The head of the Federal Energy Regulatory Commission had big plans at the start of the Biden administration for assessing planet-warming emissions from new gas pipelines.
But with FERC Chair Richard Glick’s time at the agency likely coming to an end, the commission’s path forward on climate assessments is as murky as ever.
Glick was known in the Trump era for frequent dissents on natural gas pipeline orders, which he often said were legally infirm by not assessing whether facilities would significantly contribute to climate change. When President Joe Biden shifted him from commissioner to chair in 2021 and FERC gained a Democratic majority, Glick vowed to adjust the agency’s approach to weighing pipelines’ greenhouse gas emissions.
Legal experts and former commissioners are divided over whether the chair’s position — that the commission must consider how much natural gas would be burned as a result of new pipelines — is correct.
Still, nearly two years since Glick became chair, observers across the political spectrum see a difficult path forward for climate change reviews at the commission, given the continued partisan disagreements among its members and the political backlash Glick encountered over his position.
“Disappointingly, things do not look much different from where I sit in terms of the commission’s review and Chairman Glick’s legacy on evaluating either market need for these projects or greenhouse gas emissions and consequent climate change impacts,” said Jennifer Danis, a senior attorney at the Niskanen Center, which frequently advocates for landowners in the path of pipelines.
FERC is an independent agency that oversees electric power markets and permits large energy projects, including natural gas pipelines. How the agency accounts for greenhouse gas emissions will influence the build-out of major gas pipelines and liquefied natural gas export projects for years to come.
Historically, the five-person commission has accepted virtually all pipeline applications that have come before it and taken the position that it cannot assess whether new pipelines or export terminals would significantly contribute to climate change as a result of gas consumed downstream.
That approach has had legal ramifications. In a handful of recent rulings, the U.S. Court of Appeals for the District of Columbia Circuit has ordered FERC to go back and consider greenhouse gas impacts — or explain why it cannot do so — for projects that had already been approved (Energywire, March 14).
“The issue [of climate] is one that the commission should appropriately consider,” said Jon Wellinghoff, who served as FERC chair during the Obama administration and as a commissioner during the George W. Bush administration. “I’m thinking of it from a perspective of the overall existential problem of climate change, which I think every federal agency should be addressing and every state agency should be addressing.”
In February, Glick and the two Democratic commissioners voted to establish a first-ever greenhouse gas significance threshold as part of the commission’s environmental review process. The Democratic members also updated FERC’s natural gas policy statement — an overarching document that guides the agency’s pipeline reviews — for the first time since 1999, adding more focus to environmental issues and scrutinizing whether new projects are needed.
Both decisions faced strong objections from the two Republican commissioners, who said they went beyond the scope of FERC’s legal authority. Following more pushback from Sen. Joe Manchin (D-W.Va.), who chairs the Senate Energy and Natural Resources Committee, and from natural gas pipeline groups and others, FERC turned the policies into unenforceable “drafts” (Energywire, March 25).
Shifting the policies to “drafts,” rather than rescinding them completely, has resulted in continued uncertainty for the pipeline industry, according to some former FERC commissioners and oil and gas attorneys. Meanwhile, the commission’s decision not to finalize the policies has disappointed environmental advocates, who had hoped to see lasting climate-focused changes during Glick’s tenure.
“Everyone is frustrated,” said Neil Chatterjee, who chaired the commission during much of the Trump administration. “It’s been a mess.”
The question now is whether — and how — FERC will handle the issue in the New Year. Thursday is likely to be the last public FERC meeting chaired by Glick, whose nearly five-year term ended this year.
“When they first approached [the greenhouse gas policy] and then retracted it, that’s a pretty clear indication of FERC leadership tucking its tail between its legs and running,” said Devin Hartman, director of energy and environmental policy at the R Street Institute and a former FERC staffer. “I think it’s a little bit back to the drawing board.”
The White House nominated Glick earlier this year for a second term, but a Manchin spokesperson said last month that the senator was “not comfortable” holding a hearing for him. The White House and Glick did not respond to requests for comment.
Uncertainty and the status quo
Glick joined the commission in late 2017, having been nominated by former President Donald Trump. FERC is required to have a bipartisan slate of commissioners regardless of who is president.
A former aid to Democrats on the Senate Energy committee, Glick had also previously worked for the Spanish energy company Iberdrola and as an adviser to then-Energy Secretary Bill Richardson during the Clinton administration, among other roles.
Shortly after joining the commission, Glick made clear his position that the agency should assess whether new natural gas pipelines would result in significant greenhouse gas emissions.
Between 2018 and 2021, he dissented in full or in part on more than half a dozen decisions approving new gas pipelines or LNG projects because the agency had not accounted for projects’ downstream emissions, essentially treating climate impacts differently from other environmental issues.
In 2021, FERC formally determined the significance of a natural gas pipeline’s greenhouse gas emissions for the first time. The facility is operated by Northern Natural Gas Co.
“In Northern Natural, [FERC] demonstrated that it could make a significance determination,” said Morgan Johnson, a staff attorney at the Natural Resources Defense Council’s Sustainable FERC Project. “It has options, but it can’t just do nothing.”
The Northern Natural case was relatively uncontroversial. It involved replacing an existing pipeline rather than building a brand-new facility, and FERC had determined that it would result in no additional downstream emissions (Energywire, March 19, 2021).
Although the greenhouse gas assessment used by the commission was supported at the time by one Republican member — Chatterjee, then a commissioner — Republican Commissioners James Danly and Mark Christie did not support the approach. Chatterjee, meanwhile, stepped down in August 2021.
This year, after the new greenhouse gas policy was initially issued in February, FERC briefly assessed downstream emissions and their significance for a handful of gas projects.
