C epipelinepresent112013

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The document discusses the role of local governments in the federal pipeline regulatory system, focusing on the jurisdiction of FERC and PHMSA over pipeline siting and safety. It outlines strategies for local governments to maintain relevance and authority in the face of federal preemption, including understanding local powers and participating in regulatory processes. Specific cases and laws are cited to illustrate successful local government actions and considerations.

Business

BIG PROCESS,
Small Communities

How Local Governments Can Stay
Relevant in A Federal Process
Carolyn Elefant, Law Offices of Carolyn
Elefant
Washington DC

THE QUESTION:

What is the role of local
government in a
national regulatory
system?

National Pipeline
Regulatory System
FERC - Natural Gas Act
PHMSA - Pipeline Safety Act

Role/Scope of FERC
 Jurisdiction

over siting for interstate
pipelines and LNG under NGA
 Certificate for pipelines (Section 7)
confers eminent domain (none for LNG
under Section 3)
 No jurisdiction over gathering,
distribution or Hinshaw (Section 1(b)
NGA)
 CAA, CWA, CZMA still apply
 Reliance on PHMSA for safety analysis

Role/Scope of PHMSA
 Jurisdiction

over safety for interstate
facilities (pipelines and gathering
facilities that affect commerce)
 No safety standards for intrastate
pipelines regulated by state


49 U.S.C. ｧ 60103(a),(b)

 Certifies/regulates

safety for FERC sited

projects
 Power only over safety, not siting
 Some powers administered by states

Two Types of Preemption
Field Preemption
Conflict Preemption

Kryptonite v. Dynamite


Dynamite: Try to use local law specifically to kill
a project
 AES

Sparrows Point (Baltimore’s proposed zoning
law; not sympathetic)



Kryptonite: look for vulnerabilities in the
process; preserved authority
 Millennium

Pipeline CZMA
 Islander Pipeline CWA
 Myersville - CAA (not yet successful but
potential due to CAA’s EXPRESS reservation of
local power)
 Corps may also be sympathetic (Section 404)

Focus on Your Backyard


Know the scope of authority and maintain it
 WGL

v. PG County (2013) - Neither PSA nor NGA
apply to instrastate facilities; county can control



On stronger ground if exercising locality’s
inherent powers
 TX

Midstream v. Grand Prairie (5th Cir)(2010)PSA regulates safety, not siting. Locality not
preempted from establishing setbacks for
compressor station [NOTE - this is PHMSA case;
outcome would be different under NGA]

Rule 3: Participate!








Intervene in the FERC process early
If county has any unique concerns, raise them.
If there are EXISTING zoning laws, make that
known.
Work with company if possible but involve
FERC to resolve disputes
Residents do not have the same power as
government to raise issues - yet in many
instances, they are doing the legwork.
Use contacts with other government agencies

Contact Information
Carolyn

Elefant, Law Offices
of Carolyn Elefant,
Washington DC 202-2976100, carolynelefant.com

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C epipelinepresent112013

1. BIG PROCESS, Small Communities How Local Governments Can Stay Relevant in A Federal Process Carolyn Elefant, Law Offices of Carolyn Elefant Washington DC

2. THE QUESTION: What is the role of local government in a national regulatory system?

3. National Pipeline Regulatory System FERC - Natural Gas Act PHMSA - Pipeline Safety Act

4. Role/Scope of FERC  Jurisdiction over siting for interstate pipelines and LNG under NGA  Certificate for pipelines (Section 7) confers eminent domain (none for LNG under Section 3)  No jurisdiction over gathering, distribution or Hinshaw (Section 1(b) NGA)  CAA, CWA, CZMA still apply  Reliance on PHMSA for safety analysis

5. Role/Scope of PHMSA  Jurisdiction over safety for interstate facilities (pipelines and gathering facilities that affect commerce)  No safety standards for intrastate pipelines regulated by state  49 U.S.C. ｧ 60103(a),(b)  Certifies/regulates safety for FERC sited projects  Power only over safety, not siting  Some powers administered by states

6. THE PROBLEM: PREEMPTION

7. Two Types of Preemption Field Preemption Conflict Preemption

8. LOCAL GOVERNMENT STRATEGIES FOR SUCCESS

9. RULE 1: THINK KRYPTONITE, NOT DYNAMITE

10. Kryptonite v. Dynamite  Dynamite: Try to use local law specifically to kill a project  AES Sparrows Point (Baltimore’s proposed zoning law; not sympathetic)  Kryptonite: look for vulnerabilities in the process; preserved authority  Millennium Pipeline CZMA  Islander Pipeline CWA  Myersville - CAA (not yet successful but potential due to CAA’s EXPRESS reservation of local power)  Corps may also be sympathetic (Section 404)

11. RULE 2: FOCUS ON YOUR BACKYARD

12. Focus on Your Backyard  Know the scope of authority and maintain it  WGL v. PG County (2013) - Neither PSA nor NGA apply to instrastate facilities; county can control  On stronger ground if exercising locality’s inherent powers  TX Midstream v. Grand Prairie (5th Cir)(2010)PSA regulates safety, not siting. Locality not preempted from establishing setbacks for compressor station [NOTE - this is PHMSA case; outcome would be different under NGA]

13. RULE 3: PARTICIPATE!

14. Rule 3: Participate!      Intervene in the FERC process early If county has any unique concerns, raise them. If there are EXISTING zoning laws, make that known. Work with company if possible but involve FERC to resolve disputes Residents do not have the same power as government to raise issues - yet in many instances, they are doing the legwork. Use contacts with other government agencies

15. Contact Information Carolyn Elefant, Law Offices of Carolyn Elefant, Washington DC 202-2976100, carolynelefant.com

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