FERC on Thursday walked back updates it made last month to how it would consider natural gas infrastructure applications, labeling the two documents as “drafts” and soliciting public comment.

The Democratic majority on the commission said they were concerned that the updates had created confusion and uncertainty, which the two Republican commissioners had predicted last month when they opposed the orders.

The commission had voted 3-2 to update its 1999 policy statement on natural gas infrastructure certificates (PL18-1) and released guidance on how it will evaluate the impacts of projects’ greenhouse gas emissions in its environmental analyses (PL21-3). (See Split FERC Updates Policies on Gas Infrastructure Applications.)

Combined, the two documents marked a significant change to how FERC would evaluate the need for gas projects and their impact on the environment, particularly the effect of their emissions on global climate change. But on Thursday, the Democrats said that after having conversations with and hearing feedback from developers, they reluctantly decided to delay the orders’ implementation.

“What I’ve generally heard is that the policy statements raise additional questions that could benefit from further clarification,” Chair Richard Glick said. “So we are re-engaging and inviting all stakeholders to comment on top of the 38,000 comments we’ve already received in response to two Notices of Inquiry.”

Glick was referring to the NOI issued under Chair Kevin McIntyre in late 2017 to revise the 1999 statement and the reissued notice in February 2021 that restarted the process after it had languished.

“This vote was a difficult one for me,” Commissioner Allison Clements said, “because I believe these policy statements were an important step forward in clarifying factors to be considered in making our public interest determinations and doing so consistent with court mandates. … Nonetheless, based on the engagement since last month’s meeting, I have concluded that we cannot move forward to effectively or efficiently consider and process individual project applications under the new policies without broader agreement across the commission.”

Based on statements from each of the Democratic commissioners, it was not clear what exactly gave them pause, and the orders had not been published as of press time. But Glick did say that after their finalization, they would only apply prospectively; they would not apply to any applications pending before the commission at that time.

While Republican Commissioners James Danly and Mark Christie had completely disagreed with the orders themselves, they were particularly incensed that they would apply to already filed applications without giving developers any chance to respond.

They also criticized FERC’s acting without public comment first, especially in the case of the GHG guidance, which the commission deemed “interim” while it gathered public comment by April 4.

Comments on the draft statements are due by April 25, with reply comments due May 25.

The move, along with three natural gas projects approved the same day (see below), were “case studies in why it is that every stakeholder should participate in the dockets in which they have an interest,” Danly said. “It was because in large measure of the participation of the affected parties that we find ourselves in the position we do. Never doubt the importance of the comments you file or the submissions you put into our dockets. They matter. They count. We read them.”

Consensus Possible?

Speaking to reporters, Glick said some developers were “interpreting [the two policies] in certain ways that I’m not entirely sure was intended. … Overall, we heard from them that there was a lot of confusion out there and … the goal here is to create less confusion and a framework for a legally durable approach.”

Asked whether he was concerned that the commission could reach any consensus on the policies, Glick said, “I still remain positive … that we can get to ‘yes’ in many [aspects]. I think we have to hear more and get a better record, which we’re going to do.”

But Glick made clear during the meeting and with reporters that the commission had to move forward with the changes. He noted that earlier this month, the D.C. Circuit Court of Appeals remanded another gas project approval back to the commission because of its failure to properly examine its greenhouse gas emissions. (See Court Again Rebukes FERC for Failure to Review Downstream Emissions.)

FERC Commissioner Willie Phillips | ©RTO Insider LLC

Glick was also asked if the move resulted from political pressure from Congress or the White House. Earlier this month the majority was strongly criticized by members of the Senate Energy and Natural Resources Committee, including its chair, Sen. Joe Manchin (D-W.Va.). (See Glick: No Regrets over Gas Policy Statements.)

“One hundred percent no, and I appreciate the question. I know you have to ask that question. I think … anyone who knows me knows that I’m not going to do anything for political purposes. FERC is an independent agency, and I very much honor that,” he said. He added that he believes the same of each of his colleagues.

The move also had nothing to do with the end of his term coming this June, he said.

“I actually like this job. If the president and the Senate are willing to let me stay, I will do so,” he said. “There’s things in life you can control, and there are things you can’t control. And I’m going to focus on the work and what we can control” at the commission.

After FERC’s open meeting, in what he said was his first speech since joining the commission, Commissioner Willie Phillips commented on the order at the American Council on Renewable Energy (ACORE) Policy Forum.

“You may have noticed that my colleagues and I had a couple of differences about a couple policy statements regarding natural gas recently that got a little bit of attention,” he said. “Today, we set those statements for additional comment to give us time to try to reach a more bipartisan solution. My colleagues and I take our independence as regulators very seriously. Some may even accuse us of digging into our positions and failing to compromise at times. I say: Let’s stop digging. That’s not FERC. That’s not me.”

3 Projects Approved

While FERC gathers public input, the commission will continue to consider gas project applications under the 1999 policy statement, Glick said.

On Thursday, the commission unanimously approved three such applications — though each commissioner issued a separate concurring statement for each of the projects. (These orders and statements were also not available as of press time.)

Glick said the commission found that the developers had demonstrated need for each project. He also noted that, based on his own projections, the projects’ emissions would not have a significant impact on climate change, though this was not a factor in the commission’s decisions. In fact, he said, one of the projects — Iroquois Gas Transmission System’s ExC Project in New York (CP20-48) — will actually reduce emissions because the transported gas will replace oil used for heating.

The other two projects approved were Kinder Morgan’s Evangeline Pass Expansion Project in Louisiana and Mississippi (CP20-50), and TC Energy’s East Lateral XPress project, also in Louisiana (CP20-527).

Rich Heidorn Jr. contributed to this report.