pipeline projects: preparing for ferc certification, addressing...
TRANSCRIPT
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Presenting a live 90-minute webinar with interactive Q&A
Pipeline Projects:
Preparing for FERC Certification,
Addressing Environmental Impacts Navigating the Certification and Environmental Review Processes for Pipelines
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
TUESDAY, FEBRUARY 21, 2017
Andrew T. Bockis, Partner, Saul Ewing, Harrisburg, Pa.
H. David Gold, Special Counsel, Wilmer Cutler Pickering Hale and Dorr, Boston
Sean T. O'Neill, Esq., Saul Ewing, Philadelphia
Raya B. Treiser, Esq., Wilmer Cutler Pickering Hale and Dorr, Washington, D.C.
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Pipeline Projects:
Preparing for FERC Certification,
Addressing Environmental Impacts
Strafford Webinars
February 21, 2017
H. David Gold
WilmerHale
What is Natural Gas?
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WilmerHale
Oil and Gas Industry
▪ Exploration
▪ Production
▪ Transportation
Adapted from: GE Oil and Gas Solutions (http://www.ge.com/in/oil-and-gas/operating-segments)
▪ Refining
▪ Marketing
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U.S. Natural Gas Pipelines
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WilmerHale
Federal Regulation of Natural Gas Pipelines
siting and
abandonment of
interstate natural gas
pipelines
pipeline security
pipeline safety PHMSA Pipeline and Hazardous Materials Safety Administration
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WilmerHale
Federal Regulation of Natural Gas Pipelines
Endangered
Species Act
Clean Water Act
National Historic
Preservation Act
Magnuson-
Stevens Act
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Natural Gas Act - 15 U.S.C. §§ 717-717z
Section 1(b) - 15 U.S.C. §717(b)
o transportation of natural gas in interstate commerce
o sales for resale of natural gas in interstate commerce
o companies who transport and sell natural gas in
interstate commerce
Section 7 - 15 U.S.C. §717f
o certificate of public convenience and necessity
o abandonment of facilities or services
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Federal Energy Regulatory Commission
Pipeline
Certificates
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Pipeline Certificates Approved in 2017
Docket No. Company/Project Capacity
(MMcf/d)
Miles of
Pipe States Filing Date Issued Date
CP15-115 National Fuel Gas Supply Corp/Empire Pipeline, Inc.
Northern Access 2016 Project 497 99.8 NY, PA 3/17/2015 2/3/2017
CP15-138 Transcontinental Gas Pipe Line Company, LLC Atlantic
Sunrise Project 1700 199.5 PA, VA 3/31/2015 2/3/2017
CP15-93 Rover Pipeline LLC
Rover Pipeline Project 3,250 711.2 OH, PA, WV 2/20/2015 2/2/2017
CP15-94 Panhandle Eastern Pipe Line Company, LP Panhandle
Backhaul Project 750 0 IN, IL, MI, OH 2/23/2015 2/2/2017
CP15-96 Trunkline Gas Company, LLC
Trunkline Backhaul Project 750 0 IL, MS, TN 2/23/2015 2/2/2017
CP16-4 Tennessee Gas Pipeline Company, L.L.C.
Orion Project 135 12.9 PA 10/9/2015 2/2/2017
CP16-98 Dominion Carolina Gas Transmission, LLC
Transco to Charleston Project 80 60 SC 3/9/2016 2/2/2017
CP16-472 Northern Natural Gas Company
Northern Lights 2017 Expansion 75.9 4.8 MN 6/24/2016 1/30/2017
CP16-501 Texas Eastern Transmission, LP Marshall County Mine
Panel 17W Project 1 WV 9/15/2016 1/26/2017
CP16-12 Tennessee Gas Pipeline Company, L.L.C. Southwest
Louisiana Supply Project 295 3.8 LA 10/26/2015 12/15/2016
CP16-17 Millennium Pipeline Company, L.L.C.
