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`September 9, 2025
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`VIA FERC ONLINE
`Debbie-Anne A. Reese, Secretary
`Federal Energy Regulatory Commission
`888 First Street NE
`Washington, DC 20426
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`Re: Notice of Secretary of Energy Proposal to Rescind the Draft Updated
`Certificate Policy Statement and Soliciting Comments
` Certification of New Interstate Natural Gas Facilities
` Docket Nos. PL18-1-000, PL18-1-001
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`Dear Ms. Reese,
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`Delaware Riverkeeper Network and Maya K. van Rossum (collectively, “DRN”)
`submit the following comments in response to the Federal Energy Regulatory
`Commission’s (“FERC’s”) September 2, 2025 Notice of Secretary of Energy Proposal to
`Rescind the Draft Updated Certificate Policy Statement and Soliciting Comments, and also
`in direct response to the Secretary of Energy’s August 29, 2025 letter purporting to “direct”
`FERC to begin a process to rescind the Draft Updated Certificate Policy (“Draft Policy”).
`FERC should decline the Secretary’s proposal, both because it is procedurally improper and
`because the request is substantively unfounded.
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`Page 2 of 10
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`I. The Secretary Lacks the Authority to Demand Withdrawal of the Draft
`Policy
`FERC was established by Congress as an independent agency in 1977 located within
`the also newly-formed Department of Energy (“DOE”). See Department of Energy
`Organization Act of 1977, Pub. L. No. 95-91, 91 Stat. 565. This decision was meant to
`emphasize the importance of shielding FERC from political interference. Central to FERC’s
`mission is safeguarding the efficiency and availability of critical energy resources and
`preserving its independence from the Department of Energy (“DOE”) and other executive
`agencies. This obligation is critical in ensuing energy policy is driven by scientific expertise
`and long-term policy goals, not ever-changing political motivations and outside influences.
`This duty is clearly established under the DOE Organization Act. See, e.g. 42 U.S.C. § 7172(g)
`(FERC decisions “shall not be subject to further review by the Secretary or any officer or
`employee of [DOE]”). Accordingly, the Energy Secretary has no authority under the law to
`order FERC, an independent agency, to withdraw a policy statement.
`In establishing FERC as a separate agency from DOE, Congress sought to prevent
`executive excess by placing responsibility for proposing and setting prices in different
`individuals. FERC was placed within DOE because the central purpose of the Department of
`Energy Organization Act (henceforth, “the Act”) was to provide for greater centralization
`and coordination of federal energy activities. See 42 U.S.C. §§ 7111(4), 7112(3). In doing
`this, Congress hoped that despite FERC being exposed to the politically charged
`atmosphere of a cabinet department, it would be able to maintain separation and avoid
`political influence due to its enhanced requirements of openness in decision-making,
`procedural due process, and accountability to Congress. See Edward J. Grenier & Robert W.
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`Page 3 of 10
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`Clark, The Relationship Between DOE and FERC: Innovative Government or Inevitable
`Headache? 1 Energy L. J. 2 (1980).
`Under the Act, FERC, not the Secretary of Energy, determines the procedures it uses
`in implementing the Natural Gas Act (NGA), and prior precedents are “preserved until
`altered in accordance with law.” 42 U.S.C. § 7295. In particular, the Act provides that
`FERC’s “members, employees, or other personnel... shall not be responsible to or
`subject to the supervision or direction of any officer, employee, or agency of any part
`of the Department [of Energy] in the performance of their functions.” 42 U.S.C. §
`7171(d). The Act also explicitly credits FERC’s independent status by providing that FERC
`decisions “shall not be subject to further review” by DOE and granting FERC independent
`litigating authority. Id. at §§ 7171(a), 7171(i), 7172(g). These measures are clearly
`intended to insulate FERC from DOE’s influence. These provisions also give FERC the ability
`to resist attempts by DOE to impose controls and reinforce that in general, FERC is meant
`to be independent. Importantly, the provisions expressly apply to DOE, so arguments about
`recent authority changes stemming from Executive Orders still fail to overcome this
`explicit show of separation between the agencies.
`Additionally, actions taken by FERC Commissioners in the past demonstrate that the
`authority to withdraw a policy statement lies solely with the FERC Commissioners, who
`maintain significant autonomy in their roles. The DOE Act requires that commissioners
`exercise their judgment on any contact with DOE officials, providing them with discretion
`over their political relationships. Grenier, supra note 3. During the first Trump
`Administration, Energy Secretary Rick Perry attempted to direct FERC to implement a rule
`that would subsidize power generators capable of storing up to 90 days of fuel onsite. Dave
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`Page 4 of 10
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`Levitan, RADICAL PROPOSAL WOULD PROP UP COAL POWER INDUSTRY SCIENTIFIC AMERICAN (2024),
`https://www.scientificamerican.com/article/radical-proposal-would-prop-up-coal-power-
`industry/. FERC unanimously rejected the proposal, noting its duty to protect consumers
`from undue cost burdens over aligning with the administration's policy goals. Gavin Bade,
`FERC rejects Doe NOPR, kicking resilience issue to grid operators Utility Dive (2018),
`https://www.utilitydive.com/news/ferc-rejects-doe-nopr-kicking-resilience-issue-to-grid-
`operators/514334. Also, earlier this year, Commissioner Christie highlighted that FERC
`“continues to be independent in decision-making according to the terms of the DOE
`Organization Act.” James Downing, FERC’S CHRISTIE SAYS EXISTING POLICIES CAN ALIGN WITH
`TRUMP ORDER RTO INSIDER (2025), https://www.rtoinsider.com/98776-ferc-christie-first-
`meeting-chair-executive-order/.
