“Power Grab” at the Federal Energy Regulatory Commission

Christie Decries “Mother of All Legal Weapons”

by Steve Haner

FERC Commissioner Mark Christie

Last week, the Federal Energy Regulatory Commission changed the rules on pending and future natural gas pipelines and related projects, citing the threat of catastrophic climate change and injecting environmental justice concerns.  Now with a 3-2 Democratic majority under President Joe Biden, the vote followed party lines.

One of the nay votes came from Mark Christie, formerly a member of Virginia’s State Corporation Commission and not one for pulling punches.  His dissent and follow-up statement, that this new policy “is the mother of all legal weapons” made several of the news reports.  

Below find portions of his remarks from the bench summarizing the longer statement.  Any emphasis noted in the text was his:

“What the majority does today is essentially assume it has the power to rewrite both the Natural Gas Act (NGA) and the National Environmental Policy Act (NEPA), but that is a power that we do not have; only the elected legislators in Congress have that power and they have not delegated it to us.

And the result, especially the greenhouse gas policy that purports to address climate change, is such a confusing mess of a policy that the majority sticks an “interim” label on it.   But don’t be fooled by the “interim” label.  This new policy – confusing as it is – applies right now, not only to new applications, but to all pending applications, and it will inflict material harm on all pending applications right now.  Changing the rules in the middle of the game violates any serious principle of due process, regulatory certainty, and just basic fairness.

Now let’s dispel two false narratives offered to support this action today.

First is the narrative that the courts are “telling us to do this.”  This claim rests almost entirely on one case from the D.C. Circuit, Sabal Trail, but since Sabal Trail there have been more recent opinions from the U.S. Supreme Court itself reasserting its major questions doctrine.  And the major questions doctrine holds that under the Constitution, major issues of public policy are reserved to Congress, so unless Congress has made an explicit grant of authority by law directing an agency to address a major policy issue, the agency cannot simply assume it has the power.

And whether this Commission can reject a certificate to build a natural gas facility, one that otherwise meets the criteria for approval under the Natural Gas Act, because of its alleged impact on global climate change, is clearly a major question of public policy.  I cannot think of a more important question of policy – not just energy policy, but economic policy, and yes, even national security policy…

Now the second false narrative is that this new policy is necessary to give “legal durability” to the certificates we do approve.  Seriously?  Claiming this new policy will make our certificate orders more durable on appeal is positively Orwellian.

Preventing the construction of any new natural gas project is the overt public-policy goal of many interest groups who are conducting a national campaign of legal warfare – “lawfare,” for short – against every single natural gas project.  There is no doubt about that campaign.  And today’s new policy, whatever the intent, will have the undeniable effect of advancing that policy goal.

So rather than bringing legal durability to our certificate orders, today’s new policy will undoubtedly increase the costs and uncertainties associated with pursuing natural gas projects, both here at this Commission during certificate proceedings, but even more so on appeal.  And since we know that every certificate to build a natural gas project is going to be fought in every forum, both in appellate courts and other permitting agencies, this new policy opens up a broad array of new avenues to attack every certificate this Commission approves.

Now last month in the Adelphia case I said the Commission’s new rule allowing unlimited late interventions in certificate cases was “not a legal standard, but a legal weapon.”  Well, this new certificate policy approved today is the mother of all legal weapons.  And there is no question that it will be wielded against every single natural gas project, making the costs and uncertainties of even pursuing a project exponentially more daunting.

Now we already know that a dependable natural gas supply is essential here at home for a reliable electric grid, to heat homes and support jobs, especially manufacturing jobs.  But literally at this very moment events in Europe and Ukraine graphically illustrate that domestic gas supply is also essential to our very national security.

Finally, this debate over how climate impacts should be handled in certificate cases, is really over a public policy question, one with huge implications for millions of Americans.

I happen to agree that reducing carbon emissions that impact the climate is a compelling policy goal.  But the Commission does not have an open-ended license under the U.S. Constitution or the NGA to address climate change or any other problem the majority may wish to address.

Now, to those who say “well, times have changed, and Congress was not thinking about climate change when it passed the NGA, but that’s a pressing need now so FERC should address it,” here’s an inconvenient truth:  If Congress wants to change the Commission’s mission under the NGA it has that power; FERC does not.

