 199 (D.C. Cir. 1991).
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    [i]n commanding agencies to discuss ``alternatives to the 
proposed action,'' . . . NEPA plainly refers to alternatives to the 
``major Federal actions significantly affecting the quality of the 
human environment,'' and not to alternatives to the applicant's 
proposal. NEPA Sec.  102(2)(C), 42 U.S.C. 4332(2)(C) (emphasis 
added). An agency cannot redefine the goals of the proposal that 
arouses the call for action; it must evaluate alternative ways of 
achieving its goals, shaped by the application at issue and by the 
function that the agency plays in the decisional process. Congress 
did expect agencies to consider an applicant's wants when the agency 
formulates the goals of its own proposed action. Congress did not 
expect agencies to determine for the applicant what the goals of the 
applicant's proposal should be.\17\
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    \17\ Id.
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    What specific types of additional alternatives should the 
Commission consider and how would such additional alternatives be 
consistent with the D.C. Circuit's guidance in Citizens Against 
Burlington, Inc. v. Busey? \18\ How would the Commission obtain 
reliable information to perform an analysis of these alternatives?
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    \18\ Id.
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    C2. Are there any environmental impacts that the Commission does 
not currently

[[Page 11272]]

consider in its cumulative impact analysis that could be captured 
with a broader regional evaluation? If so, how broadly should 
regions be defined (e.g., which states or geographic boundaries best 
define different regions), and which environmental resources 
considered in NEPA would be affected on a larger, regional scale? 
Does the text of NGA section 7 permit the Commission to do this? If 
this is contemplated by the NGA, would one applicant's section 7 
application prejudice another applicant's section 7 application?
    C3. In conducting an analysis of a project, how could the 
Commission consider upstream impacts (e.g., from the drilling of 
natural gas wells) and downstream end-use impacts? Should applicants 
be required to provide information on the origin and end use of the 
gas? How would the Commission determine end-use impacts if the gas 
is sent to a pooling point or a mid-stream shipper? If the end use 
is electric generation or an LDC, how would the Commission determine 
the GHG emissions of existing and anticipated gas usage attributed 
to a project? How would additional information related to upstream 
or downstream impacts of a proposed project inform the Commission's 
decision on an application? Should shippers who have subscribed 
capacity on a project (or potentially, the shippers' customers) be 
encouraged to provide the type of information contemplated above? If 
so, how might this be done? How could such a policy be squared with 
CEQ's final rule? \19\
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    \19\ See Update to the Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act, 85 FR 43,304-01 
(``CEQ proposed to simplify the definition of effects by striking 
the specific references to direct, indirect, and cumulative effects 
and providing clarity on the bounds of effects consistent with the 
Supreme Court's holding in Public Citizen, 541 U.S. at 767-68.''); 
40 CFR 1508.1 (2020) (``Effects or impacts means changes to the 
human environment from the proposed action or alternatives that are 
reasonably foreseeable and have a reasonably close causal 
relationship to the proposed action or alternatives, including those 
effects that occur at the same time and place as the proposed action 
or alternatives and may include effects that are later in time or 
farther removed in distance from the proposed action or 
alternatives.'').
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    C4. In conducting an analysis of the impact of a project's GHG 
emissions, how could the Commission determine the significance of 
these emissions' contribution to climate change? Should significance 
criteria be based on a specific fraction of existing carbon budgets 
in international agreements; state or regional targets; a specific 
fraction of natural carbon sinks; or other metrics? If so, how and 
why would that basis be appropriate? Alternatively, should the 
Commission focus its analysis on GHG emission impacts on global 
climate metrics (e.g., CO2 levels, ocean acidification, 
sea level rise) or regional impacts (e.g., snowpack, storm events, 
local temperature changes)? If so, how and why would that basis be 
appropriate? What would be an appropriate GHG climate model for use 
on a project-level basis? Is there any level of GHG emissions that 
would constitute a de minimis impact? If so, how much and why would 
such number be appropriate? How would such analysis meaningfully 
inform the Commission's decision making?
    C5. As part of the Commission's public interest determination, 
how would the Commission weigh a proposed project's adverse impacts 
against favorable impacts to determine whether the proposed project 
is required by the public convenience and necessity and still 
provide regulatory certainty to stakeholders?
    C6. Does the NGA, NEPA, or other federal statute authorize or 
mandate the use of Social Cost of Carbon (SCC) analysis by the 
Commission in its consideration of certificate applications? If so, 
