Randall S. Rich

Update: First Circuit Revises Prior Decision to Vacate Air Permit in Light of Material Developments

As discussed previously in Pierce Atwood’s Energy Infrastructure Blog, on June 3, 2020, the U.S. Court of Appeals for the First Circuit vacated an air permit issued by the Massachusetts Department of Environmental Protection (DEP) for the construction of a new compressor station proposed by Algonquin Gas Transmission (Algonquin) as part of its Atlantic Bridge natural gas pipeline project and remanded the matter to the agency for further analysis.  Town of Weymouth v. Massachusetts Department of Environmental Protection, et al., No. 19-1794 (Jun. 3, 2020) (June 3 Opinion). Algonquin petitioned for panel rehearing as to the remedy only. On August 31, 2020, the Court granted Algonquin’s petition and revised its June 3 Opinion to remand without vacatur. Town of Weymouth v. Massachusetts Department of Environmental Protection, et al.No. 19-1794 (Aug. 31, 2020).

When deciding whether to vacate the agency’s decision or remand without vacating, the Court considered the “severity

Update: FERC Revises “Tolling” Order Language to Address Recent Court of Appeals Decision; Seeks Legislative Fix

As discussed previously in Pierce Atwood’s Energy Infrastructure Blog, on June 30, 2020, the U.S. Court of Appeals for the DC Circuit ruled that FERC lacks authority to issue tolling orders that postpone rehearing decisions on natural gas project orders solely to give the agency more time to consider rehearing requests and which delay opposing parties’ efforts to file appeals court challenges.  Allegheny Defense Project v. FERC, No. 17-1098 (D.C. Cir. June 30, 2020).  On July 1, 2020, the Federal Energy Regulatory Commission (“FERC”) issued its first order since the Allegheny Defense decision addressing a rehearing request that it did not act on within the 30-day statutory time period under the Natural Gas Act.

Incorporating suggestions from the court’s opinion, in Midcontinent Independent System Operator, Inc., 172 FERC ¶ 61,009 (2020), FERC issued a Notice of Denial of Rehearing by Operation of Law and Providing for Further Consideration.  That notice debuted

DC Circuit Rejects FERC’s Tolling Authority in Pipeline Certificate Proceedings

The Federal Energy Regulatory Commission (“FERC”) can no longer delay judicial review of its orders under the Natural Gas Act by issuing a tolling order that takes no action on a rehearing request other than granting itself more time to address the merits.  On June 30, 2020, the United States Court of Appeals for the District of Columbia Circuit issued an en banc opinion on rehearing denying motions to dismiss petitions for review filed with the court after FERC issued a “tolling” order extending the statutory 30-day time period for FERC to act on rehearing, but before FERC issued a rehearing order on the merits.  Allegheny Defense Project, et al. v. FERC, No. 17-1098 (D.C. Cir. Jun. 30, 2020).

Such tolling orders in pipeline certificate proceedings under Section 7(c) of the Natural Gas Act enable FERC to authorize pipeline developers to begin construction and seek to condemn construction rights-of-way by eminent domain if necessary before FERC issues a merits

FERC Declares Concurrent Jurisdiction with Bankruptcy Courts Over Rejections of Natural Gas Transportation Agreements

On June 22, 2020, the Federal Energy Regulatory Commission (“FERC”) issued an order in response to a Petition for Declaratory Order (“Petition”) filed by ETC Tiger Pipeline, LLC (“ETC Tiger”), finding that FERC has concurrent jurisdiction with United States Bankruptcy Courts to review and dispose of natural gas transportation agreements sought to be rejected through bankruptcy.[1]

The Petition, filed on May 19, 2020, requested that FERC find that it has concurrent jurisdiction with Bankruptcy Courts under sections 4 and 5 of the Natural Gas Act (“NGA”) with respect to natural gas transportation agreements between ETC Tiger and Chesapeake Energy Marketing, L.L.C. (“Chesapeake”) and that FERC approval of any abrogation or modification of the agreements is statutorily required.  Specifically, ETC Tiger requested three Commission declarations:

