Trump to Nominate Two for FERC Openings

By: Michael K. Reer

On June 28, 2017, the Trump Administration announced plans to nominate Richard Glick as a commissioner of the Federal Energy Regulatory Commission. Glick currently serves as Democratic general counsel on the Senate Energy and Natural Resources Committee and would replace Democratic Commissioner Colette Honorable. On July 13, 2017, the Trump Administration announced plans to nominate Kevin J. McIntyre as a Republican FERC commissioner. McIntyre serves as an attorney at the law firm Jones Day and would fill a currently vacant commissioner seat. When at capacity, FERC has five commissioners, three of whom may be the same party as the President. President Trump has now nominated four potential FERC commissioners, including three Republicans. If confirmed by the Senate, the four will join Democratic Commissioner Cheryle LaFleur, thus filling all commissioner vacancies. FERC has operated without a quorum of at least three commissioners since February 2017. The agency’s inability to approve major infrastructure projects without a quorum has resulted in a backlog of $14 billion worth of permit applications. On July 26, 2017, Texas Railroad Commissioner Wayne Christian wrote a letter to U.S. Senators Cornyn and Cruz, advocating for the U.S. Senate to confirm the Trump Administration’s nominees.
Wednesday, August 02, 2017

FERC Opens Investigation Into Tuscarawas River Horizontal Drilling

By: Michael K. Reer

On June 1, 2017, the Federal Energy Regulatory Commission announced an investigation into the alleged use of petroleum hydrocarbon constituents during horizontal directional drilling activities on the Rover Pipeline Project in Ohio. The announcement of an investigation follows a May 10, 2017 letter from FERC that limited the company’s authority to conduct horizontal directional drilling activities after an inadvertent return of approximately 2 million gallons of drilling fluid during completion of drilling under the Tuscarawas River. According to the FERC letter announcing the investigation, testing by the Ohio Environmental Protection Agency revealed petroleum hydrocarbon constituents, commonly found in diesel fuel, in samples of drilling fluid near the Tuscarawas River.

FERC states that the presence of petroleum hydrocarbons “suggests a violation of Environmental Condition No. 1 of the Commission’s February 2, 2017 Order Issuing Certificates” – which requires the operator to adhere to construction procedures described in its application and identified in the associated Environmental Impact Statement. According to FERC, the application and associated EIS stated that the operator was committed to using drilling fluid composed only of a “slurry made of nontoxic/non-hazardous bentonite clay and water” – which would preclude the use of petroleum hydrocarbon constituents.
Monday, June 12, 2017

Another FERC Commissioner to Leave

By:  Michael K. Reer

On April 28, 2017, the Associated Press reported that Federal Energy Regulatory Commissioner Colette Honorable will not seek reappointment after her term expires in June. Honorable’s departure leaves FERC with just one commissioner, far short of the three commissioners needed for a quorum. Without a quorum, natural gas pipeline projects totaling more than $10 billion in investment could face significant delays in obtaining the FERC permits necessary for construction. On March 9, 2017, the Wall Street Journal reported that President Donald Trump was prepared to nominate three republicans to the commission, but the senate has yet to receive the formal nominations.

According to the Associated Press: “Lawmakers from both parties have expressed alarm at the prolonged vacancies. Senate Energy Committee Chairwoman Lisa Murkowski, R-Alaska, has pressed the White House for months on the issue to no avail.”
Thursday, May 04, 2017

President Trump to Nominate 3, Restore Quorum to FERC

By: Blake C. Billings

On March 9, 2017, the Wall Street Journal reported that President Donald J. Trump will nominate Neil Chatterjee, Kevin McIntyre, and Robert Powelson as commissioners of the Federal Energy Regulatory Commission. The five-commissioner panel has only two sitting commissioners and has been without a quorum, and therefore unable to vote to advance or permit major interstate natural gas pipeline projects, since February 3, 2017. In addition to the three current vacancies, commissioner Colette D. Honorable’s term is set to expire in June.

