Shale Law in the Spotlight – FERC Seeks Comment on Proposed Policy Changes Regarding Natural Gas Pipeline Certification Process

Written by Chloe Marie – Research Fellow

The Federal Energy Regulatory Commission (FERC) announced in a News Release dated April 19, 2018, the issuance of a Notice of Inquiry seeking public comment on whether to review its 1999 Statement of Policy addressing the Certification of New Interstate Natural Gas Pipeline Facilities.  The Notice of Inquiry was published in the Federal Register on April 25, 2018, and the public has until June 25, 2018, to provide comments to FERC.

FERC is currently looking at a revision of the policy “to appropriately consider the enhancement of competitive transportation alternatives, the possibility of over building [sic], the avoidance of unnecessary disruption of the environment, and the unneeded exercise of eminent domain” in balancing the public benefits and adverse consequences of a proposed natural gas pipeline project. Thus, FERC is requesting public input on four key points.

First, FERC questions whether it should further define the conditions for determining the need for a proposed pipeline project and whether it should consider the following factors in that regard, including the natural gas market situation, to what extent precedent agreements can support such project, the end-use of natural gas, whether it should base its determination on a regional approach, and the level of demand for infrastructure.

Second, FERC inquires whether it should look at different ways to consider the potential exercise of eminent domain in reviewing project applications, including how it could minimize the use of eminent domain without affecting the pipeline routing process, and how to weigh the potential use of eminent domain against the need for the proposed project. Furthermore, FERC is looking for comment on whether landowner interests are adequately protected in the existing certification process.

Third, FERC highlights its willingness to avoid “unnecessary disruption of the environment.” Thus, FERC questions, among other things, whether it should provide additional alternatives to the proposed project and if other environmental impacts should be considered during the cumulative impact analysis. In addition, FERC seeks input regarding the importance of calculating potential GHG emissions from the downstream consumption of natural gas and how this information would affect FERC’s environmental analysis.

Fourth and lastly, FERC asks how it could improve the certificate application review process in a more effective way and whether it should shorten certain aspects of the review process in order to do so, especially at the pre-filling stage.

Until the review is completed, FERC “intends to continue to process natural gas facility matters before it consistent with the [existing] Policy Statement, and to make determinations on the issues raised in those proceedings on a case-by-case basis.”

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture