On March 27, 2019, the Federal Energy Regulatory Commission (“FERC”) issued a trio of declaratory orders responding to uncontested Petitions for Declaratory Order (“PDOs”) that sought regulatory certainty for three distinct crude oil pipeline projects with contract commitments. The decisions, which governed filings made by Enterprise Crude Pipeline LLC (“Enterprise”) (Docket No. OR18-27-000), EnLink Crude Pipeline, LLC (“EnLink”) (Docket No. OR18-38-000), and EnLink Delaware Crude Pipeline, LLC (“EnLink Delaware”) (Docket No. OR19-3-000), consisted of one denial (Enterprise) and two approvals with conditions (EnLink and EnLink Delaware). Together, these three decisions suggest a notable departure from FERC’s prior declaratory order precedent, which had tended to approve uncontested PDOs without conditions. When coupled with another three declaratory orders issued on March 11, 2019, FERC’s latest round of declaratory orders indicates a trend towards greater scrutiny of pipeline projects regulated under the Interstate Commerce Act (“ICA”).
1 – Make-up of FERC Commissioners – FERC’s leadership already was uncertain heading into 2019 before the tragic passing of Commissioner and former Chairman Kevin McIntyre on January 3, 2019. Prior to his passing, the Commission achieved a full complement of five commissioners in December 2018, following the confirmation of Bernard McNamee who filled a spot made vacant by the August 2018 resignation of former Commissioner Robert Powelson. Commissioner McNamee is facing calls to recuse himself from certain FERC electric generation proceedings given positions he took on grid resiliency in his prior position at the Department of Energy, and he is certain to be scrutinized by environmental groups for positions he is anticipated to take on pipeline matters as a FERC commissioner. (more…)