As the Biden administration elevates racial equity matters, several former Federal Energy Regulatory Commission members welcomed the agency's recent resolve to turn greater attention to environmental justice implications of its decisions, even as one recent case at FERC highlighted some challenges to balancing competing interests.
"We can have reasonable disagreements about how the commission ought to proceed but I think it's well past time the issues are addressed by the commission," said former Commissioner Marc Spitzer, during an Energy Bar Association panel May 12 featuring four former FERC members. Spitzer, a Republican who was on the commission from 2006 to 2011, suggested the issue had been "neglected."
Spitzer reflected on his interest in the issue during his time as an Arizona state senator, and later as a state utility commissioner, recalling concerns of a Democratic Senate colleague representing a largely minority district in South Phoenix about the infrastructure placed disproportionately in neighborhoods with less political clout.
"When I came to FERC, I found myself less involved in that issue, just because of the nature of the business we had," he said.
Former Commissioner Colette Honorable, a Democrat, agreed that "there's a critical role of FERC to play," on environmental justice. "It's one I believe the agency should play," she said.
Still, she added a note of caution: "FERC will and should be careful about how this work is done. This is not a gotcha exercise." Instead, she said FERC could provide guidance and best practices for the regulated community.
WEYMOUTH CHALLENGES
Former FERC Chairman Norman Bay, also a Democrat, said a recent case involving Algonquin Gas Transmission's Weymouth Compressor Station presents a "very, very difficult issue" in balancing the desire for regulatory uncertainty around a major infrastructure investment with concerns of communities residing nearby. FERC issued the project certificate in early 2017, when Bay was chairman, and Honorable was a commissioner.
FERC's recent order calling for more briefing about whether to allow the station to enter service has drawn sharp criticism from gas industry officials concerned that it raised the prospect of reopening a final certificate order. Environmental groups, on the other hand, have pointed to unplanned blowdowns during the startup process as a changed circumstance and revisited their concerns that the project siting had disproportionate impacts on a community overburdened with pollution.
"I do think it's important that FERC not think that it is the only agency that has a role in overseeing emissions from a compressor station," Bay said. Other authorities such as state environmental regulators or the US Environmental Protection Agency could have a role, he said.
Tony Clark, a Republican who served at FERC with Bay and Honorable, said that if FERC is looking to change the rules, "you need to do it transparently, and on a forward-looking basis."
Along similar lines, he highlighted concerns raised by 25 senators that FERC should be using existing rules in deciding whether to approve a batch of pending certificates.
TUG OF WAR ON NORTHERN NATURAL
Clark also suggested FERC give developers as much information as possible about the standards they will be held to, and what the expectations will be, with regard to the highly litigated question of how FERC weighs greenhouse gas emissions when it decides whether to approve gas projects.
On the heels of FERC's recent decision on GHGs in a case involving Northern Natural Gas, "it feels maybe a bit like we're in a no man's land on the issue," Clark said. "The commission has flagged it and said we'll know it when we see it," Clark said.
In Northern Natural, FERC voted 3-2 to approve the project, finding the replacement project with negligible GHG emissions did not have a significant impact on climate change. It marked a first for FERC making such a determination about the climate change significance.
In contrast to Clark, Spitzer cautioned that while parties on both sides of the matter might prefer bright-line tests, as a lawyer, he would like to be able to argue the facts in a granular way, in a particular case.
He also described the state of affairs prior to the Northern Natural decision as a "constant tumult" of litigation, in which "review would be sought on every certificate order."
While there might be disagreement on the governing DC Circuit Court of Appeals decision on the Sabal Trail Transmission pipeline, the case was decided by the court of appeals, and Supreme Court review was not sought, he said -- "So that's law of the case, so to speak." The court in Sabal Trail found FERC needed to look further at GHGs emitted by the power plants served by the pipeline or better explain why it did not need to do so.
