On July 13, 2017, FERC Office of Enforcement Staff issued a Notice of Alleged Violation against Rover Pipeline, LLC and Energy Transfer Partners, L.P. (collectively, “Rover”) alleging that Rover, in its application for a certificate of public convenience and necessity (“Application”) and subsequent filings, did not disclose all relevant information regarding the avoidance of adverse effects to a certain historic resource.  In addition, on July 12, 2017, FERC Office of Energy Projects (“OEP”) Staff issued a letter listing the activities Rover must complete prior to receiving authorization to place its proposed pipeline into service. Continue Reading FERC Staff Issues Notice of Alleged Violation Against Rover Pipeline for Misstatements in Certificate Application

On June 23, 2017, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) held that Millennium Pipeline Company, L.L.C. (“Millennium”) lacked standing to challenge whether the New York State Department of Environmental Conservation (“Department”) had unlawfully delayed issuing a Clean Water Act (“CWA”) § 401 water quality certificate for Millennium’s pipeline project by failing to act on Millennium’s application within the one year statutory period.  In doing so, the D.C. Circuit stated that even if the Department had unlawfully delayed issuing the CWA § 401 certificate, the Department’s delay would operate as a waiver of the certification requirement.  As a result, the D.C. Circuit explained that Millennium could ask FERC to determine whether the Department waived the CWA § 401 certification requirement, and if so, whether FERC would authorize Millennium to begin construction of its pipeline project. Continue Reading D.C. Circuit Rules Waiver of CWA Certification Requirement for Pipeline Project Does Not Create Standing for Pipeline

On June 7, 2017, Senators Tim Kaine (D-VA) and Mark Warner (D-VA) introduced a bill in the U.S. Senate that would, among other things, revise the Natural Gas Act (“NGA”) to require FERC to (1) review two proposed interstate pipeline projects together under the National Environmental Policy Act of 1969 (“NEPA”) if the two pipelines are proposed within one year of each other and would be within 100 miles apart and (2) ensure that open houses regarding a proposed pipeline occur in each county in which the pipeline would be located.  In addition, on June 13, 2017, Representative H. Morgan Griffith (R-VA) introduced a similar bill in the U.S. House Committee on Energy and Commerce. Continue Reading New Legislation Introduced Regarding Review of Proposed Natural Gas Pipelines

On May 23, 2017, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) held that FERC did not violate the Clean Water Act (“CWA”) by issuing Transcontinental Gas Pipe Line Company, LLC (“Transco”) a certificate of public convenience and necessity (“CPCN”) before the state of Pennsylvania had issued a CWA § 401 water quality certification that must be obtained by a CPCN applicant prior to FERC approving any activity that may result in a discharge into navigable waters.  In doing so, the D.C. Circuit held that FERC’s issuance of a CPCN did not violate the CWA because FERC’s CPCN order expressly conditioned FERC’s approval of potential discharge activity on Transco first obtaining the requisite CWA § 401 certification and because the CPCN itself does not authorize any potential discharge activity.  Continue Reading D.C. Circuit Rules that Conditional Certificate Order Did Not Authorize Discharges under Clean Water Act

On May 10, 2017, FERC issued notice that FERC staff will convene a technical conference on June 29, 2017 on natural gas index liquidity and transparency.  Specifically, the purpose of the technical conference is to (1) understand the state of liquidity in physical natural gas markets; (2) explore trends in physical gas trading and price reporting and how the use of natural gas indices have evolved over time; (3) obtain industry views on the confidence in natural gas indices and price formation; and (4) consider whether there is a need to improve natural gas market liquidity and price reporting and, if so, how. Continue Reading FERC to Convene Technical Conference on Natural Gas Index Liquidity and Transparency

On May 1, 2017, FERC filed a brief in the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) arguing for the dismissal of United Airlines Inc. and UPS Fuel Services Inc’s (together, “Shippers”) petition for review of a 2013 FERC order in which FERC allowed Enterprise TE Products Pipeline Company LLC (“Pipeline”) to discontinue its jet fuel and diesel fuel transportation service to various shipping entities, including Shippers.  Shippers’ petition for review alleged that Pipeline’s termination of this service violated a 2013 settlement agreement (“Settlement Agreement”) requiring Pipeline to provide this service through May 31, 2015.  FERC’s brief argued that the petition should be dismissed for lack of justiciability, or in the alternative, for lack of standing.

Continue Reading FERC Seeks Dismissal of Jet Fuel and Diesel Fuel Shippers’ Petition for Review in D.C. Circuit Court of Appeals

On March 23, 2017, a group of environmental advocates including the Allegheny Defense Project, Clean Air Council, and Sierra Club (“Environmental Petitioners”) filed a petition in the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) to review a FERC order issuing a certificate for a pipeline proposed by Transcontinental Gas Pipe Line Company (“Order Issuing Certificate”), despite FERC Staff having issued an order granting rehearing for further consideration (“Tolling Order”)—a mechanism frequently used by FERC to allow it more time to act on a request for rehearing beyond the 30 days it is statutorily allowed.    Continue Reading In Petition to D.C. Circuit, Environmental Groups Claim FERC Staff “Tolling Order” on Request for Rehearing Invalid

On March 22, 2017, the U.S. District Court for the District of Columbia (“District Court”) dismissed a complaint by the Delaware Riverkeeper Network (“DRN”) alleging that its members had been deprived of constitutional due process because FERC is unable to make unbiased determinations on the issuance of natural gas pipeline certificates of public convenience and necessity (“CPCNs”). Specifically, DRN argued that because FERC’s funding mechanism requires FERC to recover its budget through a charge to regulated natural gas companies, it has a pro-industry bias. Continue Reading Federal District Court Dismisses Suit Accusing FERC of Pro-Industry Bias

On July 11, 2016, FERC imposed fines on BP America Inc., BP Corporation North America Inc., BP America Production Company, and BP Energy Company (collectively, “BP”) of over $20 million in civil monetary penalties, and disgorgement of over $200,000 in profits, for manipulating natural gas prices by, FERC found, uneconomically trading physical natural gas at the Houston Ship Channel to benefit BP’s financial spread positions based on the price differential between the Houston Ship Channel and the Henry Hub. Continue Reading FERC Upholds ALJ’s Finding of Natural Gas Market Manipulation and Fines BP Entities