Underground Construction - April 2021 - 11

conditions, once the certificate issues and
becomes final, the Commission has never
revisited a certificate order and has in fact
always doubted its ability to do so. "
With regard to the NOI, which kicks off
a long regulatory process that could lead to
changes to pipeline certification possibly
three or four years down the line, FERC
addressed five categories of general issues:
project need, eminent domain and landowner interests, environmental impacts,
commission review process and EJ.
The environmental impact questions
the commission asks for comments on
have to do with some of the issues in the
Weymouth compressor question, which
is to say the commission's consideration
of greenhouse gas emissions. During the
last year of the Trump administration,
the Council on Environmental Quality
(CEQ) issued new guidance on how federal
agencies should apply the rules of the
National Environmental Policy Act (NEPA),
a law that requires the FERC and other
federal agencies to do an environmental
impact statement and to adhere to certain
requirements when completing that statement. The changes that were authorized
by the Trump CEQ were " pro-pipeline " and
" pro-construction " projects in general.
However, the Biden CEQ has withdrawn
those guidelines and will rewrite them, posing another threat to pipeline construction
which will make it easier for a Democraticled FERC to reject construction applications
based on GHG and even VOC emissions.
The question of landowner rights and eminent domain in the new NOI also reverberate elsewhere, for example, in the Penn East
federal court case. The Supreme Court will
hear the case and decide whether New Jersey
was within its rights to prohibit condemnation of its lands for the pipeline, which
would take gas from Pennsylvania to New
Jersey, after FERC approved the project.
Amy Andryszak, president and CEO of
INGAA, said, " The Court's decision to hear
this case is a positive step. As INGAA made
clear in our amicus brief, if this case is left
to stand it would upend 80 years of precedent and overturn congressional intent.
We believe the arguments put forward by
PennEast are sound and will prevail following oral arguments later this year. "
FERC itself - in another docket - is in the
midst of deciding whether to make changes
to Order 871 announced in 2020 which

dealt with so-called " tolling orders " that
allow the commission to delay construction
of a pipeline due to an upcoming rehearing
of its prior approval decision.
Those orders are issued because of legal
questions about the use of eminent domain.
INGAA objected to Order No. 871 saying
it " will have significant adverse effects on
INGAA and its members, by imposing a
blanket and potentially indefinite delay on
notices to proceed with construction. "

INGAA requested a rehearing of that
order after it was issued and went to
federal court to force the FERC's hand. No
court action has been taken. FERC issued
Order 871A on January 26, 2021 which
purportedly attempts to address some of
INGAA's issues. The commission has said
it would make changes two months after
" reply briefs " were filed in March. INGAA
has criticized 871A, too, objecting to it on a
number of fronts and calling it " improper. " *

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Underground Construction - April 2021

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