Natural Gas Pipeline Projects

December 2017

In December 2017, Kevin McIntyre, then chairman of the Federal Energy Regulatory Commission, announced plans for reassessing FERC’s certification process for new natural gas pipelines. The decision was based on the assertion that the industry has changed significantly since the 1999 release of the FERC’s Natural Gas Policy Statement. In April 2018, FERC released a Notice of Inquiry (NOI), soliciting public comments on how the agency determines whether a new natural gas pipeline satisfies the public need standard of the Natural Gas Act.

July 2018

In July 2018, then Massachusetts Attorney General Healey, along with seven other attorneys general, filed comments with FERC on the NOI. The comments raised concerns that the current certification process has led to the approval of natural gas pipelines in excess of what is needed to meet current national peak demand, and that the process fails to account for the cumulative environmental impacts of new pipelines on a regional basis. Then New York Attorney General Barbara Underwood filed her own comments that adopted the Massachusetts-led comments. Then Attorney General Underwood’s comments stressed the harm that landowners could suffer on the basis of FERC’s current practice of issuing conditional certificates that allow natural gas companies to initiate eminent domain proceedings before states have completed their own environmental reviews of proposed pipelines.

February 2021

In February 2021, FERC issued another NOI to seek new information and perspectives about potential revisions to its Natural Gas Policy Statement. In particular, FERC asked additional questions about the disproportionate burdens of FERC programs and policies on environmental justice communities. In May 2021, AG Healey led a coalition of 9 AGs in comments that highlighted state GHG reduction targets and the burdens these facilities bring to communities. Nevada AG Aaron Ford also filed comments, cautioning against building unnecessary gas infrastructure.

November 2021

In November 2021, FERC held a technical conference about how gas companies can mitigate the effects of direct and indirect GHG emissions resulting from projects. In January 2022, AG Healey led a coalition of 8 AGs in comments supporting FERC’s assessment of climate impacts of projects and the effects of the projects on environmental justice communities.

February 2022

In February 2022, FERC issued an updated policy statement on the certification of natural gas facilities as well as an interim policy statement on the consideration of GHG emissions from these projects. Both policy statements were important steps towards updating FERC’s processes and were issued in a 3-2 split along party lines.

March 2022

In March 2022, after facing industry and political pushback, FERC modified its February 2022 policy statements to be draft policies. In April 2022, then Massachusetts AG Maura Healey and then Maryland AG Brian Frosh led a coalition of 12 AGs in comments urging FERC to act to consider state clean energy and climate goals in its pipeline reviews, as well as GHG emissions and impacts on EJ communities. Nevada AG Aaron Ford also filed comments expressing concern about cases where FERC’s failure to adequately review project need has resulted in unused infrastructure.

August 2022

In August 2022, Washington, Oregon, and California filed a joint motion to intervene and protest, asking FERC to deny the GTN Xpress Project application. At that time, the states also filed joint comments on the Draft Environmental Impact Statement for the project, arguing that FERC failed to adequately analyze the project’s environmental impacts, including climate impacts and conflicts with state law and national policy, among other things. After the project applicant filed an answer and motion to reject the states’ motion to intervene in September 2022, the states filed a joint reply and answer providing further support that their motion was timely and permissible

December 2022

FERC issued a Final Environmental Impact Statement for the project in November 2022. In December 2022, Washington, Oregon, and California filed joint comments on the Final Environmental Impact Statement, arguing that FERC both failed to fix the inadequacies detailed in the states’ prior comments and made changes to its prior estimates of the project’s GHG emissions that are unsupported and unlawful.

February 2023

In January 2023, the White House Council on Environmental Quality (CEQ) issued its interim guidance on analysis of GHG emissions in environmental impact statements, clarifying what is required under the National Environmental Policy Act (NEPA). Washington, Oregon, and California submitted a supplemental comment letter to FERC in February 2023, noting that CEQ’s guidance confirms the states’ prior comments that FERC’s analysis of the project’s GHG emissions violates NEPA by failing to fully calculate and consider all reasonably foreseeable GHG emissions from the project.