Valley Lateral Project 130 7.8 NY 11/13/2015 11/9/2016
7,662.9 1,100.8
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WilmerHale
Pipeline Certificates Approved in 2016
Total number of certificates = 38
Total miles of pipe = 1,111.1
Total number of states = 23 (AL, AZ, CT,
DE, FL, GA, IL, IN, KY, LA, MA, MD, NC,
NJ, NY, OH, PA, SC, TN, TX, VA, WA, WV)
Total capacity = 13,815 (MMcf/d)
https://www.ferc.gov/industries/gas/indus-act/pipelines/approved-projects.asp
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Pipeline Certificate Process
1. Applicant’s Planning Process
2. Application Process
3. Construction Process
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Applicant’s Planning Process
Open Season to
Determine
Market Needs
Select Proposed
Pipeline Route
Start Surveys
Public Meetings
Identify
Landowners
Complete
Resource
Reports
Negotiate
Easements
Applicant files
Application
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WilmerHale
Application Process
Pre-Filing
(voluntary)
Scoping
Applicant files
Application
EA or Draft EIS Scoping
(if no Pre-Filing)
FERC issues
Notice of
Application
Respond to
Comments /
Final EIS
Final Order
Preliminary
Determination
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WilmerHale
Pre-Filing Environmental Review Process
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WilmerHale
Pre-Filing Environmental Review Process (continued)
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Pipeline Certificate Standard - 15 U.S.C.§717f(e)
A certificate shall be issued to any qualified applicant therefor, authorizing
the whole or any part of the operation, sale, service, construction,
extension, or acquisition covered by the application, if it is found:
otherwise such application shall be denied.
• that the applicant is able and willing properly to do the acts and to
perform the service proposed and to conform to the provisions of this
chapter and the requirements, rules, and regulations of the
Commission thereunder, and
• that the proposed service, sale, operation, construction, extension, or
acquisition, to the extent authorized by the certificate, is or will be
required by the present or future public convenience and necessity;
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Analytical Framework FERC Policy for Certificating New Pipeline Construction
1 - Threshold question: Can project proceed without
subsidies from customers?
• Not applicable to new pipeline companies without existing customers
2 - Has applicant eliminated or minimized adverse effects?
If yes to 1 and 2:
preliminary determination / final order
If yes to 1 and no to 2:
public benefits vs. adverse effects
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Effect of Pipeline Certificate
Preemption
o state and local law in conflict with federal law
o savings clause - 15 U.S.C.§717b(d)
• Coastal Zone Management Act
• Clean Air Act
• Clean Water Act
Eminent domain - 15 U.S.C. §717f(h)
Terms and conditions - 15 U.S.C.§717f(e)
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Pipeline Construction Process
Pipeline
construction
ROW
restoration
Project in
service
Finalize
project design
File plans,
surveys, etc.
Complete ROW
acquisition
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© Copyright 2017 Saul Ewing LLP
Pipeline Projects Addressing Environmental Impacts
Andrew Bockis, Esq.
