Underground Construction - March 2020 - 12

WASHINGTONWATCH

Stephen Barlas | Washington Editor

Two Federal Regulatory Actions Ease
Pipeline Construction
Two key President Trump administration
environmental regulators have made
moves to wipe away potential barriers
to new pipeline construction. The White
House Council on Environmental Quality
(CEQ) issued a proposed rule that would
make it harder for environmentalists to
block infrastructure construction because
of concerns raised about the project's
creation of greenhouse gas emissions.
Over the past few years, the Federal
Energy Regulatory Commission (FERC) has
considered greenhouse gas emissions that
might occur upstream and downstream
from new pipeline construction but
declined to nix the projects. Environmental
groups and FERC Commissioner Richard
Glick have criticized the refusal as not
complying with federal court decisions.
The CEQ proposed rule, if it becomes final
in the proposed form, would give FERC's
pro-pipeline inclinations new regulatory
ammunition against opponents raising the
flag of climate change.
The Environmental Protection Agency's
(EPA) final rule on what bodies of water
are considered wetlands removes a
somewhat more indirect threat to pipeline
construction. By reducing the waters
considered to be wetlands, the EPA reduces
the occasions when pipeline companies
must apply to the Army Corps of Engineers
and EPA for a permit to cross a wetland.
National Wetlands Permit Number 12 is
specifically designed for pipelines.
"Nationwide Permit 12 is a vital tool for
the construction of necessary gathering
infrastructure, while protecting the
environment," stated Matthew Hite, vice
president of government affairs, GPA
Midstream Association. "Under the new
WOTUS final rule, our reading of it will
not require gathering lines to get a permit
for ephemeral or isolated streams. But the
permit will still be important for crossing
major streams and their tributaries."
(WOTUS stands for Waters of the U.S.)
12

MARCH 2020 | UConOnline.com

The CEQ proposed rule has the more
important potential ramifications for pipeline construction given the recent, more
frequent objections raised by environmental groups to new pipeline construction in
the context of FERC proceedings. Before he
left office in January, Don Santa, president
and CEO of the Interstate Natural Gas
Association of America (INGAA), praised
CEQ's interpretation of the National
Environmental Policy Act (NEPA), which
mandates federal agencies, including FERC,
assess the impact of human health and
the environment before approving new
projects. That requirement applies to pipeline, highway, port and many other types
of construction considered by a variety of
federal agencies, not just the FERC.
"The lack of clarity in the existing NEPA
regulations has led courts to fill the gaps,
spurring costly litigation, and has led to
unclear expectations, which has caused
significant and unnecessary delays for
infrastructure projects across the country,"
Santa said. "The Council on Environmental
Quality's proposed rule is an important
step in restoring the intent of NEPA by
ensuring that federal agencies focus their
attention on significant impacts to the
environment that are relevant to their
decision-making authorities."

Criticism
The Natural Resources Defense Council
(NRDC) criticized both the CEQ and EPA
actions. In the latter case, Jon Devine,
director, Federal Water Policy, Water
Division, Nature Program, pointed out
that the EPA final rule was criticized
by the EPA Science Advisory Board,
whose members have been appointed by
President Trump.
Gina McCarthy, former EPA
Administrator under President Obama,
now president and CEO at the NRDC,
said about the CEQ's proposed changes
to NEPA, "We will use every tool in our

toolbox to stop this dangerous move and
safeguard our children's future."
Over the past few years, FERC has
navigated around two separate, but related
decisions issued by the U.S. Court of Appeals
for the District of Columbia Circuit. The
first, in 2017, involved a Sierra Club protest
of FERC's approval of the Spectra Energy
Partners Sabal Trail pipeline in Florida. The
517-mile interstate natural gas pipeline
provides transportation services for power
generation needs to Florida Power and Light
and Duke Energy of Florida. The second, in
2019, focused on the Sierra Club's contention that FERC had not heeded the Court's
Sabal decision in approving a Tennessee Gas
Pipeline Co. compressor station, part of the
Broad Run Expansion project.
FERC approval of the projects stood
although the federal court said in both
instances that FERC had to consider direct
and indirect greenhouse emission as part of
an environmental review. But in the 2019
decision, the court emphasized that the
Sierra Club did not establish a general rule
that downstream gas consumption impacts
are always reasonably, foreseeable indirect
impacts, while making it clear that FERC had
to make an effort to quantify the amount of
greenhouse gas emissions caused by a project.
Commissioner Glick cited both court
cases in arguing a number of 2019 dissents
that FERC had not followed the court's
directions. In May 2019, he protested
FERC approval of the Transcontinental Gas
Pipe Line Company's (Transco) proposed
Northeast Supply Enhancement Project
because the Commission "again refuses
to assess the significance of the Project's
contribution to climate change...and to
identify or consider the Project's reasonably
foreseeable impacts on upstream or downstream GHG emissions."
Then, in November 2019, he dissented
from FERC's order, authorizing El Paso
Natural Gas Company's proposed South
Mainline Expansion Project. There he
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