Pipeline Projects: Preparing for FERC Certification, Addressing Environmental Impacts

Transcription

1 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 TUESDAY, FEBRUARY 21, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: 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. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Pipeline Projects: Preparing for FERC Certification, Addressing Environmental Impacts Strafford Webinars February 21, 2017 H. David Gold

6 What is Natural Gas? 6

7 Oil and Gas Industry Exploration Production Transportation Refining Marketing Adapted from: GE Oil and Gas Solutions ( 7

8 U.S. Natural Gas Pipelines 8

9 Federal Regulation of Natural Gas Pipelines siting and abandonment of interstate natural gas pipelines PHMSA Pipeline and Hazardous Materials Safety Administration pipeline safety pipeline security 9

10 Federal Regulation of Natural Gas Pipelines Endangered Species Act Magnuson- Stevens Act National Historic Preservation Act Clean Water Act 10

11 Natural Gas Act - 15 U.S.C z 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 11

12 Federal Energy Regulatory Commission Pipeline Certificates 12

13 Pipeline Certificates Approved in 2017 Docket No. CP CP CP15-93 CP15-94 CP15-96 CP16-4 CP16-98 CP CP CP16-12 CP16-17 Company/Project National Fuel Gas Supply Corp/Empire Pipeline, Inc. Northern Access 2016 Project Transcontinental Gas Pipe Line Company, LLC Atlantic Sunrise Project Rover Pipeline LLC Rover Pipeline Project Panhandle Eastern Pipe Line Company, LP Panhandle Backhaul Project Trunkline Gas Company, LLC Trunkline Backhaul Project Tennessee Gas Pipeline Company, L.L.C. Orion Project Dominion Carolina Gas Transmission, LLC Transco to Charleston Project Northern Natural Gas Company Northern Lights 2017 Expansion Texas Eastern Transmission, LP Marshall County Mine Panel 17W Project Tennessee Gas Pipeline Company, L.L.C. Southwest Louisiana Supply Project Millennium Pipeline Company, L.L.C. Valley Lateral Project Capacity (MMcf/d) Miles of Pipe States Filing Date Issued Date NY, PA 3/17/2015 2/3/ PA, VA 3/31/2015 2/3/2017 3, OH, PA, WV 2/20/2015 2/2/ IN, IL, MI, OH 2/23/2015 2/2/ IL, MS, TN 2/23/2015 2/2/ PA 10/9/2015 2/2/ SC 3/9/2016 2/2/ MN 6/24/2016 1/30/ WV 9/15/2016 1/26/ LA 10/26/ /15/ NY 11/13/ /9/2016 7, ,

14 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) 14

15 Pipeline Certificate Process 1. Applicant s Planning Process 2. Application Process 3. Construction Process 15

16 Applicant s Planning Process Open Season to Determine Market Needs Start Surveys Complete Resource Reports Select Proposed Pipeline Route Public Meetings Applicant files Application Identify Landowners Negotiate Easements 16

17 Application Process Pre-Filing (voluntary) Scoping (if no Pre-Filing) EA or Draft EIS Scoping Preliminary Determination Respond to Comments / Final EIS Applicant files Application FERC issues Notice of Application Final Order 17

18 Pre-Filing Environmental Review Process 18

19 Pre-Filing Environmental Review Process (continued) 19

20 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: 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; otherwise such application shall be denied. 20

21 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 21

22 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) 22

23 Pipeline Construction Process Finalize project design File plans, surveys, etc. Complete ROW acquisition Project in service ROW restoration Pipeline construction 23

24 Pipeline Projects Addressing Environmental Impacts Andrew Bockis, Esq. (717) Copyright 2017 Saul Ewing LLP

25 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 Copyright 2017 Saul Ewing LLP 25

26 Select Federal Authorizations Clean Water Act may be triggered Clean Air Act Endangered Species Act ( 7) National Historic Preservation Act ( 106) Copyright 2017 Saul Ewing LLP 26

27 NEPA Review Procedural obligations Ensure that environmental effects are adequately identified and evaluated Copyright 2017 Saul Ewing LLP 27

28 Copyright 2017 Saul Ewing LLP 28

29 NEPA Review Environmental Assessment v. Environmental Impact Statement 18 CFR (actions that require EA) 18 CFR (actions that require EIS) Promoting informed agency action Copyright 2017 Saul Ewing LLP 29

30 Addressing Opposition FERC Rehearing Judicial review Consolidated Record 15 U.S.C. 717n(d) 18 CFR Index of agency documents and materials Copyright 2017 Saul Ewing LLP 30

31 Pipeline Projects: Preparing for FERC Certification, Addressing Environmental Impacts Strafford Webinars February 21, 2017 Copyright 2017 Saul Ewing LLP Sean T. O Neill soneill@saul.com

32 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 Copyright 2017 Saul Ewing LLP 32

33 Getting Project Approved Gather information for initial application Respond to FERC data requests Address public comments Mitigate impacts Analyze alternatives Working parallel paths Copyright 2017 Saul Ewing LLP 33

34 Getting Pipe in the Ground Satisfying conditions in FERC Order Survey access and land acquisition Identify critical paths Eminent domain Authorizations from permitting agencies Copyright 2017 Saul Ewing LLP 34

35 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 Copyright 2017 Saul Ewing LLP 35

36 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 Copyright 2017 Saul Ewing LLP 36

37 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 Copyright 2017 Saul Ewing LLP 37

38 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 Copyright 2017 Saul Ewing LLP 38

39 FERC Without a Quorum What can FERC do without a quorum? Automatic approvals Delegations of authority to FERC staff Impacts on pending projects Copyright 2017 Saul Ewing LLP 39

40 Baltimore Lockwood Place 500 East Pratt Street, Suite 900 Baltimore, MD T: F: Boston 131 Dartmouth Street, Suite 501 Boston, MA T: F: Chesterbrook 1200 Liberty Ridge Drive, Suite 200 Wayne, PA T: F: Harrisburg Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, PA T: F: New York 245 Park Avenue, 24th Floor New York, NY T: F: Newark One Riverfront Plaza Newark, NJ T: F: Philadelphia Centre Square West 1500 Market Street, 38th Floor Philadelphia, PA T: F: Pittsburgh One PPG Place 30th Floor Pittsburgh, PA T: F: Princeton 650 College Road East, Suite 4000 Princeton, NJ T: F: Washington 1919 Pennsylvania Avenue, N.W. Suite 550 Washington, DC T: F: Wilmington 1201 North Market Street Suite 2300 P.O. Box 1266 Wilmington, DE T: F: Copyright 2017 Saul Ewing LLP 40

41 Pipeline Projects: Preparing for FERC Certification, Addressing Environmental Impacts Strafford Webinars February 21, 2017 Raya B. Treiser

42 Federal Agency Reviews of Interstate Pipelines FERC US Forest Service Special Use Permit to cross National Forest System lands Certificate of Public Convenience and Necessity National Park Service Right of Way to Cross NPS lands Fish and Wildlife Service Endangered Species Act Consultation Project Green Light US Army Corps of Engineers Clean Water Act Section, Rivers and Harbors Act National Oceanic and Atmospheric Administration Endangered Species Act Consultation Bureau of Land Management Right of Way to cross public lands managed by the federal government 42 Bureau of Indian Affairs Right of Way to Cross tribal lands

43 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 43

44 FAST-41 Covered Sectors and Agencies Sectors 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 Agencies 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) 44

45 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. 45

46 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 46

47 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 47