January 2022, Vol. 249, No. 1


Permitting Provision in Infrastructure Bill Disguises Federal Threats Elsewhere

By Stephen Barlas, Contributing Editor, Washington D.C.

Interstate pipeline companies have complained for years about federal and state delays to issue construction permits over concerns about potential damage to waterbodies.   

But the “permitting” provision in the Infrastructure Investment & Jobs Act (IIJA) creates the illusion that help is on the way, while at the same time the Biden administration is pursuing other initiatives to hamper pipeline permitting.   The infrastructure bill signed by President Biden on Nov. 15 contains what can only be called a “ho hum” provision that does two things. The first requirement mandates that the Transportation Department develop a two-year timeline – not a rule that would have legal implications – for completing environmental reviews on major projects. But the provision contains no teeth.   Administrations going back to George W. Bush have issued Executive Orders of one type or another instituting a two-year timetable, but they have been essentially either ignored or never implemented. President Biden revoked President Trump’s Executive Order 13807 which was aimed at the encouragement (whatever that means) “… reducing the time to two years for each agency to complete all environmental reviews and authorization decisions for major infrastructure projects.”   

The IIJA also re-authorizes the Federal Permitting Improvement Steering Council (FPISC) that was established in 2015. The Council has no power to do anything except lobby agencies, such as the Federal Energy Regulatory Commission (FERC) and Environmental Protection Agency, to keep environmental impact statements from dragging on. FPISC would have otherwise gone out of business in December 2022.   

John Cossa, general counsel at FPISC, admits, “We don’t have the authority to make a project’s environmental review go faster. The Permitting Council gets some of the most complex projects and often late in the process.” That makes it hard for FPISC to have any impact on long-delayed projects in its portfolio, such as Penn East and Jordan Cove.  

The Interstate Natural Gas Association of America (INGAA) did not respond to a query asking for its opinion of the IIJA permitting provision.  

That IIJA “permitting” provision will do nothing to reverse the Biden administration’s recent initiatives to complicate life for gas pipelines looking for a simpler, faster federal approval process. The Army Corps of Engineers on Nov. 4, a couple of weeks before Biden signed the IIJA, announced it is pausing all requests for coverage under 12 nationwide permits (NWPs) issued earlier this year.   

NWP12 used by the pipeline industry is one of the ones affected. Companies use it to get quick approval of construction that does minimal damage to a wetland. The announcement followed a California district court’s decision vacating the Section 401 Water Quality Certification (WQC) Rule adopted by the Trump Administration in 2020.  

“However, the Corps has signaled that it is unable to finalize any permit decisions that rely on the 401 WQC Rule, including individual permits,” said Megan S. Haines, an attorney with Reed Smith. “Individual permits are typically more appropriate for projects that may have potentially significant applications and often take longer for the Corps to issue. Accordingly, we note that given the uncertainty of this matter, project schedules should be padded to reflect the likelihood that permitting approvals may take longer than expected.”  

In addition, the Biden administration is considering changes to the National Environmental Policy Act (NEPA), which dictates how federal agencies such as FERC must prepare environmental impact statements before issuing permits. The Trump administration in 2020 made pipeline-friendly changes to NEPA in one instance by limiting the scope of an agency’s analysis of “reasonable alternatives” to a project. The Biden administration wants to reverse that.  

In comments to the Council on Environmental Quality (CEQ) on Nov. 22, 2021, the American Petroleum Institute, the Association of Oil Pipe Lines and other pipeline-centric groups wrote, “Environmentally beneficial or not, IIJA projects will need to undergo NEPA reviews, and many are at risk of being sidelined by protracted agency reviews of unrealistic alternatives and effects that will not reasonably inform agency decision making.”  

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