NGA compliance, already a complex undertaking, will become exponentially more difficult with existing contracts or customers or scheduled expansions, all accounted for after the fact.[1] Hearing to Examine Federal Regulatory Authorities Governing the Development of Interstate Hydrogen Pipelines, Storage, Import, and Export Facilities, Before the S. Comm. on Energy & Nat. Res., 117th Cong. (July 19, 2022) (Written Testimony of Richard E. Powers, Jr.), available at https://www.energy.senate.gov/services/files/542E24C8-F2A2-4483-869F-1201C6E7D9FD.[2] 15 U.S.C. § 717(b).[3] 15 U.S.C. § 717(b); see also FPC v. E. Ohio Gas Co., 338 U.S. 464, 467 (1950).

[1]Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015) (“Learjet”); FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760 (2016) (“EPSA”); Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288 (2016).[2]Federal Power Act, 16 U.S.C. §§ 791a, et seq.[3]Natural Gas Act, 15 U.S.C. §§ 717, et seq.[4] 16 U.S.C. § 824.[5]Fed. Power Comm’n v. Florida Power & Light Co., 404 U.S. 153 (1972).

In Oneok, Inc. v. Learjet, Inc., No. 13-271 (April 21, 2015), the U.S. Supreme Court held in a 7-2 opinion that state law antitrust claims against defendant natural gas pipeline companies did not fall within the field of matters preempted by the Natural Gas Act (the “NGA”), 15 U.S.C. § 717 et seq., even though the claims challenged industry practices bearing on the setting of wholesale natural gas rates—an area traditionally recognized as squarely within the NGA’s exclusive jurisdictional scope. This decision has implications reaching far beyond the litigation itself.

Under 15 U.S.C. § 717 et seq., the Federal Energy Regulatory Commission (FERC) has exclusive authority to regulate the construction and operation of interstate natural gas sales and transportation under the NGA. The 3rd Circuit wrote in 2016’s Riverkeeper Network v. Sec’y Pa. Dep’t of Env’t Prot. that natural gas companies cannot construct or operate facilities that transport natural gas without obtaining a “certificate of public convenience and necessity” from FERC. The natural gas company must receive various state and federal authorizations for the project to have a FERC certificate issued.Transco filed an application with FERC and applied for a water quality certification pursuant to the Clean Water Act, which was conditioned on Transco obtaining two permits — an erosion and sediment control permit and a water obstruction and encroachment permit.The Pennsylvania Department of Environmental Protection issued the permits on Feb. 3, 2023. The issuance of these permits was appealed to the PAEHB on March 14

ex rel. Lockyer v. Dynergy Inc.,375 F.3d 831 (9th Cir. 2004)).The National Gas Act, 15 U.S.C. §§ 717 et seq. ("NGA"), regulates interstate sales of natural gas for resale in much the same way the FPA regulates interstate sales of power. The language in the NGA regarding the requirement to file rates and FERC's power to fix unjust and unreasonable rates is nearly identical to the language in the FPA. Compare 16 U.S.C. § 824(e) (FPA) with 15 U.S.C. § 717c (NGA).In a series of cases (see United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332 (1956); Fed. Power Comm'n v. Sierra Pac. Power Co., 350 U.S. 348 (1956)), the U.S. Supreme Court articulated what is referred to as the "Mobile-Sierra doctrine."

In early 2017, Transco received authorization from the federal government to construct a natural gas pipeline that required rights-of-way over several tracts of private property, including property owned by Regec. After failed negotiations as to how much money Regec should be paid for Transco’s use of his property, Transco brought a condemnation action, under the Natural Gas Act 15 U.S.C. § 717, against Regec in the United States District Court for the Middle District of Pennsylvania.Regec filed a copy of a “foreign final judgment via arbitration award,” which described an alleged breach by Transco of a “contract” it entered into with Regec via “tacit acquiescence.”

UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825 (3d Cir.2020) involved the standard for admissibility of expert valuation testimony in a condemnation proceeding under the Natural Gas Act, 15 U.S.C. § 717 et seq. In that case, the condemnor proposed to construct an underground gas pipeline in Pennsylvania that would cross the properties at issue.

Transcontinental Gas Pipe Line Company, LLC (“Transco”) obtained a certificate of public convenience to build a gas pipeline from the Federal Energy Regulatory Commission (“FERC”) after a hearing before that agency. A certificate of public convenience is essentially an approval to construct that the Natural Gas Act, 15 U.S.C. §717 et seq. (“NGA”), authorizes FERC to issue. The NGA provides that any person aggrieved by the issuance of the certificate can appeal directly to a Circuit Court of Appeals.

Anticipating this concern, Petitioners offer some proposals as to how FERC could attempt to streamline the process. First, they propose that FERC exclude from the show cause process any pipeline or storage company that is already required to file an NGA Section 4 [15 U.S.C. § 717(c)] rate case in 2018. Second, they propose that FERC exempt Natural Gas Policy Act of 1978 Section 311 [15 U.S.C. § 3371] pipelines because these pipelines are otherwise required to file updated rate justifications on an ongoing basis.

Barring a reversal by the D.C. Circuit sitting en banc, or the U.S. Supreme Court, the decision means that agencies performing NEPA environmental reviews must analyze reasonably foreseeable impacts associated with downstream GHG emissions at a level commensurate with their anticipated effects and establishes that agencies should quantify those impacts if able to do so. In February 2016, FERC approved construction of three related segments of the Southeast Market Pipelines Project (spanning Alabama, Georgia, and Florida) by issuing a Section 7 certificate of public convenience and necessity under the Natural Gas Act, 15 U.S.C. § 717 et seq. The primary purpose of the pipeline, which has since been built and begun operating, is to provide natural gas to Florida power plants.