Underground Infrastructure - August 2023 - 11

The NGC had addressed some of
those key issues a month prior to passage
of the FRA in a May 1, 2023, letter to Sen.
Manchin and others. It said:
" Congress must reform the Clean
Water Act (CWA) certification
process to promote efficiency,
properly scope state reviews and
conditioning of permits, eliminate
inconsistent results across agencies,
and ensure that agencies use the
process only to protect water quality,
not pursue unrelated goals.
" Congress should also eliminate
unnecessarily long and unduly
burdensome National Environmental
Policy Act (NEPA) reviews by
clarifying agencies should only
analyze reasonably foreseeable
environmental effects causally related
to the proposed project, focusing
analyses on feasible alternatives, and
establishing review schedules.
Finally, Congress should end pointless,
project-killing delays by establishing
timelines for judicial review of CWA certifications
and NEPA reviews and requiring
a clear connection between the project
and effects on water quality before a
court can vacate a certificate and prolong
the review process. "
The FRA accomplished few of those
objectives, leading the gas industry to
press post-FRA for action on the Capito
and Barrasso bills. The RESTART
Act, for example, clarifies that agencies
should only analyze reasonably foreseeable
environmental effects of a proposed
project, consider only alternatives that
are technically feasible and within the
jurisdiction of the reviewing agency, allow
agencies to adopt categorical exclusions
recognized by other agencies, and
establish enforceable deadlines that, if
unmet, deem the NEPA requirements
for the project fulfilled.
It would also write language into the
Clean Water Act to ensure federal and
state agencies use the process only to protect
water quality. In addition, the proposal
would provide regulatory certainty
by maintaining existing Nationwide Permits
that allow pipelines and others to
move forward with projects with minimal
environmental impact on streams, rivers,
wetlands and other bodies of water.
The pipeline industry is a regular user of
NWP 12, whose use is chiefly regulated by
the Army Corps of Engineers. The Trump
administration, as it was leaving office
in January 2021, made changes to NWP
12 which, for the most part, pipelines applauded.
But the Biden Administration announced
in March 2022 a " formal review "
of NWP 12 ominously stating " previous
uses of NWP 12 have raised concerns
identified in Executive Order 13990, such
as environmental justice, climate change
impacts, drinking water impacts and notice
to impacted communities. "
INGAA replied that the vast majority
of projects authorized by NWP 12
involve minor discharges of dredged or
fill material associated with small maintenance,
repair or modernization projects.
" Modifying NWP 12 to limit or delay
its use would be inconsistent with Congress's
goal of creating a streamlined permitting
program and impose undue administrative
requirements on the Corps,
state agencies and the public, " INGAA
said in its comments to the Corps.
More than a year later, the Corps has
not done anything further regarding that
formal review of NWP 12. However,
clearly the pipeline industry is concerned
enough about potential action, hence the
provision in the Capito bill to keep NWP
12 just as it was as established in January
2021 by the Trump administration.
Capito's RESTART Act does touch
on FERC's authority by listing some prohibitions
on the FERC's use of what is
called the " social cost of carbon " metric,
which environmentalists have pushed as
a means of stopping some pipeline projects
because of estimated greenhouse gas
emissions. For example, the bill outlaws
FERC's use of the SCC when it " (1) may
increase the cost of energy, including the
levelized cost of electricity and gasoline
prices, as determined through a review
by the Energy Information Administration;
or (2) could prolong the timeline
necessary to promulgate that regulation,
guidance or agency action. "
Barrasso's SPUR Act would follow the
NGC's recommendations on limitation
of NEPA review authority by allowing
consideration only of environmental effects
which:
* " Are reasonably foreseeable, not
speculative and not remote in time
or geographically remote.
* " Have a reasonably close causal
relationship that is not the product
of a lengthy causal chain to the
proposed action or alternative
action, respectively, as determined
by the Commission.
* " The Commission has the ability
to prevent and that would not
occur absent the proposed action
or alternative action.
* " Do not constitute potential
effects from emissions upstream
or downstream of the facility that
is the subject of the application
under section. " UI
It would also write language into the Clean Water Act
to ensure federal and state agencies use the process only
to protect water quality. In addition, the proposal would
provide regulatory certainty by maintaining existing
Nationwide Permits that allow pipelines and others to move
forward with projects with minimal environmental impact
on streams, rivers, wetlands and other bodies of water.
UndergroundInfrastructure.com | AUGUST 2023 11
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Underground Infrastructure - August 2023

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