10
well as meeting all conditions in MARAD’s forthcoming deepwater port license and the FERC
order (when issued).
II.
SUMMARY OF FINDINGS AND CONCLUSIONS
This Order presents DOE/FE’s findings and conclusions on all issues associated with
Delfin’s proposed exports under NGA section 3(a), including both environmental and non-
environmental issues. As the basis for this Order, DOE/FE has reviewed a substantial
administrative record that includes (but is not limited to) the following: Delfin’s Application; the
motions to intervene and/or protests opposing the Application filed by V4EI, Sierra Club, and
APGA; the motion to intervene supporting the Application filed by API; DOE/FE’s 2014 and
2015 LNG Export Studies; the Addendum; the LCA GHG Report; public comments received on
DOE/FE’s various analyses; MARAD’s final EIS; and MARAD’s ROD approving Delfin’s
deepwater port license with conditions.
On the basis of this record, DOE/FE has determined that it has not been shown that
Delfin’s proposed exports will be inconsistent with the public interest, as is required to deny
Delfin’s Application under NGA section 3(a). DOE/FE therefore authorizes Delfin’s export of
domestically produced LNG from its proposed floating Liquefaction Facility to non-FTA
countries in a total volume equivalent to 657.5 Bcf/yr of natural gas. This authorization is
subject to the Terms and Conditions and Ordering Paragraphs set forth herein, which incorporate
by reference the conditions to the deepwater port license discussed in the ROD (to be established
in Delfin’s forthcoming license). See infra §§ XIII-XV.
III.
PUBLIC INTEREST STANDARD
Section 3(a) of the NGA sets forth the standard for review of the Application:
[N]o person shall export any natural gas from the United States to a foreign country
or import any natural gas from a foreign country without first having secured an
11
order of the
[Secretary of Energy
33
] authorizing it to do so. The [Secretary] shall
issue such order upon application, unless after opportunity for hearing, [he] finds
that the proposed exportation or importation will not be consistent with the public
interest. The [Secretary] may by [the Secretary’s] order grant such application, in
whole or part, with such modification and upon such terms and conditions as the
[Secretary] may find necessary or appropriate.
15 U.S.C. § 717b(a). This provision creates a rebuttable presumption that a proposed export of
natural gas is in the public interest. DOE/FE must grant such an application unless opponents of
the application overcome that presumption by making an affirmative showing of inconsistency
with the public interest.
34
While section 3(a) establishes a broad public interest standard and a presumption
favoring export authorizations, the statute does not define “public interest” or identify criteria
that must be considered. In prior decisions, however, DOE/FE has identified a range of factors
that it evaluates when reviewing an application for export authorization. These factors include
economic impacts, international impacts, security of natural gas supply, and environmental
impacts, among others. To conduct this review, DOE/FE looks to record evidence developed in
the application proceeding.
35
DOE/FE’s prior decisions have also looked to certain principles established in its 1984
Policy Guidelines.
36
The goals of the Policy Guidelines are to minimize federal control and
33
The Secretary’s authority was established by the Department of Energy Organization Act, 42 U.S.C. § 7172,
which transferred jurisdiction over imports and export authorizations from the Federal Power Commission to the
Secretary of Energy.
34
See, e.g., Sabine Pass Liquefaction, LLC, DOE/FE Order No. 2961, FE Docket No. 10-111-LNG, Opinion and
Order Conditionally Granting Long-Term Authorization to Export Liquefied Natural Gas From Sabine Pass LNG
Terminal to Non-Free Trade Agreement Nations, at 28 (May 20, 2011) [hereinafter Sabine Pass]; see also Phillips
Alaska Natural Gas Corp. & Marathon Oil Co., DOE/FE Order No. 1473, FE Docket No. 96-99-LNG, Order
Extending Authorization to Export Liquefied Natural Gas from Alaska, at 13 (April 2, 1999) [hereinafter Phillips
Alaska Natural Gas], citing Panhandle Producers & Royalty Owners Ass’n v. ERA, 822 F.2d 1105, 1111 (D.C. Cir.
1987).
35
See, e.g., Sabine Pass, DOE/FE Order No. 2961, at 28-42 (reviewing record evidence in issuing conditional
authorization).
36
New Policy Guidelines and Delegations Order Relating to Regulation of Imported Natural Gas, 49 Fed. Reg. 6684
(Feb. 22, 1984) [hereinafter 1984 Policy Guidelines].
12
involvement in energy markets and to promote a balanced and mixed energy resource system.
The Guidelines provide that:
The market, not government, should determine the price and other contract terms
of imported [or exported] natural gas …. The federal government’s primary
responsibility in authorizing imports [or exports] will be to evaluate the need for
the gas and whether the import [or export] arrangement will provide the gas on a
competitively priced basis for the duration of the contract while minimizing
regulatory impediments to a freely operating market.
37
While nominally applicable to natural gas import cases, DOE/FE subsequently held in Order No.
1473 that the same policies should be applied to natural gas export applications.
38
In Order No. 1473, DOE/FE stated that it was guided by DOE Delegation Order No.
0204-111. That delegation order, which authorized the Administrator of the Economic
Regulatory Administration to exercise the agency’s review authority under NGA section 3,
directed the Administrator to regulate exports “based on a consideration of the domestic need for
the gas to be exported and such other matters as the Administrator finds in the circumstances of a
particular case to be appropriate.”
39
In February 1989, the Assistant Secretary for Fossil Energy
assumed the delegated responsibilities of the Administrator of ERA.
40
Although DOE Delegation Order No. 0204-111 is no longer in effect, DOE/FE’s review
of export applications has continued to focus on: (i) the domestic need for the natural gas
proposed to be exported, (ii) whether the proposed exports pose a threat to the security of
domestic natural gas supplies, (iii) whether the arrangement is consistent with DOE/FE’s policy
37
Id. at 6685.
38
Phillips Alaska Natural Gas, DOE/FE Order No. 1473, at 14 (citing Yukon Pacific Corp., DOE/FE Order No. 350,
Order Granting Authorization to Export Liquefied Natural Gas from Alaska, 1 FE ¶ 70,259, at 71,128 (1989)).
39
DOE Delegation Order No. 0204-111, at 1; see also 1984 Policy Guidelines, 49 Fed. Reg. at 6690.
40
See Applications for Authorization to Construct, Operate, or Modify Facilities Used for the Export or Import of
Natural Gas, 62 Fed. Reg. 30,435, 30,437 n.15 (June 4, 1997) (citing DOE Delegation Order No. 0204-127, 54 Fed.
Reg. 11,436 ( Mar. 20, 1989)).
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