Let me emphasize every person and organization pursuing the policy goal of banning the use of natural gas has a right under the First Amendment to advocate for that policy.  However, a policy to block the construction of every natural gas project is a public policy question of immense importance, one that affects the lives and livelihoods of tens of millions of Americans and their communities.  In a democracy, such a huge policy question should only be decided by legislators chosen by the people, not by unelected administrative agencies.

So the real debate over the use of GHG climate impact analyses in our certificate proceedings is far more about public policy than it is about law, and ultimately comes down to these questions:  Who makes major decisions of public policy in our constitutional system?  Who decides?

And in our democracy, it is the elected legislators who have the exclusive power to decide the major policy questions that impact the lives of millions of Americans, such as a policy responding to climate change…”

https://www.ferc.gov/news-events/news/statement-commissioner-christie-certificate-policy-orders

Originally published here.

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J Mac
February 20, 2022 6:15 pm

This makes me very angry. I’m really fed up with this continual ‘Break Back Better’, over reaching, dictatorial crap from the Biden regime!

Bryan A
Reply to  J Mac
February 20, 2022 10:40 pm

Just another way that the Brandon Administration is saying FERC YOU to the populace

Chaswarnertoo
Reply to  J Mac
February 21, 2022 2:48 am

We need a great awakening from the sheeple to stop the great reset.

meiggs
Reply to  Chaswarnertoo
February 21, 2022 5:56 am

Don’t hold yer breath.

Gerry, England
Reply to  Chaswarnertoo
February 21, 2022 6:31 am

We should watch what unfolds in Nazi Canada as that is an example of a fascist regime at work against its people.

MarkW
Reply to  Gerry, England
February 21, 2022 9:38 am

The left loves to call anyone who opposes them Nazis, even while the left is eagerly adopting every policy that the Nazis ever employed.

skiman
Reply to  Gerry, England
February 21, 2022 11:44 am

Unfortunately the courts in Canada are in strong support of whatever the gov wants. The recent supreme court decision on carbon taxes is a prime example. It is a provincial mandate but the court decided otherwise not on legal grounds but on the existential threat climate change poses for humanity.

keann
Reply to  Gerry, England
February 23, 2022 4:03 am

Better to PREPARE rather than watch. New Zealand, Australia and Canada have fallen. Italy and France are on the edge; why would you imagine it can’t happen here?

TonyG
Reply to  keann
February 23, 2022 8:10 am

I can’t NOT imaging “it can’t happen here”. We’re already seeing a push for it:

https://twitter.com/RubenGallego/status/1496138717890850819?

If you don’t want to click it: he’s responding to “WRC-TV: Trucker convoy could shut down DC Beltway tomorrow” with
“Perfect time to impound and give the trucks to small trucking companies looking to expand their business.”

This is a sitting US Congresscritter.

glenn holdcroft
Reply to  Chaswarnertoo
February 22, 2022 5:33 am

Worldwide , but sheep tend to follow the leader as to what they are told thru MSM and social media and we all know who controls them .

stinkerp
Reply to  J Mac
February 21, 2022 11:11 am

Brokeback Bitter government: where every policy decision is founded on the latest leftist social whims of the week and the policymakers bitterly resent anyone who questions their idiocracy.

Tom Halla
February 20, 2022 6:16 pm

So the crew Biden is fronting for asserts the unchecked ability to set all energy policy? So if someone in the Biden administration wants Net Zero and Keep It In The Ground, those are the policies of the Federal government?i

Tom Abbott
Reply to  Tom Halla
February 21, 2022 6:07 am

I think the U.S. Supreme Court will eventually weigh in on this and I think Mark Christie is exactly right, this is an issue that should be decided by the Congress not unelected bureaucrats, and I think that the Supreme Court will rule that way.

Drake
Reply to  Tom Abbott
February 21, 2022 8:59 am

But at what cost to the businesses that have plans to provide more gas to customers?

The problem is that it will be a NO cost to the 3 activists on the board who voted for this illegal action.

We REALLY need to drain the swamp.

