In re Gas Transmission Nw.
| Decision Date | 16 December 2022 |
| Docket Number | CP21-29-001 |
| Citation | 181 FERC ¶ 61, 234 |
| Parties | Gas Transmission Northwest LLC |
| Court | Federal Energy Regulatory Commission |
Before Commissioners: Richard Glick, Chairman; James P. Danly Allison Clements, Mark C. Christie, and Willie L. Phillips.
ORDER ADDRESSING ARGUMENTS RAISED ON REHEARING AND DISMISSING MOTION FOR STAY
Debbie-Anne A. Reese, Deputy Secretary.
1. On July 28, 2022, the Commission issued an order authorizing Gas Transmission Northwest LLC (GTN) to construct and operate a new compressor station in Morrow County, Oregon (Coyote Springs Compressor Station Project or Project).[1] On August 26 2022, Columbia Riverkeeper (Riverkeeper) filed a timely request for rehearing of the Certificate Order and a motion for stay of the Certificate Order pending resolution of its rehearing request.
2. Pursuant to Allegheny Defense Project v FERC,[2] the rehearing request filed in this proceeding may be deemed denied by operation of law. However, as permitted by section 19(a) of the Natural Gas Act (NGA),[3] we are modifying the discussion in the Certificate Order and continue to reach the same result in this proceeding, as discussed below.[4] I. Background
3. GTN is a natural gas company, as defined by NGA section 2(6),[5] engaged in the transportation and storage of natural gas in interstate commerce.[6] GTN's proposed project involves constructing and operating a new compressor station on the Coyote Springs Lateral.[7] The lateral, constructed in 1995, starts at milepost 304.25 on GTN's mainline and extends 18 miles north to a delivery point at the Coyote Springs Meter Station.[8] It transports natural gas that serves consumers in Washington, Oregon, and California, includ ing gas utilities, ind ustrial facilities, and electric generation plants. [9]
4. On January 13, 2021, GTN filed a prior notice request pursuant to NGA section 7[10] and sections 157.205 and 157.208(b) of the Commission's Part 157 blanket certificate regulations to construct and operate the Coyote Springs Compressor Station Project.[11]
5. On March 22, 2021, Riverkeeper filed a motion to intervene and protest, arguing that the proposed compressor station is not within the scope of activities eligible to be conducted under a blanket certificate because it is part of an expansion project under development by GTN.[12] Riverkeeper urged the Commission to conduct NGA section 7 review, and environmental analysis, of the Coyote Springs Compressor Station Project and GTN's future expansion project as a whole.[13] 6. The Commission denied Riverkeeper's protest in the Certificate Order, finding that GTN did not improperly segment the Project's proposal from any future expansion project to fit it within the Commission's blanket certificate regulations, and that the construction and operation of the Project is independent of any expansion projects for which GTN might seek future authorization.[14]
7. Although it is the Commission's policy to authorize a project's construction and operation under the applicant's blanket certificate when a protest to a prior notice filing is denied, the blanket certificate regulations require that a project will have "no effect" on any property protected by the National Historic Preservation Act.[15] In the Certificate Order, the Commission found that although the Project would have "no adverse effects" on properties eligible for inclusion in the National Register of Historic Places, that finding did not satisfy the "no effect" requirement under Commission's blanket certificate regulations.[16] Accordingly, the Commission treated GTN's request as an application for case-specific section 7(c)[17] authorization and issued a certificate of public convenience and necessity to GTN for the construction and operation of the Project.[18]
II. Procedural Issue
8. On September 12, 2022, GTN filed a motion for leave to answer and answer to Riverkeeper's rehearing request in which it argues that the Commission should deny Riverkeeper's rehearing request and motion for stay. The Commission's Rules of Practice and Procedure generally prohibit answers to a request for rehearing.[19]Accordingly, we deny GTN's motion to answer and reject its answer.