`When Congress established FERC under the Department of Energy Organization Act,
`it made it clear that FERC must maintain its independence and insulation from shifting
`political attitudes in order to best serve energy consumers. This autonomy is both
`delineated clearly in the language of the Act, as well as the intentions behind it and actions
`by Commissioners since its inception. The Secretary has no authority under the law to
`order FERC to withdraw a policy statement, and this attempt clearly interferes with FERC’s
`mission to preserve its distinct authority from DOE and other executive influence.
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`II. The NGA and NEPA Empower FERC to Consider Environmental
`Consequences of Section 7 Projects
`Even if the Secretary’s legal position and policy preferences are not binding on
`FERC, FERC should decline to voluntarily adopt the Secretary’s views. FERC has ample
`authority to consider the environmental consequences of natural gas infrastructure in
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`Page 5 of 10
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`determining whether it is required by the public convenience and necessity, even when
`those consequences do not directly result from the construction or operation of the
`infrastructure.
`FERC’s authority to regulate natural gas infrastructure arose from a regulatory
`vacuum that the Supreme Court identified in a series of cases in the 1920s. See, e.g. Commw.
`of Pa. v. State of W. Va., 262 U.S. 553 (1923) (the transmission of natural gas “from one state
`to another for sale and consumption in the latter is interstate commerce”), State of Mo. v.
`Kan. Nat. Gas Co., 265 U.S. 298, 307 (1924) (the commerce clause of the U.S. Constitution
`“restrains the states from imposing direct burdens upon interstate commerce”). At that
`time, the Court noted: “The contention that, in the public interest, the business is one
`requiring regulation, need not be challenged. But Congress thus far has not seen fit to
`regulate it, and its silence, where it has the sole power to speak, is equivalent to a
`declaration that that particular commerce shall be free from regulation.” Id. at 308.
`After substantial hearings and investigation by the Federal Trade Commission,
`Congress enacted the Natural Gas Act of 1938, Pub. L. No. 75-688, 52 Stat. 821 (“NGA”).
`Section 1(a) “declared that the business of transporting and selling natural gas for ultimate
`distribution to the public is affected with a public interest, and . . . Federal regulation in
`matters relating to the transportation of natural gas and the sale thereof in interstate and
`foreign commerce is necessary in the public interest.” 15 U.S.C. § 717(a). Section 7 of the
`NGA requires a “certificate of public convenience and necessity” to be issued to any natural
`gas company that wishes to construct or extend interstate transportation facilities. 15
`U.S.C. § 717(f)(c).
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`Page 6 of 10
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`In Fed. Power Comm’n v. Hope Nat. Gas Co., the Supreme Court held that Section 7,
`among other provisions of the NGA was “plainly designed to protect the consumer interests
`against exploitation at the hands of private natural gas companies.” 320 U.S. 591, 612
`(1944). The Court also noted that although the Federal Power Commission (“FPC”)—
`FERC’s predecessor in administering the NGA—lacked jurisdiction over the production or
`gathering of natural gas, “consideration of conservation are material to the issuance of
`certificates of public convenience and necessity.” Id. So although the NGA does not directly
`regulate production of gas, the effect that expanded interstate natural gas infrastructure
`would have on the production of gas is an important factor in determining compliance with
`Section 7.
`Years later, when faced with a challenge to FPC’s denial of a Section 7 certificate on
`the basis that the end use was not a desirable use of limited natural gas resources, the
`Supreme Court affirmed that the NGA allowed consideration of end uses when deciding
`whether natural gas facilities were required by the public convenience and necessity. Fed
`Power Com’n v. Transcon. Gas Pipe Line Corp., 365 U.S. 1, 22 (1961). The FPC’s desire to
`consider conservation and end use of natural gas was not only limited to their immediate
`market effects, but was based on a concern that “it was wasteful to use a fuel in short
`supply in place of an abundant fuel,” id. at 14, and because approval of natural gas
`infrastructure despite this concern “would mean simply that social costs which must
`eventually be paid had been ignored.” Id. at 11. The Supreme Court agreed that Congress
`responded to this concern by amending Section 7 in 1942 to require certificates of public
`convenience and necessity not only when a natural gas company sought to extend service
`into areas already served by another natural gas company, but also where it sought to
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`Page 7 of 10
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`establish service in a currently unserved territory. Id. at 10, 14. This meant that Section 7
`now applied to all natural gas facilities for interstate transport.