how does the statute direct or authorize the Commission to use SCC? 
Does the statute set forth specific metrics or quantitative analyses 
that the Commission must or may use and/or specific findings of fact 
the Commission must or may make with regard to SCC analysis of a 
certificate application? Does the statute set forth specific 
remedies the Commission must or may implement based on specific SCC 
findings of fact?
    C7. If the Commission chooses to use the SCC tool, how could it 
be used to determine whether a proposed project is required by the 
public convenience and necessity? \20\ How would the Commission 
determine the appropriate discount rate to use? Should the 
Commission consider multiple discount rates or one discount rate? 
Please provide support for each option. How could the Commission use 
the SCC tool in the weighing of the costs versus benefits of a 
proposed project? How could the Commission acquire complete 
information to appropriately quantify all of the monetized costs/
negative impacts and monetized benefits of a proposed project? 
Should the Commission use the tool to determine whether a project 
has significant effects on climate? If so, how could the Commission 
connect the SCC estimate with the actual effects of the project? 
What level of cost would be significant and why?
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    \20\ See, e.g., EarthReports, Inc. v. FERC, 828 F.3d 949, 956 
(D.C. Cir. 2016) (finding that ``petitioners provide no reason to 
doubt the reasonableness of the Commission's conclusion'' that `` 
`it would not be appropriate or informative to use for this project' 
for three reasons: the lack of consensus on the appropriate discount 
rate leads to `significant variation in output[,]' the tool `does 
not measure the actual incremental impacts of a project on the 
environment[,]' and `there are no established criteria identifying 
the monetized values that are to be considered significant for NEPA 
purposes.' '') (citation omitted).
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    C8. Are there alternatives to the SCC tool that the Commission 
should consider using? If so, how could the Commission use those 
tools?
    C9. How could the Commission determine whether a proposed 
project's GHG emissions are offset by reduced GHG emissions 
resulting from the project's operations (e.g., displacing a more 
carbon-intensive fuel source such as coal or fuel oil)?
    C10. How could the Commission impose GHG emission limits or 
mitigation to reduce the significance of impacts from a proposed 
project on climate change? Can the Commission interpret its 
authority under NGA section 7(e) to permit it to mitigate GHG 
emissions? \21\ If the Commission decides to impose GHG emission 
limits, how would the Commission determine what limit, if any, is 
appropriate? Should GHG mitigation be considered only for direct 
project GHG emissions or should downstream end-use, or upstream 
emissions also be evaluated? What are the options or methods 
applicants could propose to mitigate GHG emissions through offsets 
or other means?
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    \21\ See American Elec. Power Co., Inc. v. Connecticut, 564 U.S. 
410, 428 (``It is altogether fitting that Congress designated an 
expert agency, here, EPA, as best suited to serve as primary 
regulator of greenhouse gas emissions.'').
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    C11. What categorical exclusions established by other agencies 
should the Commission consider adopting? \22\ Why is it appropriate 
for the Commission to adopt those categorical exclusions? Should the 
Commission consider establishing new categorical exclusions that 
modify the existing categorical exclusions of other agencies? Should 
the Commission consider adding new categorical exclusions for 
actions where there is no construction or restoration activities and 
the environment is not involved? Those actions could include, but 
are not limited to, modifications to certificated capacity that 
involve no construction or ground disturbance, modifications to 
export/import volumes at border crossing facilities if there are no 
changes to the facilities, rate amendments, NGA section 7(f) service 
area determinations, conversion of NGA section 7 facilities to 
section 3 authorizations, limited jurisdiction certificates, etc. 
Are there other actions that could benefit from a categorical 
exclusion and would be consistent with the Commission's obligations 
under NEPA?
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    \22\ See, e.g., National Environmental Policy Act--Categorical 
Exclusions, 74 FR 33,204 (July 10, 2009) (Department of Commerce); 
National Park Service, Department of the Interior Departmental 
Manual, Series 31, Part 516, Chapter 12, at 12.5(B)(1) (May 27, 
2004); Department of Transportation, Order No. 5610.1C, at 4.c(3) 
(Sept. 18, 1979, subsequently amended on July 13, 1982 and July 30, 
1985); 43 CFR 46.210(i) (Department of the Interior); 10 CFR part 
1021, subpart D, Appendix A, A 5 (Department of Energy). See also 
Staff Presentation on Categorical Exclusions under the National 
Environmental Policy Act (RM21-10-000), FERC (Jan. 19, 2021), 
https://cms.ferc.gov/news-events/news/staff-presentation-categorical-exclusions-under-national-environmental-policy-act 
(listing examples of other agencies' categorical exclusions).
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D. Improvements to the Efficiency of the Commission's Review Process

