A bill intended to streamline the siting of natural gas pipelines and increase transparency is advancing through the U.S. House. As approved by voice vote, H.R. 2910 , would facilitate concurrent federal and state agency reviews to help streamline the siting review process under the Natural Gas Act (NGA) which is led by the Federal Energy Regulatory Commission (FERC). This bill comes at a time when the permitting process for natural gas pipelines has become protracted, cumbersome, and subject to third party challenges and delays at the federal, state and local levels.
The bill would compel federal and state agencies participating in gas pipeline project reviews under the NGA and the National Environmental Policy Act (NEPA) to conduct their reviews concurrently with FERC and to adhere to the schedule established by FERC. FERC would be “the only lead agency” and other agencies participating in project-related NEPA review would be required to give deference, to the maximum extent authorized by law, to the scope of the project-related NEPA review that FERC determines is appropriate. FERC would issue an “invitation” (including a deadline for a response) to any Federal or State agency, local government, or Indian Tribe that may issue a Federal authorization (e.g., a permit) or is required to consult with FERC. Further, the bill would place limits on agencies that have not been designated as participating agencies, including that they may not conduct a supplemental NEPA review unless certain exceptions apply. FERC may not consider any comments submitted by that agency or include those comments in the record for the project-related NEPA review.
Federal authorizations, which are typically in the form of permits, would be required no later than 90 days after FERC completes its NEPA review. Notice is required to the project applicant not later than 30 days after the agency receives an application for a Federal authorization, indicating whether it is ready for processing, if not describing the information that is lacking, and submit regular reports to FERC on the progress in considering the application. Notifications must be submitted to Congress if any agency, including FERC, does not meet its review deadline. In a provision targeting the challenges applicants face in performing on the ground surveys, a Federal or state agency considering an application that requires survey data must consider data gathered by aerial or other remote means (e.g., drone) and may grant conditional approval based on that data. Further, the bill would expressly allow a project applicant to fund a third party to assist in reviewing the application for a Federal or state authorization.
The bill is supported by twenty trade associations, including INGAA, API, AGA, Chamber of Commerce, Consumer Energy Alliance, and the Independent Petroleum Association of America. Those groups sent a letter in support of the legislation to Republican and Democratic House Energy Subcommittee leaders. Democrats expressed concerns that HR 2910 could give FERC too much authority and limit input from participating agencies in pipeline reviews. Other complaints include that the requirements are duplicative of provisions in existing law under the Fixing American’s Surface Transportation (FAST) Act. The bill will now advance to the full House Energy and Commerce Committee.
Legislation targeted to improve the siting and construction permitting process for gas pipeline infrastructure is not new and has been previously passed by both Democratic and Republican administrations. See Energy Policy Act of 2005; FAST Act of 2015. That said, prior laws have not been particularly effective to date at expediting the review process and increasing interagency coordination and efficiencies. While the country faces a need for additional infrastructure to transport new natural gas supplies to markets, opponents continue to seek to delay and hamper the siting review process under the NGA and NEPA.
State agencies participating in the FERC natural gas pipeline reviews have recently stalled projects that had received FERC approval, including with respect to projects in New York and Pennsylvania. Several court cases are pending with respect to a State’s authority to issue, deny or waive a Clean Water Act 401 water quality certification for natural gas pipeline projects. In particular, the D.C. Circuit Court of Appeals recently dismissed a challenge for lack of standing, while also indicating that the State of New York’s delay in issuing a water quality certification under the Clean Water Act is an issue for FERC to decide. Millennium Pipeline Co., L.L.C. v. Basil Seggos and NYSDEC, No. 16-1415, 2017 U.S. App. LEXIS 11157, at *2 (D.C. Cir. June 23, 2017) (“even if the Department has unlawfully delayed acting on Millennium’s application, its inaction would operate as a waiver, enabling Millennium to bypass the Department and proceed to obtain approval from FERC”).
If enacted as drafted, HR 2910 should provide relief on a variety of fronts for pipeline project proponents in terms of requiring participating agencies to conduct more timely concurrent reviews, maintain increased transparency on whether an application is considered complete, and in expressly allowing them to conducting required surveys remotely. For example, in recent years PHMSA has struggled with its role as participating agency in FERC and NEPA review, claiming on occasion that it believes it should conduct an independent environmental review under NEPA for certain projects. If this bill becomes law, this could further streamline PHMSA and other agency reviews and required approvals. Meanwhile, the Senate Energy and Natural Resources Committee has revived legislation that died last year in the House. Introduced on June 28, 2017 by Senator Lisa Murkowski (R-AK), S.1460 seeks to accelerate pipeline permitting, enhance grid cyber security and other proposals