Five trade associations representing the oil and natural gas industry said that while they appreciate the Trump administration's call for federal agencies to expedite the permitting process for infrastructure, additional attention should be brought to bear over a controversial provision of the federal Clean Water Act (CWA).
In a letter Tuesday to the White House, the CEOs of the five trade groups, collectively known as the Natural Gas Council (NGC), told Trump that some state governments opposed to energy infrastructure are improperly using Section 401 of the CWA "to hijack the permitting process for pipelines that transport natural gas in interstate commerce.
"These actions undermine FERC's exclusive authority to approve interstate natural gas pipelines, and deny other states the opportunity to benefit from this infrastructure. These state actions are a disservice to the cooperative federalism central to the efficient and predictable permitting of infrastructure."
The NGC said the Trump administration should provide instruction on how Section 401 fits into the permitting process for infrastructure projects, thereby restoring regulatory balance between states and the federal government.
"In particular, lead federal permitting agencies should recognize their authority and obligation to define and implement the Section 401 process," the NGC said. "This includes ensuring that a state is not manipulating the process through enforcement of the statutory time period and confirming state actions are related to applicable water quality standards.
"Where the process is not followed, the lead federal agency has the duty and obligation to find the Section 401 obligation waived for all federal authorizations required for the project. Other federal agencies must accept the waiver determination and move forward with implementing their statutory requirements for licensing and permitting of the proposed project."
The letter was signed by Jack Gerard of the American Petroleum Institute (API); Dave McCurdy of the American Gas Association (AGA); Barry Russell of the Independent Petroleum Association of America; Don Santa of the Interstate Natural Gas Association of America (INGAA); and Dena Wiggins of the Natural Gas Supply Association.
Supporters of the oil and gas industry and others -- including Cheryl LaFleur and Neil Chatterjee, two members of FERC -- have noted an uptick in opposition to natural gas pipelines at the state level. Case in point, regulators in New York State attempted to block Millennium Pipeline Co. LLC from building the Valley Lateral pipeline by not issuing a Section 401 water quality certification for the project. Last month, a federal district court ruled against New York in the dispute.
On Monday, 12 federal agencies, including the Federal Energy Regulatory Commission, signed a memorandum of understanding (MOU) to coordinate their environmental review of infrastructure projects.
Under the MOU, one federal agency is to serve as the lead agency responsible for steering a project through the entire federal environmental review and permitting process. Trump put forth the lead agency concept in an executive order (EO) he signed last August. At the time, the EO received praise from several trade associations, including AGA, API and INGAA.