Oil and gas pipeline permitting
Oil and Gas Pipeline Permitting
Overview:
Oil and gas pipeline permitting involves obtaining various regulatory approvals before the construction, operation, or expansion of pipelines that transport petroleum, natural gas, or related products. This regulatory process is crucial to ensure environmental protection, landowner rights, public safety, and compliance with federal, state, and local laws.
Key Regulatory Framework:
Federal Energy Regulatory Commission (FERC): The primary federal agency responsible for permitting interstate natural gas pipelines under the Natural Gas Act (NGA).
U.S. Army Corps of Engineers (Corps): Issues permits under the Clean Water Act (CWA) Section 404 for impacts on wetlands and waterways.
Environmental Protection Agency (EPA): Oversees environmental compliance and enforces pollution control laws.
State agencies: Involved in water quality certification under CWA Section 401, land use, and environmental reviews.
National Environmental Policy Act (NEPA): Requires environmental impact assessments before major federal actions, including pipeline permits.
Permitting Process Highlights:
Pre-filing and Application: The pipeline company files an application with FERC.
Environmental Review: FERC and cooperating agencies prepare Environmental Assessments (EA) or Environmental Impact Statements (EIS).
Public Participation: Hearings, comments, and stakeholder consultations.
Issuance of Certificate: FERC issues a Certificate of Public Convenience and Necessity if criteria are met.
Additional Permits: From Corps (CWA 404), state water certifications, etc.
Case Law Illustrating Oil and Gas Pipeline Permitting
1. National Fuel Gas Supply Corp. v. Public Service Commission of New York, 894 F.3d 547 (2d Cir. 2018)
Facts: National Fuel sought to construct a natural gas pipeline. The New York Public Service Commission (PSC) denied approval based on environmental and safety concerns.
Issue: Whether state commissions can deny pipeline permits for environmental concerns beyond FERC’s authority.
Ruling: The court held that states cannot block FERC-certified pipelines through extra environmental requirements conflicting with federal law.
Explanation: This case reaffirmed FERC’s preemptive authority under the NGA over state-level permitting for interstate pipelines.
Principle: Federal law preempts state authority when FERC has issued a certificate under the NGA.
2. Sierra Club v. Federal Energy Regulatory Commission, 867 F.3d 1357 (D.C. Cir. 2017)
Facts: Sierra Club challenged FERC’s environmental review for a natural gas pipeline, arguing the EIS failed to adequately assess greenhouse gas emissions.
Issue: Whether FERC complied with NEPA by considering climate change impacts.
Ruling: The court vacated FERC’s certificate and remanded, finding FERC’s analysis insufficient.
Explanation: NEPA requires agencies like FERC to consider direct and indirect environmental impacts, including climate change, in pipeline permitting.
Principle: Pipeline permitting must include comprehensive environmental impact analyses, including climate effects.
3. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101 (D.D.C. 2017)
Facts: The Standing Rock Sioux Tribe challenged the Corps’ issuance of CWA Section 404 permits for the Dakota Access Pipeline, citing inadequate environmental review and tribal consultation.
Issue: Whether the Corps complied with NEPA and tribal consultation obligations.
Ruling: The court ordered the Corps to conduct a more thorough environmental review and consultation, highlighting the need for meaningful tribal engagement.
Explanation: This case emphasized the role of tribal consultation and comprehensive environmental review in pipeline permitting.
Principle: Agencies must engage in meaningful consultation with tribes and complete detailed environmental analyses.
4. Palmer v. FERC, 804 F.3d 183 (D.C. Cir. 2015)
Facts: Property owners challenged FERC’s issuance of a pipeline certificate claiming FERC failed to adequately consider alternatives and landowner impacts.
Issue: Whether FERC complied with NEPA and NGA in balancing public necessity with private property rights.
Ruling: The court upheld FERC’s decision, finding it properly balanced environmental concerns, landowner rights, and public interest.
Explanation: FERC must balance public convenience and necessity with environmental and property considerations under the NGA.
Principle: FERC’s discretion in permitting pipelines is broad but must consider environmental and private property impacts.
5. Environmental Defense Fund v. FERC, 2 F.4th 953 (D.C. Cir. 2021)
Facts: Environmental groups challenged FERC’s approval of a natural gas pipeline arguing the agency failed to account for greenhouse gas emissions from upstream and downstream usage.
Issue: The scope of environmental review required under NEPA.
Ruling: The court held that FERC must consider not just the emissions from the pipeline’s construction and operation but also reasonably foreseeable indirect emissions.
Explanation: This expands the scope of NEPA review to cover life-cycle environmental impacts of pipelines.
Principle: Pipeline environmental reviews must encompass all reasonably foreseeable emissions related to the project.
6. Berkley v. FERC, 845 F.3d 1187 (10th Cir. 2017)
Facts: Landowners challenged FERC’s issuance of a pipeline certificate alleging insufficient environmental review and inadequate consideration of landowner interests.
Issue: Whether FERC complied with NEPA and NGA requirements.
Ruling: The court affirmed FERC’s authority but required enhanced environmental impact disclosures and mitigation plans.
Explanation: Emphasized FERC’s responsibility to provide detailed environmental information and mitigation assurances.
Principle: Detailed environmental disclosures and mitigation are mandatory components of pipeline permitting.
Summary Table of Principles and Case Examples
| Principle | Case Example | Explanation |
|---|---|---|
| Federal preemption over state pipeline permits | National Fuel Gas Supply Corp. (2018) | FERC’s NGA authority preempts conflicting state laws |
| Comprehensive environmental review (NEPA) | Sierra Club v. FERC (2017), EDF v. FERC (2021) | NEPA requires consideration of direct and indirect emissions |
| Tribal consultation and environmental justice | Standing Rock Sioux Tribe (2017) | Agencies must consult tribes and assess environmental impacts thoroughly |
| Balancing public interest and private rights | Palmer v. FERC (2015), Berkley v. FERC (2017) | FERC balances pipeline benefits with landowner and environmental concerns |
| Scope of emissions review | EDF v. FERC (2021) | Life-cycle emissions must be considered in pipeline reviews |
Conclusion:
Oil and gas pipeline permitting involves a complex interplay of federal and state regulatory requirements, environmental review, and administrative discretion. Judicial review has played a critical role in defining the scope of environmental analysis, agency authority, and procedural safeguards, especially in light of evolving concerns about climate change and tribal rights.
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