Bernard McNamee Discusses FERC’s Greenhouse Gas Draft Policy Statement in S&P Global

June 17, 2022

Recent proposals by the Federal Energy Regulatory Commission (FERC) about how to quantify and consider greenhouse gas emissions when it reviews applications to construct interstate natural gas pipelines are an effort to expand the agency’s jurisdiction and a precursor to bigger fights, McGuireWoods partner Bernard McNamee said at a June 8, 2022, webinar covered by S&P Global Commodities Insights.

“The end point of this is that it clearly looks like FERC is looking to expand its jurisdiction to deny access to natural gas, even if it’s needed, based on their determination that greenhouse gas emissions will be too harmful to the environment,” said McNamee a law firm partner and McGuireWoods Consulting senior advisor.

During the Federalist Society webinar, McNamee — a FERC commissioner from 2018 to 2020 — contended that FERC’s newly proposed gas project policies exceed its statutory authority under the Natural Gas Act.

The U.S. Court of Appeals for the D.C. Circuit has required FERC to calculate the downstream emissions of some gas projects under the National Environmental Policy Act (NEPA). But the court doesn’t say what FERC must do with the information, McNamee said.

“I think that’s going to be the next big fight, and these fights are also going to be going on to a certain extent with” liquefied natural gas export facilities, he said.

In an interview with S&P Global, McNamee said the upcoming legal battle could involve how much weight FERC gives to greenhouse gas emissions in comparison to a project’s benefits. He foresaw the potential for battles between competing interests if FERC begins denying projects.

“These are going to be extremely contentious fights if they start coming up,” McNamee said.