On October 29, 2013, Jeff Wright, Director of FERC’s Office of Energy Projects, testified before the House of Representatives Subcommittee on Energy and Power regarding H.R. 3301, the proposed North American Energy Infrastructure Act (“H.R. 3301”). In part, H.R. 3301 requires that FERC approve new pipeline projects at the Canadian and Mexican borders within 120 days of receiving requests for approval, unless the project is not in the interest of national security, and that approval of such projects are not major federal actions under the National Environmental Policy Act (“NEPA”). H.R. 3301 also plans to eliminate the requirement for a Presidential Permit for facilities near the border and proposes to repeal section 202(e) of the Federal Power Act (“FPA”).
In his testimony, Wright claimed that the 120-day deadline to approve requests would preclude an adequate record, important agency consultation, and meaningful public interaction in the decision-making process. Wright also noted that H.R. 3301 contains no provision for public notice, public comment, rehearing, or judicial review in connection with FERC’s consideration of an application. Furthermore, Wright explained that NEPA would still require FERC to conduct environmental analyses when drafting an environmental assessment or approving greenfield pipeline construction to connect to the projects, despite H.R. 3301’s declaration that such projects are not major federal actions subject to such environmental review and analysis. Wright concluded that the 120-day deadline would limit FERC’s ability to administer a thorough analysis of a project.
Wright also argued in his testimony that eliminating the requirement for a Presidential Permit would be unnecessary. Wright explained that Presidential Permits consider the impact of border facilities on national security. However, H.R. 3301 requires FERC to consider national security when deciding whether to approve a project. Thus, even without requiring a Presidential Permit, FERC must confer with the Departments of State and Defense before approving a project.
Finally, Wright advised that repealing section 202(e) of the FPA would undermine FERC’s delegated authority to ensure non-discriminatory open-access transmission over electric transmission facilities in foreign commerce. To preserve this authority, Wright suggested adding or amending provisions of H.R. 3301 so that FERC may continue enforcing non-discrimination open-access transmission service.
A copy of Wright’s testimony is available here.