(717) 257-7520
© Copyright 2017 Saul Ewing LLP
Required Environmental Review
• Natural Gas Act
Pre-filing process
National Environmental Policy Act
• FERC – Lead Agency
NEPA and “all applicable Federal authorizations”
15 U.S.C. § 717n
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© Copyright 2017 Saul Ewing LLP
Select Federal Authorizations
• Clean Water Act
§ 402
§ 404
§ 401 may be triggered
• Clean Air Act
• Endangered Species Act (§ 7)
• National Historic Preservation Act (§ 106)
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© Copyright 2017 Saul Ewing LLP
NEPA Review
• Procedural obligations
• Ensure that environmental effects are “adequately identified and evaluated”
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© Copyright 2017 Saul Ewing LLP 28
© Copyright 2017 Saul Ewing LLP
NEPA Review
• Environmental Assessment v. Environmental Impact Statement
18 CFR § 380.5 (actions that require EA)
18 CFR § 380.6 (actions that require EIS)
• Promoting informed agency action
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© Copyright 2017 Saul Ewing LLP
Addressing Opposition
• FERC Rehearing
• Judicial review
Consolidated Record – 15 U.S.C. § 717n(d)
18 CFR § 385.2014 – Index of agency documents and materials
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© Copyright 2017 Saul Ewing LLP
Pipeline Projects: Preparing for FERC Certification,
Addressing Environmental Impacts
Strafford Webinars
February 21, 2017
Sean T. O’Neill
© Copyright 2017 Saul Ewing LLP
Best Practices and Allocating Risks and Benefits
• Primary goal is to get project approved and pipe in the ground
Anticipate opposition – legal or otherwise
Identify and avoid potential pitfalls
Build record to withstand challenges and support acquisition of land rights
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© Copyright 2017 Saul Ewing LLP
Getting Project Approved
• Gather information for initial application
• Respond to FERC data requests
• Address public comments
• Mitigate impacts
• Analyze alternatives
Working parallel paths
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© Copyright 2017 Saul Ewing LLP
Getting Pipe in the Ground
• Satisfying conditions in FERC Order
• Survey access and land acquisition
Identify critical paths
• Eminent domain
• Authorizations from permitting agencies
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© Copyright 2017 Saul Ewing LLP
Anticipate Opposition
• Identify potential opposition and develop response plan
Appeals, permits, legislation, environmental or landowner groups
Critical paths, parallel paths
Consider standard of review
Build a strong record with FERC and permitting agencies
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© Copyright 2017 Saul Ewing LLP
Identify and Avoid Pitfalls
• Difficult landowners or tracts
Can necessary property rights and permits be acquired?
Is project constructible?
• Local zoning and approvals
Asserting preemption
• Permitting agencies
Be responsive and build a record
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© Copyright 2017 Saul Ewing LLP
Building the Record
• Legal challenges to project often limited to administrative record
Anticipate opposition and issues and build record accordingly
• Is issue within scope of agency? Was it considered? What evidence to support?
Consider the standard of review
• For the agency and on appeal
37
© Copyright 2017 Saul Ewing LLP
Building the Record
• Make sure the administrative record will support land acquisition efforts
Exercising eminent domain
• Landowner opposition and challenges
• Identifying rights needed
Building case for preemption
• Determine where it may need to be asserted
• Showing issue considered by FERC
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© Copyright 2017 Saul Ewing LLP
FERC Without a Quorum
• What can FERC do without a quorum?
Automatic approvals
Delegations of authority to FERC staff
• Impacts on pending projects
39
© Copyright 2017 Saul Ewing LLP
Baltimore Lockwood Place • 500 East Pratt Street, Suite 900 • Baltimore, MD 21202-3171 • T: 410.332.8600 • F: 410.332.8862
Boston 131 Dartmouth Street, Suite 501 • Boston, MA 02116 • T: 617.723.3300 • F: 617.723.4151
Harrisburg Penn National Insurance Plaza • 2 North Second Street, 7th Floor • Harrisburg, PA 17101-1619 • T: 717.257.7500 • F: 717.238.4622
New York 245 Park Avenue, 24th Floor • New York, NY 10167 • T: 212.672.1995 • F: 212.372.8798
