Last week, the US District Courts for the Eleventh and Sixth Circuits joined a growing chorus of other circuits holding that a Natural Gas Act (NGA) condemnor can obtain immediate, pre-trial possession of condemned land through a preliminary injunction (PI) remedy so long as it demonstrates its substantive power of eminent domain as a FERC certificate holder under NGA § 7(h). The Sixth Circuit’s ruling also rejected arguments that export-related aspects of a domestic pipeline project somehow negated a pipeline company’s public interest showing, required for obtaining a PI granting immediate possession. In addition, the two rulings address several commonly-arising procedural issues in a manner favorable to pipeline companies seeking immediate possession in NGA condemnations. Continue Reading Two More Circuits Give Thumbs-Up to Preliminary Injunctions Granting Immediate Possession in NGA Condemnation Actions and Clarify Other Common Procedural Issues
In the aftermath of Hurricane Harvey, the devastating storm that recently swept through central Texas, both the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the U.S. Chemical Safety and Hazard Investigation Board (CSB) are urging special precautions to minimize the impact of the storm on pipeline and other energy infrastructure in the state.
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.
PHMSA has re-issued an Advisory, reminding gas and hazardous liquid pipeline operators of the potential for damage to their pipeline facilities caused by the passage of hurricanes. The Advisory, which was originally published in 2011, explains that hurricanes can adversely affect pipeline operations and can increase the risk of pipelines becoming exposed or constituting a hazard to navigation in the case of underwater pipelines in the Gulf of Mexico. According to PHMSA, such circumstances trigger an operator’s obligation to take appropriate corrective measures. 80 Fed. Reg. 36042, 36043 (June 23, 2015) (citing 49 C.F.R. Parts 192.613 (surveillance of gas pipelines); 195.401(b) (repairs on hazardous liquid pipelines); 192.613, 195.413 (underwater inspections of shallow-water gas and hazardous liquid pipelines)).
PHMSA issued an updated advisory regarding the potential for damage to pipeline facilities caused by severe flooding. Presumably prompted by the January 2015 release to the Yellowstone river in Glendive, Montana, associated with an area of exposed pipeline on the river bottom, the Agency reiterated the nine (9) actions it has set forth in prior advisories to prevent and mitigate damage to pipelines impacted by flooding. See e.g., Advisory, 76 FR 44985 (Jul. 27, 2011); see also prior pipelinelaw alert regarding the same. Notably, PHMSA adds the following five (5) additional actions to its previous list: Continue Reading Advisory Regarding Damage to Pipelines from Flooding
Two recent PHMSA-sponsored publications emphasize stakeholder advance planning as key to reducing the likelihood and consequences of pipeline incidents. The first, a Guide for Communicating Emergency Response Information for Natural Gas and Hazardous Liquids Pipelines, was published in 2014 by the Transportation Research Board (TRB) under contract with PHMSA as a resource on pre-incident information sharing between pipeline operators and emergency response planners. The second, Hazard Mitigation Planning: Practices for Land Use Planning and Development Near Pipelines, was prepared in 2015 by the Pipeline and Informed Planning Alliance (PIPA) and sponsored by PHMSA and the Federal Emergency Management Agency (FEMA) as a guide for State and local governments in considering hazard mitigation strategies for proposed land development near existing gas and hazardous liquid transmission pipelines. Both guidance documents emphasize the importance of stakeholders using available resources to understand the potential impacts of a pipeline incident and working collaboratively to minimize those impacts.
PHMSA published a final rule to amend the federal pipeline safety regulations to incorporate by reference new and updated editions of industry standards, among other non-substantive editorial corrections and clarifications. The Agency incorporates various technical industry standards and design specifications into its regulations that, as a result, effectively will have the force of law as if they were published in the federal regulations. These standards have not been updated in the regulations since 2010.
PHMSA extended the comment period for its recent proposed expansion of information that operators must submit to the National Pipeline Mapping System (NPMS). In response to an industry request for additional time, the Agency extended the comment period (which originally expired on September 29th) to December 1, 2014.
PHMSA recently proposed to significantly expand the information collected from operators through the National Pipeline Mapping System (NPMS). In the Agency’s notice and request for comment, PHMSA proposes to collect extensive information regarding pipeline attributes and extends reporting requirements to newly abandoned pipelines, regulated breakout tanks, and offshore gas gathering lines. The deadline for commenting is September 29, 2014.
Almost four years after the Enbridge crude oil spill near Marshall, Michigan, PHMSA issued an Advisory Bulletin urging operators to evaluate their safety programs and implement changes to eliminate deficiencies identified by the NTSB’s investigation of the release. PHMSA specifically directs operators to review integrity management programs, control center operations and public awareness plans, as recommended by the NTSB’s 2012 Pipeline Accident Report for the Marshall incident.