In February, the Federal Energy Regulatory Commission proposed two policy statements that called for the consideration of climate impacts in pipeline certificate proceedings. In April, we filed two comments letters on these proposed policy statements, including one letter filed jointly with over two dozen legal scholars rebutting arguments that the Commission lacks authority to consider climate effects in its oversight of natural gas infrastructure under the Natural Gas Act and, relatedly, that the proposed policy statements implicate the major questions doctrine. The legal scholars’ comments explained that the proposed policy statements are not the type of unheralded and transformative expansion in agency regulatory authority found to have implicated the doctrine in past cases.
Today, we submitted supplemental comments rebutting arguments that the Supreme Court’s recent decision on the major questions doctrine in West Virginia v. EPA somehow affects the Commission’s ability to finalize its proposed policy statements. Our supplemental comments explain that nothing in West Virginia changes the conclusion that the major questions doctrine does not apply to the proposed policy statements because they are neither unheralded nor transformative, which West Virginia makes clear are required for a case to be extraordinary enough to trigger the doctrine.