On February 12, 2018, the White House issued its proposed framework for an infrastructure bill to Congress.  Notably, the White House’s infrastructure plan proposes to (1) establish a firm deadline of 21 months for lead agencies to complete their National Environmental Policy Act (“NEPA”) reviews and an additional 3 months thereafter to approve or deny a permit (i.e., a decision on an interstate natural gas pipeline project or hydropower license application must be made within 2 years of the application); and (2) amend the Clean Water Act (“CWA”) to set a deadline for a state agency to determine whether a CWA section 401 certificate application is complete. Continue Reading White House Releases Outline for Legislative Infrastructure Plan

On January 25, 2018, as amended on January 31, 2018, FERC Office of Enforcement Staff (“OE Staff”) answered BP America Inc., BP Corporation North America Inc., BP America Production Company, and BP Energy Company’s (collectively, “BP”) arguments that FERC must dismiss its order assessing civil penalties and disgorgement against BP for violating FERC’s anti-market manipulation rule due to the five-year statute of limitations for civil penalties.  Among other things, OE Staff argued that (1) enforcement actions under the Natural Gas Act (“NGA”) are distinct from the enforcement process under the Federal Power Act (“FPA”), and thus similar federal district court precedent in the FPA context is inapplicable to BP; and (2) FERC’s issuance of disgorgement is more remedial than punitive and thus not subject to the statute of limitations. Continue Reading FERC Enforcement Staff Argues Claims Against BP Are Not Time-Barred due to Differences Between NGA and FPA

On January 31, 2018, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied requests for an en banc rehearing of an August 2017 decision (Sierra Club v. FERC) vacating FERC’s approval of the Southeast Market Pipelines Project (“SMP Project”), a natural gas pipeline currently under construction in the southeastern United States.  In its August decision, the D.C. Circuit held that FERC failed to analyze the greenhouse gas emissions that would result from the SMP Project, as required by the National Environmental Policy Act (“NEPA”).  On February 2, 2018, the developers for the SMP Project filed a request at FERC for expedited reissued construction approval certificates, or in the alternative, temporary emergency certificates, arguing that halting work on the SMP Project will cause “irreparable harm.” Continue Reading D.C. Circuit Denies Rehearing after Vacating Pipeline Certificate; Developers Seek Emergency Relief from FERC

On January 24, 2018, FERC staff directed Rover Pipeline LLC (“Rover”) to stop horizontal directional drilling (“HDD”) activity—which involves using a drill to bore horizontally underground and drilling mud to remove drill cuttings and maintain the bore for a newly constructed pipeline to “cross” beneath rivers and other areas—at the Tuscarawas River site due to inadvertent losses of drilling mud.  Although FERC staff found that Rover had complied with its HDD contingency plans and that drilling mud had not impacted sensitive resources, FERC staff requested Rover to provide information to assess alternate methods of crossing the Tuscarawas River. Continue Reading FERC Staff Directs Rover Pipeline to Cease HDD Activity at the Tuscarawas River Site

On January 19, 2018, FERC approved PennEast Pipeline Company, LLC’s (“PennEast”) proposal to construct its 116-mile pipeline project from Pennsylvania to New Jersey (“Project”).  FERC approved the Project despite protesters challenging the Project’s need given that affiliated shippers subscribed to most of the Project’s capacity, as well as FERC’s limited environmental impact analysis after PennEast could not complete certain surveys along the Project’s route due to landowners denying PennEast access to their property.  Commissioners Cheryl A. LaFleur and Neil Chatterjee issued separate concurrences, while Commissioner Richard Glick issued a separate dissent. Continue Reading FERC Approves PennEast Pipeline Project Despite Need and Environmental Impact Protests

On January 11, 2018, FERC denied Constitution Pipeline Company, LLC’s (“Constitution”) request asking FERC to conclude that the New York State Department of Environmental Conservation (“New York DEC”) waived its authority to issue a water quality certification under Section 401 of the Clean Water Act (“CWA”).  In so doing, FERC reiterated its authority to address such issues, as they relate to “setting and enforcing” Natural Gas Act (“NGA”)-imposed deadlines, and reaffirmed FERC’s long-standing position that state certifying agencies have up to one year to act on a CWA Section 401 application. Continue Reading FERC Concludes New York Did Not Waive Authority to Issue Water Quality Certificate for Gas Pipeline Project

On December 21, 2017, FERC Chairman Kevin McIntyre unexpectedly announced at his first Commission meeting that FERC will conduct a review of its 1999 Policy Statement on Certification of New Interstate Natural Gas Pipeline Facilities (“1999 Policy Statement”).  In doing so, Chairman McIntyre recognized that “[m]uch has changed in the energy world since 1999, and it is incumbent upon [the Commission] to take another look at the way in which we assess the value and viability of our pipeline applications.”  According to multiple reports, Chairman McIntyre clarified that he does not believe that the review will affect current pending pipeline applications.  Furthermore, Chairman McIntyre indicated that the review of the 1999 Policy Statement, which governs how FERC evaluates proposals for certificating new gas pipeline construction, will take place sometime in 2018.  Continue Reading FERC Unexpectedly Announces Review of its Certification Policy for Natural Gas Pipelines

On December 11, 2017, Eversource Energy (“Eversource”) sent a cease and desist letter to Fred Krupp, President of the Environmental Defense Fund (“EDF”) and N. Jonathan Peress, EDF’s Senior Director of Energy Market Policy.  Specifically, Eversource directed both EDF executives to immediately stop the publication of all statements insinuating that Eversource has withheld gas pipeline capacity from the wholesale electricity market in order to earn profits from higher prices. Continue Reading Eversource Issues Cease and Desist in Response to Claims of Withholding Pipeline Capacity

On December 11, 2017, BP America Inc., BP Corporation North America Inc., BP America Production Company, and BP Energy Company (collectively, “BP”) requested FERC to dismiss its July 11, 2016 order (“July 11 Order”) assessing civil penalties against BP and requiring BP to disgorge profits for violating FERC’s anti-market manipulation rule.  In doing so, BP argued that, due to recent federal court cases, the law had changed regarding the statute of limitations for actions imposing civil penalties and disgorgement.  Therefore, according to BP, FERC’s August 5, 2013 order to show cause issued to BP failed to commence a “proceeding” within the meaning of the statute of limitations for enforcing civil fines and penalties, and thus FERC’s assessment of civil penalties and disgorgement was time-barred.  Rather, BP argued that the statute of limitations began to run on November 25, 2008 at the latest, and thus FERC was required to commence a “proceeding” by November 25, 2013, but FERC did not commence a “proceeding” until May 15, 2014 at the earliest when it set the matter for hearing. Continue Reading BP Argues FERC Must Dismiss Market Manipulation Claims due to Five-Year Statute of Limitations

On November 16, 2017, twelve New England electricity consumers (“Plaintiffs”) filed a class action lawsuit in in the U.S. District Court of Massachusetts against two large New England energy companies, Eversource Energy (“Eversource”) and Avangrid, Inc. (“Avangrid”), arguing that they raised power prices by artificially constraining capacity on the Algonquin Gas Transmission Pipeline (“Algonquin”).  Specifically, the Plaintiffs argue that for the past three years, Eversource and Avangrid have increased power prices by 20% by reserving more capacity than was needed on Algonquin with the intent to cancel the reservation when it was too late for the pipeline capacity to be resold to other market participants.  Plaintiffs allege that this behavior was a misuse of Eversource’s and Avangrid’s market power, in violation of state and federal unjust enrichment, consumer protection and antitrust laws. Continue Reading Lawsuit Accuses New England Natural Gas Companies of Withholding Pipeline Capacity