May 2023

In April 2023, FERC issued a data request directing GTN, the project applicant, to address several issues raised by the States in their Motion to Intervene and Protest of the GTN Xpress Project. In May 2023, after GTN filed its response to the Commission’s data request, the States submitted comments on GTN’s response, asserting that GTN failed to meaningfully respond to FERC’s questions and failed to demonstrate that the GTN Xpress Project would not be subsidized by existing customers. GTN filed a supplemental response including the entirety of a market briefing from IHS Markit which it had included excerpts from in its earlier filings (per FERC’s request). On May 31, the States filed comments responding to GTN’s supplemental filing, arguing that GTN mischaracterized the market briefing when it stated in its supplemental response that the briefing demonstrated need for the pipeline expansion. Rather, the States note in their May 31 comments, the market briefing projects falling regional demand for gas and rising regional production, showing that GTN’s proposed expansion is motivated by its desire to increase Canadian production rather than to meet growing need in the Northwest U.S.

October 2023

On October 23, 2023, FERC released its order issuing a certificate for the GTN Xpress Project.

November 2023

On November 22, 2023, the States filed a request for rehearing of the FERC order issuing a certificate for the GTN Xpress Project.

December 2023

On December 6, 2023, the States filed an answer to GTN’s request for clarification, a motion to answer GTN’s request for rehearing, and a supplementation of the states’ November request for rehearing.

On December 26, 2023, FERC issued a notice of denial of rehearing by operation of law and providing for further consideration.

January 2024

On January 2, 2024, GTN filed a petition for review in the Court of Appeals for the Fifth Circuit (Case No. 24-60002).

On January 4, 2024, Earthjustice, representing Columbia Riverkeeper and Rogue Climate, filed a petition for review in the Court of Appeals for the D.C. Circuit (Case No. 24-1002).

February 2024

On February 12, 2024, Washington and Oregon filed a petition for review in the Court of Appeals for the D.C. Circuit (Case No. 24-1025).

October 2021

In October 2021, FERC issued a notice of intent to prepare an Environmental Impact Statement (EIS). In March of 2022, it issued a draft EIS. Hundreds of public comments were submitted by community members, business owners, Tribal leaders, union members, national and state agencies and government entities, landowners whose properties would be impacted by the project’s construction plans, and others, in response to the draft EIS. Environmental and environmental justice community groups, including Food and Water Watch, Delaware Riverkeeper Network, New Jersey Conservation Foundation, and the Eastern Shawnee Tribe of Oklahoma also submitted comments.

July 2022

On July 11, 2022, the New Jersey Board of Public Utilities (BPU) and the New Jersey Division of Rate Counsel (Rate Counsel) (collectively, the New Jersey Agencies), filed a motion to intervene out of time and to lodge the BPU order accepting the findings of a recent New Jersey gas pipeline capacity report. The BPU had commissioned London Economics to collect data and create the report while the BPU was conducting a study on New Jersey’s transforming energy systems, the anticipated future role of the State’s domestic natural gas industry, and the State’s ability to meet reliability goals and energy demand during the winter months. The London Economics report found that New Jersey “can easily meet firm demand under 1) normal winter weather conditions, 2) in cases of colder-than-normal weather on a scale experienced in the past, and 3) in the case of a design day” through 2030 using existing pipelines and infrastructure. The BPU accepted the report’s findings.

On July 29, 2022, FERC issued a final Environmental Impact Statement for the REAE project.

September 2022

On September 6, 2022, the New Jersey Conservation Foundation (NJCF) submitted a request for an evidentiary hearing. In their request, NJCF explained that the Commission should test the credibility of Transco’s claim that there is a public need for the REAE project, in light of the evidence and data showing that the project would “harm ratepayers, directly contravene New Jersey’s climate laws and public utility orders, and yield no public benefit.” On September 16, Food and Water Watch submitted a motion in favor of NJCF’s request for an evidentiary hearing.

On September 21, 2022, Transco submitted a response opposing NJCF’s request. Transco explained that the Commission had historically resolved issues raised by opponents of projects in Natural Gas Act (NGA) section 7(c) proceedings based on the filings, not in evidentiary hearings. Transco also stated that a hearing would unnecessarily delay the project; that the final Environmental Impact Statement had already been issued; and that the gas pipeline capacity report discussed by NJCF in their filing should not supersede FERC’s determination of whether the project is or will be required by public convenience and necessity.

