More Controversy in Pipeline for Pipelines

Backgrounder: More Controversy in Pipeline for Pipelines

By Joseph A. Davis

Protester at an anti-pipeline rally in Philadelphia on Feb. 14, 2017. Photo: Joe Piette, Flickr Creative Commons

Energy pipelines in the coming year are going to be more controversial than ever — both a local and a national story that environmental journalists will want to prepare for.

For one thing, President Donald Trump plans to make them an issue. For another, pipeline projects are almost everywhere. They upset people’s feelings about the sanctity of their own private property. They matter to the energy economy. Occasionally, they kill people. And you can go to jail for reporting on them.

And let’s face it, the battles rage because pipelines are a surrogate for other major issues. Regulation. Climate change. Native American sovereignty. Police brutality. The political influence of energy companies.

The news cycle may well move beyond the Keystone XL and Dakota Access pipelines — addressed by Trump in a set of Jan. 24 executive orders — as the year goes on, because literally dozens of other pipeline proposals are in play or under construction. Some of them are listed further on in this article.

The Keystone XL and Dakota Access conflicts, however, may not be ended with a stroke of Trump’s pen. The KXL process must be largely started from scratch and still faces legal opposition. And even though protest camps for the DAPL may be largely gone, the legal challenges may continue.

As the stories go on, it will be worthwhile for reporters to be familiar with some of the main legal and regulatory hurdles and challenges that pipelines face.

Federal Energy Regulatory Commission

FERC is the key regulatory agency for both oil and gas pipelines when they cross state lines. But the rules for oil and gas are very different, because the agency’s authority comes from different laws.

FERC regulates gas pipelines under the Natural Gas Act, but regulates oil pipelines under the Interstate Commerce Act. And while FERC regulates many aspects of interstate energy transmission, there are important aspects it does not.

In addition, FERC is supposed to be an independent agency, with regulatory decisions made by five commissioners nominated by the president and confirmed by the Senate. By law, no more than three commissioners may be of the party of the president. Currently, FERC has only two commissioners (both Democrats), and lacking a quorum, can not approve many official actions.

If you know what pipeline you are interested in, FERC offers several online resources that can help you with some basics of reporting. Most important is its online digital docket system, which gives you access to many of the important documents and actions on a particular pipeline. You can subscribe to notifications on a particular pipeline. And FERC’s vast electronic library makes research easier.

Pipeline and Hazardous Materials Safety Administration

PHMSA deals primarily with the safety aspects of pipelines. Its oversight of pipeline safety is authorized under several laws. It does not issue operating or construction permits, but it does set safety regulations, conduct inspections and issue fines. It issues “special permits” to operators seeking waivers of normal safety rules.

Land Management Agencies

Pipeline routing decisions — and resistance to them — are key to pipelines actually getting built. The federal government, especially in the West, owns much of the land pipeline companies might want to cross. Federal land management agencies must in some way consent before pipelines can be built across their lands.

These agencies may include the Bureau of Land Management (Interior Department), Fish and Wildlife Service (Interior), Forest Service (Agriculture Department), Army Corps of Engineers (Defense Department) and others. Theoretically, at least, they would not include agencies whose main mission is conservation, such as the National Park Service or Forest Service Wilderness units.

In some cases, the focus of a routing decision may come down to an environmental impact statement, which is often required of federal agencies under the National Environmental Policy Act.

Interior Department

In addition to its strictly land-management functions, the Interior Department administers some regulatory programs that can affect pipelines. These include the Endangered Species Act, or ESA, and the National Historic Preservation Act.

Pipelines can affect endangered species when they cross critical habitat. The Fish and Wildlife Service, which has major responsibility for administering the ESA, is part of the Interior Department.

The digging and construction related to pipelines can also affect historical resources (such as burial grounds and archeological sites). These are protected, especially when they are listed on the National Register of Historic Places. The NHPA is overseen by the Advisory Council on Historic Preservation, a multi-agency body that is technically quite independent, and does pay attention to pipelines. But in practice, conservation agencies like the National Park Service do much of the heavy lifting. Almost all federal agencies are subject to the NHPA.

Army Corps of Engineers

The Corps of Engineers manages some land around water bodies and reservoirs, and so is involved in pipeline decisions. But it also has regulatory authority under the Clean Water Act over “dredge and fill” permits related to “waters of the United States.”

Section 404 of the Clean Water Act gives the Corps and the U.S. Environmental Protection Agency joint authority over changes to land forms and water bodies that may harm water quality. One purpose of the provision, for example, is to protect environmentally important wetlands.

Just which particular lands and water bodies are subject to section 404 under the “waters of the United States” doctrine is a question of intense political and legal conflict right now.

State Department

You may remember that the State Department had the key decision on KXL, given its authority to permit (or not permit) oil and gas pipelines that cross U.S. borders. That authority derives from an executive order and these decisions are ultimately made by the Secretary of State and the president. In the process, the State Department is likely to consult with numerous other federal agencies and international agencies.

Cross-border energy pipelines are more common than you might think, since Canada and Mexico are both major trading partners for U.S.-based oil and gas companies. Much of the newly proposed cross-border pipeline capacity is meant to move Canadian tar sands petroleum.