`This ability to consider conservation and end use is tempered by the NGA’s limited
`jurisdiction, the Supreme Court explained, in that the FPC could not comprehensively
`regulate conservation of gas by controlling intrastate sales. Id. at 17–19. Secretary Wright’s
`allegation that the Draft Policy is creating confusion concerning FERC’s Section 7
`jurisdiction is thus unfounded, as there is an established difference between the “power
`[FERC] enjoys under [section] 7 and complete allocation power.” Id. at 18–19. Secretary
`Wright and those who share his grievance must not be allowed to create unfounded
`controversy by stubbornly refusing to comprehend this nuance.
`The Supreme Court in Transcontinental Gas Pipe Line Corp. also noted that
`Congress’s goal in comprehensive federal regulation under the NGA is particularly
`underscored where the FPC is in a position to advance policies that would otherwise
`require all states to “cooperate in enforcing a common regulation.” Id. at 445–46. Because
`such cooperation is unlikely, the public interest may be harmed by the “attractive gap”
`created by a lack of regulation in interstate transportation and sales. Id. at 446–47. For this
`reason, FERC can consider both conservation and end use when regulating interstate
`transportation of gas. Id. Climate change is an excellent example of an issue that could, and
`to date has, escaped deliberation when expanding natural gas infrastructure in America.
`Where there is no comprehensive coordination among the states to conserve natural gas to
`avoid emissions or to ensure end uses do not excessively contribute to greenhouse gas
`concentrations, FERC’s role is thrown into relief. By weighing a project’s effect on climate
`change, FERC stands where Congress placed it—as guardian of the public interest.
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`Page 8 of 10
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`In National Association for Advancement of Colored People v. Federal Power
`Commission, the Supreme Court heard a challenge to the authority of the FPC to control the
`employment practices of regulated entities with the aim of eliminating discrimination. See
`425 U.S. 662, 664 (1976). The FPC rejected NAACP’s rulemaking petition on the basis that
`there was an inadequate connection between discriminatory employment practices and the
`purposes of the Natural Gas and Federal Power Acts. Id. While the Supreme Court held that
`the reference to the “public interest” in the FPA and NGA were not broad grants of
`authority to the FPC to regulate generally in the public interest via rulemaking, it also held
`that to the extent that employment discrimination drives consumer exploitation (e.g.
`through passing on costs to the consumer), the FPC can regulate discriminatory
`employment practices. Id. at 666–69.
` Again, when an issue is germane to whether a natural gas project is required by the
`public convenience and necessity, even if FERC lacks the authority to regulate generally in
`that area, it may consider the issue in the context of its own authority and deny or
`condition a certificate on that basis. So to the extent that pipeline overbuild or
`environmental concerns are material as to whether a natural gas pipeline is required by the
`public convenience and necessity, FERC has the authority under the Natural Gas Act to
`consider those factors in evaluating Section 7 applications.
`Although the NGA authorizes FERC to consider the environmental consequences of
`interstate natural gas infrastructure, that statutory authority is underscored by the
`National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. NEPA both
`supplements the policies of the NGA and requires that the NGA be interpreted and
`administered in accordance with the policies of NEPA. Section 101 of NEPA sets forth a
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`Page 9 of 10
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`national environmental policy, and section 102 directs implementation of that policy: “The
`Congress authorizes and directs that, to the fullest extent possible . . . the policies,
`regulations, and public laws of the United States shall be interpreted and administered in
`accordance with the policies set forth in this chapter . . . .” 42 U.S.C. § 4332(1) (emphasis
`added).
`Congress also made clear that the “policies and goals set forth in [NEPA] are
`supplementary to those set forth in existing authorizations of Federal agencies.” Id. § 4335.
`In other words, whatever goals and policies FERC is charged with furthering by the NGA, it
`is also charged with carrying forth the goals and policies of NEPA. NEPA is not merely a
`“paper exercise,” it includes specific value judgments about the environment that must be
`considered alongside other statutory considerations. To treat NEPA as merely a prescribed
`method for gathering information would frustrate two of the four purposes of the statute:
`the declaration of a “national policy which will encourage productive and enjoyable
`harmony between man and his environment” and to “promote efforts which will prevent or
`eliminate damage to the environment and biosphere and stimulate the health and welfare
`of man.” Id. § 4321. NEPA requires not only the documentation, but also the serious
`consideration of environmental consequences in FERC’s decisionmaking under the NGA.
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`III. Conclusion
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`For the reasons detailed above, FERC should not withdraw the Draft Policy as
`requested by the Secretary, and should not adopt the Secretary’s limited view of FERC’s
`responsibilities under the NGA and NEPA.
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`Page 10 of 10
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`Respectfully submitted,
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`Kacy C. Manahan
`Senior Attorney
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`Caroline Bronstein
`Energy Fellow
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