While the natural gas pipeline industry has some heartburn over the Trump administration’s new tax law, it is cheering the administration’s infrastructure plan released this week.
While mostly focused on roads and bridges, and how to pay for improvements, the Trump plan includes proposals to streamline state environmental reviews of pipeline plans and cut Congress out of approving gas pipelines in national parks, giving that authority to the Interior Department.
As Reuters reported, the Trump plan would boost federal approvals of gas pipelines by limiting state review under section 401 of the Clean Water Act to two years, and by limiting the role of federal agencies other than the Federal Energy Regulatory Commission. FERC has authority to certify gas pipelines under the Natural Gas Act but other natural resource agencies can intervene in FERC’s reviews.
New York Gov. Andrew Cuomo in April 2016 blocked the 125-mile Constitution gas pipeline to move Marcellus shale gas from Pennsylvania to upstate New York, using the authority granted to the states in the Clean Water Act to approve or deny permit. FERC, with a full complement of commissioners, and a Republican majority, in January upheld the state action, citing procedural timing errors by Constitution during the process.
Trump’s plan would also give the interior secretary approval authority for pipelines that cross national parks, now a prerogative of Congress.
Don Santa, head of the Interstate Natural Gas Association of America, the gas pipelines’ Washington lobby, praised the Trump proposals. “Despite the clear need for new natural gas pipelines, the permitting process has become more protracted and challenging,” he said. “Roadblocks and delays are becoming commonplace at federal and state permitting agencies. The permitting principles developed by the White House recognize many of the challenges with the permitting process and suggest reforms that could facilitate the more responsible and orderly development of infrastructure. We hope this is the first step toward more comprehensive permitting reform.”
Former FERC commissioner Santa focused on the Section 401 process, giving the states water quality approval. “We respect the rights of states in protecting the resources within their borders and support the cooperative federalism of the Clean Water Act,” Santa said. “However, that concept requires participants to act within the scope of their authority. Actions that abuse this authority trample the rights of other states and disrupt interstate commerce. At the heart of cooperative federalism lies cooperation.”
The administration proposal – which would require Congress to pass legislation to implement – comes as FERC has announced it will take a look at its pipeline certification process. FERC has come under fire from environmentalists and the courts for not considering greenhouse gas issues by gas end users, and from industry for being too complex and lengthy in its reviews.
The politics of the Trump pipeline regulatory changes are dicey. Environmental activists, who have long targeted FERC for what they view as an industry-oriented process to approve federal eminent domain authority for gas pipelines, will gear up to oppose the changes. Several state governments, regardless of partisan control, are likely to oppose losing authority to Washington.
National park supporters, a bipartisan cohort, will oppose what they view as a threat to the parks. Limited government advocates in Congress won’t be happy with what could be described as an executive branch power grab by the administration.
— Kennedy Maize