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FERC decisions up next for PennEast, Rio Grande LNG rehearing, Buckeye XPress

Washington — The Federal Energy Regulatory Commission is poised to vote January 23 on several high-profile natural gas matters, including requests that it weigh in on litigation concerning eminent domain that is stalling the PennEast PIpeline project and could affect approaches to gas pipeline siting.

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It is also readying to vote — much faster than has been customary — on requests to rehear its decision authorizing the Rio Grande LNG project and the Rio Bravo LNG project. And the 66-mile, 275 MMcf/d Buckeye XPress pipeline could finally see an authorizing decision. The project lingered even as FERC cleared a group of delayed project decisions at the end of 2019.

The items are listed in the Sunshine Act notice for the upcoming monthly commission meeting.

PennEast in October asked FERC for help to overcome an unfavorable 3rd US Circuit Court of Appeals ruling that found state sovereign immunity prevented the 116-mile, 1.1 Bcf/d PennEast project from pulling states into federal court for condemnation proceedings (RP20-41). The case is closely watched because it could unsettle a long-established process for condemning lands for natural gas pipelines, according to the 3rd Circuit ruling and pipeline companies.

As it pursued rehearing by the 3rd Circuit in October, PennEast had asked FERC for an expedited declaratory order to provide its "authoritative interpretation" of the Natural Gas Act's eminent domain authority.

FERC did not immediately bite on that request, and the 3rd Circuit denied PennEast's rehearing request, but the pipeline joint venture has announced plans for a US Supreme Court challenge. The decision January 23 could shed light on FERC's willingness to weigh in further.


Just a month after it approved the Rio Grande LNG project, planned along the Brownsville Ship Channel, and the related Rio Bravo pipeline, FERC has put a decision on rehearing requests on the upcoming meeting's agenda. The project is being challenged by a coalition of groups led by the Sierra Club, as well as by an individual who is a member of the group Save RGV from LNG and the Sierra Club (CP16-454, CP16-455).

While it would be unusual for FERC to act on a lengthy rehearing request so quickly, the agency is under pressure in court over its practice of routinely granting tolling requests extending its decisions on rehearing. The full DC Circuit Court of Appeals has agreed to reconsider a ruling by a three-judge panel on whether FERC's common tolling orderpractices deprive property owners of a fair process in natural gaspipeline cases. While the panel upheld FERC in its orders approving the Atlantic Sunrise project, Judge Patricia Millet, in a concurring opinion, slammed FERC's approach as putting landowners in administrative limbo, while construction is allowed to proceed.

With that case advancing, FERC may be seeking to demonstrate it is acting more quickly. Chairman Neil Chatterjee said in September that he had directed FERC staff to prioritize decisions on rehearing orders within 30 days on the "narrow set of rehearing requests involving landowner rights".

Finally, FERC is poised to act on TC Energy's Buckeye XPress project, which entails replacement of 60.8 miles of 20- and 24-inch-diameter pipeline with about 66.1 miles of new 36-inch-diameter pipeline. The primary purpose, according to TC Energy, is to replace certain portions of Columbia's R-System to ensure continued safe and reliable transportation service.

In October, Columbia had asked FERC for a prompt decision, noting that it already faced a compressed time frame to complete the project. An environmental assessment for the project was issued back in May with a finding that the project would not constitute a major federal action significantly affecting the environment.


Among power dockets teed up for action January 23 are a pending complaint to lower the default offer cap in PJM Interconnection's capacity market, and New York Independent System Operator's proposal to boost distributed energy resource participation in its markets.

PJM's independent market monitor last year filed the complaint (EL19-47), asserting that the offer caps were overstated and that an update was needed to the assumptions used to calculate those caps. Under the IMM's proposed revisions, the default offer cap in the capacity market would be reduced by a factor of six to around $36/MW-day, putting the cap below the last auction's average offer price.

NYISO's proposal (ER19-2276) is intended to help DERs participate in its markets, even if those resources have commitments to the local distribution system; would otherwise be too small; or fail to meet other physical and operational characteristics currently required for full market participation. NYISO's plan was twice flagged by FERC as "deficient" on certain details, requiring subsequent updates to the proposal.