American Oil and Gas Reporter - July 2020 - 28

U.S. Energy Secretary Dan Brouilette
chimes in by saying the Trump administration wants to bring the benefits of reliable and affordable energy to all Americans. "Unfortunately, the same can't be
said for the activists who killed this project," he states. "As secretary, I will
continue to fight for expanded energy infrastructure in this country."
As for Dominion's decision to sell its
transmission and storage assets, Chairman,
President and CEO Thomas F. Farrel II
says it "further reflects the company's
focus on its premier state-regulated, sustainability-focused utilities."
Commenting that during the next 15
years, Dominion plans to invest as much
as $55 billion in emissions reduction technologies as well as to retire more than
four gigawatts of coal-and oil-fired electric
generation between 2018 and 2025, Farrel
says, "This transaction represents another
significant step in our evolution as a company, allowing us to focus even more on
fulfilling utility customer needs and positioning us for a bright and increasingly
sustainable future."
Water Crossing Permits
On the same day SCOTUS ruled on
ACP, U.S. Solicitor General Noel Francisco asked the court to temporarily block
the Montana U.S. District Court's order
that prevents the Army Corps from using
its NWP 12 to approve water crossings
for new oil and gas pipelines.
Chief Judge Brian Morris invalidated
the Corps' NWP 12 on April 15 in a lawsuit
brought by environmental groups against
the Keystone XL Pipeline after finding the
agency failed to engage "in 'programmatic'
consultation with relevant federal wildlife
agencies before reissuing NWP 12 in 2017,"
Francisco's filing points out.
Both Judge Morris and the 9th Circuit
Court of Appeals rejected appeals by the
Corps to limit Morris' April 15 ruling to
Keystone XL or stay its application pending appeal (AOGR, June 2020, pg. 20).
In his petition to the Supreme Court,
Francisco points out that the plaintiffs in
the original complaint against Keystone
XL "repeatedly disclaimed any request
for vacatur of NWP 12, or an injunction
extending beyond Keystone XL itself. At
summary judgment, the district court
nonetheless granted the global equitable
relief respondents had disclaimed."
"The district court had no warrant to
set aside NWP 12 with respect to Keystone
XL, let alone for the construction of all
new oil and gas pipelines anywhere in
the country," Francisco continues.
That is because, he argues:
· "The order grants nationwide equitable relief that is inconsistent with Ar28 THE AMERICAN OIL & GAS REPORTER

ticle III (of the U.S. Constitution) and
traditional principles of equity;
· "The order was issued without fair
notice that the court itself would unilaterally grant relief beyond the equitable
remedies that respondents sought.
· "The order lacks any sound basis
in the Endangered Species Act."
A brief filed by 18 states led by West
Virginia and Texas backs Francisco's appeal
for relief, arguing that developers of new
oil and gas pipelines face a "lose-lose
proposition" if the Montana court's order
stands. The brief contends pipeline developers are being forced to choose between
"sinking time and money into the individual
permitting process (or waiting) to start construction until the Corps' position ultimately
is vindicated. Either option potentially will
add years to the timelines of projects that
require substantial capital investment."
The states' brief says individual Section
404 permits take on average 788 days
and cost $271,596 to complete, compared
with 313 days and $28,915 for the average
NWP 12 applicant.
A stay of Morris' order by SCOTUS
would remain in effect while the 9th Circuit considers the Army Corps' appeal
of Morris' ruling, explain published reports, which also quote a note to clients
from ClearView Energy Partners that
opines, "We think the Supreme Court is
likely to grant the stay . . . to the extent it
applies beyond Keystone XL."
Enbridge Line 5
Enbridge's stop-and-go Line 5 saga
in Michigan began June 5 when the U.S.
Court of Appeals for the 6th Circuit determined the company had produced legally acceptable plans for dealing with a
potential spill, published reports say.
Line 5 carries 540,000 barrels of light
crude and natural gas liquids a day from
Sarnia, Ontario, to Superior, Wi. A fourmile segment splits into two lines as it
runs through the Straits of Mackinac between Lakes Michigan and Huron. Enbridge has proposed to replace that 65year-old segment with a single line that
would be buried 100 feet below the
bottom of the straits.
Reports say the federal Pipeline and
Hazardous Materials Safety Administration
has approved two spill response plans
Enbridge has submitted in the past five
years, but the National Wildlife Federation
contended the agency failed to meet Endangered Species Act and National Environmental Policy Act requirements.
A federal district court in Detroit ruled
for the environmental group, but the 6th
Circuit reversed that ruling, reports say,
finding that PHMSA did not have to consider the ESA and NEPA provisions be-

cause they were not included in specific
Clean Water Act criteria "by which (PHMSA was required) to evaluate the 'correctness' of the plans."
Line 5 got another boost June 11 when
the Michigan Court of Appeals ruled that
Act 359, which was passed by a lameduck legislature and signed by outgoing
Republican Governor Rick Snyder in December 2018 (AOGR, January 2019, pg.
22) was constitutional. Act 359 paved
the way for the Straits of Mackinac replacement by shifting authority over Line
5 from the Mackinac Bridge Authority
to the newly created Mackinac Straits
Corridor Authority.
However, at the request of new, Democratic Governor Gretchen Whitmer, who
campaigned against Line 5, new Attorney
General Dana Nessel in March last year
opined that Act 359 was unconstitutional
because its title didn't match the body of
the law (AOGR, May 2019, pg. 14).
The Michigan Court of Claims affirmed
the AG's opinion last October, but was
overruled by the Michigan Court of Appeals in June, which concluded, "The
title of 2018 PA 359 does not address
objects so diverse that they have no necessary connection."
Negative Developments
Developments turned negative for Line
5 on June 25, when Ingham County, Mi.,
Circuit Judge James Jamo granted a temporary restraining order against the
pipeline's continued operations that Nessel
requested after Enbridge reported an anchor
support on the east leg of the Straits of
Mackinac section had shifted, reports say.
Jamo partially lifted that order on July 1.
According to the reports, Enbridge
immediately shut down both lines, but
resumed flow through the west line after
determining that a screw anchor support
on the east line had shifted from its
original position. But Nessel requested-
and Jamo granted pending a hearing
scheduled for June 30-an injunction
against all operation of the line.
On July 1, reports say, Jamo lifted the
shutdown order for the west line, but kept
it in place for the east line. The amended
order required Enbridge to conduct safety
tests on an area of the west line that apparently had been scraped by a vessel
cable or similar object. Jamo said the
west line could continue to run "subject
to the results of the (test) and further
order of this court," according to reports.
Jamo gave Enbridge a week to provide
the state with test results.
The east line, meanwhile, was to
remain closed until PHMSA completed
an investigation of the damaged anchor
support, reports indicate.

American Oil and Gas Reporter - July 2020

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