BTW: I believe that Brandon, in his first days in office, signed an executive order for ALL AGENCIES of the US government to proceed in this manner on “Climate Change”

MarkW
Reply to  Tom Abbott
February 21, 2022 9:41 am

Which explains why the left is so desperate to pack the courts while they have the chance.
BTW, one of the leading contenders for the soon to be open seat has been over turned time and again by the DC district courts because she repeatedly ignores the law in order to apply solutions that appeal to her sense of justice.

February 20, 2022 6:19 pm

“I happen to agree that reducing carbon emissions that impact the climate is a compelling policy goal.”

Not even close. The scientific fraud perpetrated by the IPCC is an attack on all legitimate science and deserves absolutely no consideration. The simple fact is that no amount of CO2 emissions can ever cause the catastrophic climate change they falsely claim in order to gin up support for their goal of using climate ‘justice’ (i.e. reparations) as a lever to destroy the developed worlds economy to the benefit of China.

RevJay4
Reply to  co2isnotevil
February 20, 2022 7:21 pm

That sentence you quote illustrates that Mr. Christie is just barely more intelligent that the other members of the commission, and other bureaucrats in general.

Kevin kilty
Reply to  co2isnotevil
February 21, 2022 5:53 am

I have to tell both of you that unless one is willing to do a sort-of genuflexion before the altar, you will lose any ability to move the brainwashed majority to more sensible ground. Since I don’t know Mr. Christie I have no idea his real beliefs in this regard, or his intelligence. What I do know is that in hearings where I give testimony I have to be careful never to state that I either don’t believe in the seriousness of global warming or that I am against wind turbines because it leads to people just discounting completely any sensible comments I make.

Thomas Gasloli
Reply to  Kevin kilty
February 21, 2022 7:49 am

It is precisely the genuflection by lukewarmers that has allowed this economy destroying scientific fraud to continue. The genuflection is why the previous administration failed to put an end to this by withdrawing the GHG Finding of Endangerment. You can’t defeat a big lie by pretending it is a minor fib.

Reply to  Kevin kilty
February 21, 2022 8:01 am

There is no sensible ground as long as the conclusions of the fraudulent science coming from the IPCC are accepted. They are so purposefully wrong, they left no room for common sense.

Even the lower limit ECS of about .4C per W/m^2 (2.2 Joules of surface emissions per Joule of forcing) defies COE by requiring the next Joule of forcing to be significantly more powerful than the average Joule of forcing and is even larger than the theoretical maximum of 2 Joules of incremental surface emissions per Joule of forcing.

For reference, each Joule of solar forcing MUST contribute equally and results in only 1.62 Joules of surface emissions corresponding to an ECS of only about 0.3C per W/m^2. The upper limit occurs when all surface emissions are absorbed by the atmosphere, half of which are ultimately emitted into space and only half are available to warm the surface in excess of what solar forcing can do on its own.

meiggs
Reply to  co2isnotevil
February 21, 2022 6:01 am

RIP USA

hiskorr
February 20, 2022 7:00 pm

Just another form of the “sue and settle” lawfare.

Alan Robertson
Reply to  hiskorr
February 21, 2022 12:55 am

Immediately sue, to at least try to gain an injunction to stop this madness, while cooler heads can resolve this.
FERC is acting outside the bounds of their legal authority.
Recent evidence suggests that we have already devolved into a nation not bound by laws, but take the shot, anyway.
Failure to act against these rulings will guarantee long term shortages of critical energy supplies, necessary to the health and well- being of millions of people.

All modern shortages which have produced great suffering among human populations can be laid at the feet of political maneuverings.

Doonman
February 20, 2022 7:08 pm

What evidence is there that reducing the supply of natural gas in the US to energy providers, industry and homes will decrease the amount of CO2 in the atmosphere to such a level that will stop global warming?

It was, in fact John Kerry who stated net zero would not work and we needed to remove CO2 from the air.

So if we are going to do that, what difference does it make if we burn it in the first place?

Chaswarnertoo
Reply to  Doonman
February 21, 2022 2:45 am

Lurch is a moron. Don’t believe it.

George Daddis
Reply to  Chaswarnertoo
February 21, 2022 7:25 am

Lurch used advanced math to come to that conclusion – i.e. “2+2=4”.
He simply observed INCREASES by China and India would overwhelm any conceivable reduction by the US.

