By Michael Brooks

For years, it seemed like the most exciting thing to happen at a FERC open meeting was a creative interruption by environmental activists protesting the commission’s approvals of natural gas infrastructure.

But while that certainly continued in 2019, center stage is occupied by the “Glick-McNamee Show”: the label Commissioner Bernard McNamee, now in his second year, has given to the monthly debate he and Commissioner Richard Glick have through their opening statements over Glick’s dissents at the meetings.

The FERC that unanimously rejected the Department of Energy’s proposed Grid Resiliency Pricing Rule nearly two years ago is mostly gone. The commission began 2019 in mourning when Commissioner and former Chairman Kevin McIntyre died Jan. 2. Less than a month later, Commissioner Cheryl LaFleur announced she would retire; she left at the end of August, having served nine years on the commission, and joined ISO-NE’s Board of Directors.

Prior to her departure, LaFleur gave a keynote speech at the Energy Bar Association’s annual meeting in May, in which she said that “the polarization of Washington, D.C., and societal rifts on big issues have sort of spread to 888 First St., especially the profound societal disagreement about climate change.”

Those rifts only widened at FERC after she left and, absent any major surprises, will stay in place for 2020.

Sabal Trail

Most of the tension between the remaining commissioners — Glick and Republicans McNamee and Chairman Neil Chatterjee — stems from the D.C. Circuit Court of Appeals’ August 2017 ruling in Sierra Club v. FERC (the “Sabal Trail” case), in which the court remanded the commission’s environmental impact statement on the Southeast Market Pipelines Project. The court ordered FERC to estimate the project’s impact on greenhouse gas emissions or explain more fully why it could not do so.

In May 2018, FERC chose to do the latter, arguing that it does not have sufficient information to determine the source of the gas being transported over pipelines, nor its end use. It declared that it would no longer prepare upper-bound estimates of GHG emissions when “the upstream production and downstream use of natural gas are not cumulative or indirect impacts of the proposed pipeline project.” (See FERC Narrows GHG Review for Gas Pipelines.)

In his dissents, and in public, Glick argues that this means “the commission is essentially ignoring” the court’s determination when it approves natural gas pipelines and LNG export terminals.

During her remaining time with the commission, LaFleur voted for certain pipelines after considering their emissions but also partially dissented on those projects, noting the rest of the majority did not take emissions into account.

Until February, Chatterjee was pulling certain gas items from the commission’s agenda to avoid them being voted down or nullified by a tie vote. That month, however, LaFleur joined the Republicans in approving the Calcasieu Pass LNG export project in Louisiana. While she criticized her Republican colleagues for their “failure to disclose and discuss cumulative potential direct GHG emissions associated” with Calcasieu Pass, LaFleur included in her concurring statement a table estimating those impacts.

FERC in 2019 approved 11 LNG export facilities worth about 20 Bcfd of liquefaction capacity and 19 natural gas pipeline projects.

“I’m trying to keep our disagreements about the way we conduct our environmental reviews from forcing me to dissent every single time, even if I have to supplement the climate analysis myself,” LaFleur told the EBA.

“I expect that the courts will ultimately require the commission to do more climate analysis,” she added.

Stalled Proceedings

The tension over the emissions dispute appeared to spill into other, less controversial proceedings. LaFleur told the EBA that “even some less prominent orders that have nothing apparently to do with climate have gotten stalled because individual commissioners are too dug in on something to agree on language. And this has happened far more frequently than in the past.”

At his monthly press conferences, Chatterjee continually faced questions about the status of the commission’s inquiry into grid resilience (AD18-7), PJM’s proposal to extend its minimum offer price rule (MOPR) (EL16-49), the commission’s consideration of revising its implementation of the Public Utility Regulatory Policies Act of 1978 (AD16-16) and its review of its 1999 policy statement on certifying new interstate natural gas pipeline facilities (PL18-1).

FERC issued a NOPR on its PURPA regulations in September and extended PJM’s MOPR to all new state-subsidized resources in December. Glick dissented on both dockets, which had languished at the commission for more than a year. FERC has yet to act on the resilience and gas dockets, both of which were opened in 2017 under McIntyre.

