Washington — The Federal Energy Regulatory Commission may consider adding conditions and mitigation measures for natural gas projects, even after granting a certificate authorization, as part of its responsibility to protect the public interest, Chairman Richard Glick suggested in a letter April 12.
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His reasoning, laid out in a letter to Senate Energy and Natural Resources Committee Ranking Member John Barrasso, Republican-Wyoming, came as a group of former commissioners echoed gas industry warnings that FERC was threatening infrastructure development by undermining the finality of its approvals for multimillion-dollar projects.
At issue is FERC's 3-2 Feb. 18 vote to establish a paper briefing (CP16-9-012) in relation to the start of service for the long-contested Weymouth Gas Compressor, a final part of Algonquin Gas Transmission and Maritimes & Northeast Pipeline's 132,705 Dt/d Atlantic Bridge Project. The briefing order relates to a request for rehearing and rescission of the in-service authorization, pitched by environmental groups, local officials and others who raised environmental and safety concerns, particularly in light of unplanned blowdowns that occurred in September during startup of the compressor.
Pipeline companies have contended FERC lacked authority to revisit the now-final certificate order for the project, and Barrasso, in a March 30 letter, pressed Glick and other commissioners to spell out under what statutory authority FERC could reopen the case or order new mitigation.
Responding April 12 to Barrasso, Glick said the briefing order does not revisit or otherwise reopen the certificate. "That certificate is now final," he said.
Instead, he said FERC is examining whether new information and changed circumstances require FERC to take action to protect the public interest.
"The commission is fulfilling its ongoing responsibility to the public interest, which continues throughout the construction and operation of certificated facilities, and even after the certificate becomes final," Glick said. In complying with that ongoing responsibility, he said FERC "may also consider whether additional conditions or mitigation measures are necessary and appropriate pursuant to that authorization."
Discussing the matter in general terms, he said FERC delegates to the director of the Office of Energy Projects authority to take steps to ensure protection of environmental resources during construction and operation of a gas project, including by modifying conditions and adding measures deemed necessary to ensure continued compliance with the intent of the conditions of a certificate.
By way of example, he cited requirements FERC staff set for the Rover Pipeline's in-service related to environmental restoration and horizontal directional drilling. He also highlighted FERC's post-certificate requirements to restore private property affected by construction, in recent compliance orders on Spire STL and Midship pipelines, as well as steps to address new safety concerns such as cracks in tanks containing LNG, as communicated in a joint FERC-Pipeline and Hazardous Materials Safety Administration letter to the Sabine Pass Liquefaction facility in July 2019.
"In addition, it is not uncommon for more minor unexpected developments to arise during construction, or sometimes many years later, which require changes to the mitigation measures imposed in the original certificate," Glick wrote.
Former commissioners sound alarm
Still, a bipartisan group of seven former commissioners wrote FERC April 9 to say they were troubled by what they viewed as an uncommon step that reopened a long-since final certificate order, without any suggestion that the terms of the order were violated. They urged FERC to terminate the briefing process.
"We are unaware of any other instance, in the eight-decade history of the Natural Gas Act, where FERC has taken such a step," wrote former commissioners Mike Naeve, Elizabeth Moler, Donald Santa, Pat Wood, Nora Mead Brownell, Joseph Kelliher and Suedeen Kelly. They said they could not recall any such cases during their tenures at FERC, collectively spanning 20 years.
The action threatens to impede development of all infrastructure projects subject to FERC's jurisdiction, not only gas, they contended.
"If shifts in the composition or policy priorities of the commission result in retroactive reconsideration of existing, already-final commission authorizations after substantial investments have been made, investors will either demand higher returns or stop funding projects altogether," they wrote. "Put simply, increasing uncertainty for investors translates into higher energy bills and less reliable energy supply for consumers."