Underground Construction - July 2022 - 12

WASHINGTONWATCH
Some key decisions about federal pipeline regulation are coming
to a head as the comment period for the Federal Energy
Regulatory Commission's two draſt policy statements closed
and the Senate decides whether to renew Richard Glick's chairmanship
at FERC.
President Biden announced on May 20 that he wants to
re-appoint Glick, who has led agency eff orts to adopt the two
draſt statements that are, in the main, strongly opposed by interstate
pipeline companies for exceeding current federal law.
Glick's term ended June 30, 2022.
Sen. Joe Manchin (D-W.Va.), chairman of the Senate Energy
Committ ee, scolded Glick in hearings this year for FERC's insistence
on conditioning pipeline approvals on an expanded
analysis of greenhouse gas emissions. Th e Senate will have to
approve Glick's renomination as chairman.
In a 50-50 divided Senate, with at least Manchin potentially
joining all Republicans in opposition, Glick's rejection would
send a clear message to the two other Democratic commissioners
at FERC to tread very carefully in expanding Natural Gas
Act authorities without congressional approval.
Democratic opposition to FERC's anti-pipeline driſt also
exists in the House. Rep. Michael Burgess (R-Texas), the number-two
Republican on the House Energy & Commerce's energy
subcommitt ee, organized a lett er to FERC, signed by 18
House members - fi ve of which are Democrats - saying " the
two new policy statements issued on Feb. 18, 2022, only added
signifi cant uncertainty to the durability of FERC's certifi cate
policy review framework. "
Th e House Energy & Commerce Committ ee would be the
venue for legislation pulling the reins on FERC if it heads in
the direction Glick is leading it. FERC's draſt policy statements
deal with revisions to the commission's 1999 pipeline certifi -
cate approval process and the extent to which greenhouse gas
emissions (GHG) can be determined to be a " signifi cant " danger
to the public.
It establishes a threshold of 100,000 tons per year (TPY)
of CO2e for fi nding a signifi cant impact under the National
Environmental Policy Act (NEPA).
Glick appears to know he is walking a fi ne political line. On
May 19, he voted to approve Kern River's Delta Lateral project
despite pleas from the EPA to look more closely at whether the
project's upstream and downstream greenhouse gas emissions
would be signifi cant, thereby triggering additional actions under
the NEPA.
Th e Delta Lateral will be a 36-mile-long, 24-inch-diameter
pipeline from Opal, Wyo., to the Intermountain Power Project
(IPP), an electrical generating facility in Delta, Utah. In voting
12 JULY 2022 | UCONonline.com
Stephen Barlas | Washington, D.C. Editor
Glick Renomination, Policy Statements
Generate Controversies
to approve the project and rejecting the EPA's demands, Glick
pointed out the project would result in a substantial net decrease
in downstream GHG emissions, due to Intermountain Power
Agency's replacement of coal-fi red with gas-fi red generation.
He said there was no need for further analysis on the possibility
of signifi cant GHG emissions because " common sense " dictated
those emissions were not signifi cant.
" Th ere is litt le doubt Glick knows the score politically and
will be wary of doing anything that would stir up the opposition,
especially from Manchin, " said one Washington att orney
who works with pipeline companies.
Glick's future may depend on the shape of the fi nal pipeline
certifi cate and GHG policy statements. If the Senate appears
to be ready to reconfi rm him, hearings would probably be held
in the fall (Glick can serve until the end of 2022, regardless of
whether he is reconfi rmed). Th ose hearings would likely coincide
with further FERC action on the policy statements, which
could ignite controversy or even douse any political fi res, if
Glick backs off .
Th e pipeline industry clearly envisions a role for Congress
if FERC strays from its authority under the Natural Gas Act
(NGA). Glick clearly feels recent federal appeals court decisions
give him the authority to establish new, anti-pipeline policies
that conform to the NGA.
Pipeline companies almost unanimously disagree.
Th e Draſt GHG Statement also claims authority for the
Commission to deny an NGA section 7 application due to a
project's upstream and downstream GHG emissions being
contrary to the 'public interest,' " said Anne E. Bomar, senior
vice president and general counsel, BHE GT&S, LLC. " Th ere
is no basis in the text of the NGA or case law for this authority. "
BHE, Enbridge, Kinder Morgan and most of the big players
in the interstate pipeline industry argue that FERC proposed
changes are illegal and the process for vett ing them has
been incomplete.
" Multiple aspects of the Draſt Policy Statements are unsupported
by record evidence and lack an adequate Commission
explanation demonstrating that they are the product of reasoned
decision making, " wrote William E. Wolf, vice president
and deputy general counsel, Kinder Morgan Inc. " Th ese failings
render the Draſt Policy Statements in their current form arbitrary
and capricious and contrary to law. "
However, some major pipeline companies support parts
of at least the proposed certifi cate policy changes. Stephen
Hatridge, vice president & assistant general counsel, Th e
Williams Companies, Inc., told FERC, " While Williams has
concerns with certain aspects of the draſt Policy Statements, we
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