Under the now-draft policy, the commission determined that projects emitting at least 100,000 metric tons per year of carbon dioxide equivalent would “have a significant impact on the environment.” That level is roughly equal to the greenhouse gas emissions of 21,700 cars driven for one year, according to EPA.
But since the policy was turned into draft status in March, FERC has again changed its tune. The agency now frequently quantifies or estimates projects’ climate-warming emissions without weighing their significance under the National Environmental Policy Act.
In the view of some legal experts, that leaves recent orders on natural gas pipelines and export terminals vulnerable to continued legal challenges.
“The issue of whether or not FERC can continue to punt and not assess climate at all, because they’re saying, ‘We can’t determine significance,’ is going to get litigated,” said Moneen Nasmith, a senior attorney at Earthjustice. “The result, if they lose, will be all of these projects having a totally uncertain fate.”
Danly and others, however, say there’s another way that FERC could avoid unfavorable decisions from the D.C. Circuit Court: Rather than weigh the significance of projects’ climate-warming emissions, the commission should more explicitly and thoroughly explain why it cannot make a significance determination.
Ultimately, the question is whether environmental reviews should only consider direct greenhouse gas emissions from FERC-regulated infrastructure or also how much gas is burned downstream or flared further upstream, said Kenneth Irvin, a partner in Sidley Austin LLP’s energy practice who has represented oil and gas companies before FERC.
It’s possible that the timing of FERC’s greenhouse gas policy contributed to the negative reaction from Manchin and Republican lawmakers, said Hartman of the R Street Institute.
The policy was issued in February shortly after Russia invaded Ukraine, “when the world was starved of natural gas,” Hartman said.
Others have pointed to potential legal deficiencies in the policy, including the fact that it was intended to apply to gas projects that were already pending before FERC. Still, Glick was right to take up the issue, Hartman said, calling the status quo “not sustainable.”
“You do have to account for climate in decisions here, but there’s good ways to do it and bad ways to do it,” Hartman said. “Glick should’ve taken a more constructive approach to it.”
Manchin, Clements and the Supreme Court
Glick’s expected departure from FERC will leave the commission with four members: two Democrats and two Republicans. That could increase the possibility of deadlocks on a range of issues, including pipeline decisions, at least in the short term.
In the meantime, environmental advocates say the commission’s current posture on greenhouse gas reviews will have substantial impacts for the climate.
Last month, for example, FERC approved a liquefied natural gas export terminal from Commonwealth LNG LLC that is expected to release more than 3.5 million tons of carbon dioxide per year — equivalent to the annual emissions of eight natural gas power plants, according to EPA.
In a concurring statement on the Commonwealth LNG order, Glick said it was “readily apparent” that the project’s emissions would measurably impact the environment. Still, the agency did not formally conduct such a significance assessment for climate change impacts, in the absence of an agreed-upon methodology.
Glick and the other commissioners ultimately approved the project, noting that the Department of Energy had already found it to be “in the public interest.”
“It’s kind of disappointing, the waffling now,” said James Van Nostrand, a professor at the West Virginia University College of Law. “These decisions have broader implications. If Glick is not going to get confirmed anyway, then stick to your principles.”
In the New Year, some FERC watchers are hoping the commission will rescind the greenhouse gas policy and pipeline policy statement entirely. The fact that they remain in an unenforceable draft form could discourage new pipeline development that may be needed, said one former FERC commissioner, who asked not to be named so as to speak freely about Glick.
“It would be probably the most uncertainty that pipeline developers have faced, not knowing what is FERC policy, will I have to mitigate environmental impacts, and if so, how costly will that be,” the former commissioner said.
Analysts expect continued disagreement among the commissioners on climate reviews next year. Part of the problem is that commissioners have different interpretations of D.C. Circuit rulings on the matter.
“I guess we need the Supreme Court to rule,” Sidley’s Irvin said. “I think eventually that will settle itself out through court process and interactions with FERC and we’ll get to a place where things are pretty predictable, or at least better predictable.”
The commission’s direction will also inevitably depend on who is appointed as the next chair.
Commissioner Allison Clements is the second-longest-serving Democratic member of the commission after Glick, making her a likely candidate for chair. Commissioner Willie Phillips, another Democrat, could also be named chair by Biden. Historically, the president has selected a chair of FERC that aligns with his party.
While Clements and Phillips both supported the greenhouse gas policy, Clements’ views on the issue appear to more closely align with Glick, analysts said. The White House could also nominate a fifth commissioner who, if confirmed by the Senate, could then be appointed chair.
Overall, Clements “understands the obligation under NEPA and the Natural Gas Act to analyze greenhouse gas emissions,” said Jessica Bell, deputy director of the State Energy & Environmental Impact Center at the New York University School of Law.
“She’s shown that she’s dedicated to implementing a sound approach here,” Bell said.
The Black Economic Alliance and the Joint Center for Political and Economic Studies, on the other hand, this week urged Biden to appoint Phillips as chair. In a letter to the president, the groups called Phillips “a dedicated champion of underserved communities” who has received bipartisan support from the Senate Energy committee.
Regardless of who is chair, any near-term attempts to implement more robust climate reviews could again face backlash from Manchin, who must sign off on FERC appointees, observers said. Although Manchin has not said specifically why he would not hold a hearing for Glick, the greenhouse gas policy and updated pipeline policy statement likely did not help Glick’s chances of winning support from the West Virginia senator.
“We saw where Glick wanted to take the agency. He stepped back, and now he’s not going to get reconfirmed,” Van Nostrand said. “As long as Manchin is chair of that committee, you’re never going to get somebody like Rich Glick who takes their obligation seriously on greenhouse gas emissions.”
Correction: Due to an editing error, an earlier version of this article contained the wrong date for this week’s FERC meeting.