RevJay4
February 20, 2022 7:19 pm

Those who have a “belief” about this faux climate change crisis, are showing their ignorance and low intelligence. There is not one study which has proven that climate changes are caused by anything man has done or may do. Its all about power and control…and good old fashioned greed.

Mike Dubrasich
Reply to  RevJay4
February 20, 2022 7:47 pm

It’s about more than power and money. It’s about crippling the US, voiding our Constitution, wrecking our economy, and enslaving the people. The Climate Hoax is and always has been about overthrowing this country. “Lawfare” is warfare, and the war goal is defeating and subjugating America. Do not misunderstand or underestimate the enemy at our throats.

meiggs
Reply to  Mike Dubrasich
February 21, 2022 6:06 am

The enemy has cut our throats, now it’s the bleed out part. Who will be the butcher and who will get the best cuts?

Independent
February 20, 2022 7:56 pm

The Democrat Party wants to destroy the United States. Not the U.S. as a place or as a country that exists, but the U.S. as it exists right now and historically. This is merely exhibit #25169.

Reply to  Independent
February 21, 2022 9:35 am

There are a few sensible Democrats left, but many have been dragged into the sewer by the Progressive Marxists who seem to have been able to take over the party, largely because they are bitter, loud and obnoxious as they apply emotional manipulation to get their way. Unless the Republicans pull a boneheaded move, this looks like it may change in November.

Reply to  co2isnotevil
February 22, 2022 7:43 am

re: “There are a few sensible Democrats left,”

Exactly Two. Sinema and Manchin. And Tulsi Gabbard does not seem to be a democrat these days …

Dena
February 20, 2022 8:13 pm

This is the result of what happened when you have Woodrow Wilson executive state come into full existence under a president who is only in power because of a massive number of political favors that need to be repaid. We are not being lead by a leader but instead by a many political deals that were made before Biden was elected. Congress is normally supposed to stop this however they like the outcome and the courts who also can stop it by design are going to be far too slow. Get ready for a rough ride because it will get worst before it gets better.

February 20, 2022 9:07 pm

They need to learn history:
5000 years ago, there was the Egyptian 1st Unified Kingdom warn period  
4400 years ago, there was the Egyptian old kingdom warm period.

3000 years ago, there was the Minoan Warm period. It was warmer than now WITHOUT fossil fuels.
Then 1000 years later, there was the Roman warm period. It was warmer than now WITHOUT fossil fuels.
Then 1000 years later, there was the Medieval warm period. It was warmer than now WITHOUT fossil fuels.
Then 1000 years later, came our current warm period. You are claiming that whatever caused those earlier warm periods suddenly quit causing warm periods, only to be replaced by man’s CO2 emission, perfectly in time for the cycle of warmth every 1000 years stay on schedule. Not very believable.

The entire climate scam crumbles on this one observation because it shows that there is nothing unusual about today’s temperature and ALL claims of unusual climate are based on claims of excess warmth caused by man’s CO2.

http://www.debunkingclimate.com/warm_periods.html
http://www.debunkingclimate.com/climatehistory.html
http://www.debunkingclimate.com

richkbarn
February 20, 2022 9:46 pm

What the FERC?

Retired_Engineer_Jim
Reply to  richkbarn
February 20, 2022 9:53 pm

Federal Energy Regulatory Commission (?)

Bryan A
Reply to  Retired_Engineer_Jim
February 20, 2022 10:43 pm

A new DC based University teaching Climate Change and Social Justice Majors
FERC U

Reply to  richkbarn
February 22, 2022 7:49 am

re: “What the FERC?”

The Federal Energy Regulatory Commission, or FERC, is an independent agency that regulates the interstate transmission of electricity, natural gas, and oil.

Note the word: “interstate” above, this means its regs are (generally) inapplicable to Texas and its separate (does not cross state lines under/within the ERCOT region) electric market (for the most part) in particular.

AWG
February 21, 2022 4:28 am

I want to thank the owners of this blog, and Mr. Guest Blogger for posting these energy articles. This is not something that one just has fed to them on the MSM news streams.