    18. As explained in the 2018 NOI, the Commission desires to improve 
the transparency, efficiency, and predictability of the Commission's 
certification process.\23\ Inefficiencies in project decision-making 
can delay infrastructure investments, increase project costs, and block 
infrastructure that would benefit the economy. Since issuance of the 
2018 NOI, there have been several administrative (e.g., Executive 
Orders), regulatory, and statutory changes that impact the Commission's 
review process.
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    \23\ E.g., Tenn. Gas Pipeline Co., L.L.C., 162 FERC ] 61,167, at 
PP 49-51 (2018) (order addressing timely intervention).
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    19. The Commission invites new or revised comments on the following

[[Page 11273]]

questions regarding its certificate application review process. 
Questions D2 and D3 are identical to the questions posed in this 
section in the 2018 NOI. Stakeholders need not resubmit their previous 
comments in response to these questions. We ask that stakeholders 
respond to these questions only if they have updated information to 
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provide. Questions D1 and D4 include revised questions.

    D1. Should certain aspects of the Commission's application 
review process (i.e., pre-filing, post-filing, and post-order-
issuance) be condensed, performed concurrently with other 
activities, or eliminated, to make the overall process more 
efficient? If so, what specific changes could the Commission 
consider implementing?
    D2. Should the Commission consider changes to the pre-filing 
process? How can the Commission ensure the most effective 
participation by interested stakeholders during the pre-filing 
process and how would any such changes affect the implementation and 
duration of the pre-filing process?
    D3. Are there ways for the Commission to work more efficiently 
and effectively with other agencies, federal and state, that have a 
role in the certificate review process? If so, how?
    D4. Are there classes of projects that should appropriately be 
subject to a more efficient process? What would the more efficient 
process entail?

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

    20. The term ``environmental justice community'' could encompass 
(i) populations of color; (ii) communities of color; (iii) Native 
communities; and (iv) and low-income rural and urban communities, who 
are exposed to a disproportionate burden of the negative human health 
and environmental impacts of pollution or other environmental 
hazards.\24\ While not mandatory, Executive Order 12898 encourages 
independent agencies to identify and address, as part of their NEPA 
review, ``disproportionately high and adverse human health or 
environmental effects'' of their actions on minority and low-income 
populations.\25\ The order does not explain how an agency should 
satisfy this goal, instead the specific implementation has been 
developed in guidance documents.\26\
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    \24\ Cf. Exec. Order No. 14008, Sec.  219, 86 FR 7619, at 7629 
(2021); see also EPA, EJ 2020 Glossary (Aug. 2, 2019), https://www.epa.gov/environmentaljustice/ej-2020-glossary.
    \25\ Exec. Order No. 12898, Sec. Sec.  1-101, 6-604, 59 FR 7629, 
at 7629, 7632.
    \26\ E.g., CEQ, Environmental Justice: Guidance Under the 
National Environmental Policy Act (1997); Federal Interagency 
Working Group for Environmental Justice and NEPA Committee, 
Promising Practices for EJ Methodologies in NEPA Reviews (2016).
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    21. Executive Order 14008, issued by President Biden on January 27, 
2021, directs federal 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.'' \27\ Among other things, the order also 
creates a government-wide Justice40 Initiative with the goal of 
delivering 40% of the overall benefits of relevant federal investments 
to disadvantaged communities and tracks agency performance toward that 
goal through the establishment of an Environmental Justice 
Scorecard.\28\
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    \27\ Exec. Order No. 14008, Sec.  219, 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).
    \28\ Exec. Order No. 14008, Sec.  223, 86 FR 7619, 7631-32.
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    22. The Commission conducts its environmental justice analyses in 
several steps. First, when evaluating proposed projects, the Commission 
has used the Environmental Protection Agency's Environmental Justice 
Mapping and Screening Tool (EJSCREEN) to inform its assessment of the 
potential presence of environmental justice communities in the chosen 
areas of analysis.\29\ The Commission also identifies any potentially 
affected environmental justice communities based on annual statistical 
information from the U.S. Census Bureau. Next, the Commission 
determines which, if any, of the project's impacts could affect the 
identified communities. Then the Commission determines whether the 
impacts on these environmental justice communities would be 
disproportionately high and adverse. This analysis involves comparing 
the impacts on these communities to the impacts on a reference group. 
The analysis also varies based on the project scope and based on 
population-specific factors that could amplify the population's 
experienced effect of a given project impact on the affected 
environment. Concerns raised in certificate proceedings regarding 
environmental justice in addition to the recent issuance of Executive 
Order 14008 have prompted the Commission to examine whether and if so 
how, the Commission should consider adjusting its approach to analyzing 
the impacts of a proposed project on environmental justice communities. 
The Commission seeks comment on the following questions:
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    \29\ See, e.g., Jordan Cove Energy Project L.P., 171 FERC ] 
61,136, at P 128 (2020).

