Underground Construction - May 2022 - 14

WASHINGTONWATCH
Pipeline companies had already been pressing the Federal
Energy Regulatory Commission (FERC) hard, prior to the
Russian invasion of Ukraine, to rethink its two new policy statements
on greenhouse gas emissions and pipeline certifi cates.
But any future FERC reckoning, with new supply-need realities
in the wake of Russia's invasion of Ukraine, could be more
imagined than real.
On March 24, the day before Biden made his European
LNG commitment, FERC announced it was reclassifying the
two policy statements as " draſt s " and was taking public comments
on them. Th is was aſt er its February announcement that
the GHG policy was an " interim " policy and request for comments
on it at that time.
Th e latest statement calling that, and the pipeline certifi cate
policy, " draſt s " wasn't much of a concession. It was more likely
a distinction without a diff erence, given environmentalists' hold
over the Biden administration.
Moreover, the top federal appeals court in Washington
and the Environmental Protection Agency (EPA) are exerting
counter-pressure aimed at stiff ening the spines of the three
Democratic FERC commissioners, who voted for the now
" draſt " GHG policy. It requires the commission to quantify and
consider more GHG impacts on climate change for both LNG
and pipeline projects when determining, as it must under the
Natural Gas Act, whether a project is " in the public interest. "
In an example of the avalanche of pipeline industry pleas
arriving in March, Boardwalk Partners argued that FERC does
not have the authority to consider upstream and downstream
GHG emissions - sometimes referred to as " indirect " emissions
- when considering a new pipeline project. Th ose emissions are
not created by the pipeline, and it has no responsibility for them.
Instead, EPA has the authority, under the Clean Air Act, to regulate
methane emissions.
Boardwalk Partners argued, " ...they violate the APA by
imposing new regulations or amending existing regulations
without the foundation of notice-and-comment rulemaking
procedures; they fail to refl ect reasoned agency decision making
as required under the APA; and they exceed the Commission's
statutory authority under the NGA and NEPA. " Th e APA is the
Administrative Procedure Act; NEPA stands for the National
Environmental Policy Act.
It may be that the FERC Democratic majority won't have
much wiggle room in the wake of the latest decision by the U.S.
Court of Appeals for the District of Columbia. Th at court has
issued a series of decisions over the past few years admonishing
FERC for failing to adequately consider GHG emissions when
granting pipeline certifi cates.
14 MAY 2022 | UCONonline.com
Stephen Barlas | Washington, D.C. Editor
Russia Concerns Loom Over FERC
and EPA Anti-Pipeline Eff orts
In its March 11, 2022, decision in Food & Water Watch
(FWW) and Berkshire Environmental Action Team v. FERC,
the court chastised FERC for approving Tennessee Gas' application
to construct a 2.1-mile natural gas pipeline and replace
two less-effi cient compressor units with a new compressor in
Agawam, Mass. FERC explained in its EIS that the downstream
gas consumption and related GHG emissions were not reasonably
foreseeable.
Basing a decision on " foreseeability " is a somewhat murky
threshold. Th e court remanded the case back to FERC but did not
throw out the certifi cate. Th e project has already been completed.
Katherine Hill, spokeswoman for Kinder Morgan, the parent
of Tennessee Gas, declined to comment on the court decision.
According to Adam Carlesco, staff att orney, Food & Water
Watch (FWW), " Th e D.C. Circuit's decision in FWW v. FERC
will have a ripple eff ect on FERC's policies and its holding justifi
es many of the Commission's initial proposals in its interim
GHG policy; underscoring that FERC must consider reasonably
foreseeable indirect emissions of the projects it regulates.
" While EPA does have authority to dictate permissible
emissions levels from specifi c regulated facilities, FERC must
consider the signifi cance of a project's emissions at those EPA
permitt ed facilities in determining whether a project is truly in
the public interest under Section 7 of the Natural Gas Act. "
EPA pressure
EPA has also pressed FERC to give more weight to GHG emissions,
most recently regarding FERC's March 15 fi nal EIS to a
Spire Energy gas storage project in Wyoming.
Aſt er FERC issued a draſt EIS for the Clear Creek Expansion
Project in 2021, the EPA wrote that it did not: " ...contain suffi -
cient information to disclose the estimated climate damages from
the proposed actions direct and indirect greenhouse gas (GHG)
emissions and is inadequate to meet the purposes of NEPA. "
But in its fi nal EIS, FERC stated it applied what was then the
interim GHG policy to the project and found those emissions
" would fall below the Commission's presumptive signifi cance
threshold; we note this is not based on 100-percent utilization. "
It subsequently rejected the EPA's concerns.
Th e controversy over FERC's draſt GHG policy now casts a
much brighter light on the EPA's proposed rule seeking to stiff -
en requirements on pipeline control of methane emissions. Th e
Biden EPA canceled a Trump fi nal rule exempting transmission
pipelines from methane restrictions under the Clean Air Act.
But in late 2021, the EPA proposed a rule reinstating those
Obama-era restrictions and toughening them, much to the dismay
of pipelines.
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