Underground Infrastructure - August 2023 - 10

WASHINGTONWATCH
The natural gas industry greeted the permitting
reform bill Congress passed and
President Biden signed on June 3 with
something short of enthusiasm. The permitting
provisions in the Fiscal Responsibility
Act of 2023 (FRA/H.R. 3746) had
only glancing benefits for gas pipelines
and were chiefly written to benefit wind,
solar and electric energy deployment.
At the same time it got Sen. Joe Manchin
(D-W. Va.), a potential derailer of
the entire package, on board by requiring
all federal agencies to approve the Mountaineer
State's Mountain Valley pipeline
within 21 days of Biden's signature.
The Interstate Natural Gas Association
of America (INGAA) tried to put
its best face on its disappointment by
praising the National Environmental
Policy Act (NEPA) reforms, which " are
an important first step towards achieving
the permitting reform needed to get the
United States back to building energy
infrastructure in this country. "
But it added that " more reforms to
our country's permitting processes are
necessary. "
The National Gas Council, which includes
INGAA, American Petroleum Institute,
Natural Gas Supply Association,
Independent Petroleum Association of
America and the American Gas Association,
went further asserting " ...the agreement
does not address many of the key
issues surrounding permitting of natural
gas infrastructure projects. "
The bill falls far short of the provisions
in two Senate bills introduced in May
2023, by two Republicans, as the House
and Senate were trying to reach a bipartisan
compromise on permitting reforms.
No Democrats in the Senate supported
either of those two bills, which had numerous
GOP co-sponsors. These two
10 AUGUST 2023 | UndergroundInfrastructure.com
Stephen Barlas | Washington, D.C. Editor
New Permitting Provisions in Budget
Bill Slight Natural Gas Industry
bills were the Revitalizing the Economy
by Simplifying Timelines and Assuring
Regulatory Transparency (RESTART)
Act (S. 1449) and the Spur Permitting
of Underdeveloped Resources (SPUR)
Act (S. 1456).
On June 27, the Natural Gas Council
sent two letters, one devoted to each of
those two bills, to the Democratic chairman
and top Republican on the Senate
Energy and Natural Resources and Environment
and Public Works Committees,
asking for action on the bills. Sen. Shelly
Moore Capito (R-W.Va.) and Sen. John
Barrasso (R-Wyo.) are the prime sponsors
of those two bills.
In a press conference after passage of
the FRA, Sen. Capito said some of the provisions
in the bill Biden signed " touched
on " some of what was in the Barrasso and
Capito bills. But she said what was left out
of the final bill could serve as a " jumping
off point " for bipartisan talks on additional
permitting reform steps in her committee,
Senate Environment and Public Works.
Sen. Thomas Carper (D-Del.) chairs
that committee. His office did not respond
to a query regarding the possibility
of further permitting reform legislation.
Neither did the office of Sen. Manchin,
who according to press reports planned
to hold hearings on permitting reform in
July before the August recess. No such
hearings were scheduled on the Energy
Committee's website.
The marque permitting reforms in
the FRA deal concern the NEPA, which
requires federal agencies to take certain
environmental review steps before approving
all kinds of construction projects,
including pipelines. Interstate and
intrastate pipelines may be helped generally
by the reforms in the FRA, but so will
every other form of energy.
Moreover, the NEPA reforms will
now have to go through federal agency
rule writing with the prospect of the
agencies washing away some of the intended
benefits of the NEPA changes.
The law firm Van Ness Feldman,
which does a lot of pipeline regulatory
work, added, " While these provisions are
intended to yield significant benefits for
projects requiring federal approvals or
funding, the actual impact will depend
substantially on how the reforms are
implemented, and there remains considerable
interest in other aspects of permitting
and siting reform making further
legislative action likely. "
James Rusk, in a blog post for the law
firm Sheppard Mullin Richter Hampton,
wrote: " Most of the amendments simply
codify regulatory definitions or agency
practices already in effect, so the practical
impact of the changes is likely to be
limited. "
Beyond Mountain Valley
Beyond the edict to finally approve
Mountain Valley, which has been delayed
repeatedly since 2017 by federal
agency reviews spurred by environmental
groups, there were no pipeline specific
provisions in the FRA. That was despite
the fact that some federal agencies are
considering actions that would impede
pipeline construction.
For example, the Federal Energy Regulatory
Commission (FERC) published
draft new policies, with regard to its consideration
of greenhouse gas emissions
when vetting pipeline applications. Also,
the Army Corps of Engineers is considering
changes to Nationwide Permit 12,
which allows pipelines to get fast approval
of projects when crossing rivers,
streams and wetlands.
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Underground Infrastructure - August 2023

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