Lawrence J. Bracken II, Michael S. Levine and Geoffrey B. Fehling

In today’s interconnected society, cyber breaches are inevitable. As the saying goes, it is not a matter of if, but when, an organization will be breached. This is particularly true for businesses in the energy sector, which is one of the most frequently targeted industries for cyber attacks. From producers to pipelines and refineries, energy companies’ computer systems are increasingly at risk of becoming the target of a sophisticated and targeted cyberattack, making cyber risk mitigation paramount.

See the full article, published in The American Oil & Gas Reporter, December 2017.

As reported in The Nickel Report, on Thursday, the Senate confirmed Susan Parker Bodine as the Assistant Administrator of the Environmental Protection Agency’s Office of Enforcement and Compliance Assurance (“OECA”). OECA, the chief enforcement arm of EPA, coordinates the agency’s enforcement of numerous federal environmental laws within its authority.

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Once large infrastructure projects, such as oil and natural gas pipelines, receive federal government approval, they are often the target of legal challenges from opposition groups.  Opponents repeatedly argue that the environmental review, pursuant to the National Environmental Policy Act (NEPA), was insufficient. If a court finds deficiencies in the government’s NEPA analysis, can a court halt construction or cease operations even after years of project design, permit approvals at all levels of government, and tens of millions of dollars in investment? This question was at the heart of the ongoing litigation involving the controversial Dakota Access Pipeline (DAPL), and, on October 11, Judge James Boasberg determined “no,” the court would not shut down the pipeline. This case is important precedent for projects being challenged under NEPA. The same issue is at play in the Sabal Trail case currently under review by the US Court of Appeals for the DC Circuit.  See Sierra Club, et al. v. FERC, No. 16-1329 (D.C. Cir. filed Sept. 21, 2016).

Continue Reading Federal Judge Declines to Shut Down Dakota Access Pipeline While Corps Corrects Errors in Environmental Review

On September 15, 2017, the Federal Energy Regulatory Commission (FERC or the Commission) issued an order in which it concluded that delays by the New York Department of Environmental Conservation (NYDEC or the Department) in processing Millennium Pipeline Company’s application for Clean Water Act (CWA) water quality certification constituted a waiver of the certification requirement. The order resolves a lengthy saga regarding water quality certification for Millennium’s Valley Lateral Project. It reaffirms previous FERC precedent establishing that the one-year waiver period for CWA water quality certification decisions by state agencies begins when  the state agency receives a written application for certification, regardless of the state agency’s determination that the application is incomplete or requests for further information.

Continue Reading FERC: Water Quality Certification Waiver Period for Pipeline Projects Begins Upon Receipt of a Written Request for Certification

As previously reported on PipelineLaw, the ongoing controversy over an April 2016 decision by the New York Department of Environmental Conservation (NYDEC or the Department) to deny a Clean Water Act (CWA) water quality certification to Constitution Pipeline Company (Constitution or the Company) for its interstate natural gas pipeline project in Pennsylvania and New York highlights tensions between federal and state oversight of such projects. In the latest chapter of this controversy, the Second Circuit recently denied Constitution’s petition for review of the NYDEC decision, concluding that (1) the Court lacked jurisdiction over the Company’s claims to the extent that they challenged the timeliness of the decision; and (2) the Department acted within its statutory authority in denying the certification, and its denial was not arbitrary or capricious.

Continue Reading Second Circuit Upholds State Veto of Constitution Pipeline Project Via Denial of Water Quality Certification

Despite oil already flowing through the pipeline, federal litigation involving the controversial Dakota Access Pipeline (DAPL) took another turn last week when partial summary judgment was granted to tribes challenging the adequacy of the US Army Corps of Engineers’ review of DAPL under the National Environmental Policy Act (NEPA) and other statutes. Two tribes, the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, filed suit in July 2016 attempting to block construction of the last remaining segment and operation of DAPL. As sometimes is the case, agency approvals came faster than the court’s opinion, and without a stay of proceedings DAPL began operating in early June 2017. Having granted partial summary judgment, the court did not require pipeline operations to cease, instead delaying the question of an appropriate remedy until after further briefing by the parties.

