July 2022 Vol. 77 No. 7

Washington Watch

Glick Renomination, Policy Statements Generate Controversies

Stephen Barlas |Washington, D.C. Editor 

Some key decisions about federal pipeline regulation are coming to a head as the comment period for the Federal Energy Regulatory Commission’s two draft policy statements closed and the Senate decides whether to renew Richard Glick’s chairmanship at FERC. 

President Biden announced on May 20 that he wants to re-appoint Glick, who has led agency efforts to adopt the two draft statements that are, in the main, strongly opposed by interstate pipeline companies for exceeding current federal law. Glick’s term ended June 30, 2022. 

Sen. Joe Manchin (D-W.Va.), chairman of the Senate Energy Committee, scolded Glick in hearings this year for FERC’s insistence on conditioning pipeline approvals on an expanded analysis of greenhouse gas emissions. The Senate will have to approve Glick’s renomination as chairman. 

In a 50-50 divided Senate, with at least Manchin potentially joining all Republicans in opposition, Glick’s rejection would send a clear message to the two other Democratic commissioners at FERC to tread very carefully in expanding Natural Gas Act authorities without congressional approval. 

Democratic opposition to FERC’s anti-pipeline drift also exists in the House. Rep. Michael Burgess (R-Texas), the number-two Republican on the House Energy & Commerce’s energy subcommittee, organized a letter to FERC, signed by 18 House members – five of which are Democrats – saying “the two new policy statements issued on Feb. 18, 2022, only added significant uncertainty to the durability of FERC’s certificate policy review framework.” 

The House Energy & Commerce Committee would be the venue for legislation pulling the reins on FERC if it heads in the direction Glick is leading it. FERC’s draft policy statements deal with revisions to the commission’s 1999 pipeline certificate approval process and the extent to which greenhouse gas emissions (GHG) can be determined to be a “significant” danger to the public. 

It establishes a threshold of 100,000 tons per year (TPY) of CO2e for finding a significant impact under the National Environmental Policy Act (NEPA). 

Glick appears to know he is walking a fine political line. On May 19, he voted to approve Kern River’s Delta Lateral project despite pleas from the EPA to look more closely at whether the project’s upstream and downstream greenhouse gas emissions would be significant, thereby triggering additional actions under the NEPA. 

The Delta Lateral will be a 36-mile-long, 24-inch-diameter pipeline from Opal, Wyo., to the Intermountain Power Project (IPP), an electrical generating facility in Delta, Utah. In voting to approve the project and rejecting the EPA’s demands, Glick pointed out the project would result in a substantial net decrease in downstream GHG emissions, due to Intermountain Power Agency’s replacement of coal-fired with gas-fired generation. He said there was no need for further analysis on the possibility of significant GHG emissions because “common sense” dictated those emissions were not significant. 

“There is little doubt Glick knows the score politically and will be wary of doing anything that would stir up the opposition, especially from Manchin,” said one Washington attorney who works with pipeline companies. 

Glick’s future may depend on the shape of the final pipeline certificate and GHG policy statements. If the Senate appears to be ready to reconfirm him, hearings would probably be held in the fall (Glick can serve until the end of 2022, regardless of whether he is reconfirmed). Those hearings would likely coincide with further FERC action on the policy statements, which could ignite controversy or even douse any political fires, if Glick backs off. 

The pipeline industry clearly envisions a role for Congress if FERC strays from its authority under the Natural Gas Act (NGA). Glick clearly feels recent federal appeals court decisions give him the authority to establish new, anti-pipeline policies that conform to the NGA. 

Pipeline companies almost unanimously disagree. 

The Draft GHG Statement also claims authority for the Commission to deny an NGA section 7 application due to a project’s upstream and downstream GHG emissions being contrary to the ‘public interest,’” said Anne E. Bomar, senior vice president and general counsel, BHE GT&S, LLC. “There is no basis in the text of the NGA or case law for this authority.” 

BHE, Enbridge, Kinder Morgan and most of the big players in the interstate pipeline industry argue that FERC proposed changes are illegal and the process for vetting them has been incomplete. 

“Multiple aspects of the Draft Policy Statements are unsupported by record evidence and lack an adequate Commission explanation demonstrating that they are the product of reasoned decision making,” wrote William E. Wolf, vice president and deputy general counsel, Kinder Morgan Inc. “These failings render the Draft Policy Statements in their current form arbitrary and capricious and contrary to law.” 

However, some major pipeline companies support parts of at least the proposed certificate policy changes. Stephen Hatridge, vice president & assistant general counsel, The Williams Companies, Inc., told FERC, “While Williams has concerns with certain aspects of the draft Policy Statements, we do not want to overlook those areas in which we agree, at least conceptually, with the Commission’s policy objectives.” 

He cited, with respect to the certificate draft, the commitment to conduct a more expansive analysis of landowner impacts and the need to fully consider and protect the interests of environmental justice communities. UC

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