Chatterjee is an energy policy advisor and liaison to the Senate Committee on Energy and Natural Resources for Senate Majority Leader Mitch McConnell. McIntyre is an energy attorney and partner in the Washington, DC, office of Jones Day, where he co-heads the firm’s energy practice group. Powelson is a commissioner of the Pennsylvania Public Utility Commission and President of the National Association of Regulatory Utility Commissioners. The nominees must be confirmed by the United States Senate prior to taking their seats at FERC—a process which could take several months.

Monday, March 13, 2017

FERC Approves Pipeline Projects and Delegates Authority Prior to Loss of Quorum

On February 2 and 3, 2017, the Federal Energy Regulatory Commission approved Energy Transfer Partners, LP’s $4.2 billion “Rover” pipeline project, Transcontinental Gas Pipe Line Company, LLC’s $3 billion “Atlantic Sunrise” pipeline expansion, and National Fuel Gas Company’s $455 million “Northern Access” pipeline project. The three pipeline projects will significantly enhance the ability of operators to move natural gas from the Marcellus and Utica shales into more favorable markets. Once constructed, the Rover project will transport up to 3.25 billion cubic feet of natural gas per day from the Marcellus and Utica shales to Ohio, Michigan, and Canada. The Atlantic Sunrise expansion will transport an additional 1.7 billion cubic feet of natural gas per day from the Marcellus shale to the southeastern United States. National Fuel’s Northern Access project will connect the Marcellus to Buffalo, New York and other interstate pipelines that will further transport the natural gas throughout New England and Canada.

The approvals came immediately prior to Commissioner Norman C. Bay’s February 3 departure from FERC, which leaves the Commission without a necessary quorum to take major actions until President Donald J. Trump nominates, and the United States Senate confirms, at least one new commissioner. In anticipation of the indefinite halt to the Commission’s ability to conduct meetings, the commissioners delegated duties, primarily concerning rate filings, to FERC staffers.
Wednesday, February 08, 2017


On January 27, 2017, Federal Energy Regulatory Commissioner Norman C. Bay announced his resignation, effective February 3, 2017. Bay’s resignation will create a third vacancy on the five-commissioner panel, leaving FERC one commissioner short of a quorum.

Routine FERC business delegated to the agency’s employees will continue after February 3, but the vacancy will prevent FERC from voting to advance or permit major projects, including several pending interstate natural gas pipeline projects. Major pipeline projects that could see delays resulting from Bay’s resignation include Energy Transfer Partners, LP’s proposed 710-mile “Rover” pipeline, Transcontinental Gas Pipe Line Company, LLC’s proposed 199.4-mile “Atlantic Sunrise” pipeline expansion, and the 120-mile “PennEast” pipeline.

President Donald J. Trump is expected to nominate up to three Commissioners to the bipartisan regulatory agency, but the nominees must be confirmed by the United States Senate—a process that could take several months as the Senate confirms the new President’s Cabinet, sub-Cabinet and judicial nominees.
Tuesday, January 31, 2017

FERC Completes EIS for Transco’s Atlantic Sunrise Pipeline Expansion

On December 30, 2016, the Federal Energy Regulatory Commission announced the results of an Environmental Impact Study for Transcontinental Gas Pipe Line Company, LLC’s proposed 199.4-mile “Atlantic Sunrise” pipeline expansion. If approved, the pipeline is expected to extend from the Marcellus shale in northeastern Pennsylvania to the mid-Atlantic states of Maryland, Virginia, North Carolina, and South Carolina. Specifically, the EIS found that the construction and operation of the pipeline would result in some adverse environmental impacts, but that impacts would be reduced to less-than-significant levels with the implementation of Transco’s proposed and FERC staff’s recommended mitigation measures. The completion of the EIS allows FERC to determine whether to issue a permit authorizing the construction and operation of the Atlantic Sunrise pipeline expansion.

The National Environmental Policy Act requires federal agencies to prepare an EIS if a proposed major federal action, such as the issuance of a permit, is determined to significantly affect the environment. EIS reports generally include the reasons the agency is proposing the action, consideration of a reasonable range of alternatives that can accomplish the purpose and need of the proposed action, a description of the environment of the area to be affected, and a discussion of the direct and indirect environmental effects and their significance. NEPA requires that federal agencies consider and disclose the environmental impacts of federal actions; it does not require that federal agencies only pursue those actions designed to have the least impactful effect on the environment.
Tuesday, January 10, 2017

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