Recently proposed legislation in the U.S. House of Representatives would require FERC to revise its review process for proposed natural gas pipeline expansion projects to include additional analysis of cumulative impacts in a single region or State and extended environmental monitoring. While this bill is unlikely to gain traction in the Republican-controlled House, it is indicative of an ongoing debate about the need for and environmental impacts of new pipeline construction, and the role of both federal and state regulators in reviewing and approving such projects—a debate that has attracted national attention in the wake of the Obama administration’s rejection of the Keystone XL project in late 2015.
The bill, proposed by Representative Bonnie Watson Coleman (D-NJ) as the” Safe and Accountable Federal Energy Review Pipelines Act of 2016,” would require that the existing FERC certificate process include, among other things:
- An evidentiary hearing on any contested issue of need or a cumulative review of planned infrastructure projects in a region, reviewing their necessity and impact relative to each other;
- In conjunction with current National Environmental Policy Act (NEPA) requirements for Environmental Impact Statements (EIS) preparation, an analysis of the cumulative impacts of other interstate natural gas pipeline projects located within the same state, as well as projects within 100 miles, that are approved or in the FERC pre-filing process within the same year or before the issuance of the draft EIS; and
- Monitoring of approved projects for five years to ensure agreed upon environmental mitigation steps have been fully implemented.
Pursuant to existing law, FERC already (1) conducts extensive public meetings and considers all written comments in determining whether to issue a certificate of public convenience and necessity; (2) reviews and analyzes whether there is a demonstrated commercial need for a proposed project and evaluates alternatives; and (3) conducts comprehensive environmental (and other) monitoring of certificated projects to ensure compliance with a certificate conditions.
State-level politicians and regulators have made similar efforts recently to control, slow, or restrict the expansion of pipeline infrastructure within their jurisdictions. In Georgia, for example, the State legislature passed a temporary moratorium on permit issuance and the exercise of eminent domain for new liquid pipeline construction while a State committee examines impacts associated with pipeline siting, construction, and operation. Meanwhile, the New York Attorney General has repeatedly expressed his opposition to the FERC-certificated Constitution Pipeline project, prompting the New York environmental protection agency to deny the project’s application for a water quality certification under the Clean Water Act (effectively stopping the project until litigation over this denial has concluded). In addition, the Massachusetts Senate recently approved two anti-pipeline bills, one that would prevent electric utilities from billing ratepayers to pay for gas pipeline expansions that would serve gas-fired power plants and another that would prohibit construction of new pipelines within 1,000 feet of a residential neighborhood, school, or senior center.
These efforts stand in stark contrast to existing federal laws that are intended to facilitate natural gas pipeline construction. The Energy Policy Act of 2005, for example, made several amendments to the federal Natural Gas Act to expedite approvals for natural gas projects—including designating FERC as the lead agency for coordinating federal approvals and NEPA compliance, requiring FERC to establish a schedule to ensure “expeditious completion” of all federal authorizations, and providing for streamlined reviews of any state or federal agency authorizations issued or withheld for natural gas projects in the federal Circuit Courts of Appeals. 15 U.S.C. §§ 717n; 717r. The Fixing America’s Surface Transportation (FAST) Act, which became law in December 2015, similarly creates a mechanism for coordinated environmental review and permitting of certain energy projects in accordance with deadlines and a timetable set by a lead agency.
Transportation of oil and natural gas by pipeline continues to be the safest mode of transportation as compared to truck, rail, and barge. Further, the Energy Information Administration estimates that oil and natural gas will supply 60% of U.S. energy needs by 2040. FERC has commented on existing capacity constraints, including in New England, New York and the Mid Atlantic. Opposition to new pipeline construction threatens the ability of planned projects to lessen these constraints and safely transport U.S. supply to consumers.