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FERC Focuses on Environmental Justice in Pipeline Certification Policy Statement

February 19, 2021

The Federal Energy Regulatory Commission (FERC) issued a Notice of Inquiry (NOI) on February 18 seeking new information and comments on whether it should revise its policy statement on the certification of new interstate natural gas transportation facilities (Policy Statement). In light of environmental justice concerns raised in certificate proceedings and President Joe Biden’s directives in the Executive Order on Tackling the Climate Crisis at Home and Abroad, which we discussed in our January 28 LawFlash, FERC added environmental justice as a fifth area of examination.

Nearly three years ago, FERC issued a notice of inquiry seeking input on whether it should revise the Policy Statement (the 2018 NOI). The Policy Statement provides guidance on how FERC evaluates proposed natural gas projects and determines whether a project is or will be required by the public convenience and necessity. FERC sought input on potential changes to the Policy Statement, the structure and scope of FERC’s environmental analysis on proposed natural gas projects, and the transparency, timing, and predictability of its certification process. In particular, FERC sought comments in the following four areas:

1. The reliance on precedent agreements and contracts for service to demonstrate need for a proposed project
2. The potential exercise of eminent domain and landowner interests related to a proposed project
3. FERC’s evaluation of alternatives and environmental effects of a proposed project under the National Environmental Policy Act (NEPA) and the Natural Gas Act (NGA)
4. The efficiency and effectiveness of FERC’s certificate processes, including pre-filing, post-filing, and post-order issuance

In response to the 2018 NOI, FERC received over 3,000 comments from a wide variety of stakeholders but had not taken further action.

In light of the passage of time and updates to the NEPA regulations, FERC now seeks comments from stakeholders to refresh the record and provide updated information and additional viewpoints. The four areas on which FERC sought input in the 2018 NOI remain relevant to FERC’s consideration of potential adjustments to its determination on whether there is a need for new projects. FERC has identified a fifth area of examination:

5. FERC’s identification and addressing of any disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on environmental justice communities and the mitigation of those adverse impacts and burdens.

FERC’s consideration of this fifth area is consistent with President Biden’s directive in the Executive Order on Tackling the Climate Crisis at Home and Abroad. The executive order directed federal agencies to develop “programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts.” It also created a government-wide Justice40 Initiative that has a goal of delivering 40% of the overall benefits of relevant federal investments to disadvantaged communities. In light of the executive order and concerns raised in certificate proceedings on environmental justice, FERC is examining whether, and if so how, it should consider adjusting its approach to analyzing the impacts of a proposed project on environmental justice communities. FERC seeks comment on questions including:

1. Should FERC change how it identifies potentially affected environmental justice communities?
2. Are there concerns regarding environmental justice communities’ participation in past proceedings?
3. What measures can FERC take to ensure effective participation by environmental justice communities in the certificate review process?
4. When evaluating disproportionately high and adverse effects on environmental justice communities, should FERC change how it considers the location or distribution of a project’s impacts and how it considers population-specific factors that can amplify the experienced effect, such as ecological, visual, historical, cultural, economic, social, or health factors?
5. Does the NGA, NEPA, or other federal statute set forth specific duties for FERC to fulfill regarding environmental justice analyses in certificate proceedings under the NGA or specific remedies for
6. FERC to implement based on factual findings of environmental justice metrics or defined impacts?

Should FERC establish a method for evaluating mitigation for impacts on environmental justice communities?

Comments on the questions raised in the NOI are due 60 days after the NOI is published in the Federal Register.

Separately, FERC established a paper briefing to further examine public safety concerns associated with the operation of the Weymouth Compressor Station in Massachusetts. After FERC granted in-service authorization for the station in September 2020, it has received numerous pleadings expressing concerns about public safety and air emissions impacts from the station’s operations. FERC has requested briefing to address the following matters:

  • Is it consistent with FERC’s NGA responsibilities to allow the station to enter and remain in service?
  • Should changes in the station’s projected air emissions impacts or public safety impacts cause FERC to reexamine the project?
  • How might these changes affect the surrounding communities, including environmental justice communities?
  • Should FERC impose any additional mitigation measures in response to concerns that have been raised?
  • What would the consequences be if FERC were to stay or reverse the September 2020 authorization order?

FERC stated that the Weymouth Compressor Station may remain in operation while FERC considers these issues. Initial briefs are due in 45 days, and reply briefs are due 30 days after that.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington
Kirstin E. Gibbs
Pamela Tsang Wu