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On July 6, 2020, the Supreme Court partially and temporarily overturned a nationwide injunction that prevented the U.S. Army Corps of Engineers (“Corps”) from using Nationwide Permit 12 (“NWP 12”) for construction of new oil and gas pipelines. NWP 12 authorizes “utility line activities” that have minimal impacts on jurisdictional waters under the Clean Water Act. In April 2020, a federal judge in the District of Montana, while considering challenges to the construction of the Keystone XL pipeline, completely vacated the Corps’ use of NWP 12 for all activities (including pipelines, broadband, electric, water, and sewer) until the Corps consulted with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service pursuant to the Endangered Species Act. Nearly a month later, following a motion from the Corps seeking relief from that vacatur, the district court amended its April 2020 ruling to apply only to new oil and gas pipeline construction projects other than “maintenance, inspection, and repair activities” on existing pipelines.
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Continue Reading Update: U.S. Supreme Court Allows Use of NWP 12

On June 9, 2020, FERC ordered amendments to its regulations to prohibit natural gas projects authorized under Sections 3 and 7 of the Natural Gas Act (“NGA”) from commencing construction activities until after (i) the deadline for filing a request for rehearing has lapsed without a request being filed, or (ii) FERC has acted upon the merits of any timely-filed request for rehearing (“Order No. 871”). The new regulation will become effective, without any opportunity to file comments, 30 days after the Final Rule is published in the Federal Register. Because FERC’s orders on rehearing sometimes take several months, and in some cases more than a year to be issued, both liquefied natural gas (“LNG”) and natural gas pipeline projects approved by FERC could be significantly delayed from commencing construction as a result of Order No. 871. …
Continue Reading FERC to Block LNG, Pipeline Project Construction Until After Rehearing Process is Complete

The U.S. District Court for Montana amended and narrowed its April 15, 2020 order yesterday vacating Nationwide Permit (NWP) 12, which authorizes minimal impacts from “utility line activities” to jurisdictional waters.  Despite the case centering on the Keystone XL Pipeline, as previously reported, the court’s April 15 order vacated NWP 12 nationwide for all activities (including pipelines, broadband, electric, water and sewer) until the U.S. Army Corps of Engineers (Corps) consults with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) pursuant to the Endangered Species Act (ESA).  Nearly a month later, the court amended the vacatur’s applicability by limiting it to the construction of new oil and gas pipelines, pending completion of the consultation process and compliance with all environmental statutes and regulations.  Under the amended order, the Corps may continue to authorize the use of NWP 12 for “maintenance, inspection, and repair activities” on existing projects, including existing pipelines, as well as non-pipeline construction activities (e.g., broadband, electric, water, and sewer).
Continue Reading Court Limits Nationwide Permit 12 Vacatur to New Oil and Gas Pipeline Construction

Under the Clean Air Act, a facility that emits air pollutants may not be constructed unless an air permit has been issued to the facility. For decades, EPA has interpreted the statute to prohibit almost any construction or modification activities until a permitting authority issues a final permit. But on March 25, 2020, EPA proposed new guidance to clarify that, according to regulations adopted 40 years ago, the only construction prohibited prior to issuance of an air permit is construction on the emitting unit itself. If adopted by state permitting authorities, this guidance should provide companies, such as pipeline project proponents, with more flexibility by allowing more construction activities pre-permit. That said, project proponents should carefully consider the risks associated with initiating construction prior to receiving an air permit.
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Continue Reading EPA Shifts Policy on Construction Prior to an Air Permit

The Federal Energy Regulatory Commission (FERC) issued a Certificate of Convenience and Public Necessity to the Mountain Valley pipeline project in 2017, authorizing new construction of a 300-mile natural gas pipeline through West Virginia and Virginia. Several environmental and citizen groups challenged the FERC decision in the D.C. Circuit Court of Appeals. Among many issues raised, the petitioners argued that FERC failed to properly consider downstream impacts on climate change resulting from the combustion of gas transported by the new pipeline, as required by the Court’s 2017 decision in Sierra Club v. FERC. On February 19, 2019, the D.C. Circuit issued a short (five page) decision in the Mountain Valley case, Appalachian Voices et al v. FERC . The decision summarily dismissed all sixteen of the petitioners’ challenges to FERC’s Order.
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Continue Reading In an Unpublished Decision, D.C. Circuit Approves FERC Certificate for Mountain Valley Pipeline

In yet another development relating to Clean Water Act (CWA) Section 401 water quality certifications, a recent policy directive from the Department of the Army could impose tighter timeframes for a state to review whether projects comply with state water quality standards. The U.S. Department of the Army has issued a policy directive memorandum requiring the U.S. Army Corps of Engineers (USACE) to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under CWA Section 401 in conjunction with USACE’s issuance of dredge and fill permits under CWA Section 404. The directive also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.
Continue Reading USACE to Impose 60 Day Period on State Water Quality Certification Review

The federal Clean Water Act (CWA) requires that states review all federal permits involving water discharges to certify that those permits do not conflict with state water quality standards (WQS). 33 U.S.C. § 1341. The statute further provides that if a State “fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application.” Id. For pipeline projects, this ‘Section 401’ authority was not historically a significant issue, as most federal permits already anticipated and ensured compliance with state WQS. In recent years, however, opponents of new or expanded pipeline projects have sought to use Section 401 as an additional point of challenge, seeking to stop or delay pipeline project permitting. In a decision issued just last week – although not in a pipeline case – the D.C. Circuit provided the most recent clarification on the issue, admonishing states that the one year timeframe is “absolute.” Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir., Jan. 25, 2019).…
Continue Reading D.C. Circuit Clarifies that States have Maximum of One Year to Decide on Water Quality Certification Applications

The federal Pipeline Safety Act (PSA or the Act) mandates minimum safety standards for pipelines and certain associated storage and facilities (including LNG and other terminals). Congress should take up legislation to reauthorize the Act this year. Since the last reauthorization in 2016, there have been several noteworthy developments that have affected the industry, the…

The Federal Energy Regulatory Commission (FERC) officially announced that it is going to review its policy framework for certification of new interstate natural gas and LNG pipelines in the U.S. and issued a Notice of Inquiry (Notice or NOI).  This is the first time in nearly twenty years that FERC will examine its pipeline review and approval policy, last issued in 1999.  Kevin McIntyre, the current FERC Chairman, said review of the policy is intended to determine ‘whether, and if so, how’ any changes should be made in the evaluation of new pipeline projects.  The NOI establishes a 60-day public comment period, beginning with publication in the Federal Register, thus the deadline for comments is June 25, 2018.
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Continue Reading Continuing Review of New Pipeline Projects

The U.S. DOT and 10 other federal agencies signed a Memorandum of Understanding (MOU) on April 9, 2018, which became effective on April 10, 2018.  The MOU[1] is intended to implement Executive Order 13807 (Aug. 15, 2017), which established a “One Federal Decision” policy for infrastructure projects that require authorizations by multiple federal agencies.…