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On November 16, 2023, FERC granted Virginia Electric and Power Company d/b/a Dominion Energy Virginia’s (“Dominion”) petition requesting the Commission declare that Dominion’s planned liquefied natural gas (“LNG”) production, storage, and regasification facility (“Back-up Fuel Project” or “Project”) in Greensville County, Virginia would be exempt from the Commission’s jurisdiction under section 7 of the Natural Gas Act (“NGA”). In so doing, FERC determined the Project satisfied the “Hinshaw Exemption” under NGA section 1(c).

On September 29, 2023, FERC approved Tennessee Gas Pipeline Company, L.L.C.’s (“TGP”) proposal to lease intrastate capacity from Kinder Morgan Texas Pipeline LLC (“Kinder Morgan”) to offer a new hourly transportation “PowerServe” service. According to the parties’ joint application, PowerServe will offer increased flexibility to shippers serving gas-fired power generation facilities that backstop renewable energy sources. Commissioner Danly concurred in part and dissented in part with a separate statement that has not been issued at the time of this article.

On July 27, 2023, the U.S. Supreme Court vacated the U.S. Court of Appeals for the Fourth Circuit’s decision to grant the Wilderness Society’s motions to stay of construction on the Mountain Valley Pipeline (“MVP”) pending that court’s review of the Forest Service’s amended Forest Management Plan. The Supreme Court’s order grants MVP’s emergency application to vacate the Fourth Circuit’s stay orders and permits MVP to resume construction on the pipeline.

On May 26, 2023, the United States Court of Appeals for the District of Columbia Circuit issued an opinion in Sierra Club v. Federal Energy Regulatory Commission largely denying challenges to several FERC orders authorizing the resumption of construction of Mountain Valley Pipeline (“MVP”) but remanded, without vacatur, all but one of the orders on review insofar as FERC failed to adequately explain its decision not to prepare a supplemental Environmental Impact Statement (“EIS”) for MVP. (See related article on the Court’s finding with regard to hearing appeals of FERC’s rehearing orders, here).

On May 16, 2023, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued an opinion in Center for Biological Diversity v. Alaska Gasline Development Corporation, affirming FERC’s authorization for Alaska Gasline Development Corporation (“AGDC”) to construct and operate liquified natural gas (“LNG”) facilities in Alaska’s North Slope region (“Project”).

On March 3, 2023, the House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and Energy, Climate Change, and Grid Security Subcommittee Chair Jeff Duncan (R-SC) sent a letter to Acting FERC Chairman Willie Phillips and Commissioners asking the Commission to respond to a series of questions related to FERC’s authority as it relates to two policy statements issued in February 2022 and a Notice of Proposed Rulemaking (“NOPR”) issued in December 2022. The two policy statements concern Greenhouse Gas (“GHG”) emissions of natural gas infrastructure projects (see February 18, 2022 Troutman Pepper Insights; February 23, 2022 edition of the WER). The NOPR would require applicants proposing to build electric transmission infrastructure to prepare Environmental Justice Public Engagement Plans.

On remand from the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), FERC reaffirmed that Rio Grande LNG, LLC’s proposed liquified natural gas (“LNG”) terminal project (“Rio Grande LNG Terminal”) was not inconsistent with the public interest, and that the Rio Bravo Pipeline Company, LLC’s proposed pipeline project (“Rio Bravo Pipeline Project”), as amended, was required by the public convenience and necessity. In doing so, FERC addressed a variety of highly-contested issues, including whether it must apply the social cost of carbon and expand its prior environmental justice analysis. Chairman Phillips concurred, and Commissioner Clements dissented from FERC’s decision.

On July 8, 2022, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued its decision in City of Oberlin, Ohio v. FERC, a proceeding involving the issue of whether FERC properly granted NEXUS Gas Transmission, LLC (“Nexus”) a certificate of public convenience and necessity to construct and operate a natural gas pipeline that will facilitate exports into Canadian markets (“Project”).  The Court upheld the certificate.