On November 16, 2017, FERC denied requests for rehearing by various parties (“Petitioners”) and a request for rehearing and stay by the New York State Department of Environmental Conservation (“NYSDEC”) of FERC’s approval of Millennium Pipeline Company, L.L.C.’s (“Millennium”) Valley Lateral Project.  In doing so, FERC rejected Petitioners’ claims that (1) FERC’s National Environmental Policy Act (“NEPA”) analysis was inadequate, (2) Millennium had not demonstrated need for the project, and (3) FERC lacked jurisdiction to approve the project.  FERC also dismissed NYSDEC’s argument that FERC failed to consider the downstream greenhouse gas (“GHG”) emissions resulting from the Valley Lateral Project, holding that NYSDEC’s request was untimely. Continue Reading FERC Denies Rehearing and Stay of Millennium’s Valley Lateral Project

On November 1, 2017, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied a petition from the Sierra Club challenging the Department of Energy’s (“DOE”) approval of liquified natural gas (“LNG”) exports from three facilities.  In doing so, the D.C. Circuit rejected arguments made by the Sierra Club that the DOE did not properly fulfill its obligations under the National Environmental Policy Act (“NEPA”) and the Natural Gas Act (“NGA”). Continue Reading D.C. Circuit Upholds DOE NEPA Reviews of LNG Export Applications

On September 28, 2017, the U.S. District Court for the Eastern District of Pennsylvania (“District Court”) dismissed the Adorers of the Blood of Christ’s (“Plaintiffs”) claims that FERC violated the Religious Freedom Restoration Act (“RFRA”) by authorizing Transcontinental Gas Pipe Line Company, LLC (“Transco”) to take property owned by Plaintiffs to construct and operate its Atlantic Sunrise Project on Plaintiffs’ property.  In particular, the District Court held that (1) it lacked subject matter jurisdiction over Plaintiffs’ action because U.S. Courts of Appeals have exclusive jurisdiction over FERC’s decisions and issues “inhering in the controversy” and (2) Plaintiffs could not collaterally attack FERC’s certificate order authorizing Transco to take Plaintiffs’ land after Plaintiffs failed to file objections at FERC.   Continue Reading District Court Dismisses Group’s Religious Freedom Claims Involving Pipeline Project

On September 27, 2017, FERC Staff issued a draft supplemental environmental impact statement (“EIS”) for the Southeast Market Pipelines Project (“SMP Project”) in response to the U.S. Court of Appeals for the D.C. Circuit’s (“D.C. Circuit”) decision in Sierra Club v. FERC, which directed FERC to supplement its final EIS by estimating the downstream incremental greenhouse gas emissions resulting from the SMP Project and explaining whether it considers the “Social Cost of Carbon” tool useful for National Environmental Policy Act (“NEPA”) purposes.  In the draft supplemental EIS, FERC Staff (1) estimated the downstream incremental greenhouse gas emissions in Florida resulting from the project, and affirmed its conclusion in the final EIS that the SMP Project, with certain mitigation measures, will not result in significant adverse effects on the environment, and (2) explained that it does not find the “Social Cost of Carbon” tool useful for project-level NEPA analyses. Continue Reading FERC Staff Updates EIS for Pipeline Project to Address Downstream Greenhouse Gas Emissions

On September 15, 2017, FERC issued an order determining that the New York State Department of Environmental Conservation’s (“NY DEC”) failure to act on Millennium Pipeline Co. LLC’s (“Millennium”) Clean Water Act (“CWA”) permit application before the statutory one-year deadline resulted in a waiver of its authority to issue the permit.  FERC’s decision has the effect of nullifying the NY DEC’s prior denial of Millennium’s permit application.  FERC’s order also allows Millennium to move forward with its “Valley Lateral Project” without the NY DEC’s water quality permit.   Continue Reading FERC Rules that NY DEC Waived Authority on Water Quality Permit for Pipeline Project

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