Bruce Cobb
February 21, 2022 5:26 am

I happen to agree that reducing carbon emissions that impact the climate is a compelling policy goal.

What an idiotic and totally unecessary statement. It’s like they just can’t help themselves, appeasing the enemy. That didn’t work too well with Chamberlain. Everything else he says though is on the money, so perhaps he should be given a pass.

DonM
Reply to  Bruce Cobb
February 21, 2022 11:52 am

“… reducing carbon emissions that impact the climate is a compelling policy goal.”

He had the qualifier. Even so, he should have said:

“… reducing carbon emissions that impact the climate (in a foreseeable & negative manner) is a compelling policy goal.”

Jim Gorman
February 21, 2022 5:43 am

We are fast devolving into a bureaucratic state where the executive branch of government controls everything you do, say, or think. It isn’t just this one action. Think about HUD, mask mandates, IRS rules, Treasury actions, EPA, FBI/DOJ silencing dissenters, federalization of voting rules, and on and on.

Canada is just one step ahead of us and we will reach it soon enough.

Robert Hanson
Reply to  Jim Gorman
February 21, 2022 11:08 am

Gov Newsom in CA has DECREED that as of a certain date, no more ICE cars can be sold there. And all new homes now must have solar preinstalled, raising the horribly high housing prices by thousands of $ more. By what authority does he make these decrees? And why does no one contest them?

Kevin kilty
February 21, 2022 5:48 am

Power grab is how we increasingly run the world. At the big scale there is JTrudeausy at the small scale a dweeb in Canada hacks a crowd funding site and decides he should out donors so his pals can harass them. Their crime is to disagree with him. It’s a power grab upon power grab.

Well, wait until a huge and presently quiet majority see that a power grab is their only viable response.

Reply to  Kevin kilty
February 22, 2022 7:51 am

re: “Power grab is how we increasingly run the world.”

Let’s take a second ‘run’ at that: Power grab is how we increasingly ruin the world.

February 21, 2022 7:03 am

The immediate threat is procedural, not substantive. Every application now in process may have to pause to do a climate impact statement (CIS). It could take several years to work out what that entails. Or a decade if it is litigated.

I went down this potentially long road 50 years ago. I was working my way through grad school in Phil Sci by helping design large dams for the US flood control program. One of my dams, Rowlesburg WV, became a federal court test case for the newly passed NEPA, the question being what an adequate EIS looked like? The intent of NEPA was to shut us down, which it did very well, by bogging us down.

When you want to stop federal action paperwork is as good as policy, maybe better as you do not need to make a policy. We shall now see with pipelines.

One of the first issues to come up may be which version of the wacky social cost of carbon to use, if any. The Trump version just considers damage to America (about $7 a ton of CO2 emitted) while the Obama/Biden version includes global damage guesses ($50+). This issue is presently in federal litigation.

SCC is truly nuts. They go out 300 years to get the damages, mostly from SLR. Then they assume economic growth that negates the discount rate. The actual damage numbers must be enormous but you never see them.

NH4Kx3
Reply to  David Wojick
February 21, 2022 9:15 am

Watching the evolution of increasingly bureaucratic
processes one should keep in mind the following.

From “Dune Messiah”, p. 401, by Frank Herbert:

The convoluted wording of legalisms grew up around
the necessity to hide from ourselves the violence
we intend toward each other. Between depriving a man
of one hour of his life and depriving him of his
life there exists only a difference of degree.
Elaborate euphemisms may conceal your intent to kill,
but behind any use of power over another the ultimate
assumption remains –.

Robert Hanson
Reply to  David Wojick
February 21, 2022 11:13 am

“Or a decade if it is litigated.”

Trust me, it will always be litigated. The intention being to litigate it to death. Who can start to plan anything, knowing it will take 10 years just to find out if it will be allowed to happen?

Olen
February 21, 2022 9:06 am

This is what happens when there is a lawless election, cutting the people’s votes out of the process by one party and the other party acquiesces. And neither state legislators or the congress doing their job to decertify the election for obvious fraud. A lawless government can do anything regardless of the law.

