American Oil and Gas Reporter - September 2016 - 25

WASHINGTONWATCH
Barriers To Developing
Natural Gas Infrastructure
Continue To Emerge
Environmental groups reached out to their supporters with the
words, "Stop Fast-Tracking Gas Pipelines!" accompanied by what
appeared to be a picture of the aboveground Trans-Alaskan Oil
Pipeline. They claimed the Army Corps of Engineers "has been
abusing a provision of the Clean Water Act in order to fast-track
the approval of dozens of oil and gas pipelines throughout the country without adequate environmental review or public input."
To fight back against this effort to keep fossil fuels in the ground,
others submitting comments on Aug. 1 supported the Corps and
its use of nationwide permits (NWPs). In June, the Corps proposed
to reissue 50 existing NWPs, general conditions, and definitions
with some modifications, as well as proposed two new NWPs.
NWPs are general permits, authorized under the Clean Water Act, for the Corps to use in regulating the discharge of dredged
or fill material. When the discharges entail activities that are "similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment," the Corps may issue general permits.
Interstate pipeline companies, farmers, and other landowners
and businesses rely on NWPs to "help reduce the significant cost
and regulatory burden of obtaining an individual (CWA) Section
404 permit," according to comments submitted by the U.S. Chamber of Commerce.
The chamber quotes testimony from the president of the California Farm Bureau that the average cost of an NWP is $35,000,
compared with an individual permit cost of nearly $350,000.
For interstate pipelines, the additional costs arise from massive delays. According to the Interstate Natural Gas Association
of America, relying on individual permits or limiting the use of
NWPs would place an enormous burden on Corps staff, which
would create "a massive regulatory logjam with significant delays to obtain permits, potentially adding anywhere from six to
24 months to a project." Many of these projects are in response
to the increased demand for natural gas, driven by the Obama administration's Clean Power Plan and a number of initiatives from
the Environmental Protection Agency.
In addition to delays in construction, interstate pipelines also
must be prepared to comply with additional safety regulations
pending final approval by the Pipeline and Hazardous Materials
Safety Administration. Given that interstate natural gas pipelines
typically have only minor or temporary impacts to waters under
the Corps' jurisdiction, NWPs should remain a regulatory tool that
allows for oversight, yet minimizes regulatory burden and delay.
The regulatory reviews of infrastructure conducted by the Federal Energy Regulatory Commission are another tool employed
by groups that would rather see fossil fuels remain in the ground.
Until now, FERC has rejected calls to consider the environmental impacts of natural gas production that "might" be undertaken if a new pipeline is approved, calling such arguments speculative and not within its purview. Appeals courts have upheld
FERC's reasoning.
At the time of FERC's decision making, federal agencies op-

"CEQ guidance on assessing the impacts of
climate change gives support to environmental

groups' opposition to pipelines.

erated under draft National Environmental Policy Act guidance
from the Council on Environmental Quality that was proposed
in 2010. NEPA requires federal agencies to consider environmental
impacts of a proposed project, but does not require agencies to
adopt specific mitigation measures. FERC has held consistently that its decision making complies with NEPA.
In early August, CEQ finalized its guidance on assessing the
impacts of climate change (see story page 117). While CEQ claims
the final guidance does not create new obligations for agencies,
the wording of the document appears to significantly expand the
scope of environmental reviews. Unfortunately, the document gives
further support to environmental groups and their ceaseless opposition to natural gas pipelines.
According to a Vinson & Elkins Climate Change Blog, "The
new CEQ guidance ignores important aspects of existing CEQ
regulations and decades of NEPA case law in an effort to force
federal agencies to greatly expand their consideration not only
of climate change impacts caused by their actions, but (greenhouse
gas) emissions as well. Fundamentally, the final guidance ignores
the well-established requirement that direct and indirect impacts
must be proximately caused by the federal action at issue before
NEPA requires their consideration."
CEQ's guidance seems to call on agencies' clairvoyant powers. One footnoted example from the guidance is a federal lease
sale of coal for energy production. "The impacts associated with
the end use of the fossil fuel being extracted would be the reasonably foreseeable combustion of that coal."
Natural gas can and should be a valuable resource for American energy production. However, the potential to increase the time
to review-and then possibly deny-a project can crush this potential.
I guess that is the goal of "keeping it in the ground."
❒

SUSAN GINSBERG is vice

president of crude oil and natural gas regulatory affairs for
the Independent Petroleum
Association of America. She
covers legislation and regulation, focusing on the CFTC
and FERC. Her experience in
natural gas regulatory affairs
spans 25 years.
SEPTEMBER 2016 25

American Oil and Gas Reporter - September 2016

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