By: Kelley M. Goes, M. Shane Harvey, and Robert G. McLusky
The latest effort by pipeline opponents to slow FERC approvals focuses on the National Environmental Policy Act (“NEPA”). NEPA requires environmental impact statements for “major federal actions” which are determined to “significantly affect the quality of the human environment.” The requirement of FERC approval and the need for other federal permits for pipeline projects triggers NEPA. Many courts have extolled the virtues of such review, but others have acknowledged that in the hands of skilled opponents NEPA is a powerful tool to complicate or slow the approval process for many projects. For example, in its efforts to slow or end surface mining in central Appalachia, the Sierra Club relied on NEPA as its primary vehicle for attacking Clean Water Act permits issued by the Corps of Engineers for discharges of “fill material.”
In an apparently coordinated effort, opposition groups are urging that FERC regionalize its NEPA review by consolidating its review of multiple projects. By a FERC filing dated October 30, groups have urged FERC to conduct a unified “programmatic” EIS for the proposed Atlantic Coast Pipeline; the Mountain Valley Pipeline; the Atlantic Connector Pipeline and the WB Express Project. Likewise, opponents of the PennEast Pipeline Project urged FERC in an October 28 filing to conduct a programmatic review of all pipeline projects in New Jersey and the Delaware River Valley of eastern Pennsylvania and of all upstream activities associated with the pipeline. These filings are not the first time intervenors have advocated for a programmatic regional environmental impact statement. As recently as March 2, 2015, in National Fuel Gas Supply Corp. , 150 FERC 61162, *9-14 (2015) the FERC commissioners declined to expand the required evaluation of direct, indirect, and cumulative impacts to include a regional, industry-wide, or production-increase assessment. In National Gas Fuel Supply, as in the recent filings, the intervenor urged an assessment of infrastructure serving Marcellus and Utica shale production. The Commission does not interpret NGA § 7(e) to require this, but opposition groups appear unwilling to give up, perhaps counting on an accumulation of projects to help their argument.
This article was authored by Kelley M. Goes, Robert G. McLusky and M. Shane Harvey, Jackson Kelly, PLLC.