What’s the issue?

Within a month after assuming his position as chair, Chairman Glick announced an initiative to “better incorporate environmental justice and equity concerns into the Commission’s decision-making process.”

Why does it matter?

Pipeline projects are already required to demonstrate that they do not impose an undue burden on environmental justice communities. If this announcement represents a change in philosophy at FERC, it could create more problems for projects, which already face difficult siting choices and challenges by opponents.

What’s our view?

Chairman Glick has been a prolific dissenter on pipeline certificate orders -- over 100 times -- but FERC’s current environmental justice review process has not generally formed the basis for his dissents. The current FERC method for evaluating environmental justice appears to be a rare area of agreement across party lines, but there are forces both external and internal to FERC that could lead to different standards that may further limit pipeline development.

 


 

Within a month after assuming his position as the new FERC chair, Chairman Glick announced an initiative to “better incorporate environmental justice and equity concerns into the Commission’s decision-making process.” The announcement does not really indicate what Chairman Glick feels is inadequate about the current FERC methods, but for pipeline projects, FERC is already assessing these issues. The concern is that Chairman Glick may be intent on changing the standards used by FERC to assess whether a pipeline project should be approved.

Today we look at Chairman Glick’s prior dissents to see if it is possible to determine where he might be going on this issue and how that may impact the industry’s ability to site and route projects. The current FERC methodology appears to be a rare area of agreement across party lines, but there are forces both external and internal to FERC that could lead to different standards that may further limit pipeline development.

Environmental Justice

In 1994, then-President Clinton issued an executive order which directed agencies to make “achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”

While this action did not apply to independent agencies like FERC, FERC has generally sought to comply with the framework of that order throughout the various changes in chairmanship at the agency, even those that have occurred during the most recent polarized period at the Commission. For example, in the Commission order approving the Atlantic Bridge project, which was one of the last projects approved by a solely Democratic FERC, the Commission noted that staff had considered the environmental justice matters with respect to that project in a manner consistent with the National Environmental Policy Act and the Council on Environmental Quality (CEQ) regulations by identifying low income and minority populations and environmental justice communities surrounding the Weymouth Compressor Station, using U.S. Census Bureau data and the EJScreen tool recommended by the Environmental Protection Agency (EPA) and by using the Massachusetts environmental justice criterion. Based on the information gathered, the Environmental Assessment concluded that the Atlantic Bridge Project would not result in any disproportionately high or adverse environmental or human health impacts on minority or low-income communities, which is consistent with the inquiry required under President Clinton’s executive order.

More recently, in a series of orders concerning the LNG facilities being built along the Brownsville ship channel and in Coos Bay, Oregon, the Commission, consisting of three Republicans, chaired by Commissioner Chatterjee and including Commissioner Glick, detailed how the Commission’s practice is to consider environmental justice concerns even though it is not required to do so by President Clinton’s executive order. In addition, the Commission noted that it is able to do this by following the guidance issued by the EPA and the CEQ.

Chairman Glick’s Views

Chairman Glick has not been shy about expressing his views when he disagrees with the Republican majority with which he has served for most of his term. In fact, he has issued over 100 dissenting opinions with regard to pipeline certificate orders.

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As seen above, the vast majority of his dissents have centered around how FERC has chosen to address the climate change impacts of its decision and, in particular, greenhouse gas emissions. However, in many cases, he dissented on additional grounds as well. But, his only dissents with respect to environmental justice issues have arisen in the cases involving the LNG terminals along the Brownsville ship channel, and even in those, his dissents were not wholesale attacks against the methodology used.

But Change is Still Possible

Despite the fact that Chairman Glick does not seem dissatisfied with FERC’s current methodology, there remains a risk that his views may be changed by two key developments, one outside of FERC and one that he has pushed within FERC. The first reason for concern is that in a recent executive order, President Biden directed his Environmental Justice Interagency Council to provide, by May 27, recommendations to his National Climate Advisor, Gina McCarthy, regarding “strengthening” the 1994 Clinton executive order. In addition, President Biden directed the CEQ to, by July 27, issue a geospatial “Economic Justice Screening Tool.” Both of these initiatives could lead Chairman Glick to revisit the existing practices at FERC with respect to environmental justice.

The second reason for concern is that Chairman Glick has directed Commissioner Clements to prepare a report on establishing an office of public participation. A key aspect of environmental justice is assuring the full participation in an agency’s processes by impacted environmental justice communities. We will need to watch the recommendations that come out of Commissioner Clements’s endeavors, but this could further influence how Chairman Glick modifies the current environmental justice processes at FERC.

Early Indicator to Watch

Finally, although he was not involved in the decision to grant a certificate to the Atlantic Bridge project, Chairman Glick has led the charge to revisit that decision to address, among other things, environmental justice issues surrounding the Weymouth compressor station that was part of that project. We previously discussed the broader implications of this action by FERC in FERC Inquiry Puts at Least $27 Billion in Pipeline Projects at Risk. But the initial briefs that were requested in that proceeding have been filed and the reply briefs are due by May 5. If there is a decision reached in that case at the May FERC open meeting, that may be an early indicator of the direction Chairman Glick is taking the Commission and whether it will be a departure from how FERC has addressed these issues in the past under both Democratic and Republican-led Commissions.

If you would like to discuss the current environmental justice process and its impact on projects, please contact us.