Natural Gas

  • April 18, 2023

Federal Law Preempts Berkeley’s Natural Gas Pipeline Ban

Natural Gas
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Whether you are a James Beard Award-winning chef or a self-taught home cook dreaming of that shiny new gas stove, you can rest somewhat easier.  The U.S. Court of Appeals for the Ninth Circuit has ruled that the federal Energy Policy and Conservation Act (ECPA), 42 U.S.C. § 6297(c) preempts the City of Berkeley, California’s 2019 regulation prohibiting the installation of natural gas piping in new buildings.

On April 17, 2023, the court of appeals issued an opinion in California Restaurant Association v. City of Berkeley, No. 21-16278, reversing a lower court decision and finding that ECPA “expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens.” Berkeley’s ordinance, similar to those proposed elsewhere, did not ban gas appliances.

Instead, the city prohibited installation of natural gas piping extending from the local distribution company’s facilities into new buildings, making the use of gas appliances in such buildings impossible. Prohibition

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  • March 24, 2022

Update: FERC Commissioners Vote Unanimously to Revise Pipeline Certificate and GHG Emission Policy Statements

Natural Gas Pipelines, Regulatory
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The Federal Energy Regulatory Commission has reached consensus to revise the two policy statements it issued on February 18, 2022, impacting the permitting and construction of new natural gas pipeline facilities

During the March 24, 2022 FERC open meeting, Chairman Glick explained that the new order will:

  • Change the status of both policy statements to be “draft” policy statements
  • Reopen the comment period for both draft policy statements so that the Commission can re-engage with stakeholders and further develop the record
  • Further develop the record, and revise both policy statements to make them applicable only prospectively to any pipeline certificate applications that are filed subsequent to the issuance of any final versions of the policy statements.

Currently-pending certificate applications will be reviewed pursuant to the Commission’s 1999 Policy Statement  and relevant FERC and judicial precedent.  Although the vote was unanimous, each of the Commissioners indicated that they intend to issue separate statements explaining their

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  • March 15, 2022

Amidst Ongoing Policy Statement Controversy, D.C. Circuit Remands Another FERC Pipeline Order Over GHG Analysis

FERC, Natural Gas Pipelines, Regulatory
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Once again finding the Federal Energy Regulatory Commission’s (“FERC” or “Commission”) environmental assessment (“EA”) analysis of the downstream effect of greenhouse gas (“GHG”) emissions associated with interstate natural gas pipelines and liquefied natural gas terminals certificated pursuant to the Natural Gas Act (“NGA”) legally insufficient, on March 11, 2022, the United States Court of Appeals for the District of Columbia Circuit issued a remand directing FERC to consider the reasonably foreseeable indirect effects of burning natural gas as the result of a pipeline expansion project.  The court directed FERC to consider such indirect downstream impacts on remand and to prepare a conforming EA, but declined to vacate the FERC’s orders. Food & Water Watch and Berkshire Environmental Action Team v. FERC, No. 20-1132 (Mar. 11, 2022) (“Food & Water Watch”).  Food & Water Watch, authored by Chief Judge Srinivasan and joined by Judges Millett and Katsas, appears to provide further support for some of the reasoning provided by

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  • March 04, 2022

Massachusetts Poised to Reshape Natural Gas Distribution Companies to Address Climate Change

Biogas, Clean Energy, Regulatory
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About one year ago, the Massachusetts Department of Public Utilities or DPU opened an investigation (D.P.U. 20-80) to examine the appropriate role of gas LDCs in helping to meet the Commonwealth’s 2050 climate goals.  The proceeding sought to identify and evaluate strategies to move to net-zero GHG while simultaneously protecting ratepayer interests.  The potential to “recast” the role of the LDCs was a principal part of the focus.

Consultants were retained by the LDCs and an extensive stakeholder process has been completed.  A material step in the process was to identify and then evaluate the merits of what turned out to be eight “pathways” that each reflected changing roles for LDCs.  A two-volume report – Independent Consultant Report Vol. I and Vol. II – has been released in draft, is being finalized and will ultimately be reviewed by the DPU.  It is clear that the role of the LDCs will evolve substantially.  These “pathways” reflected various ranges of “electrification” and differing roles

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  • March 03, 2022

Contentious Senate Committee Hearing Highlights the Politically-Charged Nature of FERC’s Recent Pipeline Policy Statements

FERC, Natural Gas Pipelines, Regulatory
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The Senate Energy & Natural Resources Committee held a hearing today to question Federal Energy Regulatory Commission (FERC) Chairman Richard Glick and Commissioners Allison Clements, Mark Christie, James Danly, and Willie Phillips about FERC’s two recent policy statements regarding natural gas certificates.  Those two policy statements, each of which were issued by 3-2 vote with Commissioners Christie and Danly dissenting with separate statements, were issued on February 18, 2022 and are the subject of a separate Pierce Atwood blog post. Members of the Pierce Atwood Energy team watched the livestream video of the Senate hearing, and, in this post, provide some high-level insights based on the Senators’ questions and Commissioners’ responses today.