January 2023

On January 11, 2023, FERC issued a certificate of public convenience and necessity, authorizing Transco to construct and operate its REAE pipeline project, but stayed the certificate during the rehearing period to allow Transco time to resolve issues concerning property rights with protesting landowners. The Commission discussed the gas pipeline capacity report that was commissioned by the BPU and prepared by London Economics, which had found that New Jersey’s local distribution companies can meet their projected future energy needs using the State’s existing pipeline capacity, and therefore, the new pipeline is not needed. FERC evaluated the study and concluded that the record did not support the study’s findings that there were sufficient non-pipeline alternatives in the State, or that the project was not needed.

Following FERC’s order, on January 13, Transco filed a notice of acceptance of certificate of public convenience and necessity. On January 17, Transco filed an implementation plan for the project and a motion to lift the stay that had been implemented in FERC’s January 11 order. In its motion, Transco argued that the stay would make it difficult for it to meet the U.S. Fish & Wildlife Service’s construction window requiring that tree felling take place between November 16 and March 31, 2023. Transco further argued that if it is not able to complete necessary tree felling by March 31, then a hardship would be created for Transco, other companies involved in the REAE project, and the public, because the pipeline would not be able to be constructed and put into use in time for the 2023-2024 heating season.

February 2023

On February 10, 2023, Delaware Riverkeeper, Food & Water Watch and Sierra Club, and the New Jersey Conservation Foundation filed requests for rehearing of FERC’s January 11 order issuing a certificate of public convenience and necessity for the REAE Project.

The New Jersey Division of Rate Counsel filed comments supporting the New Jersey Conservation Foundation’s request for rehearing. Rate Counsel emphasized that FERC had “misconstrued the New Jersey Board of Public Utilities’ findings that New Jersey does in fact have sufficient natural gas capacity without the REAE Project because it failed to accord the BPU-commissioned London Economics Institute capacity study appropriate weight.” Rate Counsel stressed that even though New Jersey gas utilities are not required to implement non-pipeline alternatives to reduce natural gas demand, the state “has imposed a statutory duty on its natural gas utilities to reduce their demand by 1.1% by 2026, with additional reductions expected in future years,” which is a fact that the Commission failed to acknowledge or address in its order. According to Rate Counsel, this statutory duty, along with guidance from the State’s Board of Public Utilities, “will further lessen the need for the REAE Project in New Jersey going forward.”

Additionally, on February 10, the New Jersey Board of Public Utilities and Rate Counsel filed a motion requesting that FERC clarify or correct the statements it made in its January 11 order concerning the London Economics report and natural gas measures in New Jersey. BPU and Rate Counsel argued that the statements were misinterpretations of the evidence that had been provided to the Commission. They also requested that FERC “clarify that nothing in the Certificate Order is intended to interfere with [BPU’s] authority to review the prudency of New Jersey Local Distribution Companies’ (“LDCs”) decisions to subscribe to Regional Energy Access Expansion (“REAE”) project capacity.”

On February 15, FERC issued an order lifting the stay which had been put in place by the Commission on January 11 when it issued a certificate of public convenience and necessity. Also on February 15, Transco filed a request for notice to proceed with tree felling activities with FERC. In its request, Transco sought to begin tree-felling activities across over 200 acres of land in New Jersey and Pennsylvania, so it could begin constructing the pipeline, compressor stations, and related infrastructure that make up the REAE project.

March 2023

On March 16, FERC issued a notice authorizing Transco to proceed with tree-felling activities, in accordance with the parameters outlined in Transco’s January 17 implementation plan, and its supplemental filings.

On March 17, FERC issued an order on rehearing and denying the New Jersey Conservation Foundation (“NJCF”) and Sierra Club’s separate February 10 motions for stay of the Certificate Order. (FERC had issued a notice of denial of rehearing by operation of law on March 13.)

The Commission states that it reviewed the record evidence and in Delaware Riverkeeper, Food & Water Watch and Sierra Club, and the New Jersey Conservation Foundation’s requests for rehearing–including the various scientific and environmental studies at issue–and concluded that the project is required by the public convenience and necessity. Accordingly, FERC denied the requests for rehearing.