Tribal Governments

Native American tribal governments, for most legal purposes, have the status of sovereign nations. Many own, and have legal rights to, significant tracts of land. Pipelines cross some of these lands, and proposed pipelines may seek to cross more.

U.S. federal agencies seeking to route pipelines across Native American lands must consult under many federal rubrics — from the National Historic Preservation Act to the National Environmental Policy Act. The Bureau of Indian Affairs may assist tribes on some pipeline matters under a trust relationship.

Very often the tribes have an effective veto, although some tribes opt for energy projects that bring revenue. While DAPL is the most familiar example (the issue was over water as well as land rights), there are others — such as the Bad River Band of the Lake Superior Tribe of Chippewa in Wisconsin, which recently voted to evict Enbridge Line 5. Pipeline companies have gone to court seeking to seize Native American lands under eminent domain.

State Governments

Various states have enacted laws giving themselves authority over pipelines within their own borders. Sometimes the states regulate pipelines on matters of safety, pricing or business practices. But sometimes their purpose is to promote pipelines in order to stimulate business within the state. Look for the unique pipeline agencies in your state. Check out your state’s public utilities commission or public service commission to see how it deals with pipelines.

Controversy and protest

Many pipeline proposals and projects are scattered across the U.S. landscape, and some of those have inspired opposition from local and national groups. Local residents are often concerned about construction’s impacts, safety, eminent domain and getting a fair price for easements. Indigenous groups may protest over sovereignty and land rights. Environmental groups are often concerned about land and water impacts as well as the effects of fossil fuels on climate change.

Opposition to various pipelines is fierce, deep and organized. The climate action movement, symbolized by groups like Sierra Club and Bill McKibben’s 350.org, made fighting KXL a signature organizing target. They organized, they won and they are very much still in business.

Moreover, the protest camps against DAPL awoke a multi-tribal movement for indigenous rights that not only transcended pipeline issues, but has spread new encampments across the country.

And FERC’s ability to do business has been badly disrupted in the last several years by protesters from an extensive network of groups led by Beyond Extreme Energy, which draws political energy from local opposition to fracking.

A case-by-case look

Each of the pending pipelines is in a different stage of development. Here are a few of the simmering cases.

• Diamond Pipeline (440 mi.: Okla., Ark., Tenn.): Some local governments in Arkansas are worried about the pipeline’s impact on their water.
• Bayou Bridge Pipeline (162 mi.: La.):  Proposed by Energy Transfer Partners (the people who brought you DAPL), the Bayou Bridge would be the end segment of the system DAPL belongs to. It runs through the heart of Cajun country, and the Atchafalaya Basin, a large and important wetland. It requires a Corps permit.
• Enbridge Line 5 (1098 mi.: Wisc., Mich.): Enbridge Line 5 is part of a larger network that moves oil from western Canada to Eastern Canada through U.S. states. It is notorious for crossing the Straits of Mackinac, where environmentalists fear a leak could endanger the Great Lakes.
• Pilgrim Pipeline (Two parallel 170-mile pipes in N.Y., N.J.):  The Pilgrim would carry both crude and refined products like gasoline. It would pass through numerous local cities and counties, and would require a permit from the New Jersey Department of Environmental Protection.
• Trans-Pecos Pipeline (148 mi.: Texas):  This gas pipeline is mostly complete, although hydrostatic pressure testing has yet to be done. Although Texans are used to pipelines, this one is causing protests, and protesters are being arrested. It is run by Energy Transfer Partners and was approved under the Obama administration.
• Atlantic Sunrise Pipeline (180 mi.: Pa.): This expansion of the Williams Partners’ Transco pipeline system is meant to move fracked gas from the Marcellus shale of Pennsylvania to markets in the South, including the Cove Point LNG terminal on the Chesapeake Bay in Maryland. It was one of the last things FERC approved before it lost a quorum in 2017.
• Sabal Trail Pipeline (515 mi.: Ala., Ga., Fla.): The Sabal Trail Pipeline is mostly a done deal and slated to start operating in June, but protests against it are making news. It will be moving natural gas to Florida for electric power generation. Supporters argue that it will bring jobs.
• Atlantic Coast Pipeline (600 mi.: W.V., N.C., Va.): The Atlantic Coast Pipeline would expand an existing network to bring natural gas from West Virginia to electric power generating plants in Virginia and North Carolina. Now in the draft environmental impact statement phase, it has faced protests. The Trump administration has made it a priority — possibly because Trump campaign and transition officials have alleged financial stakes in it.

These are hardly the only important pipeline proposals or projects in the United States. Some others include the Comanche Trail Pipeline in Texas. There is also a lot of controversy over pipeline proposals in Canada. These include the Energy East Pipeline, the Northern Gateway Pipeline and a Trans Mountain Pipeline expansion.

Some key sources for further information include the FERC press office, the Pipeline Safety Trust, the Interstate Natural Gas Association of America or the PHMSA public affairs office.

Joseph A. Davis is director of SEJ’s WatchDog Project, and writes SEJournal Online’s Backgrounders and TipSheet columns.

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* From the weekly news magazine SEJournal Online, Vol. 2, No. 9. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here.  And see past issues of the SEJournal archived here.