Mar 292022

FERC Rolls Back its Recently Enacted Policy Statements on the Certification of New Natural Gas Infrastructure

Emily P. Mallen, Keturah A. Brown and Jimmie Zhang
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The Federal Energy Regulatory Commission (FERC) announced on March 24, 2022, that it will delay enacting any changes to its existing policies on the authorization or certification of interstate natural gas pipeline infrastructure under Sections 3 and 7 of the Natural Gas Act. Two policy statements FERC issued on February 18, 2022, in Docket No. PL18-1 and Docket No. PL21-3 (collectively, the 2022 Certificate Policy Statements) have now been deemed “drafts” that are subject to further comment. Initial comments will be due on April 25, 2022, with reply comments due on May 25, 2022. One of the two policy statements, which had been deemed “interim” but given immediate legal effect on February 18 prior to being relabeled a “draft” on March 24, had an initial comment date of April 4, 2022, which has now been extended to the aforementioned dates. Sidley provided a detailed summary of the changes implemented in the 2022 Certificate Policy Statements in a prior client alert and Energy Brief.

FERC specifically stated that it will not apply the 2022 Certificate Policy Statements to pending applications or applications filed before it issues any final guidance. All five Commissioners supported designating the 2022 Certificate Policy Statements as draft statements. Commissioner James Danly concurred in part and dissented in part on grounds that the 2022 Certificate Policy Statements should have been fully rescinded. He reiterated concerns that FERC has created a “fog of indecision” over the development of natural gas infrastructure. He also reiterated his position that FERC is seeking comments on policy matters that exceed FERC’s authority.

Prior to the announced rollback, the 2022 Certificate Policy Statements had been the subject of fierce criticism from the regulated pipeline industry and pipeline customers as well as from members of Congress and certain state governments. On March 3, the U.S. Senate Committee on Energy and Natural Resources, which has oversight over FERC, held a full committee hearing with all five FERC Commissioners testifying on the 2022 Certificate Policy Statement. Then, between March 18 and 21, FERC received requests for rehearing on the 2022 Certificate Policy Statement from 19 states, regulated pipelines, customer groups, and industry trade associations.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Emily P. Mallen

Keturah A. Brown

Washington, D.C.

kbrown@sidley.com

Jimmie Zhang

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