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On March 14, 2018 and March 15, 2018, FERC issued separate orders (1) reinstating the certificate for the Southeast Market Pipelines Project (“SMP Project”) and (2) authorizing DTE Midstream Appalachia, LLC’s (“DTE”) Birdsboro Pipeline Project.  In approving the projects, FERC held that determining the significance of the indirect effect of a pipeline on downstream greenhouse gas (“GHG”) emissions is not possible for purposes of FERC’s National Environmental Policy Act (“NEPA”) analysis, and that the Social Cost of Carbon tool is not appropriate for estimating a project’s downstream impacts in FERC’s NEPA analysis.  In partial dissents, Commissioners Cheryl LaFleur and Richard Glick asserted that GHG emissions estimates and the Social Cost of Carbon tool can inform FERC’s Natural Gas Act (“NGA”) section 7 evaluation.

On March 12, 2018, the U.S. Court of Appeals for the Second Circuit (“Second Circuit”) held that the New York Department of Environmental Conversation (“NY DEC”) waived its authority to act on Millennium Pipeline Company, L.L.C.’s (“Millennium”) application for a Clean Water Act (“CWA”) section 401 water quality certification by not acting on the application within one year of receipt.  In doing so, the Second Circuit rejected the NY DEC’s argument that the one-year statutory deadline begins when a state agency deems the application complete, rather than when the application is received.

On March 13 and March 15, 2018, FERC took actions to address tax law changes resulting from the Tax Cuts and Jobs Act of 2017 for electricity, natural gas, and oil companies.  In addition, on March 15, 2018, in response to a federal court remand, FERC stated that master limited partnership (“MLP”) interstate natural gas and oil pipelines will no longer be allowed to receive an income tax allowance in cost of service rates.

On March 8, 2018, President Donald Trump signed an order that enacts tariffs on steel and aluminum imports from all overseas countries, while exempting Canada and Mexico from such tariffs for now.  The proclamations signed by the President will institute a tariff of 25% on steel and 10% on aluminum imports.  The tariffs are expected to become effective March 23, 2018.

On March 7, 2018, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) granted FERC’s request to stay the issuance of a mandate that would have vacated FERC’s certificate order approving the Southeast Market Pipelines Project (“SMP Project”), a natural gas pipeline currently in service in the southeastern United States.  The D.C. Circuit’s order effectively avoids shutdown of the SMP Project while FERC finalizes its supplemental review of the project incorporating its revised environmental analysis.  As a result of the D.C. Circuit’s order, FERC now has until March 26, 2018 to issue a new order authorizing the project.

On March 1, 2018, President Donald Trump said that his administration would begin imposing a 25% tariff on imported steel and a 10% tariff on imported aluminum as early as the next week.  The President’s unexpected announcement came after the Department of Commerce concluded on February 16, 2018 that the importation of steel and aluminum threatens national security.  The Commerce Department reached its conclusion after finalizing investigations under Section 232 of the Trade Expansion Act of 1962, which were initiated in April 2017 and designed to determine whether such imports “threaten to impair the national security.”

On February 27, 2018, FERC staff completed an inquiry in which they did not uncover any evidence of anticompetitive withholding of natural gas pipeline capacity on Algonquin Gas Transmission, LLC pipeline (“Algonquin”) by New England shippers.  The inquiry initially arose from allegations made by the Environmental Defense Fund (“EDF”) that Eversource Energy (“Eversource”) and Avangrid, Inc. (“Avangrid”) were artificially constraining capacity on the Algonquin.  After finding that Eversource and Avangrid did not engage in anticompetitive behavior, FERC staff will not take any further action on the matter.

On February 12, 2018, the White House issued its proposed framework for an infrastructure bill to Congress.  Notably, the White House’s infrastructure plan proposes to (1) establish a firm deadline of 21 months for lead agencies to complete their National Environmental Policy Act (“NEPA”) reviews and an additional 3 months thereafter to approve or deny a permit (i.e., a decision on an interstate natural gas pipeline project or hydropower license application must be made within 2 years of the application); and (2) amend the Clean Water Act (“CWA”) to set a deadline for a state agency to determine whether a CWA section 401 certificate application is complete.

On January 25, 2018, as amended on January 31, 2018, FERC Office of Enforcement Staff (“OE Staff”) answered BP America Inc., BP Corporation North America Inc., BP America Production Company, and BP Energy Company’s (collectively, “BP”) arguments that FERC must dismiss its order assessing civil penalties and disgorgement against BP for violating FERC’s anti-market manipulation rule due to the five-year statute of limitations for civil penalties.  Among other things, OE Staff argued that (1) enforcement actions under the Natural Gas Act (“NGA”) are distinct from the enforcement process under the Federal Power Act (“FPA”), and thus similar federal district court precedent in the FPA context is inapplicable to BP; and (2) FERC’s issuance of disgorgement is more remedial than punitive and thus not subject to the statute of limitations.

On January 31, 2018, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied requests for an en banc rehearing of an August 2017 decision (Sierra Club v. FERC) vacating FERC’s approval of the Southeast Market Pipelines Project (“SMP Project”), a natural gas pipeline currently under construction in the southeastern United States.  In its August decision, the D.C. Circuit held that FERC failed to analyze the greenhouse gas emissions that would result from the SMP Project, as required by the National Environmental Policy Act (“NEPA”).  On February 2, 2018, the developers for the SMP Project filed a request at FERC for expedited reissued construction approval certificates, or in the alternative, temporary emergency certificates, arguing that halting work on the SMP Project will cause “irreparable harm.”