FERC Notice of Inquiry into Interstate Pipeline Policy Statement Gets Industry Commentary | Morgan Lewis – Power and pipes


Nearly 200 comments were filed in response to FERC’s Notice of Investigation (IA) of February 18, 2021 which sought new information and insight on whether it should revise its policy statement on the certification of new interstate natural gas transmission facilities (policy statement). As we discussed in our February 19 LawFlash, FERC solicited comments on several areas, including potential adjustments to its determination of needs, exercising the interests of eminent estates and landowners, FERC’s considerations on environmental impacts and its consideration of effects on environmental justice communities. Commentators provided a wide range of views, which we discuss below.

POTENTIAL ADJUSTMENTS TO IDENTIFYING FERC’S NEEDS

Many stakeholders oppose changes in the way FERC determines public needs. They said that FERC’s current case-by-case approach to determining the need for new transmission facilities relies on the market appropriately and provides FERC with the flexibility it needs to adapt to markets. changes and technological progress. Many speakers also supported the continued use by FERC of previous agreements to establish public need and saw no reason to distinguish between previous agreements with affiliates and non-affiliates, because in both cases , the agreement is binding and represents a significant financial commitment.

On the other hand, some commentators support the changes made to FERC’s need determination. They argued that FERC should assess projections of energy demand, the use of alternative energy sources to meet future needs, and any other factors that may be relevant in determining whether a proposed facility is required for convenience. and public need. In addition, some interveners argued that FERC should change its current reliance on previous agreements and should not treat affiliation agreements as sufficient evidence of need when other evidence presented does not demonstrate need.

Commentators generally agreed that FERC should consider all the benefits of a proposed project when determining the need.

EXERCISE OF EMINENT DOMAIN AND OWNERSHIP INTERESTS

Commentators have expressed divergent positions on considering the use of the eminent domain in reviewing project applications and whether FERC can condition the exercise of the eminent domain by a certificate holder. Some commentators believe the current FERC process adequately protects landowners by aligning their interests with those of certificate applicants, while others have urged FERC to consider more robust approaches to protect landowner rights. Commentators who believe that FERC is not currently doing enough to protect the interests of landowners broadly agreed that FERC should defer issuing a certificate until the applicant obtains all necessary permits for construction.

FERC’S TAKING INTO ACCOUNT ENVIRONMENTAL IMPACTS

Regarding FERC’s consideration of environmental impacts in the certification process, much of the debate revolved around whether FERC had authority under NEPA or the Natural Gas Act (NGA) to use the social cost of carbon analysis (SCC). Several speakers also questioned the accuracy of the CSC’s analysis and pointed to previous FERC statements to this effect.

FERC REVIEW OF THE EFFECTS ON ENVIRONMENTAL JUSTICE COMMUNITIES

Many commentators strongly support FERC’s consideration of the impacts of new projects on environmental justice communities, and have proposed a variety of actions that FERC can take to ensure meaningful participation of environmental justice communities in the process. examination of certificates. Many comments generally focused on FERC’s engagement with affected communities in the certification process and improving the transparency of this process. Some comments provided more concrete suggestions, including that FERC should wait until the environmental review stage before assessing the public benefits of a project.

However, although they agreed that the FERC certification process should consider impacts on environmental justice communities, some commentators expressed concern that any changes to the FERC process in this regard would be premature. . Noting that the continued policy-making efforts of the White House, the Environmental Protection Agency, and the Council on Environmental Quality affecting environmental justice communities have yet to provide guidance to federal agencies, these commentators did share their concerns that any immediate changes made by FERC would result in inconsistency across the federal government. government.

In addition, President Richard Glick has made it clear that his focus is on better integrating environmental justice and equity issues into all FERC decisions. Earlier this year, he said FERC should discharge its responsibilities more aggressively to ensure that FERC decisions do not unfairly affect historically marginalized communities. President Glick has since created and held a new position, Senior Advisor for Environmental Justice and Equity, which is responsible for working with experts in all FERC program offices to mainstream environmental justice and environmental issues. fairness in FERC decisions.

Summer associate Timothy Birchfield contributed to this position.

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