On June 15, 2020, the U.S. Supreme Court held in United States Forest Service v. Cowpasture River Preservation Association that the U.S. Forest Service was authorized to issue a special use permit granting a 0.1-mile right of way under the Appalachian Trail (“Trail”) to Atlantic Coast Pipeline, LLC (“Atlantic”) for a proposed underground natural gas
Like many other regulators, on March 20, 2020 the Pipeline and Hazardous Materials Safety Administration (PHMSA) released guidance on enforcement activity during the novel coronavirus (COVID-19) outbreak. The guidance states that “PHMSA does not intend to take any enforcement action with regard to [operator qualification] and [control room management] requirements, and will consider exercising its enforcement discretion with regard to Part 199 drug testing requirements.” PHMSA is “taking into consideration the exigent circumstances” that may cause regulated operators difficulty in compliance with:
- 49 C.F.R. §§ 192.801-.809, 193.2707-.2709, 193.2713-.2717, and 195.501-.509 (operator requirements); and
- 49 C.F.R. §§ 192.631(d)(4) and 195.446(d)(4) and (h) (control room requirements).
PHMSA’s guidance provides that operators unable to maintain compliance with the regulations should communicate with their regulator and maintain documentation explaining:
- what specific requirements are not being met;
- how the noncompliance is related to COVID-19; and
- what alternative measures are being taken to ensure safety.
On June 28, 2017, the Senate introduced a bill that aims to revitalize and overhaul various federal energy and natural resources policies. Senate Bill 1460 (S.1460), sponsored by Senators Lisa Murkowski (R-Arkansas) and Maria Cantwell (D-Washington), broadly proposes reform of United States policies on topics such as energy efficiency, supply and conservation. A key highlight of S.1460 is modernization of the electric grid, an issue that has often been touted as a national security concern. Further, on the conservation side, the bill would establish a National Park Maintenance and Revitalization Fund. While details of the bill are still forthcoming, the bill’s authors state that S.1460 will lay out a plan to strengthen the nation’s energy infrastructure.
Continue Reading Senate Proposes Legislation to Modernize Federal Energy Policies
Following up on last week’s post about Oregon legislative proposals, here are some of the mineral-related bills currently pending in the Washington State Legislature:
Oil and Gas
SB 5462 and HB 1611 – These two almost identical bills are follow-ups to the Oil Transportation Safety Act that was enacted in Washington two years ago. Among other things, SB 5462 and HB 1611 would (i) require that railroads transporting crude oil and petroleum products demonstrate financial ability to pay for a “worst case spill”; (ii) obligate refineries to account for different types of crude oil in their emergency planning and training; (iii) impose a public notice requirement if a refinery proposes to export more than 10% of its annual production; (iv) allow the Department of Ecology to share confidential information regarding oil transportation with elected local officials responsible for emergency response agencies; (v) levy oil spill response and administration taxes on crude oil and petroleum products delivered via pipeline to bulk oil terminals; and (vi) give the state’s Energy Facility Site Evaluation Council (EFSEC) jurisdiction over crude oil pipelines that are at least five miles (rather than the current 15 miles) long.
Continue Reading Oil Transportation and Suction Dredge Mining Legislative Topics in Washington Too
The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued a General Policy Statement for civil penalties (“Penalty Framework”) on October 17, 2016. The Penalty Framework allows a respondent in a PHMSA enforcement case to request a proposed civil penalty calculation related to its case, and provides a penalty range with corresponding factors used in calculating the penalty amount. Prior to publishing the Penalty Framework, the PHMSA only provided its civil penalty framework upon request.
In imposing a civil penalty, the PHMSA must consider five factors:
(1) The nature, circumstances and gravity of the violation, including adverse impact on the environment;
(2) The degree of the respondent’s culpability;
(3) The respondent’s history of prior offenses;
(4) Any good faith by the respondent in attempting to achieve compliance; and
(5) The effect on the respondent’s ability to continue in business.