Continue Reading Federal Court Remands Corps Environmental Analysis for Dakota Access Pipeline

In his first days as President, Donald Trump has issued several directives to expedite pipeline and energy infrastructure projects and bring pipe steel manufacturing jobs back to the U.S.   Through an executive order, the President directed federal agencies to expedite environmental reviews and approvals for all infrastructure projects, with emphasis on “high priority” projects such as pipelines.  In addition, the President issued two executive memoranda to renew and expedite the approval of two oil pipeline construction projects, the Keystone XL Pipeline and the Dakota Access Pipeline (DAPL).  In another executive memo, Trump directed the Commerce Department to prepare a plan under which all new and repaired pipe used in the U.S. would be manufactured stateside.  In issuing these presidential directives, the new administration has furthered prior commitments to support pipeline infrastructure and domestic jobs, but whether these directives can truly expedite the necessary remaining approvals for Keystone XL and DAPL remains uncertain in light of limited consequence of these executive directives (beyond the executive branch) and the inevitable legal challenges.

Continue Reading Pipelines and Infrastructure Projects are Front and Center in Administration’s First Days

A group referring to itself as “Climate Direct Action” claimed to have shut down five major cross-border oil pipelines in various states on Tuesday October 11, 2016: Minnesota (Enbridge Lines 4 and 67 near Leonard), Montana (Spectra Energy’s Express Pipeline near Coal Banks Landing), North Dakota (TransCanada’s Keystone Pipeline near Walhalla) and Washington State (Kinder Morgan’s Trans Mountain Pipeline near Anacortes). Enbridge confirmed that activists with bolt cutters broke into a valve station in Minnesota prompting them to shut down two pipelines as a precautionary measure.  In total, four of the pipelines were temporarily closed and the fifth (Kinder Morgan’s Trans Mountain pipeline) was not in service when activists attempted to turn it off.

Continue Reading Activists Attempt to Shut Down Five Major Oil Pipelines

The recent shut-down of Colonial Pipeline Company’s Line 1 in Alabama should remind the public and the government just how critical oil and gas pipelines are to America’s energy supply needs.  As in most of the country, energy and food supplies are generally replaced on a short time frame, with three days being a typical limit on storage.  Any disruption in service thus creates a shortage in essential services, in very short order.  Gas prices in six Eastern states jumped quickly after the Colonial incident, due to increased costs and limits on product volume shipped by truck.  Colonial is working diligently with PHMSA to investigate, repair and remediate the incident site, and, even as that work is ongoing, Colonial is constructing a temporary bypass line to restore service as quickly as possible.  But Colonial’s Line 1 supplies upwards of 40% of all refined gasoline needs along the East Coast, and until pipeline service is restored, the effects will be noticed by a large percentage of the U.S. population.

Continue Reading Critical Energy Infrastructure Remains Just That: Critical

Since the Administration denied a Presidential (border crossing) Permit to the Keystone XL Project in 2015, a number of regional, state or local objections to new pipeline construction projects have emerged around the U.S.  Most of the protests have continued themes relied on by opposition to Keystone, including the claim that fossil fuels should remain in the ground in order to limit the impacts of climate change.  Groups such as the Sierra Club and Earth Justice have acknowledged that they selected Keystone as a tangible subject to carry their climate change message, which is otherwise rather abstract.  Ironically, the Keystone and subsequent protests seem to focus on oil and gas as more emblematic of fossil fuels than coal, and they ignore the significant safety advantages in transporting energy by pipeline as compared to any other method.  In addition, they ignore economic and safety factors that counsel in favor of new pipeline construction, and avoid discussion about the realistic availability of alternative energy resources provide a majority of U.S. demand in the near future.

Continue Reading Standing Rock Dispute Presents Issues Unique to Indian Country