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Power & Pipes

FERC, CFTC, and State Energy Law Developments

The heads of 12 federal agencies signed an MOU on April 9 committing to “a more predictable, transparent and timely Federal review and authorization process for delivering major infrastructure projects.” The signatory agencies, all of which have responsibilities to review or authorize infrastructure projects, agreed to take certain steps to create a more coordinated and streamlined federal environmental review process. Although the commitments in the MOU are voluntary and not mandated by statute, adherence to them could shorten the period of time required by the Federal Energy Regulatory Commission (FERC) to perform National Environmental Policy Act (NEPA) reviews.


President Donald Trump signed Executive Order (EO) 13807 (“Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects”) in August 2017. This EO was intended to speed up the environmental reviews required for major infrastructure projects by mandating additional coordination and planning activities among various federal agencies. The EO defines “major infrastructure project” as “an infrastructure project for which multiple authorizations by Federal agencies will be required to proceed with construction, the lead Federal agency has determined that it will prepare an Environmental Impact Statement (EIS) under [NEPA] . . . and the project sponsor has identified the reasonable availability of funds sufficient to complete the project.”

Under the EO, federal agencies that have a role in the environmental review and permitting process of major infrastructure projects are required to develop a review and decision schedule for such projects. More specifically, the EO directed those agencies to

  • develop a single Permitting Timetable for the environmental review and authorization decisions, and prepare a single EIS;
  • sign a single record of decision (ROD) and issue all necessary authorization decisions within 90 days of issuance of the ROD; and
  • issue authorization decisions within two years of the date of publication of the Notice of Intent to prepare an EIS.

Recent Developments

A number of federal agencies entered into an MOU on April 9 outlining how they would promote the timely processing of environmental reviews. Those who signed the MOU include the heads of the US Departments of Interior, Agriculture, Commerce, Housing and Urban Development, Transportation, Energy, and Homeland Security; as well as the Environmental Protection Agency, the US Army Corps of Engineers, FERC, and the Advisory Council on Historic Preservation. In brief, the MOU addresses the following:

  • Identifying lead and cooperating agencies
  • Developing contents of a Permitting Timetable and modifications and updates thereto
  • The roles and responsibilities of lead, cooperating, participating, and state, local, and tribal agencies
  • Pre-application procedures and pre-scoping, preliminary planning, and programmatic coordination planning
  • Issuing, revising, and withdrawing the Notice of Intent
  • The scoping process and the necessity of interagency coordination and concurrence during that process
  • Resolving interagency disputes

Environmental Authorizations Issued by FERC

Given FERC’s role in granting certificates of public convenience and necessity for natural gas pipelines and licensing and relicensing hydropower projects, this MOU could significantly streamline the NEPA reviews that often create significant project development delays.

For example, the two-year goal for completing environmental reviews and authorization decisions, if achievable, represents a significant improvement over the current timeline experienced by project sponsors. It is not uncommon for gas infrastructure certification applications to be delayed due to the environmental review process and the coordination required among government bodies that must approve various portions of a proposed project. This is true notwithstanding the existing pre-filing process, which itself could be a multiyear process preceding a certificate application. Further, FERC’s recent report on a pilot two-year licensing program for hydroelectric facilities demonstrated that only with significant effort and pre-planning could FERC complete the licensing work (including environmental analysis) needed for a very small (5 MW) project known ahead of time to have very few meaningful environmental impacts. The median licensing timeframe for all hydropower projects between 2003 and 2016 was 3.34 years, with large capacity, high-impact projects often taking considerably longer.

The MOU also includes other FERC-specific provisions that could streamline the environmental review process for major infrastructure projects subject to FERC jurisdiction, including the obligation for other agencies with jurisdiction over projects where FERC is the lead agency to participate as cooperating agencies. Further, the MOU specifies that if such an agency declines to participate as a cooperating agency, that agency will not intervene in the FERC proceeding. This provision effectively bars government bodies with jurisdictional authority from unduly delaying a FERC certification proceeding by electing to participate in the proceeding after the cooperating agencies have undertaken their collaborative effort.