Construction and Design

President Trump plans to nominate Kevin McIntyre to serve as chair of the Federal Energy Regulatory Commission (FERC).  McIntyre currently works in private practice in the energy regulatory sector and has for 30 years. With McIntyre’s nomination, there will be four commissioner candidates in various stages of the nomination and confirmation process.

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EPA and the Army Corps of Engineers (the Corps) issued a prepublication version of a proposed rule that will rescind prior 2015 revisions to the definition of “waters of the U.S.” under the Clean Water Act (CWA), pending the issuance of a more substantive rulemaking that reevaluates the definition.  The prior revisions expanded federal jurisdiction over certain waters and prompted numerous judicial challenges and a subsequent nationwide stay of the rule.

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The U.S. Department of Transportation (DOT) recently published a notice inviting public comment 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.”  As stated in the notice [attached], in keeping with President Trump’s regulatory reform agenda, DOT and other federal agencies are in the process of reviewing existing policy statements, guidance documents, and regulations that might pose impediments to transportation infrastructure projects.   The upcoming deadline to provide input on that review is July 24, 2017.  We encourage industry to consider submitting comments, particularly given DOT’s statement that comments are not restricted to burdensome regulations, but also extend to policy statements, interpretations and guidance.

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Oil and gas discoveries in various shale plays around the U.S. over the past decade have led to an increased rise in the number of transfers and acquisitions of pipeline assets, including pipelines serving processing plants, producers, storage facilities, and those associated with power plants and other industrial users.  Changes in global and domestic energy markets have continued that trend.  Prudent operators routinely request and review documentation as part of their due diligence in making acquisitions, but it is becoming increasingly important that certain records be located during due diligence or factored into the transaction if such records are lacking and must be recreated.  Decision makers involved in pipeline acquisitions should involve pipeline safety managers or counsel early on in the process to allow sufficient time to include pipeline safety records review as part of the transaction; to do otherwise can be a costly mistake that carries significant liability risk.

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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.

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President Trump announced that he will nominate Richard Glick to serve as a commissioner at the Federal Energy Regulatory Commission (FERC).  Glick currently serves as the General Counsel for the Senate Committee on Energy and Natural Resources and is a Democrat.  Glick also previously worked as a lobbyist in the energy industry.

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In an effort to resolve the lack of a quorum at the Federal Energy Regulatory Commission (FERC), yesterday President Trump nominated Neil Chatterjee and Robert Powelson to fill Commissioner vacancies.  Mr. Chatterjee is the senior energy advisor to Senate Majority Leader Mitch McConnell and previously worked with the National Rural Electric Cooperative Association.  Mr. Powelson is a current member of the Pennsylvania Public Utilities Commission and president of National Rural Electric Cooperative Association.  If the nominees are confirmed, FERC will regain a quorum, which it has not had since early February.  Reports have also signaled that Trump is expected to nominate Kevin McIntyre, an energy lawyer in private practice, to serve as the Commission Chairman.

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For the past three months, the Federal Energy Regulatory Commission (FERC or the Commission) has been without a quorum needed to make any decisions approving pipeline permits or rates.  FERC is designed to have 5 Commissioners, but it must have at least 3 to constitute a quorum and make decisions.  FERC Chairman Norman Bay resigned on February 3, 2017, leaving the Agency with only 2 Commissioners; less than a decision making quorum.  To make matters worse, Commissioner Colleen Honorable announced this week that she intends to resign in the coming months.

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President Trump has issued 30 Executive Orders and 28 Executive Memoranda since taking office on January 20, 2017, despite his failure to pass any major laws.  That is more Executive Orders than any President has issued in the first 100 days since World War II.  Nearly one fourth of these executive actions have affected the pipeline industry, either directly or indirectly, as noted below:

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Industry trade groups anticipate construction delays and cancelations, higher costs, and consumer impacts if the Trump administration’s January 24, 2017 Executive Memorandum, requiring that all new and repaired pipe be made in the U.S., is implemented. In comments filed to the Department of Commence by oil and natural gas industry trade associations, INGAA, AGA, GPA, API, and AOPL, the associations point out numerous challenges presented by the directive and various exclusions and exceptions that would need to be carved out. At the same time, the trade groups committed to engaging with the executive branch, regulators, and steel manufacturers to promote job growth and affordable energy in the U.S.
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