    E1. Should the Commission change how it identifies potentially 
affected environmental justice communities? Why and if so, how? 
Specifically, what criteria should the Commission consider?
    E2. Are there concerns regarding environmental justice 
communities' participation in past Commission proceedings? If so, 
what are the concerns? Please provide concrete examples.
    E3. What measures can the Commission take to ensure effective 
participation by environmental justice communities in the 
certificate review process?
    E3. When evaluating disproportionately high and adverse effects 
on environmental justice communities, should the Commission change 
how it considers the location or distribution of a project's 
impacts? If so, how?
    E4. When evaluating disproportionately high and adverse effects 
on environmental justice communities, should the Commission change 
how it considers population-specific factors that can amplify the 
experienced effect, such as ecological, visual, historical, 
cultural, economic, social, or health factors? If so, how? Should 
the Commission change how it considers multiple or cumulative 
adverse exposures and historical patterns of exposure to pollution 
or other environmental hazards? If so, how? How can the Commission 
obtain high-quality information about cumulative impacts (e.g., data 
on cancer clusters and asthma rates)?
    E5. Does the NGA, NEPA, or other federal statute set forth 
specific duties for the Commission to fulfill regarding 
environmental justice analyses in certificate proceedings under the 
NGA?
    E6. Should the Commission establish a method for evaluating 
mitigation for impacts on environmental justice communities (e.g., 
development projects in the local area)? If so, how should it 
mitigate to ensure the least disproportionate impact or eliminate 
the disproportionate burden on environmental justice communities? 
Would such mitigation be consistent with NGA section 7(e), which 
provides that ``[t]he Commission shall have the power to attach to 
the issuance of the certificate and to the exercise of the rights 
granted thereunder such reasonable terms and conditions as the 
public convenience and necessity may require''? \30\
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    \30\ 15 U.S.C. 717f(e).
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    E7. Does the NGA, NEPA, or other federal statute set forth 
specific remedies for the Commission to implement based on factual 
findings of environmental justice metrics or defined impacts? Do 
these statutory remedies include rejection of a proposed project 
otherwise found to be needed to serve the public interest? Which 
other remedies are authorized by statute?
Comment Procedures
    23. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice, including any related 
matters or

[[Page 11274]]

alternative proposals that commenters may wish to discuss. Comments are 
due April 26, 2021. Comments must refer to Docket No. PL18-1-000, and 
must include the commenter's name, the organization they represent, if 
applicable, and their address in their comments.
    24. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's website at https://www.ferc.gov. The Commission accepts most standard word-processing 
formats. Documents created electronically using word-processing 
software should be filed in native applications or print-to-PDF format 
and not in a scanned format. Commenters filing electronically do not 
need to make a paper filing.
    25. In lieu of electronic filing, you may submit a paper copy. 
Submissions sent via the U.S. Postal Service must be addressed to: 
Federal Energy Regulatory Commission, Office of the Secretary, 888 
First Street NE, Washington, DC 20426. Submissions sent via any other 
carrier must be addressed to: Federal Energy Regulatory Commission, 
Office of the Secretary, 12225 Wilkins Avenue, Rockville, Maryland 
20852. The first page of any filing should include docket number PL18-
1-000.
    26. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.
Document Availability
    27. 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 (https://www.ferc.gov). At 
this time, the Commission has suspended access to the Commission's 
Public Reference Room, due to the proclamation declaring a National 
Emergency concerning the Novel Coronavirus Disease (COVID-19), issued 
by the President on March 13, 2020.
    28. 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.
    29. User assistance is available for eLibrary and the Commission's 
website during normal business hours. For assistance, please contact 
the Commission's Online Support at 202-502-6652 (toll free at 1-866-
208-3676) or email at [email protected], or the Public 
Reference Room at (202) 502-8371, TTY (202) 502-8659 or email at 
[email protected].

    By direction of the Commission.

    Issued: Issued February 18, 2021.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2021-03808 Filed 2-23-21; 8:45 am]
BILLING CODE 6717-01-P