February 21, 2022 9:21 am

I don’t know the reasoning for Commissioner Clements to vote “nay” on this, but this screed tells me that at least FOUR of them need to be booted to the curb ASAP. Christie is just fine with destroying the economy, freezing people in their homes, famine from lack of fertilizers – he’s just mad it wasn’t done the “right” way.

John Pickens
February 21, 2022 10:12 am

So, FERC is going to have to override all objections to electric transmission lines? If they are serious about implementation of the all electric future, they’ll have to “bulldoze” through all the approvals. When that doesn’t happen, it will show, yet again, the hypocrisy in the “green” future.

Robert Hanson
Reply to  John Pickens
February 21, 2022 11:20 am

the hypocrisy in the “green” future.”

The US is the only country that has lowered it’s Co2 output, due to replacing coal plants with gas generation. By preventing any more gas plants, it will be necessary to allow “as an emergency measure” to increase the amount of coal based generation. The Greens don’t bother to realize that this will cause more Co2 rather than less. Another example of ‘don’t confuse me with the facts, my minds made up’….

stinkerp
February 21, 2022 11:06 am

under the Constitution, major issues of public policy are reserved to Congress

Nope. Under the Constitution, all issues of public policy are reserved to Congress. Period. No exceptions. Just because progressives and their useful idiots on activist Supreme Courts in the past have decided that agencies of the Executive branch have limited rule-making authority to enforce the laws passed by Congress doesn’t mean it’s so. Nowhere in the Constitution is that power delegated to any other branch than Congress. It was designed that way so there would be debate and consensus by the representatives of the governed—the citizens of the United States who would be affected by those laws—who are accountable to their constituents who can kick them out of office in the next election if they don’t think they are being represented well. That’s how representative government works.

Executive agencies, in their proper role according to the Constitution, propose regulations that Congress then debates and approves (or not). Congress, in its proper role, considers regulations or packages of regulations in single bills, unattached to other bills, so they can debate the specific merits of the legislation. That’s how it’s supposed to work. But Congress has become lazy over time and addicted to power, appearances, to “le grand projets”, massive budget bills, socially-consequential legislation to shape human behavior, and getting re-elected over time and have neglected the simple, often boring, dirty work of legislating.

Last edited 3 months ago by stinkerp
Joe Dun
February 21, 2022 8:01 pm

The Constitution grants only very limited powers to the federal government. At least if you understand normal English. But many decades ago, both Democrats and to a lesser extent, the Republicans have redefined the “general welfare” clause to expand their power. And time has proven that there is no limit to the power grab.
Sadly, most people have no clue about this, and vote these people back into power.

CO2Greens
February 22, 2022 6:03 pm

This could screw up another major project for us in Alaska. This administration is crushing the viability of future energy projects in our state.

Johnathan Galt
February 22, 2022 6:10 pm

The Xiden administration has not missed a single opportunity to hurt the poor in America while helping its enemies.

Sharyl
February 23, 2022 12:09 am

Climate change isn’t really of any concern to these fraudsters…power and control over peoples’ lives is always their goal. If it were actually possible to suck all the CO2 out of our atmosphere, we’d all b dead, all the oceans would b dead, everything we grow to eat would b dead, birds, fish, all animals would b dead. Nature hates a vacuum, so what do these geniuses think would fill the void if all CO2 was actually removed??? I’m so sick of these hucksters and money-grubbing liars…..

Joe E
February 23, 2022 5:49 am

“The updates intend to provide a legally durable path forward for the natural gas industry, landowners and other parties, said Democratic FERC Chair Richard Glick. For too long, FERC has failed to abide by its legal mandate to ensure that the projects it approves are in the public interest, Glick said.”

What Glick fails to say is that almost all of FERC’s issued certificates are contested once issued and in almost all cases the courts found the certificates to be issued in compliance with the NGA. As a recently retired FERC employee I was well aware of that. In those cases plaintiffs asserted that FERC did not consider ‘climate change’ in their decision making. But the courts would say that the Commission had to consider effects that were outlined in the NGA, because that was its charter; in recent years more environmental issues were considered (such as compressor noise, destruction of areas where pipelines were installed etc.) but there was no criteria or other guideline in the NGA to consider ‘climate change’ so the cases were thrown out. So now these people are taking another tack after continually losing in court.

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