On October 18, 2018, the Federal Energy Regulatory Commission (Commission) held its October 2018 open meeting. Commissioner Chatterjee again assumed the gavel on behalf of Chairman McIntrye, who was absent for the second consecutive open meeting. McIntyre subsequently announced that he would step down from the chairmanship due to continuing health issues.

Highlights of the meeting follow: Continue Reading FERC October 2018 Open Meeting Highlights

The New Source Review (NSR) program of the Clean Air Act requires major stationary sources to go through an extensive, time-consuming, and expensive review and permitting process prior to construction. Among other requirements, such sources are required to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in ways that result in significantly increased emissions.

The pace of enforcement actions has decreased in recent years, but more than a decade-and-a-half of NSR enforcement litigation has failed to settle the main legal issues, resulting in contradictory court decisions. This lack of certainty has significant implications to how sources must evaluate compliance going forward.

To learn more, read this article originally published in Natural Gas & Electricity’s September 2018 issue. Felicia Barnes, now an associate at Beveridge & Diamond, was a contributing author.

The US Court of Appeals for the Third Circuit recently issued two decisions concerning the relationship between the Natural Gas Act (NGA) exclusive jurisdiction provision at 15 U.S.C. § 717r(d)(1) and the administrative review process for state-issued environmental permits for interstate natural gas pipeline projects. These decisions are briefly described as follows:

  • In Delaware Riverkeeper et al. v. Sec PA Dept. Env. Protection, et al. (Sept. 4, 2018), the court held that only “final” state agency actions are reviewable under the NGA’s exclusive jurisdiction provision. The court determined, however, that the state-issued water quality certification at issue was reviewable “final” action even though it was subject to further administrative review because, under the relevant state law, the certification had legal effect as issued and was the final action of the agency that issued it.
  • In Township of Bordentown, New Jersey et al. v. FERC et al. (Sept. 5, 2018), the court held that state administrative review of environmental permits issued for natural gas pipeline projects is not preempted by the NGA’s exclusive review provision, as the NGA only eliminates state court review of interstate pipeline-related state agency orders.

 

To learn more, read the entire article here, at PipelineLaw.com.

The successful completion of major infrastructure construction projects often depends on the amount of time required for federal agencies to process environmental reviews and make authorization decisions. This is particularly true where multiple federal agencies are involved in the process and the decisions or timeliness of one can influence the decisions or timeliness of another. While numerous administrations have attempted to address multi-agency federal permitting processes in an effort to gain efficiencies, the Trump administration has taken significant steps to ensure that federal agencies work together in ways that will reduce the amount of time required to complete all environmental reviews and issue all required authorizations. Continue Reading PHMSA and FERC Commit to Permitting Process MOU

The US District Court for the Middle District of Louisiana ordered the $750 million Bayou Bridge pipeline to halt construction within the Atchafalaya Basin when it concluded that the US Army Corps of Engineers’ environmental analysis likely violated the National Environmental Policy Act and the Clean Water Act due to the following deficiencies:

  • The Corps did not provide sufficient explanation for how the proposed off-site mitigation would compensate for the loss of wetlands impacted by construction; and
  • The Corps failed to sufficiently consider and address historical impacts to wetlands from past pipeline projects in the cumulative effects analysis.

On appeal, however, the US Court of Appeals for the Fifth Circuit overturned the lower court.

Read the full report on PipelineLaw.com.

On July 10, 2018, a panel of the United States Court of Appeals for the DC Circuit rejected an environmental group’s claim that FERC’s funding mechanism results in unconstitutional bias in favor of the pipeline industry. The court also rebuffed a due process attack on the Commission’s use of “tolling orders” to avoid automatic denial of rehearing requests after 30 days. The decision is noteworthy as it represents the latest rejection of similar constitutional challenges to FERC’s operations and practices that pipeline opponents have been raising with increasing frequency. The ruling also highlights the difficulty of bypassing the Natural Gas Act’s administrative rehearing and judicial review process through novel broadside attacks on the Commission’s general practices and procedures.

See the full report on PipelineLaw.com.

As the Trump administration is pushing forward on its deregulatory agenda and, in particular, its efforts to improve the Endangered Species Act (ESA) and its implementation by the US Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services), the Supreme Court is poised to hear a landmark case on designation of critical habitat under the ESA that could provide some guideposts for the Services’ new regulations.

Continue Reading Supreme Court to Evaluate Critical Habitat Limits as Services Ramp up ESA Reform Efforts

In a decision issued on April 12, 2018, a Fourth Circuit panel held (2-1) that (1) even though a pipeline leak has been repaired and remediation is ongoing under the supervision of the state environmental agency, environmental groups have standing to sue the pipeline owner, and (2) plaintiffs’ allegation that groundwater continues to carry discharged pollutants to jurisdictional waters through a “direct hydrological connection” supports liability under the Clean Water Act.

Read the full report on PipelineLaw.com.