A FERC commissioner’s climate evolution

By Ellen M. Gilmer | 06/20/2018 07:32 AM EDT

Cheryl LaFleur has become a key voice in the debate over natural gas pipelines and climate change. As one of two Democrats on the five-member Federal Energy Regulatory Commission, LaFleur has made waves lately for her insistence on broad analysis of potential greenhouse gas emissions.

Cheryl LaFleur has served on the Federal Energy Regulatory Commission since 2010.

Cheryl LaFleur has served on the Federal Energy Regulatory Commission since 2010. FERC

Cheryl LaFleur has become a key voice in the debate over natural gas pipelines and climate change.

As one of two Democrats on the five-member Federal Energy Regulatory Commission, LaFleur has made waves lately for her insistence on broad analysis of potential greenhouse gas emissions.

It’s not just the direct effects of a pipeline that matter, she says; FERC must look further to weigh the impacts of actually burning the gas that a new project is designed to deliver.


"That would require judgment, but I don’t think it would necessarily require delay," she said in an interview last week. "We do hard things in a lot of aspects of our work."

LaFleur spoke to E&E News on Friday, just minutes after dissenting from a pipeline order that did not include in-depth review of downstream climate impacts.

"I agree that consideration of climate change is difficult," she wrote. "However, I do not believe that the difficulty of considering climate change [relieves] us of the obligation to consider climate change impacts as part of our environmental review."

The statement, focused on the Mountain Valley pipeline in Appalachia, joins a growing stack of disagreements LaFleur has had with her Republican colleagues over their refusal to assess broad climate impacts from gas pipelines.

In the past three months, she has also issued dissents or separate statements to raise climate concerns about a pipeline network in the Southeast, a related project in Florida, an upgrade in New York and an expansion in Appalachia. In each one, she maintains that the commissioners must consider far-reaching climate impacts to comply with the National Environmental Policy Act or the Natural Gas Act.

But contrast LaFleur’s recent advocacy with her earlier approach to the issue: In her eight years as a FERC commissioner, she has frequently voted in favor of natural gas projects whose broad climate impacts were not assessed.

And when climate activists were pushing FERC to rethink pipeline approvals in 2014, she responded with the commission’s go-to defense: FERC simply isn’t responsible for gauging indirect greenhouse gas emissions. While it weighs the impacts of pipeline construction and operation, gas production and consumption are a bridge too far (Greenwire, Nov. 17, 2014).

To some environmentalists, LaFleur’s new climate campaign is too little too late. She’s in the minority now, with limited power to change FERC’s trajectory.

"I’m a little cynical because these arguments that greenhouse gas emissions need to be part of the NEPA analysis are not new," Delaware Riverkeeper Network attorney Aaron Stemplewicz said. "You can go back to 2011 and look at dockets back then and you’ll see this issue popping up all over the place, and LaFleur was silent."

‘Aha’ moment

LaFleur has been open about her evolving position, saying she wrestled with FERC’s approach to climate issues over the years.

"I now believe that, at least as to downstream, we need to factor that in to our public interest determination," she said Friday.

In other words, she thinks FERC should study the impacts of burning natural gas transported by pipelines.

She points to a variety of forces that prompted her change of heart: increased information and clarity in comments on FERC’s pipeline dockets; debate surrounding Obama-era guidance for accounting for greenhouse gas emissions from federal actions; and growing concern about how FERC assesses the need for individual projects.

Finally, there was the August 2017 federal court decision ordering FERC to take a closer look at the downstream climate impacts of the Sabal Trail pipeline, which delivers gas to Florida.

"When that case came out, to me that was a significant development," she said. "But it wasn’t like the day before that case came out, I was sitting here thinking, ‘Nothing is happening on this; I’m not thinking about it at all,’ and all of a sudden the case hit me like an apple on my head.

"It was something I’d been working on for a year and a half," she said.

LaFleur marks 2016 as the time her mindset really began to change. She remembers having an "aha" moment while reviewing a case in which developers touted a proposed pipeline’s end users to show that the market needed the project, but FERC declined to weigh the greenhouse gas emissions that would result from that use.

Given the rapid growth of natural gas infrastructure and an increasing number of pipeline applications, LaFleur says she began to scrutinize how FERC determined whether a project was really needed.

"What is driving the need for this pipeline?" she said, recalling her thought process. "How confident are we that that need will be enduring for the life of the pipeline? How do we assess the impacts?"

That deliberation spurred further consideration of climate analysis. With more information on where a pipeline’s gas supply ends up, FERC could easily estimate and analyze the resulting greenhouse gas emissions, she said.

Concerned about changing the "need" analysis without warning, LaFleur began pushing for a public process to consider changes to how FERC evaluates pipelines. She also dug for added climate information in pipeline dockets.

"I started parsing the draft orders when they came up, and if they had more information on where the gas was going, I would try to push to put more on the greenhouse gases, and that’s how we got into that cycle," she said.

