Pipelines

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In a proposed rule signed on February 28, but not yet published in the Federal Register, EPA proposed to significantly expand its current approach to regulating the interstate transport of ozone. Under the so-called “good neighbor” provision of the Clean Air Act, states are required to submit State Implementation Plans (SIPs) to EPA containing rules sufficient to prohibit emissions from their state that would either significantly contribute to another state’s nonattainment of national ambient air quality standards or interfere with another state’s maintenance of those standards. If a state submits a SIP that is insufficient to satisfy its good neighbor obligation, EPA must issue a Federal Implementation Plan (FIP) to fully address the problem.

Earlier this week, EPA published its proposed new methane regulations for the oil and gas sector. These new rules will have significant practical implications for the industry and have the potential to set new precedent for EPA’s authority under the Clean Air Act to address climate change for other industries as well. While the proposal is over 150 pages long, it does not include the actual text of the proposed rules, promising instead to provide proposed text in a supplemental notice early next year.

On March 23, the Second Circuit issued its opinion in N.Y. Dep’t of Enviro. Conservation v. FERC, Case No. 19-1610 (i.e., the “Empire Pipeline” case). The case concerns the Federal Energy Regulatory Commission’s (FERC or Commission) determination that the New York State Department of Environmental Conservation (NYSDEC) waived its water quality certification authority with regard to FERC’s issuance of a gas pipeline certificate when NYSDEC sought to extend its review period beyond the one-year deadline under Section 401 of the Clean Water Act (CWA or Act) by agreeing with the applicant to “post-date” the filing date of its water quality certification application by several weeks.

FERC’s consideration of indirect environmental impacts of the projects it certifies has been heavily debated as the concerns over climate change increase.  Both the National Environmental Policy Act (NEPA) and Natural Gas Act (NGA) require that FERC consider how an interstate natural gas pipeline directly and indirectly affects the human environment.  Although consideration of direct impacts may be a less controversial topic, FERC’s approach with respect to indirect impacts[1] has proven to be more complex.  It is particularly relevant in light of the Council on Environmental Quality’s (CEQ’s) June 2019 proposed guidance, directing how federal agencies should assess project-related greenhouse gas emissions, discussed in detail here and here.  The guidance suggest that FERC should employ a “rule of reason” when considering impacts of greenhouse gas emissions and if FERC lacks adequate information about these emissions, it does not need to quantify them.  This recommended approach, however, seems to conflict with how the D.C. Circuit interpreted FERC’s duty in analyzing greenhouse gas and other indirect emissions in its earlier June 2019 decision Birckhead v. FERC, USCA Case No. 18-1218 (D.C. Cir. 2019). 

As part of his regulatory reform agenda, President Donald Trump instructed federal agencies to review their regulations to identify requirements that burden businesses and industry.  See EO 13771 and EO 13777.  In order to comply with these directives, on June 8, 2017, the U.S. Department of Transportation (DOT) requested public comments to identify statutes, rules, regulations, and interpretations in policy statements or guidance “that unjustifiably delay or prevent completion of surface, maritime, and aviation transportation infrastructure projects.”

ATLANTA – April 3, 2017 – Troutman Sanders LLP announced today the addition of a team of nationally recognized lawyers specializing in oil and gas pipeline legal issues. Bob Hogfoss, Catherine Little and Annie Cook have joined the firm as partners. They previously practiced at Hunton & Williams LLP.

On January 24, President Donald J. Trump signed presidential memoranda jumpstarting the stalled Keystone XL (“Keystone”) and Dakota Access (“Dakota”) pipelines.  President Obama previously rejected TransCanda Corp’s application for a permit to cross the United States-Canadian border, finding at the time that the 1,700-mile pipeline was not in the national interest.  The United States Army Corps of Engineers (“USACE”) similarly decided  last month that it would not issue an easement allowing the Dakota pipeline to cross federal land in North Dakota, opting instead to consider alternative routes to reduce environmental and cultural impacts to the Standing Rock Sioux Tribe.