The Nickel Report

Recently certain policy advocates have suggested that the Federal Energy Regulatory Commission (FERC) should attempt to revitalize the Federal Power Act Section 216 “backstop siting” authority as a means of addressing climate change.  Their objective is to facilitate the construction of more long-haul transmission lines from areas with excess renewable generation, so zero-emitting generation can reach more markets.

On August 27, 2019, the Federal Energy Regulatory Commission (FERC) and North American Electric Reliability Corporation (NERC) issued a White Paper proposing to disclose the names of entities that violate Critical Infrastructure Protection (CIP) standards, while continuing to withhold other details of those violations. This significant change in policy reflects broader issues in FERC’s handling of security information.

The Endangered Species Act increasingly plays a larger role in environmental law and the federal permitting process for infrastructure projects. Hunton Andrews Kurth Partner Kerry McGrath and Associate Brian Levey give an inside look at the complex process of obtaining federal authorization for “take” of endangered species.

“According to FERC, it is now commonplace for states to use Section 401 to hold federal licensing hostage.”

These are the words the DC Circuit used in Hoopa Valley Tribe v. Federal Energy Regulatory Commission, No. 14-1271, p. 10 (D.C. Cir., Jan. 25, 2019), to describe the state of play on § 401 certifications affecting hydroelectric facility licensing or re-licensing applications. CWA § 401(a)(1) requires, as a prerequisite for federal permits for activities that may result in a discharge into the navigable waters, that affected states certify that any such discharge will comply with applicable, enumerated provisions of the Clean Water Act. But, if a state fails or refuses to act on a request for certification within “a reasonable period of time (which shall not exceed one year) after receipt of such request,” the statute deems the certification requirements waived.

On November 15, 2018, the Federal Energy Regulatory Commission (Commission) held its monthly open meeting (November Meeting). This was the first meeting chaired by Chairman Chatterjee since replacing Commissioner McIntyre as chairman. Commissioner McIntyre was absent for his third consecutive open meeting due to continuing health issues and did not vote on the consent agenda.

On September 20, 2018, the Federal Energy Regulatory Commission (FERC or Commission) held its September 2018 open meeting. This meeting did not include Chairman McIntyre, who is recovering from surgery. Commissioner Chatterjee assumed the gavel on his behalf for the meeting.

On July 19, 2018, the Federal Energy Regulatory Commission (FERC or Commission) held its July 2018 open meeting. This meeting was Commissioner Powelson’s last, following his announcement on June 28, 2018, that he would be leaving the agency.

Highlights of the meeting include the following:

On July 10, 2018, a panel of the United States Court of Appeals for the DC Circuit rejected an environmental group’s claim that FERC’s funding mechanism results in unconstitutional bias in favor of the pipeline industry. The court also rebuffed a due process attack on the Commission’s use of “tolling orders” to avoid automatic denial of rehearing requests after 30 days. The decision is noteworthy as it represents the latest rejection of similar constitutional challenges to FERC’s operations and practices that pipeline opponents have been raising with increasing ...

Two notable developments in the past few weeks signal potential changes ahead to the policies and timeframes for pipeline approvals, particularly natural gas pipelines under Federal Energy Regulatory Commission oversight. These developments reflect both the increased public scrutiny of the pipeline approval process seen in recent years and the emphasis placed by the current administration on expediting review and approval of major infrastructure projects, two factors that are in some tension with each other.

See the full report on PipelineLaw.com.

On March 12, 2018, the United States Court of Appeals for the Second Circuit affirmed a Federal Energy Regulatory Commission (FERC) order finding that delays by the New York Department of Environmental Conservation (NYDEC) in reviewing Millennium Pipeline Company’s application for water quality certification constituted waiver of NYDEC’s authority under the Clean Water Act (CWA).

Read the full report on PipelineLaw.com.

Federal agencies that authorize or permit large infrastructure projects, like interstate natural gas pipelines, are often subject to the requirements of the National Environmental Policy Act (NEPA), and environmental organizations frequently rely on NEPA to challenge a project. The D.C. Circuit recently struck down a decision by the Federal Energy Regulatory Commission (FERC) to approve the construction and operation of three interstate natural gas pipelines because the Court found defects in FERC’s NEPA analysis. The court’s decision to vacate FERC’s authorization now threatens to shut down the pipelines, including the Sabal Trail pipeline currently supplying natural gas to newly constructed power plants in Florida.

On January 11, 2018, the Federal Energy Regulatory Commission (FERC) denied Constitution Pipeline Company, LLC’s Petition for a Declaratory Order that New York had waived its ability to act under section 401 of the Clean Water Act (CWA) by failing to grant or deny Constitution’s application for a section 401 certification within a “reasonable period of time.” See In re Constitution Pipeline Co., LLC, 162 FERC ¶ 61,014 (Jan. 11, 2018). The decision is another in a sequence of decisions from FERC and the federal courts of appeals concerning the time period for States to act under ...

The Federal Energy Regulatory Commission (FERC or the Commission) announced last month that it will review its policies governing the certification process for natural gas pipelines. The announcement was made by FERC Chairman Kevin J. McIntyre on December 21, 2017, in fulfillment of a pledge that he made during his Senate confirmation hearing in September 2017. The format and scope of the review are still being determined.

Read the full report on PipelineLaw.com.

On August 10, the Federal Energy Regulatory Commission (FERC) officially regained its quorum when Robert Powelson was formally sworn in as a commissioner. Mr. Powelson joins  fellow Republican Neil Chatterjee and Democrat Cheryl LaFleur at the agency. It was also announced that Mr. Chatterjee would be FERC’s new chairman pending the expected Senate confirmation of Republican nominee Kevin McIntyre as chairman in the fall.

At full strength, FERC has five members, but three are the minimum legally required to conduct much agency business. FERC lost its quorum in early February when former Chairman Norman Bay resigned after Commissioner Cheryl LaFleur was elevated to chairman. In addition, former Commissioner Colette Honorable stepped down at the end of June, leaving LaFleur as the sole Commissioner. For the last six months, FERC staff has handled various routine matters under delegated authority, but FERC has been unable to act in contested proceedings.