III. Discussion
9. On rehearing, Riverkeeper argues that the Commission's issuance of the Certificate Order violated the NGA, the Administrative Procedure Act, and the National Environmental Policy Act (NEPA). Specifically, Riverkeeper argues the Commission erred by: (1) concluding that the Coyote Springs Compressor Station Project is required by the present or future public convenience and necessity; (2) declining to find that the proposed GTN XPress Project[20] is a "connected action" for the purpose of NEPA, which would require the projects to be considered together in an Environmental Impact Statement; (3) failing to analyze the cumulative effects of greenhouse gas (GHG) emissions from the GTN XPress Project; (4) failing to determine the significance of GHG emissions or consider their indirect effects; (5) failing to take a hard look at environmental justice impacts; and (6) failing to rigorously explore reasonable alternatives, including the "no action" alternative and an electric-motor driven compressor alternative.
10. Riverkeeper argues that the Project is not required by the public convenience and necessity, and the Commission's authorization of it under section 7 of the NGA is thus unlawful, because the Commission has not demonstrated (1) that there is a need for the Project and (2) that the Project will not be subsidized by existing customers.
11. Riverkeeper alleges that the Certificate Order failed to consider whether there is a need for the Project because GTN recently replaced three other compressor stations along its mainline.[21] Riverkeeper states that the Project has the "same objectives" as the three recently completed compressor stations and argues the Commission must consider whether the replacement of these compressor stations negate or reduce the need for the Project.[22]
12. As Riverkeeper raises this argument for the first time on rehearing, it is not properly before us, and we reject it.[23] The Commission looks with disfavor on parties raising issues for the first time on rehearing that could have been raised earlier because other parties are not permitted to respond to requests for rehearing and it is disruptive to the administrative process because it has the effect of moving the target for parties seeking a final ad ministrative d ecision. [24]
13. In any event, we disagree that GTN's three compressor station upgrades negate the need for the Project. The replaced mainline compressors serve a different purpose than the Project and thus have no bearing on whether there is a need for it. In 2020, GTN replaced three compressors-Athol,[25] Kent,[26] and Starbuck27[] (together, 2.55 Projects)- along its mainline pursuant to section 2.55(b) of the Commission's regulations, which allows pipelines to replace obsolete facilities with new facilities if those new facilities will have a substantially equivalent design capacity and the project meets certain other requirements.28[] Each of these 2.55 Projects was undertaken to increase system reliability, flexibility, and security on the mainline by replacing outdated 1970s-era compressors; the replacements did not increase the certificated horsepower of the preexisting compressors.29[] In other words, the 2.55 Projects did not change operations or pressure on the mainline and thus would have no effect on the manner or reliability with which gas flows into the Coyote Spring Lateral through the Project. However, the purpose of this Project is to enable GTN to provide the existing certificated level of capacity on the Coyote Springs Lateral at higher delivery pressures, while at the same time operating within GTN's mainline pressure requirements, and the flow diagrams provided by GTN demonstrate that the Project will accomplish that goal.30[] The need for the Project is, therefore, independent of, and not obviated by, any reliability upgrades that the 2.55 Projects sought to remedy on the mainline.
14. Riverkeeper next argues that the Commission should have considered recent developments in state and federal climate policy in determining whether there is a need for the Project.31[] Specifically, Riverkeeper points to policy and legislation enacted by Washington, Oregon, and California, as well as by the federal government, that evince intent to reduce reliance on natural gas in the coming decades.32[] As with the previous argument, Riverkeeper did not expressly raise this argument in the proceedings below. Riverkeeper did, however, include as an attachment to its comments on the Supplemental Environmental Assessment (Supplemental EA) comments on the Notice of Intent to Prepare an Environmental Impact Statement for the GTN XPress Project, which raise this argument in the context of the GTN XPress Project.33[] While it is questionable that this argument is properly before us, we address it below for clarity.
15. The referenced policies and legislation are insufficient to overcome the fact that there is a present need for the Project, as recognized by the Commission in the Certificate Order,34[] and that GTN is obligated to maintain certificated service levels to its customers at the present time regardless of whether there may be a reduction in demand in the future. This approach is consistent with the Commission's recent orders.35[] In those orders, the Commission rejected the argument that it was unnecessary to authorize natural gas infrastructure that would add additional capacity because New York enacted climate legislatio...
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