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Attorney: EPA disarmed of biggest weapon in FERC gas project reviews

The White House Council on Environmental Quality's guidance on greenhouse gas emissions is gone from the White House's website and is not showing up as prominently in the U.S. EPA's fights with FERC over permitting natural gas infrastructure, according to an oil and gas attorney.

As recently as October 2016, the EPA had asked for a "headquarter-level meeting" after it found that FERC had not conducted "a proper climate change analysis" under the guidance during environmental reviews of the Leach XPress and Rayne XPress natural gas transportation projects proposed by pipeline companies in TransCanada Corp.'s Columbia Pipeline Group Inc.

But things are changing with the arrival of President Donald Trump on Friday, Jan. 20, Kurt Krieger, principal with Steptoe & Johnson PLLC, said at the Hart Energy Marcellus-Utica Midstream Conference in Pittsburgh.

"EPA has been beating FERC and pipelines over the head with the Council on Environmental Quality's greenhouse gas emission document," Krieger said in a Jan. 25 panel discussion. "It's supposed to be an advisory, voluntary document, but the EPA thinks it is mandatory. That was a big deal until last Friday. Suddenly you can't even find reference to the Council on Environmental Quality on the White House website."

The guidance asked federal agencies to do more to calculate and mitigate the effects of greenhouse gases on the climate during project reviews. It, like other climate material, is no longer showing on whitehouse.gov.

After his presentation, Krieger told a reporter that the EPA appeared to back off the guidance even before the election. Krieger, who has been practicing before FERC for about 25 years, said the agency's harsh comments on the Leach and Rayne XPress projects in October were replaced by even-toned comments Jan. 9 when it looked at the FERC review of the NEXUS pipeline, backed by Spectra Energy Corp and DTE Energy Co. The EPA asked FERC, if it could not evaluate the global impact on climate change from gas associated with the project from production to burner tip, something the commission has maintained it cannot do legally or practically, to say something more general, Krieger said. But attorneys do not like to put legal positions in general terms.

"I don't expect that FERC, with an eye on defending their orders in court, are going to say something wishy-washy and general," Krieger said. "I think they're probably going to stick to their guns."