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.
Continue Reading

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

The question of whether Presidential Permit authority is constitutional and/or subject to judicial review has been and continues to be an unsettled issue.  A little more than a month after the State Department’s November 2015 denial of TransCanada’s application for a Presidential Permit to construct its Keystone XL pipeline project, the United States District Court for the District of Minnesota ruled in White Earth Nation et al. v. Kerry et al. that State Department Presidential Permitting decisions are Presidential in nature and are therefore not subject to judicial review.  Approximately one month later, in January 2016, TransCanada filed two separate actions to challenge the Obama administration’s rejection of its application for a Presidential Permit for the Keystone XL pipeline.  The first action was filed in federal district court in Texas to challenge the denial of the Keystone Presidential Permit, and the second is a Notice of Intent to submit a claim to arbitration under Chapter 11 of the North American Free Trade Agreement (NAFTA).

Continue Reading

FERC recently published a revised draft Guidance Manual for Environmental Report Preparation for review and public comment. The revised Guidance Manual updates FERC’s 2002 guidance manual on environmental report preparation for projects seeking FERC authorization under the Natural Gas Act (NGA), supplementing the previous guidance as well as adding new sections explaining requirements for environmental report preparation.
Continue Reading

Despite veto threats from the Obama Administration, H.R. 3301, the “North American Energy Infrastructure Act”, passed in the U.S. House of Representatives by a vote of 238 to 173 on June 24, 2014.  The purpose of the bill (subject of a prior post) is to eliminate the Presidential permitting process for cross-border pipelines and electric transmission facilities.  For oil pipelines and electric transmission lines, the bill would only require a “certificate of crossing” for the construction, connection, operation or maintenance of the cross-border segment of a proposed project.  The certificate would be issued by the State Department (for oil pipelines) or by the Department of Energy (for electric transmission lines).  These Departments would be required to issue certificates of crossing within 120 days of completion of review of the proposed “cross-border segment” under the National Environmental Policy Act (NEPA), unless they find that the project is not in the national public interest.  For natural gas pipeline projects, a certificate of crossing would not be required, as the bill leaves in place the current authorization process of the Natural Gas Act, under which FERC approves siting, construction or operation of natural gas pipeline facilities, and the import or export of natural gas.  The bill would, however, eliminate the Presidential Permit requirement for natural gas pipeline projects.

Continue Reading

The State Department recently released the Final Environmental Impact Statement (FEIS) for the Keystone XL Pipeline. As a final installment to the project’s review under the National Environmental Policy Act (NEPA), the FEIS assesses the potential impacts associated with the proposed pipeline and its alternatives.
Continue Reading

Two bills aimed at expediting pipeline construction permitting and, in turn, U.S. energy production are moving through the House of Representatives, but face opposition in the Senate and the White House. The Natural Gas Pipeline Permitting Reform Act passed the House of Representatives by a large majority on Thursday, November 21, 2013.
Continue Reading

On October 22, 2013, House Representatives Upton (R-MI) and Green (D-TX) introduced the North American Energy Infrastructure Act, H.R. 3301. The bill is intended to streamline the permitting process for cross-border pipelines and electric transmission facilities by eliminating the Presidential permitting process, requiring that all requests for approval of cross-border oil pipelines be administered directly by the Secretary of Commerce and all requests for natural gas pipeline crossings be administered directly by FERC.
Continue Reading