Approval of a major liquefied natural gas (LNG) export facility on Thursday does not mean the Federal Energy Regulatory Commission (FERC) will necessarily greenlight a dozen similar applications, the agency’s swing vote on the issue said Friday.
Though she voted to approve the Calcasieu Path LNG export facility in Louisiana, Commissioner Cheryl LaFleur told Utility Dive she is concerned subsequent statements from FERC Chairman Neil Chatterjee imply regulators have "prejudged" 12 projects seeking approval.
"We just reached an agreement on Calcasieu Path," LaFleur said via telephone. "Yes, we do operate by precedent, so that's now a case in the books, but we have to look at every case individually. That's what we do in all areas of our work."
Chatterjee on Friday said he is also "not prejudging any issues," but told Utility Dive the climate change agreement that led to the Calcasieu Path approval was the "biggest sticking point" in negotiations over the other terminals.
"Assuming there's nothing unusual about them, and they've been lawfully submitted, since we have agreement on what's been the thorniest part of the negotiation, that is why I'm optimistic that we now have a framework in place to consider these other applications and move them expeditiously," he said.
The exchange between the two commissioners follows a social media interaction on Thursday night.
When FERC issued the 3-1 decision late that evening, Chatterjee put out a statement praising the "breakthrough" on LNG exports, which he said could pave the way for FERC to approve other facilities. Senior Department of Energy officials expressed similar hopes to Utility Dive.
"This is significant, as I anticipate we'll be able to use the framework developed in this order to evaluate the other LNG certificates that the Commission is considering," Chatterjee wrote.
LaFleur responded on Twitter that night saying she will assess each case individually. On Friday, the commissioner said she wrote the tweet because she “was worried about making sure that we didn't somehow prejudge" the applications.
Thanks @FERChatterjee but of course I will continue to decide each case individually on the merits.— Cheryl LaFleur (@CLaFleurFERC) February 22, 2019
LaFleur said she also took exception to the tone of Chatterjee's tweets and statement, responding to one with a .gif of House Speaker Nancy Pelosi performing what many see as a sarcastic round of applause for President Donald Trump during the State of the Union Address.
"I thought the tonality implies somehow that I prejudged and I haven't," she said. "That's why I wrote back with the Nancy Pelosi clapback. That might have been in response to some of the tonality as well."
"It just seemed the kind of tonality of the press release — that had everything but a brass band and balloons — it just seemed to call for a comment," LaFleur added.
Chatterjee on Friday said he was "surprised" by LaFleur's remarks because her office reviewed the press release and offered edits. The statement was also reviewed by FERC's deputy general counsel, he said.
"[LaFleur] actually reviewed the press statement before we put it out last night," Chatterjee said. "We were all in agreement — the deputy general counsel, myself and Commissioner LaFleur, and then later Commissioner McNamee — that it was an appropriate press release and it was not prejudgment."
In response, LaFleur's office said she was not heavily involved in drafting the statement.
"Commissioner LaFleur expressed concern that the press release not suggest that she had prejudged any pending LNG matters, and worked solely to address that concern," a spokesperson said via email. "The Chairman's comments in the press release are obviously his own."
LaFleur's climate calculus
LaFleur's vote to approve the Calcasieu Pass facility represents an evolution on LNG exports.
While the Democrat voted for multiple export facilities approved under the Obama administration, she has recently called for FERC to include more analysis of the greenhouse gas (GHG) emissions resulting from natural gas infrastructure.
In December, FERC pulled the Calcasieu project from its open meeting agenda at the last minute after it became clear she would not support it, leaving the vote 2-2.
LaFleur said eventual inclusion of GHG estimates in the final order persuaded her to vote for the facility. Unlike previous LNG orders, the Calcasieu Pass decision estimates that the terminal’s direct emissions from liquefying natural gas could raise total U.S. carbon pollution 0.07% from 2016 levels.
"Had we not put the direct emissions in the order in this case, and some sense of the context, that was pushing me to not vote for it," LaFleur said. "It's not just the spitting out of the direct greenhouse gas number as a number. It is the context of putting it in some framework through which the reader and the decisionmaker can see how big it is."
Despite inclusion of the statistics, FERC's order also stressed that the calculations could not influence whether FERC approved or denied the facility, because the agency concluded last year "it could not determine whether a project's contribution to climate change would be significant."
LaFleur opposes that position, and has repeatedly called for FERC to evaluate the significance of greenhouse gas emissions using the Social Cost of Carbon, a measurement developed during the Obama administration.
That detail, however, was left out of the final order, pushing Commissioner Richard Glick, a fellow Democrat, to dissent.
"I cannot countenance an approach that acts as if climate change is not relevant to the public interest," he wrote. "So long as the Commission adheres to such a deeply misguided approach, I have no choice but to dissent from its orders, regardless of what I might otherwise think about the benefits of a project."
For LaFleur, however, the potential benefits of approving the natural gas facility outweighed her opposition to FERC’s stance on climate. The Commissioner made a similar argument in a pair of concurrences on natural gas pipelines issued earlier in the day.
"I'm just in a different place. I think Rich [Glick] has drawn the conclusion because they are not doing that, I must dissent," she said. "I've found a way thus far to concur, although I agonize in every case to concur."
In her concurrences, LaFleur writes that calculating the GHG emissions for LNG facilities and pipelines is "only the first step" to weighing climate impacts in their project approvals. In the future, she said some LNG facilities and pipelines could present emissions too high for her to approve.
"I'll have to look at each case as it comes along," she said, "and I also think we'll get more court cases that shed more light on our responsibilities."
That legal picture got more complicated this week when the D.C. Circuit Court issued an opinion upholding FERC's 2017 approval of the Mountain Valley Pipeline, including the commission's refusal to use the Social Cost of Carbon.
Chatterjee on Thursday said the decision "speaks to the strength of our processes," supporting FERC's current climate policy. But LaFleur noted that the court did not prohibit the commission from performing a climate change analysis, only upholding its explanation not to apply one.
"I think the court said that the way it was explained in [Mountain Valley] was adequate, but probably is not the full resolution of the issue," she said after the commission’s monthly open meeting.
LaFleur will step down later this year after Senate Majority Leader Chuck Schumer, D-N.Y., declined to recommend her to the president for re-nomination. In the future, the veteran regulator said she would like to see FERC project approvals pegged to a carbon price or GHG target.
"If I were the queen of the world, we'd have a national climate policy that valued carbon in some way," she said, "and so when we had these things we’d say, 'oh, let's just compare it to the national climate policy.'"
"That's not the world I live in," she said. "So I'm just trying to make my best judgment on the record in the world I live in."