American Oil and Gas Reporter - May 2018 - 33

Federal Administrative Actions

President Targets Permits And NAAQS
WASHINGTON-The heads of a dozen
federal agencies signed a memorandum
of understanding on April 9 that pledges
them to cooperate in completing environmental reviews for major infrastructure
projects within two years.
However, that MOU does not address
state foot-dragging that can delay energy
infrastructure projects, which the Natural
Gas Council asks the government to
also address in an April 10 letter to
President Trump.
In a separate executive action, President
Trump directs the Environmental Protection Agency to make it easier for states
and industry to comply with the Clean
Air Act's National Ambient Air Quality
Standards and Regional Haze programs.
According to the White House, the permitting MOU implements Executive Order
13807, Establishing Discipline and Accountability in the Environmental Review
and Permitting Process for Infrastructure,
which President Trump signed on Aug. 15.
That EO directed the White House
Council on Environmental Quality and the
Office of Management and Budget, in conjunction with the Federal Permitting Improvement Steering Council (FPISC), to
develop a framework for streamlining the
infrastructure permitting process (AOGR,
September 2017, pg. 34), which according
to the MOU, the agencies accomplished
with a "One Federal Decision (OFD) Framework" memorandum released on March 8.
The April 9 MOU was signed by the
secretaries of Agriculture, Army Corps of
Engineers, Commerce, Energy, Homeland
Security, Housing and Urban Development,
Interior and Transportation, and as well
as the heads of the EPA, Federal Energy
Regulatory Commission, Advisory Council
on Historic Preservation, and FPISC.
The MOU notes the OFD Framework
requires that for each major infrastructure
project, the signing agencies are to "work
together to develop a single permitting
timetable for the necessary environmental
review and authorization decisions, prepare
a single environmental impact statement,
sign a single record of decision, and issue
all necessary authorization decisions
within 90 days of issuing the ROD."
In general, the MOU indicates the
agencies will accomplish those goals by:
* Establishing a lead federal agency
for each environmental review and permitting process;
* Following the permitting timetable
established by the lead federal agency;
* Agreeing to conduct their review

processes concurrently and to rely on the
analysis prepared by the lead agency to
the maximum extent possible; and
* Agreeing to "automatically elevate
and expeditiously resolve" any interagency
disputes.
State Certifications
An analysis prepared by Baker Botts
LLP notes that EO 13807 defines a major
infrastructure project as one requiring
multiple federal authorizations as well
as an environmental impact statement
under the National Environmental Policy
Act. Such projects, Baker Botts says, include roads, bridges, railroads, transit,
aviation, ports, water resource projects,
energy production and generation, electric
transmission facilities, broadband Internet,
pipelines, stormwater and sewer structures,
and drinking water supplies.
Even so, the firm says, the MOU "has
the potential to impact FERC's permitting
and licensing activities to the extent that
it spurs better coordination and faster responses by other federal agencies."
"In addition, some of FERC's existing
processes may serve as tools to implement
the MOU," Baker Botts says. "For example, FERC's prefiling process for gas
pipelines and liquefied natural gas terminals facilitate preapplication planning
and coordination in the manner directed
by the MOU."
However, Baker Botts points out that
the MOU "does not create any consequences for failing to meet the two-year
goal for issuing an ROD. This means the
impact . . . largely will depend on how
agencies implement the procedures and
deadlines they establish."
Further, "Two-year decision deadlines
will be challenging for many of FERC's
licensing and permitting processes (since)
agency reviews for major gas pipelines,
LNG terminals and hydroelectric projects
can take many years."
Additionally, Baker Botts observes,
"The MOU does not address state-level
authorities of reviews such as Clean Water
Act Section 401 certifications."
And that is exactly what is needed,
contends NGC, which is composed of
the Independent Petroleum Association
of America, Natural Gas Supply Association, American Petroleum Institute, American Gas Association and Interstate Natural
Gas Association of America.
States' Section 401 reviews have
"proven particularly challenging and
would benefit from further direction from

the administration," the coalition tells
President Trump in its April 10 letter.
Section 401 reviews "have created
much confusion and frustration, and have
resulted in significant delays to infrastructure projects," the NGC letter states,
adding, "Some states are improperly using
Section 401 to hijack the permitting
process for pipelines that transport natural
gas in interstate commerce."
The NGC asks the Trump administration to direct federal agencies on properly
implementing Section 401. Specifically,
it suggests, "This includes ensuring that
a state is not manipulating the process
through enforcing the statutory time and
confirming state actions are related to
applicable water quality standards.
"Where the process is not followed,
the lead federal agency has the duty and
obligation to find the Section 401 obligation waived for all required federal authorizations," NGC urges.
NAAQS And Haze
On April 12, President Trump signed
a memorandum directing EPA "to take
specific actions to ensure efficient and
cost-effective implementation of the
NAAQS program, including with regard
to permitting decisions for new and expanded facilities, and with respect to the
Regional Haze Program."
"As NAAQS have become more stringent, obtaining the air permits needed to
construct new manufacturing and industrial
facilities, or to expand or modernize existing facilities, has become increasingly
difficult," the memorandum expresses.
"In some areas, revised NAAQS are approaching what are considered to be background levels of pollution."
Howard Feldman, API senior director
of regulatory and scientific affairs, responds, "This memo will help states implement stringent NAAQS requirements
to improve air quality without unnecessarily hampering manufacturing and business expansion."
Among the 10 actions the memorandum instructs EPA to take are working
with states to replace federal implementation plans (FIPs) imposed by the agency
under the 2007 regional haze planning
period, and to "provide relief to state and
local air agencies in addressing emissions
that are beyond their control."
In a response to the president's memSEE NAAQS PAGE 95
MAY 2018 33
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