Underground Infrastructure - October 2023 - 15

WASHINGTONWATCH
Stephen Barlas | Washington, D.C. Editor
Biden Administration Wants to Count
Downstream GHG Emissions When FERC
Considers Pipeline, Power Projects
The President Biden administration announced its latest effort
to throw a wrench in pipeline construction. The Biden
Council on Environmental Quality (CEQ) wants to rollback
Trump administration pro-pipeline changes to the National
Environmental Policy Act (NEPA).
The NEPA changes sought by CEQ would negatively affect
construction of electricity transmission lines and other power
distribution projects, too. But in its recently proposed " Phase
2 " reform proposal, CEQ said it wants to make it more likely
that a federal agency performs an environmental impact statement
(EIS) and cites the natural gas industry specifically.
" For example, leases for oil and gas extraction or natural
gas pipelines have local effects, but also have reasonably foreseeable
global indirect and cumulative effects related to GHG
emissions, " the CEQ said, arguing those emissions can be significant
and have not been accounted for in the past nor triggered
Environmental Impact Statement studies.
The Federal Energy Regulatory Commission (FERC) does
not consider global and cumulative GHG emissions when considering
new project applications.
Chad Teply, senior vice president-transmission and Gulf
of Mexico, The Williams Companies, explained to the Senate
Committee on Energy and Natural Resources on July 26 how
New York State refused to issue a permit under section 401 of
the Clean Water Act. This wore down the company's will to build
the 124-mile Constitution Pipeline, which FERC had approved.
" Although, FERC later ruled that New York's denial came
too late and New York's authority had been waived, the time
spent litigating the denial ultimately doomed the project, " Teply
said. NEPA often requires states to issue 401 permits when pipelines
cross bodies of water.
The Senate hearing was called by the committee chairman,
Sen. Joe Manchin (D-W.V.), to explore potential energy permitting
regulatory improvements beyond those Congress
passed in the 2023 Fiscal Responsibility Act (FRA). That bill
included mostly procedural changes to NEPA that Teply,
echoing the Interstate Natural Gas Association of America's
(INGAA) position, called a first step.
Manchin's hearings were meant to generate bipartisan support
for easing NEPA regulations beyond what was approved
in the FRA. But as if it were rebuffing Manchin's efforts, the
Biden CEQ on July 31 - two days after the Senate hearings -
said it was going in the opposite direction. It issued its proposed
" Phase 2 " NEPA rule, which followed its " Phase 1 " rule in April
2022, when it reversed three specific provisions in the prior
Trump-era 2020 rulemaking.
" In stark contrast to the measures aimed at promoting efficiency,
the proposed Phase 2 rule includes numerous features that are
more about imposing substantive requirements in what is intended
to be a procedural statute, " wrote the law firm Vinson & Elkins.
Many of the changes are highly technical. One has to do with
whether a proposed project is deemed " significant " or not. That
decision by a federal agency, such as FERC, determines whether
the agency does a limited " environmental assessment " or a fullblown
EIS. An EIS can take years and serves as a moving target for
environmental groups who often file lawsuits to delay a project.
In its " Phase 2 " proposal, CEQ wants to make it easier for
an agency to come to a " significance " decision. It argues that
the Trump changes here narrowed the potentially affected environment,
by focusing significance on physical, ecological and
socio-economic aspects of the environment, " usually " in the " local "
area. CEQ throws the Trump narrowing of " significance "
out the window calling it " overly limiting. "
Instead, it says agencies must look at the " affected environment, "
which can include the global, national, regional and
local environment. It then cites the natural gas industry, where
project GHG emissions should be measured and accounted
for on a much broader scale than is currently the case.
Teply told the Senate committee that permitting challenges
must be decreased, not increased. He did not address the CEQ
" Phase 2 " proposal, which had not been issued yet. He did, however,
say Williams -as is true for most, if not all, of the interstate
pipeline industry - supported Sen John Barrasso's (R-Wyo.)
Spur Permitting of Underdeveloped Resources (SPUR) Act.
Barrasso is the top Republican on the energy committee.
To address state agency legal attempts to block pipelines like
Constitution and Mountain Valley, the bill requires a reviewing
court to remand any federal or state agency denial of a permit
for an interstate pipeline project if the denial is not supported
by clear and convincing evidence.
Regarding refusals to approval section 401 Clean Water
permits, the bill brings state reviews of interstate natural gas
projects into the FERC-led NEPA environmental review process
and removes them from the Section 401 process. Other
UndergroundInfrastructure.com | OCTOBER 2023 15
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Underground Infrastructure - October 2023

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