Before project developers can begin constructing an interstate natural gas pipeline, they must first apply for approval from the Federal Energy Regulatory Commission (FERC). In accordance with the Natural Gas Act, FERC has authority to approve a Certificate of Public Convenience and Necessity (CPCN) if the project is in the “public interest.” In making this determination, FERC considers a variety of factors, including the environmental impacts. To accomplish this, FERC conducts an environmental analysis under the National Environmental Policy Act (NEPA) to evaluate environmental consequences and consider alternative ways of meeting the need for the proposed project. For more information on NEPA, read our NEPA Overview and NEPA Environmental Review Requirements Regulatory Tracker.
If FERC approves a CPCN for the project, the developers must then secure approvals to construct the project from multiple federal and state agencies, following environmental impact and compliance assessments pursuant to various statutes. FERC is the lead agency for coordinating NEPA compliance in all applicable authorizations with other federal agencies, including the US Army Corps of Engineers (Army Corps), the Department of Agriculture’s US Forest Service (Forest Service), and the Department of the Interior’s Bureau of Land Management (BLM), US Fish & Wildlife Service (USFWS), and US National Park Service (NPS).
Pursuant to section 404 the Clean Water Act (CWA) and section 10 of the Rivers and Harbors Appropriation Act, project developers must apply for permits from the Army Corps to cross streams and wetlands, and to discharge dredged or fill materials into the waters of the US. Project developers can apply for CWA section 404 permits through either the more streamlined general authorization under the Nationwide Permit 12 (NWP 12) for oil and gas pipeline activities that are “similar in nature” and will have only “minimal” cumulative adverse effects on the environment, or the more regulated individual Department of Army “DA” section 404 permits for each waterway crossing. Pursuant to CWA section 401, project developers must also obtain a section 401 water quality certification from each state and/or tribal government the project crosses or impacts, certifying that the project will be in compliance with the applicable jurisdiction’s water quality standards.
Under the Endangered Species Act (ESA), project developers must consult with the USFWS for projects that potentially affect threatened or endangered species. Following the consultation, USFWS assesses the project’s impacts on these species and their critical habitats and issues analyses for the project including a biological opinion and incidental take statement (“take” refers to harm to a species). Other federal agencies may rely on these analyses in issuing relevant permits and approvals.
In accordance with the Mineral Leasing Act and the National Forest Management Act, project developers must apply for a right-of-way (ROW) permit from the BLM when building across lands within BLM’s jurisdiction or under the jurisdiction of two or more federal agencies. Before granting a ROW, BLM must complete a NEPA analysis for the proposed project, and must confirm the project’s compliance with applicable federal and state laws, regulations, and local ordinance.[1] If the project crosses lands under the jurisdiction of two or more federal agencies, BLM must receive concurring records of decision (RODs) issued by the relevant federal agencies before granting a ROW for construction through the federal lands.[2] RODs contain an agency’s decision on a matter, the reasoning behind the decision, alternatives considered in reaching the decision, and which practical options the agency has adopted to avoid or minimize impacts on the environment with the alternative selected, including mitigation requirements for the project.[3] For projects that cross the national forest system, the Forest Service must ensure that the proposed activities are in compliance with its applicable Land and Resource Management Plans.
The NPS may also issue ROW permits for projects crossing through national parks if there is no practical alternative to the proposed use of the NPS lands. Section 28 of the Mineral Leasing Act outlines BLM’s authority to grant ROWs, but FERC notes that “there are no general authorities” guiding NPS for issuance of ROW permits for gas pipelines across the national park system.
Any of these agency permits can be challenged for inadequate compliance with environmental statutes in federal court. Absent any valid permit, the pipeline must halt construction in the relevant jurisdiction under the CPCN.
To read our Regulatory Tracker page for the Mountain Valley Pipeline, click here.
[1] 43 C.F.R. § 2884.21(d).
[2] 43 C.F.R. § 2884.26.
[3] 40 C.F.R. § 1505.2.