In October, Glick complained that he had not been allowed to suggest changes to staff’s annual Winter Energy Market Assessment before its presentation at that month’s open meeting. Glick cited the report’s statement that “Coal and oil-fired generation continue to play an important role in maintaining electric reliability during the winter, especially in the Northeast, where winter demand for natural gas can exceed pipelines’ capacity.” He noted that coal makes up 2% or less of installed capacity in New York and New England.

After the next open meeting in November, Glick stayed to watch Chatterjee’s monthly press conference. He also held his own press conference after the MOPR ruling in December calling it “definitely the wrong thing.”

Looking Ahead

The D.C. Circuit rejected two challenges to FERC’s gas infrastructure approvals in 2019 but mostly on procedural grounds.

In May, it ruled that New York-based environmental nonprofit Otsego 2000 lacked standing to challenge FERC’s decision to approve Dominion Energy Transmission’s New Market Project — the same decision in which the commission narrowed its review of GHG emissions. Otsego 2000 not only had argued that FERC was required to include an evaluation of upstream and downstream emissions in its environmental review of the project, but that the commission improperly announced its new policy without notice and an opportunity for public comment.

In June, the court rejected a similar complaint by Concerned Citizens for a Safe Environment over FERC’s approval of a new natural gas compression facility in Davidson County, Tenn., by Tennessee Gas Pipeline. But it did so on far narrower grounds.

“We are troubled … by the commission’s attempt to justify its decision to discount downstream impacts based on its lack of information about the destination and end use of the gas in question,” the court said. “It should go without saying that [the National Environmental Policy Act] also requires the commission to at least attempt to obtain the information necessary to fulfill its statutory responsibilities. …

“Despite our misgivings regarding the commission’s decidedly less-than-dogged efforts to obtain the information it says it would need to determine that downstream greenhouse gas emissions qualify as a reasonably foreseeable indirect effect of the project, Concerned Citizens failed to raise this record-development issue in the proceedings before the commission. We therefore lack jurisdiction to decide whether the commission acted arbitrarily or capriciously and violated NEPA by failing to further develop the record in this case.”

The court seemed to open a path for a new challenge to one of the commission’s approvals. But as of the end of the year, none on the “record-development issue” have been filed with the courts.

It’s also unknown when the commission’s makeup will change.

While the Senate Energy and Natural Resources Committee advanced both the nominations of General Counsel James Danly to the commission and Dan Brouillette to succeed Rick Perry as energy secretary on Nov. 19, the Senate confirmed Brouillette mere weeks later, suggesting FERC was not high on Senate Majority Leader Mitch McConnell’s to-do list. Danly’s nomination could be further held up into the year as the Senate holds a trial on the impeachment of President Trump.

Danly was nominated Sept. 30 to finish McIntyre’s term, which would end June 30, 2023. Trump angered Democrats when he declined to nominate a replacement for LaFleur. It has been widely reported that Democrats have put forward Allison Clements, clean energy markets program director for the Energy Foundation, as their choice. It’s fairly safe to say that Trump will be disinclined to acquiesce to their request as he goes through the impeachment process and runs for re-election.

McNamee’s term expires June 30, but by law he is allowed to serve past that date until the end of the year if he is not reappointed and a replacement is not confirmed. If McNamee stays on into 2021, the presidential election could determine whether Chatterjee not only remains chairman but also a commissioner past June 30 of that year.

The 2020 election cycle also diminishes the odds of any major energy legislation being enacted. Corey Schrodt, legislative director for Rep. Francis Rooney (R-Fla.), told the Solar Energy Industries Association at a meeting in December that “I’ve been on the Hill long enough to know that we have from now to maybe until March to really do anything.”

On Dec. 20, Trump signed two spending packages for fiscal year 2020, which began Oct. 1, totaling $1.4 trillion. The bills narrowly averted a government shutdown but did not include extending tax credits to solar and electric vehicles. Wind developers, however, can now qualify for the production tax credit through 2020. The bills also increased funding for FERC, the Department of Energy and EPA.