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NatGas Pipe Permitting Bill Advances to House Energy Committee

A House subcommittee last Wednesday voted out a Republican-sponsored bill that seeks to speed up the permitting of interstate natural gas pipelines by both federal and state agencies.

The bill (HR 1900), the Natural Gas Pipeline Permitting Reform Act, cleared the House Energy and Power Subcommittee by 17-9 over the objections of Democrats, and it now goes to the full House Energy and Commerce Committee before being sent to the floor. A subcommittee spokesman did not know when the committee would take up the measure.

The legislation, sponsored by Rep. Mike Pompeo (R-KS), establishes a 12-month deadline for FERC to approve gas pipeline applications, and other federal permitting agencies would have 90 days (with a potential extension of 30 days) to approve their permits for the projects (see NGI, May 13). The clock for the other federal permitting agencies would begin to tick when the Federal Energy Regulatory Commission (FERC) issues its final environmental impact statement.

If they fail to meet the 90-day (plus extension) deadline, the permits would be automatically approved under the bill, a provision that has triggered an uproar among Democrats and environmentalists.

Certificating an interstate gas pipeline within the 12-month time frame at FERC "is achievable," but the application must be complete when presented to the Commission, FERC Commissioner Philip Moeller told the House subcommittee last Tuesday. He asked House lawmakers to include this in the legislation.

But Jeff Wright, director of FERC's Office of Energy Projects, wasn't as optimistic. "I don't believe it would cause pipelines to be permitted [any] faster" than they are now, he said.

Under questioning from Rep. Henry Waxman (D-CA), he conceded that more interstate pipeline projects could wind up being dismissed by the Commission if the Pompeo bill is enacted into law. "That would be a likely outcome if we're not satisfied with the environmental outcome," Wright said.

Waxman was an obvious opponent of the legislation. "With this bill, we [will] get rushed decisions" and probably more denials from FERC, he said. "This bill has not been well thought out."

Rep. Bobby Rush of Illinois, the ranking Democrat on the subcommittee, offered an amendment to strike the language in the bill that would automatically approve permits, such as Clean Water Act (CWA) and Clean Air Act (CAA) permits, if the permitting agency does not act within the required 90 days and extension period. "Agencies should act expeditiously on [pipeline] applications, but they need time to conduct [thorough] environmental reviews," he said.

Pompeo said he is willing to work with lawmakers to revise certain parts of his bill, such as Moeller's request to include language that FERC would approve the pipeline within the 12-month window if the application is deemed to be complete.

But "I'm not willing to compromise" on the provision that requires automatic approval of a permit if an agency fails to act within 90 days (and 30-day extension period), Pompeo said. Imposing deadlines for agencies to act on permits "is not unheard of, unprecedented," he added.

Rep. Jerry McNerney (D-CA) warned that a 90-day window could result in incomplete analyses of CWA and CAA permits. Waxman believes that automatic approval of the permits could give rise to litigation of pipeline projects, which would cause a slowdown in the number of projects that would actually be built.

Rep. John Dingell (D-MI) offered an amendment that called on the Government Accountability Office (GAO) to conduct a study identifying permitting delays and potential problems. Rep. Joe Barton (R-TX) opposed the proposal, saying the House didn't need a law to direct the GAO to study the problem but rather could simply request that one be done. The amendment was blocked by a voice vote.

"Mr. Pompeo may have an inelegant solution to the problem [involving permitting], but it is a solution," Barton said, and challenged Democrats to come up with a better solution.

A change in the pipeline permitting process is needed because, notwithstanding the Energy Policy Act of 2005, it now takes longer for an applicant to receive permits and construct a gas pipeline, said Donald Santa, president of the Interstate Natural Gas Association of America. "This bill would provide a powerful incentive for agencies to act in a timely manner."

Maya K. van Rossum of the Delaware Riverkeeper Network, said pipelines already have a remedy available to them: the courts.

It's "self-defeating" for a pipeline to sue an agency from which it is seeking to obtain a favorable permit, Santa said. He further told van Rossum a little story about the proposed Connecticut-to-Long Island Islander East Pipeline, which spent several years in the courts seeking to move the pipeline project forward. The project, which was sponsored by Spectra Energy Corp. and National Grid, went all the way to the Supreme Court in late 2008, which ultimately refused to hear the case (see NGI, Dec. 8, 2008).

Santa said he supported the Pompeo measure because it would encourage permitting agencies to make timely decisions in the face of scheduled enforceability.

Van Rossum urged the House committee to rethink the bill before it is sent to the House floor, saying that it could result in a number of "unintended consequences," such as restricting the cooperation between FERC and the states, interfering with the rights of states to protect their communities and limiting environmental protections by reducing environmental reviews.

There are numerous gas pipeline projects where 12 months for environmental review would not be appropriate, van Rossum said. Already there is "so much chumminess between regulators and the regulated," and scaling back on the environmental reviews will further diminish public confidence in pipelines, she told the lawmakers.

Cosponsors of the Pompeo legislation are Reps. Jim Matheson (D-UT), Pete Olson (R-TX), Cory Gardner (R-CO) and Bill Johnson (R-OH).

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