Underground Construction - August 2021 - 13

said the appeals court's decision " shows
that when FERC cuts corners with its
analysis, it puts its decisions - and
the investments made in reliance on
those decisions - at substantial risk. "
He expressed his desire to revisit the
Commission's approach to assessing
the need for an interstate natural gas
pipeline in its currently pending notice
of inquiry (PL18-1).
The Environmental Defense Fund
(EDF) asked FERC initially to take a
second look at its decision to approve the
pipeline. When the commission rejected
the rehearing request in December 2019,
the EDF filed its legal case with the DC
Court of Appeals arguing FERC had not
established need and that there had been
self-dealing by Spire.
A second petitioner who joined with
the EDF filed a second complaint:
that FERC should have done an
environmental impact statement
(EIS) instead of just an environmental
assessment (EA). The court rejected this
second argument because the petitioner,
a woman who lived near the pipeline
and complained about noise, emissions,
eyesores and other things, did not have
" standing. " But the standard for FERC
to order a more searching, detailed EIS
after an environmental assessment
is performed, is another issue FERC
is considering as part of its work on a
docket numbered PL18-1.
The two Democratic commissioners
(a third will be appointed later this
summer when the term of the third
Republican commissioner expires)
have already signaled they want more
impact statements. In fact, on May 18,
at an open meeting, Chairman Glick
and Commissioner Allison Clements
issued partial dissents for two pipeline
incremental expansion projects on
grounds that FERC should have
prepared an EIS to assess the risks
related to climate change.
Then, a little more than a week later,
all five commissioners ordered EISs for
somewhat small projects for which the
staff had done EAs. The initiation of a
follow-on EIS for the projects will add
significant time to their FERC approval
process. The impacted projects' EAs were
published either in first quarter 2021 or
during the second half of 2020.
Emily Mallen, an attorney in
Washington with Sidley Austin, said,
" Whereas FERC typically would commit
to issuing an order within 90-days of
completing an EA, the pipeline operators
subject to the new notices should not
expect decisions on their pending
applications before December 2021.
However, each notice provides a projectspecific
timeline. " *
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Underground Construction - August 2021

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