To no one’s surprise, the hearing was a politically-charged event. With one notable exception, the participating Senators’ response to FERC’s actions was split along party lines, with Democrats generally supporting the policy statements and Republicans criticizing the policy statements with openly expressed dismay and frustration.  The FERC Commissioners’

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  • February 21, 2022

FERC Issues Two Controversial Policy Statements on Natural Gas Infrastructure

FERC, Natural Gas Pipelines, Regulatory
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On February 18, 2022, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) issued two controversial policy statements that will significantly impact the permitting and construction of new natural gas pipeline facilities.  The policy statements were each approved by a 3-2 majority with Commissioners Danly and Christie issuing separate dissents.

The Updated Policy Statement on Certification of New Interstate Natural Gas Facilities (“Updated Policy Statement”) revises FERC’s 1999 Certificate Policy Statement to give environmental analysis and policy, including environmental justice, a greater role in determining whether FERC should approve new natural gas transportation facilities as consistent with the “public convenience and necessity” under Section 7 of the Natural Gas Act (“NGA”).  A companion Interim Policy Statement on the Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews (“GHG Policy Statement”) seeks to explain how FERC will assess the impacts of natural gas infrastructure projects on climate change in its reviews under the National Environmental Policy Act (“NEPA”) and the NGA.

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  • November 23, 2021

Technical Conference Sparks Debate Over FERC’s Legal Authority to Consider Greenhouse Gas Emissions in Pipeline Certification Review

FERC, Natural Gas Pipelines, Regulatory
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On November 19, 2021, the Federal Energy Regulatory Commission (“FERC” or “Commission”) convened a staff-led technical conference to discuss methods natural gas companies may use to mitigate the effects of direct and indirect greenhouse gas (“GHG”) emissions resulting from pipeline construction and expansion projects that are subject to Natural Gas Act (“NGA”) sections 3 and 7 authorizations by FERC (the “Conference”). The Conference included three panel discussions:  1) The Level of Mitigation for a Proposed Project’s Reasonably Foreseeable Greenhouse Gas Emissions; 2) Types of Mitigation; and 3) Compliance and Cost Recovery of Mitigation.

One of the threshold questions posed by the Commissioners, and a recurring theme throughout the conference, was whether FERC has the legal authority to consider GHG emissions as part of its certification process. Chairman Richard Glick asserted that FERC has authority to mitigate GHG emissions and that doing so will provide greater certainty for the industry, and expressed concern regarding FERC’s handling of the issue to date, given the flurry of recent decisions

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  • September 27, 2021

FERC Staff Recommends Natural Gas Infrastructure Winterization Measures in Light of 2021 Extreme Winter Weather Events

FERC, Natural Gas Pipelines, Regulatory
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The Federal Energy Regulatory Commission (“FERC”), in coordination with the North American Electric Reliability Corporation (“NERC”), presented its preliminary findings and recommendations at FERC’s Open Meeting on September 23 regarding its inquiry into the February 2021 Cold Weather Event in the Electric Reliability Council of Texas (“ERCOT”), Southwest Power Pool, Inc. (“SPP”), and Midcontinent Independent System Operator, Inc. (“MISO”).

The February 2021 Cold Weather Event occurred from February 8 through 20, 2021, during which large numbers of generating units experienced outages, derates, or failures to start, resulting in energy and transmission emergencies. The power outages affected millions of customers throughout the ERCOT, MISO, and SPP regions. On February 16, 2021, FERC and NERC announced a joint inquiry to examine the root causes of the event.

The preliminary findings indicate that a majority of the unplanned generating unit outages, derates, and failures to start were due to natural gas fuel supply issues. The major causes of the decline in natural gas

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  • July 22, 2021

House of Reps, TSA Tackle Cybersecurity in the Energy Industry

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This week, the House of Representatives approved three measures aimed at improving cybersecurity in the energy industry:

  • Energy Emergency Leadership Act. This Bill requires the Secretary of Energy to assign energy emergency and cybersecurity responsibilities to an Assistant Secretary, including responsibilities regarding infrastructure and cybersecurity.

 

 

  • Cyber Sense Act of 2021. This Bill encourages coordination between the Department of Energy and electric utilities. It also requires the Department of Energy to test products and technologies intended for use in the bulk power system.

These measures, which will now move to the Senate, are in response to the slew of recent cybersecurity attacks against critical U.S.

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  • May 17, 2021

Government Races to Secure Critical Infrastructure in Wake of Colonial Pipeline Ransomware Attack

FERC, Natural Gas Pipelines
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One of the nation’s largest pipelines, Colonial Pipeline, which carries 45 percent of the East Coast’s fuel supplies, was forced to shut down on May 7 after it was targeted by a ransomware attack. Ransomware is a type of malware where criminal groups encrypt data, effectively “holding it hostage,” until the victim pays a ransom.

Colonial Pipeline resumed operations on May 15. However, the cyberattack has sparked public panic and outcry as parts of the country experience fuel shortages and fuel prices rise to their highest levels in nearly seven years. The incident has also renewed efforts government-wide to strengthen security of U.S. pipelines and the power grid. On May 11, the U.S. House Committee on Energy and Commerce reintroduced bipartisan legislation aimed at bolstering the Department of Energy’s (“DOE”) ability to respond to cybersecurity threats to U.S. energy infrastructure. Among the several measures introduced were:

(1) The Pipeline and LNG Facility Cybersecurity Preparedness Act, which would require DOE to implement

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