In one of the most sweeping proposals since the creation of the Pipeline and Hazardous Materials Safety Administration (“PHMSA”), the agency has announced proposed regulations to update requirements relating to gas gathering and transmission lines. We find that there are four main areas our readers definitely should be aware of.
First, the proposed regulations would add new assessment and repair criteria for gas pipelines. Most notably, the proposal will subject thousands of miles of pipelines built before 1970 to verification and testing requirements. These older pipelines had previously been exempt from such requirements. This new requirement would mean that operators of older pipelines will need to make safety assessments on pipelines which were largely unregulated. This may be challenging and costly for operators given the lack of records and age of many of these pipelines.
Second, the proposal also expands the agency’s definition of a “gathering line” that is subject to the new safety standards, potentially embracing pipelines previously classified as unregulated production lines. This is an expansive extension of federal authority into oil and gas production areas that have previously been regulated by individual state agencies and state law.
Continue Reading Proposed Rules Coming Down the Pipeline for Gas Gathering and Transmission Lines
Before leaving Washington, D.C. for the holidays, President Obama signed H.R. 2029 (Consolidated Appropriations Act, 2016), which repealed the ban on U.S. exports of crude oil. The repeal occurred just few days before today’s 40th anniversary of President Ford signing the ban into law. According to historical data from the U.S. Energy Information Administration,…
Major infrastructure developers received a notable holiday gift from Capitol Hill and the White House earlier this month with the December 4, 2015 enactment of the Highway Authorization Act. Title XLI of the Act promises to streamline both the authorization (license, permit, approval, etc.) and environmental review processes for covered projects.
To benefit from the Act’s streamlined process, an infrastructure project must (1) fall within a covered project category, (2) be subject to NEPA, (3) be likely to require a total investment of more than $200,000,000, and (4) not qualify for abbreviated authorization or environmental review under another statute. Covered project categories include:
- Renewable or conventional energy production
- Electricity transmission
- Surface transportation
- Ports and waterways
- Water resource projects not already covered under the Water Resources Development Act of 2007 (33 U.S.C. 2348)
On October 8, the National Wildlife Federation (“NWF”) fulfilled its promise to sue the U.S. Department of Transportation (“DOT”). The lawsuit alleges that for 20 years the DOT has allowed pipelines to operate illegally by failing to issue regulations under section 311(j) of the Clean Water Act (“CWA”), which requires pipeline operators to submit plans…
On July 28, 2015, the National Wildlife Federation (“NWF”) filed an intent to sue notice against the Department of Transportation (“DOT”), arguing the DOT has not properly approved pipeline projects for more than 20 years.
The legal action carries nationwide implications: Every U.S. oil pipeline that intersects a navigable water may soon be subject to additional regulations.
Specifically, NWF contends that DOT has failed to issue regulations under section 311(j) of the Clean Water Act (“CWA”), requiring an owner or operator of a pipeline to prepare and submit a facility response plan (“FRP”) detailing response actions to be taken in the event of a worst-case discharge of oil or hazardous substances into waters of the United States.
Continue Reading Pipeline Operators Take Heed – Threatened Enviro Lawsuit May Lead to Greater Regulatory Requirements
On Tuesday, April 21 the Obama Administration released the first Quadrennial Energy Review (“QER”) as a component of President Obama’s Climate Action Plan. The extensive report analyzes energy infrastructure in the United States, and “identifies the threats, risks, and opportunities for U.S. energy and climate security, enabling the federal government to translate policy goals into a set of integrated actions.” The primary purpose of the QER is to “modernize” the U.S. energy sector by replacing crumbling infrastructure, by increasing reliance on domestic energy sources, and by implementing a “clean energy economy built to last.”
The report highlights the United States’ complex and advanced energy production system, and includes descriptions and analysis of the different energy sectors. For example, the report notes that the U.S. is the world’s leading producer of oil and natural gas, and the country is less dependent on foreign oil than it has been in over 40 years.Continue Reading Department of Energy Report Calls for U.S. to Modernize Energy Infrastructure, Invest in Natural Gas Pipelines