Federal Energy Regulatory Commission Clarifies Application of Rule Limiting Construction Activities

On May 4, 2021, the U.S. Federal Energy Regulatory Commission (FERC or Commission) issued Order No. 871-B, an Order Limiting Authorizations to Proceed with Construction Activities. The order revises FERC regulations at 18 C.F.R. § 157.23(b) enacted in July 2020 following the issuance of Order No. 871.

The regulation now prohibits authorizations to proceed with construction for pipeline or liquefied natural gas (LNG) terminal facilities from issuing if a timely request for rehearing of a certificate order has been filed specifically opposing project construction, operation, or need until (1) the request is no longer pending before FERC, (2) the record of the proceeding has been filed with the court of appeals, or (3) 90 days have passed after the date that the request for rehearing may be deemed to have been denied under the Natural Gas Act’s (NGA) rehearing provisions at 15 U.S.C. § 717r(a).

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FERC Makes First Significance Determination on Greenhouse Gas Emissions

On March 22, 2021, the Federal Energy Regulatory Commission (FERC or Commission) for the first time issued an order that assessed whether greenhouse gas emissions related to a natural gas pipeline certificate project would significantly contribute to climate change. FERC purported to perform the assessment pursuant to its obligation under the National Environmental Policy Act (NEPA) to take a “hard look” at a project’s environmental impacts.

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FERC Revisits Certificate Policy Statement With New Focus on Environmental Justice and Greenhouse Gas Emissions

On February 18, 2021, the U.S. Federal Energy Regulatory Commission (FERC) reopened the comment period for its Notice of Inquiry (NOI) on the Certification of New Interstate Natural Gas Facilities. FERC applies its current policy, issued in 1999, to assess whether to issue interstate natural gas transportation facilities a Certificate of Public Convenience and Necessity (CPCN), a foundational permit required for their construction and operation. FERC must abide with its obligations under the Natural Gas Act and National Environmental Policy Act when considering pipeline certificate applications. FERC initially issued the NOI in April 2018, seeking comment on whether, and if so how, it should revise its approach to evaluating CPCN applications. The docket has been pending for nearly three years.

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Biden Administration to Review Environmental Regulations, Policies; Revokes Some Trump Executive Orders on Energy Infrastructure

On January 20, 2021, President Joe Biden issued an executive order, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The order directs executive agency heads to review hundreds of agency actions implemented during the Trump administration, including more than 120 related to energy and the environment. In addition, the order suspends or revokes, in whole or in part, nearly one dozen executive orders issued by the prior president directly tied to energy infrastructure.

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