Washington—Natural gas pipeline companies and public interest groups offered starkly differing advice to federal regulators on when to allow gas infrastructure construction to start while challenges are still pending.
The viewpoints came as the Federal Energy Regulatory Commission late January requested more briefing on its contested June 9 instant final rule barring the start of construction while rehearing requests were pending at the commission (RM20-15).Pipeline companies want FERC to narrow the reach of its rule and set clear deadlines to avoid injecting uncertainties into their project timelines for meeting market demand and customer commitments. They said FERC lacks the authority to curb eminent domain use.
Environmental groups and a handful of states, by contrast, opposed paring back the initial rule to a subset of cases, arguing that not only landowner interests but other community interests are at stake. They backed steps to pause the use of eminent domain, pending FERC's rehearing process, and supported a longer hold on work than pipelines envisioned.
FERC issued the regulation when it was under pressure in court over its prior practice of issuing tolling orders that effectively put off decisions on the merits of landowner-rehearing requests while often allowing projects to begin construction. As part of a push to bolster fairness for landowners, the new rule blocked the start of work while rehearing was pending and landowners were unable to get to court. Pipeline companies are challenging the rule in the US Court of Appeals for the District of Columba Circuit.
Pipeline viewIn its Feb. 16 filing, the Interstate Natural Gas Association of America said amending the rule to provide a predictable timeline would help developers, customers, and end-users plan for construction timetables and avoid unneeded costs and disruption.
It listed a host of types of rehearing requests that it contends should not trigger the holds, urged FERC to clarify it has authority to waive such holds, and otherwise backed a 60-day deadline for FERC's final order on the merits of rehearing.
The rule "should only apply and restrict authorizations to commence construction when a request for rehearing is filed by an affected landowner raising legal issues related to landowner impacts," Enbridge Gas Pipelines said in a separate filing.
The Gas and Oil Association of West Virginia also worried about potential delays.
"Shippers that have committed to pay for pipeline projects depend on projected commencement dates to accommodate drilling programs ... or construction of new interconnections and end-use facilities," it said. If FERC forges ahead, it should limit the change to newly filed project applications, it said, and the bar on construction should lift once a party files a petition in court.
States, NGOs weigh inBy contrast, environmental groups and a separate coalition of state attorneys general said the rule should not be narrowed to cases implicating landowner concerns.
Aside from just landowners, parties including community members, nongovernmental organizations, property rights advocates, and government entities hold concrete stakes in projects and would be unfairly prejudiced by allowing construction to proceed while FERC weighs their rehearing requests, said AGs from Maryland, Massachusetts, Oregon, Rhode Island, and the District of Columbia.
"The State of Oregon's experience in connection with the Jordan Cove LNG terminal demonstrates how limiting the scope of Order 871 solely to circumstances where landowners have filed rehearing requests would fail to account for the scope of a project's potential impacts," they wrote.
Environmental groups, including the Natural Resources Defense Council, urged FERC to apply the bar to pre-construction activities, such as non-mechanized tree felling, as well as construction. They suggested the hold on work should last until the rehearing period is completed for all initial authorizations under Sections 3 and 7 of the Natural Gas Act. That period could stretch 30 days if there is no rehearing request, or until FERC has completed its review on rehearing.
Environmental groups and the state AGs also supported FERC setting a policy of staying certificates that implicate the use of eminent domain while rehearing is pending.
FERC should promptly decide whether to enter a stay to prevent pipeline companies from exercising the power of eminent domain pending final decisions on the merits of pipeline authorization, the Maryland AGs office said in a statement.
Landowners Deb Evans, Ron Schaaf, and Bill Gow said FERC "should not allow the commencement of construction, pre-construction or the use of eminent domain for any project unless all mandated permits are secured and the rehearing request has been decided by the commission."
They cited the example of the certificate issued in the case of the Jordan Cove LNG and Pacific Connector projects, potentially setting the stage for eminent domain use despite the state of Oregon having denied two permits.
Delaware Riverkeeper Network asserted the "clearest solution" to the conundrum of allowing some activities to proceed and not others, depending on subjective perceptions of commission staff, is for FERC to stop issuing conditional authorizations and approve a project only once an applicant has demonstrated compliance with all applicable environmental laws and once all plans have been submitted to FERC.