Newark One Riverfront Plaza • Newark, NJ 07102 • T: 973.286.6700 • F: 973.286.6800
Philadelphia Centre Square West • 1500 Market Street, 38th Floor • Philadelphia, PA 19102-2186 • T: 215.972.7777 • F: 215.972.7725
Princeton 650 College Road East, Suite 4000 • Princeton, NJ 08540-6603 • T: 609.452.3100 • F: 609.452.3122
Washington
1919 Pennsylvania Avenue, N.W. Suite 550 • Washington, DC 20006-3434 • T: 202.333.8800 • F: 202.337.6065
Wilmington 1201 North Market Street• Suite 2300 P.O. Box 1266 • Wilmington, DE 19899 • T: 302.421.6800 • F: 302.421.6813
Chesterbrook 1200 Liberty Ridge Drive, Suite 200 • Wayne, PA 19087-5569 • T: 610.251.5050 • F: 610.651.5930
Pittsburgh One PPG Place • 30th Floor • Pittsburgh, PA 15222 • T: 412.209.2500 • F: 412.209.2570
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Pipeline Projects:
Preparing for FERC Certification,
Addressing Environmental Impacts
Strafford Webinars
February 21, 2017
Raya B. Treiser
202-663-6002
WilmerHale
Fish and Wildlife
Service
Endangered Species
Act Consultation
US Forest Service
Special Use Permit to
cross National Forest
System lands
Project
Green
Light
National Park
Service
Right of Way to
Cross NPS lands
Bureau of Land
Management
Right of Way to cross
public lands managed
by the federal
government
US Army Corps of
Engineers
Clean Water Act
Section, Rivers and
Harbors Act
FERC
Certificate of Public
Convenience and
Necessity
National Oceanic
and Atmospheric
Administration
Endangered Species
Act Consultation
Bureau of Indian
Affairs
Right of Way to Cross
tribal lands
Federal Agency Reviews of Interstate Pipelines
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Coordinating Federal Reviews
• The Energy Policy Act of 2005 / Order No. 687
o FERC is the NEPA lead agency
o FERC establishes Federal agency
deadlines: 90 days after FERC Order
• FAST-41 Federal Permitting Improvement Act
o Increased predictability
o Increased transparency and accountability
o Improved early coordination and
synchronization of federal reviews
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WilmerHale
FAST-41 Covered Sectors and Agencies
Sectors Agencies
• Renewable energy generation
• Electricity transmission
• Surface transportation
• Aviation
• Ports and related infrastructure
• Water resources projects
• Conventional energy production
• Broadband
• Pipelines
• Manufacturing
• Other sectors as determined by a majority vote
of the Federal Infrastructure Permitting
Improvement Steering Council
• Advisory Council on Historic Preservation
(ACHP)
• Department of Agriculture (USDA)
• Department of the Army (USACE)
• Department of Commerce (Commerce)
• Department of Defense (DOD)
• Department of Energy (DOE)
• U.S Coast Guard (Coast Guard)
• Department of Housing and Urban
Development (HUD)
• Department of the Interior (DOI)
• Department of Transportation (DOT)
• Environmental Protection Agency (EPA)
• Federal Energy Regulatory Commission
(FERC)
• Nuclear Regulatory Commission (NRC)
• Department of Homeland Security (DHS)
• Morris K. Udall and Stewart L. Udall
Foundation (Udall)
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WilmerHale
FAST-41 Covered Projects
Category 1 Category 2
Subject to NEPA;
Likely to require a total
investment of more than
$200,000,000; and
Does not qualify for abbreviated
authorization or environmental
review processes under any
applicable law
Likely to benefit from
enhanced oversight and
coordination, including a
project likely to require—
more than 2 Federal
agency reviews or
authorizations; or
the preparation of an EIS
under NEPA.
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WilmerHale
Key Provisions of FAST-41 Act
Coordination
• Coordinated Project Plan
• Concurrent Reviews
• Coordination with state, local and tribal reviews
Transparency
• Permitting Dashboard
• Agency CERPOs
Predictability
• Infrastructure Permitting Improvement Steering Council
• 2-Year Statute of Limitations
• Effects on jobs considered in Preliminary Injunction Suits
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Interstate Pipeline Permitting Under the
Trump Administration
• Renewed Focus on Energy Infrastructure,
Permitting Efficiency
• Executive Order on Expediting Environmental
Reviews and Approvals for High Priority
Infrastructure Projects
• Presidential Memoranda Regarding:
• Construction of the Keystone XL Pipeline
• Construction of the Dakota Access Pipeline
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