Underground Construction - July 2021 - 12

WASHINGTONWATCH
Th e Federal Energy Regulatory
Commission (FERC) keeps producing
angst among gas pipeline developers
with two recent decisions having to do
with rehearing demands from pipeline
opponents. Both refl ect Chairman
Richard Glick's intention to give new
leverage to pipeline opponents:
* Publication of Order 871-B dealing
with delaying construction in the
context of eminent domain.
* Dismissal of a rehearing request
Algonquin wanted in relation to local
community attempts to snafu an
already certifi cated compressor in
Weymouth, Mass.,
" In both dockets, FERC opened up a
proceeding that should have been 'closed'
for additional public comment, " stated
Emily Mallen, a partner at mega-law fi rm
Sidley and a close FERC watcher. " Both
the Weymouth Briefi ng Order and Order
No. 871-B suggest that FERC is willing to
go outside the bounds of its traditional
procedures to involve the public more
openly in its proceedings. To the pipelines,
it may feel like FERC is changing the rules
in the middle of the game. "
In issuing Order 871-B, FERC laid out
the grounds for halting post-certifi cate
construction related to eminent domain
seizures when opponents complain.
It was put in place to answer a federal
court decision in 2020 that outlawed the
commission's use of " tolling orders, " which
allowed pipelines to continue construction
while a hearing process was in process.
Interstate Natural Gas Association
of America (INGAA) strongly criticized
the order, particularly its new policy to
presumptively stay an NGA section 7(c)
certifi cate order during the 30-day period
for seeking rehearing, which essentially is
limiting the exercise of eminent domain
authority granted under such certifi cates.
Th e stay would remain in place until
the Commission resolves the rehearing
request or 90 days following the date that
a rehearing request is deemed denied.
12 JULY 2021 | UCONonline.com
Stephen Barlas | Washington, D.C. Editor
Is FERC Changing Rules for Pipelines?
Joan Dreskin, senior vice president
and general counsel of INGAA, pointed
out: " Order 871-B exacerbates the core
challenges to energy infrastructure
development that were created by Order
871, by unlawfully imposing a presumptive
stay of all future Natural Gas Act Section
7(c) certifi cates. Th is presumptive stay
is a dramatic departure from 80 years of
precedent and will eff ectively add up to
fi ve months of additional delay at FERC
for needed infrastructure projects that the
Commission, itself, has already found to
be required by the public interest. "
But FERC played the decision as a
compromise between landowners and
pipeline developers. " With this order,
FERC is working to fulfi ll its commitment
to protect landowners, communities and
the environment, while also ensuring that
the construction of needed pipelines is not
unduly delayed, " said Glick.
" Today's order strikes a compromise
that both protects the interests of the
parties aff ected by a new pipeline, while
also providing developers with the
certainty needed to invest in energy
infrastructure. "
Compromise?
Glick's reference to " compromise "
was a nod to provisions in the Order
that circumscribe the regulation to
FERC has no authority over
air emissions, or even the
safety of a compressor
or a pipeline. A state
environmental agency
or the EPA would come
into play on air emissions.
PHMSA has the responsibility
for pipeline safety, and
leveling fi nes for violations.
those requests for rehearing refl ecting
opposition to project construction,
operation or need. Requests for rehearing
that raise issues related only to a tariff ,
rate, terms or conditions of service would
not trigger the rule's prohibition on
construction.
It also adds some time limitations on
the authorization to proceed moratorium.
Th is policy is inapplicable where the
pipeline developer has already, at the
time of the certifi cate order, acquired all
necessary property interests and for LNG
construction, which does not implicate
eminent domain.
Order 871-B would presumably slow
down construction prior to a pipeline
being put in operation. But maybe a
bigger problem for pipelines would be
FERC agreeing to hear complaints about
a pipeline or a compressor station that
has already been approved and is in
operation. FERC's authority, if it has any,
is what is at issue. Community groups in
Weymouth, Mass., complained in January
that an Algonquin Gas Transmission
LLC compressor station, which went into
operation in January 2021 as part of the
Atlantic Bridge project, has violated terms
of the certifi cate it won from FERC in
September 2020.
Th ose groups asked for a rehearing of
the project's compliance in January 2021.
Algonquin, too, asked for a rehearing on
opposite grounds in February hoping to
force a discussion of FERC's authority
to intercede after-the-fact. But on May
19, FERC set aside the rehearing request
on technical groups, that neither the
opponents nor the proponents were
damaged by questions they raised.
In early May, even before FERC put aside
the hearing requests, Algonquin asked
the Court of Appeals for the District of
Columbia to force FERC to hold a rehearing.
Th e request quoted FERC Commissioner
James Dannly, who argued in his dissent
of a Feb. 19, 2021, Briefi ng Order (which
was connected to its consideration of a
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