Additionally, FERC granted the BPU and Rate Counsel’s motion for clarification. It explained that the Commission has jurisdiction to determine whether a proposed project is required by public convenience and necessity. FERC clarified that in its January 11 order, it had acknowledged the London Economics study’s findings and the State’s policies, but explained that these do not supplant FERC’s jurisdiction. The Commission also clarified that it “did not intend to—and [has] no authority to—constrain the state’s review of the prudency of purchases by New Jersey LDCs,” which is a matter that is “best left to state regulators.” On this point, FERC further explained that its “findings under the NGA regarding whether the project is required by the public convenience and necessity do not preclude New Jersey, or any other state, from undertaking an after-the-fact prudency review of any purchase agreement by an LDC, consistent with the state’s jurisdiction.”

Finally, FERC denied the NJCF and Sierra Club’s motions for stay. First, Sierra Club had requested that the Commission stay the Certificate Order pending the issuance of an order on rehearing. Here, the Commission denied Sierra Club’s motion as moot. Second, NJCF had asked FERC to stay the Certificate Order because the project’s construction would cause “irreparable injury” to a landowner and to various intervenors. In denying NJCF’s request, FERC explained that it had included “protective conditions in the Certificate Order and the final Environmental Impact Statement […] to mitigate construction impacts on landowner property.” FERC also noted that Transco’s construction plans and the Commission’s mitigation measures “would not have a significant impact on soil erosion, water quality, vegetation, surface waters, wetlands, fisheries, or wildlife.” After concluding that NJCF had failed to show how the mitigation measures would be insufficient to prevent irreparable harm, FERC found that justice did not require a stay, and denied NJCF’s motion.

On March 20, the NJCF filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit (Case No. 23-1064). The New Jersey League of Conservation Voters Education Fund and the Aquashicola Pohopoco Watershed Conservancy were also included as petitioners on NJCF’s filing.

On March 20, the NJCF filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit (Case No. 23-1064). The New Jersey League of Conservation Voters Education Fund, the Aquashicola Pohopoco Watershed Conservancy, and one affected landowner joined the petition. These petitioners sought review of FERC’s January 11 certificate order and its March 13 notice of denial of rehearing by operation of law. The same petitioners filed a second petition for review (Case No. 23-1074) on March 23, seeking review of FERC’s March 17 order on rehearing. An additional petition for review was filed by Delaware Riverkeeper on March 22 (Case No. 23-1077), seeking review of the same orders listed in NJCF’s March 20 petition.

On March 22, Delaware Riverkeeper filed a motion to stay FERC’s January 11 certificate order pending judicial review, and also opposed Transco’s March 16 request to proceed with full construction of the REAE project.

On March 23, FERC issued a notice approving Transco’s request to proceed with construction of all components of the REAE project.

On March 24, Transco filed a response to the motion to stay, arguing that a stay would make it impossible for Transco to meet its construction schedule, thereby rendering REAE unable to be put into service in time for the 2023-2024 heating season.

On March 28, NJCF filed a request for rehearing of FERC’s March 16 notice authorizing Transco to proceed with tree-felling activities, and its March 23 notice authorizing Transco to proceed with construction of all components of the REAE project. Delaware Riverkeeper also filed a request for rehearing on March 30, seeking review of the same two items.

May 2023

On May 1, FERC issued an order denying NJCF’s and Delaware Riverkeeper’s requests for rehearing and motions to stay.

August 2023

On August 9, New Jersey Attorney General Matthew J. Platkin and Washington Attorney General Bob Ferguson led eight attorneys general in filing an amicus brief in the U.S. Court of Appeals for the D.C. Circuit supporting petitioners challenging FERC’s approval of the REAE project in New Jersey Conservation Foundation, et. al. v. FERC (Case Nos. 23-1064, 23-1074, 23-1077, 23-1129, 23-1130, and 23-1137, consolidated). The AGs argued that FERC violated the Administrative Procedure Act, Natural Gas Act, and FERC’s own regulations when it failed to consider state climate goals, environmental and health risks of methane, and state clean energy laws before erroneously concluding that the project was in the public need and interest.