This is part of Utility Dive’s ongoing “FERC in Focus” series where we explore trends, challenges and other significant developments affecting the commission.
Building on an effort started by former Federal Energy Regulatory Commission Chairman Richard Glick, Willie Phillips, the agency’s acting chairman, has made environmental justice one of his three top priorities.
FERC had its first-ever environmental justice roundtable in March and expects to issue guidance early next year to provide clarity to industry and communities around how the agency considers environmental justice issues, Phillips said during a Nov. 16 media briefing.
“We also continue to look at incorporating the impacts on environmental justice communities when we consider projects in our decision making,” Phillips said. “We continue to work, but there's more work to be done.”
In this FERC in Focus, we’re taking a look at how the agency is changing its approach to environmental justice and whether it has affected its permitting decisions, especially on natural gas pipeline infrastructure and liquefied natural gas export projects.
But first, some numbers. Since the beginning of 2019, FERC has approved 21 LNG export facilities, plus 168 pipeline projects that include nearly 2,500 miles of new pipeline, according to the agency’s monthly infrastructure reports.
To get a sense of how many people these projects affect, just one of them, NextDecade’s roughly $18.4 billion Rio Grande LNG terminal under construction in Brownsville, Texas, would potentially affect 286 environmental justice communities while a related pipeline could affect 106 EJ communities, according to FERC’s April decision approving the projects.
Elevating EJ at FERC
In roughly the last two years, FERC has made significant progress on incorporating environmental justice into its activities, according to Conrad Bolston, senior counsel for environmental justice and equity at the agency.
“The hope is to have a fair regulation and to take on any barriers to that fairness in a way that's proactive, [and] directed in a way that's consistent,” Bolston said this month in a webinar hosted by the National Association of Regulatory Utility Commissioners.
However, FERC’s evolving environmental justice efforts are still in the early stages, according to Bolston. “We're at the middle, or the end, of the beginning of addressing environmental justice issues at the commission,” he said.
In its increased focus on environmental justice, FERC established the Environmental Justice and Equity Group housed in the Office of General Counsel.
The group helps review and edit environmental review documents, draft orders, rules and policies, and is involved in training and outreach, according to Bolston. FERC’s Office of Energy Projects also has a group dedicated to environmental justice, he said.
The group is also working on FERC’s second two-year environmental justice action plan, according to Bolston. The first one called for building up FERC’s Office of Public Participation; strengthening tribal government consultation and engagement; ensuring natural gas and hydroelectric project reviews are consistent with environmental justice; and strengthening FERC staff’s ability to promote equity in the agency’s work.
FERC staff is adjusting its policies, practices and procedures and developing environmental justice guidance based on public comments received after its environmental justice roundtable meeting in March, Bolston said.
The comments may affect FERC’s internal guidance in terms of how the agency identifies environmental justice communities or how it analyzes how infrastructure proposals affect communities, according to Bolston.
In addition, FERC’s Office of Public Participation, launched in 2021, is helping the public navigate the agency and be more involved in its deliberations, Bolston said.
“We're all collectively staffing up … on the engagement and public participation front,” Bolston said. “This has been a pretty big buildup over the last couple of years.”
Proactive stakeholder engagement is a key element to FERC’s environmental justice efforts, according to Bolston. “It requires consistent effort, consistent resources,” he said. “You're trying to build meaningful relationships, and build trust among the community and really get them to engage in what is a difficult and very complex area of law.”
‘A good first step’
So far, environmental justice advocates say they see little change in the results of FERC’s decisions.
While FERC’s environmental justice roundtable was a positive development, the agency is greenlighting LNG projects that hurt communities in Louisiana and Texas, according to Jasmine Jennings, a federal regulatory affairs attorney at WE ACT for Environmental Justice, a New York City-based advocacy group.
Those communities already have thousands of permitted facilities and new LNG terminals and pipelines are adding to the pollution and health issues they face, Jennings said, noting the agency has never rejected a project over environmental justice issues, while other agencies have revoked or denied permits.
“Certainly in the last year, we've heard FERC talk about environmental justice a lot, and I think that's obviously a good first step,” Moneen Nasmith, a senior attorney at Earthjustice, said. “But whatever progress we're seeing is at the margins at best.”
There has been “small progress” in some cases, she said. For example, FERC in September responded to environmental justice concerns by ordering Northern Natural Gas to limit nighttime noise from its Northern Lights 2023 expansion project, according to Nasmith.
However, the way FERC handled its Rio Grande and Texas LNG decisions shows the agency has a lot of work to do to demonstrate that its commitment to environmental justice is “more than just words,” Nasmith said.
In 2021, in a case known as Vecinos, the U.S. Court of Appeals for the District of Columbia Circuit remanded FERC’s approval of two LNG projects, saying the agency failed to adequately explain its review of how they would affect environmental justice communities and carbon emissions.
When FERC staff revised its environmental analysis for the projects, they found the Rio Grande LNG and Rio Bravo pipeline projects would affect an additional 367 environmental justice communities beyond the 25 communities they initially assessed. In the revised assessment for the Texas LNG project, staff said it would affect an additional 264 environmental justice communities compared with the five communities assessed in the agency’s initial analysis.
However, no one in those newly identified communities were able to comment on the projects or offer ways to reduce their effects because the agency didn’t issue a supplemental environmental impact statement, according to FERC Commissioner Allison Clements, who dissented from the decisions.
The appeals court is expected to hold oral arguments next year on the appeal of FERC’s latest decisions on the projects.
How permanent will FERC’s EJ focus be?
In a change from a few years ago, pipeline developers are seeing increased environmental justice-related data requests from FERC staff as the agency reviews proposed projects, according to Emily Mallen, a partner at Akin Gump Strauss Hauer & Feld who represents pipeline developers.
“There's a lot more of an emphasis on the impact of your project to environmental justice communities … and so the [National Environmental Policy Act] document is going to be more robust in terms of discussions of environmental justice impacts,” Mallen said.
At the start of the Biden administration, environmental justice analysis was “tucked away in a small paragraph,” she said. “The agency is putting a lot of manpower, [and] brainpower towards considering [environmental justice] impact in its decision making in ways it wasn't doing before.”
Mallen said she will closely watch the appeals of FERC’s Rio Grande and Texas LNG decisions to see if the court gives the agency more guidance on how it should consider environmental justice issues.
“I do think that [FERC is] not going to do much more, quite frankly, until they have a court telling them they're not doing it correctly,” Mallen said.
It is unclear how firmly rooted FERC’s focus on environmental justice will be, Mallen said, noting a different administration and a new set of agency commissioners could have a different stance on the issue.
“How much of this gets codified through court decisions, that creates a bank of precedent that the agency needs to be following, I think remains to be seen,” Mallen said.