  1. The natural gas transportation agreements between ETC Tiger and Chesapeake are FERC-jurisdictional agreements reflecting filed rates approved by FERC pursuant to its exclusive jurisdiction under the NGA;
  2. If Chesapeake seeks rejection of the agreements

PHMSA Issues Gas Pipeline Regulatory Reform Notice of Proposed Rulemaking

On June 9, 2020, the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued a Notice of Proposed Rulemaking (“NOPR”) to revise the Federal Pipeline Safety Regulations (“Regulations”) to reduce regulatory burdens associated with construction, operation, and maintenance of gas pipeline systems. The NOPR is in response to a series of executive orders (E.O. 13771, 13777, and 13783) calling on agencies to reduce or eliminate regulatory burdens. According to PHMSA, the value of the annualized cost savings associated with the proposed amendments is approximately $129 million (at a discount rate of 7 percent). The key reforms, which ease certain monitoring requirements, streamline reporting obligations, and reduce the burden on distribution pipelines associated with the Distribution Integrity Management Program (“DIMP”), are summarized below.

DIMP Requirements

PHMSA has proposed two revisions to DIMP requirements to ease the regulatory burden on gas distribution operators. The NOPR would provide operators of farm taps originating from regulated source pipelines the flexibility to choose between inspecting pressure regulators pursuant

First Circuit Vacates Air Permit Due to Inadequate BACT Analysis

On June 3, 2020, the U.S. Court of Appeals for the First Circuit vacated an air permit issued by the Massachusetts Department of Environmental Protection (DEP) for the construction of a new compressor station proposed by Algonquin Gas Transmission as part of its Atlantic Bridge natural gas pipeline project and remanded the matter to the agency for further analysis.  Town of Weymouth v. Massachusetts Department of Environmental Protection, et al., No. 19-1794 (Jun. 3, 2020).  In reviewing the agency’s decision, the First Circuit concluded that the DEP’s Best Available Control Technology (BACT) analysis was inadequate because the Agency failed to undertake its own independent analysis of the cost-effectiveness of the various options of controlling air emissions and instead relied on the Federal Energy Regulatory Commission’s (FERC) analysis.  The court also decided several other environmental arguments raised by the Town of Weymouth and other petitioners in favor of the DEP, including environmental justice and noise concerns, among other issues, which are addressed in a

FERC has Options if Court of Appeals Seeks to Shut Down an Operating Interstate Pipeline

Can an interstate natural gas pipeline continue to operate if a court vacates its certificate authorizations?

On January 31, 2018, in Sierra Club v. FERC, No. 16-1329 (D.C. Cir.), the United States Court of Appeals for the District of Columbia Circuit denied rehearing  and rehearing  en banc (before the full court) of petitions for rehearing filed by the Federal Energy Regulatory Commission (“FERC”) and jointly by Duke Energy Florida, Florida Power & Light, Florida Southeast Connection, Sabal Trail Transmission, and Transcontinental Gas Pipe Line (the “Supporting Intervenors”).  The court’s orders raise the possibility that the court will issue its mandate and vacate FERC’s orders granting certificates of public convenience and necessity authorizing the construction and operation of the Florida Southeast Connection pipelines, which are currently transporting natural gas to power plants in Florida. If the court issues the mandate, FERC and the pipeline operators will be faced with whether, and if so how, the pipelines can continue

Welcome to the Energy Infrastructure Blog!

Welcome to the Energy Infrastructure Blog – EI Blog, for short – Pierce Atwood’s new blog that will provide information and analysis on the key policy and legal issues relevant to energy infrastructure policy, development, and finance in New England and beyond.  Pierce Atwood has assembled a team of legal practitioners from diverse practice areas who focus on all aspects of developing, buying, and selling energy infrastructure projects, and who also recognize that understanding both the fundamentals and trends in this ever-changing area is essential for developers, investors, policymakers, and interested members of the public.  We look forward to sharing our insights with you. 

Why an energy infrastructure blog – and why now?

We may not always think about it, but the mixed generation fleets, as well as the electricity transmission and distribution network that “keep the lights on” throughout New England are integral parts of everyone’s everyday lives.  Policymakers, lawyers, and