LaFleur wasn’t alone in her evolution. Other commissioners and FERC’s former chairman, Norman Bay, also supported added disclosure of pipelines’ climate impacts in recent years.

As a result, FERC inched forward on the issue, including basic downstream greenhouse gas estimates for most pipelines since late 2016.

Still, the agency has fallen far short of what environmentalists want: detailed estimates of indirect greenhouse gas emissions paired with in-depth analysis of how those emissions affect the climate and society.

Pipeline policy review

This year, the issues are primed for debate in the commission’s newly launched review of its pipeline policy statement, which hasn’t been updated since 1999. It’s exactly the type of proceeding LaFleur has pushed for to assess how FERC determines project need and, in turn, how it evaluates climate impacts.

"I definitely think [those issues] will get a substantial airing because I think they’re part of the driver of why we opened the docket," she said. "The commission, which unanimously voted for the order opening the docket, asked a lot of questions about environmental review, and I’m quite certain we’ll hear a lot from the environmental community and others on that."

But FERC won’t make any changes to how it approaches climate change without support from the majority. While LaFleur and Richard Glick, a fellow Democrat and frequent dissenter, have supported expanded analysis, the Republican commissioners have not.

Chairman Kevin McIntyre made clear in a recent Senate hearing that he does not intend to make any changes that will slow down pipeline permitting (Energywire, June 13).

"I recognize that I’m not individually making these decisions, but we’re trying to highlight the issues," LaFleur said last week.

Her minority position was painfully clear last month when the Republican commissioners issued an order effectively rewinding FERC’s climate policy advances. The majority voted that the agency would no longer tally downstream emissions for most pipelines (Energywire, June 5).

‘It’s more like Algebra 1’

LaFleur responded to the new climate policy by staking out her own approach.

In an unrelated order last week, she reiterated her opposition to the policy change. And while she supported the particular project at issue in the order, she criticized the Republican majority’s decision to forgo analysis of its indirect climate impacts.

And so? She crunched the numbers herself.

Using an EPA methodology for measuring downstream greenhouse gas emissions, LaFleur plugged in the volume of gas the project could carry and calculated the greenhouse gas emissions that would result from eventually burning all of it: 3.7 million metric tons per year of carbon dioxide equivalent. That would mean up to a 5.7 percent increase in greenhouse gas emissions in Mississippi, where the project has delivery points.

It’s an imperfect forecast. The numbers are upper-bound estimates, assuming the project’s maximum capacity is transported 365 days a year, which would be unusual. The calculation also does not account for the possibility that some of the gas may displace dirtier-burning fuels like coal.

"I recognize that this full-burn estimate is simply a mathematical derivative of pipeline volume, but I still want to disclose it and consider it as part of my public interest determination, particularly where there is not more precise evidence of downstream pipeline utilization," LaFleur wrote.

Jessica Wentz, an attorney for the Sabin Center for Climate Change Law at Columbia Law School, said LaFleur’s quick calculation shows how easy it is for FERC to do this level of analysis.

"The bottom line is that FERC can in fact forecast downstream emissions impacts when it has estimates of the amount of natural gas that will be transported via the proposed project," she said.

Stemplewicz, the Delaware Riverkeeper Network lawyer, called it a "bare bones" approach — the least that FERC should be doing.

LaFleur agrees. While FERC could certainly get a more targeted estimate of emissions if it had more information about a pipeline’s end users, she argued that even without that level of detail, the agency should disclose what it can.

She plans to keep doing her own basic calculation and incorporate it into her public interest analysis for future gas projects.

"My husband was teasing me that I must have done the greenhouse gases because I took linear algebra in college," she said. "And I told him it’s more like Algebra 1 that a ninth-grader would do."

The tough part, she says, is going that next step to understand the actual impact of emissions. LaFleur supports using the social cost of carbon, a tool used to calculate the monetary cost of increases, but she said FERC still needs a way to put that cost into context.

"The difficulty is that once you multiply the social cost of carbon, even if you determine a range and so forth, it’s hard to know how to compare that because our determination of the benefits is quite limited right now," she said.

"That’s why I think … having more development in the record of the need, the drivers of the pipeline, how it’s going to impact the region, would help us make a better weighing of the costs," she said.

Stemplewicz remains frustrated that LaFleur didn’t come around on these issues years ago. But he said it is helpful for environmentalists that she’s speaking up now, even if she doesn’t have the support of the majority.

"It certainly bolsters whatever arguments are being brought forward by aggrieved parties saying that the correct level and intensity of analysis with regard to greenhouse gas wasn’t done correctly," he said.

Groups challenging pipeline certificates have already used LaFleur’s dissents to show judges that the commission is split on the issue.

"Now we can point to the commission itself, and I think that certainly has an influential impact on the way in which these judges, particularly in the D.C. Circuit, are going to view the validity of these claims," he said. "It’s totally a live issue."