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USA - FERC Issues Second NOI Concerning Its Certificate Policy

On February 18, 2021, the Federal Energy Regulatory Commission (FERC or Commission) issued a renewed Notice of Inquiry (NOI) seeking input on potential revisions to its current Policy Statement on the certification of new natural gas transmission facilities.

The NOI supplements FERC’s 2018 NOI issued on the same topic.[3]  Citing changes following receipt of comments in its 2018 NOI proceeding (e.g., the Council on Environmental Quality’s promulgation of updated regulations under the National Environmental Policy Act of 1969 (NEPA) for implementation by all federal agencies[4] and Executive Order 14008[5]) FERC is seeking to refresh the record and provide “additional viewpoints.”

The 2018 NOI identified four areas concerning its certificate policy that FERC was considering revisiting: “(1) the reliance on precedent agreements to demonstrate need for a proposed project; (2) the potential exercise of eminent domain and landowner interests; (3) the Commission’s evaluation of alternatives and environmental effects under NEPA and the Natural Gas Act (NGA); and (4) the efficiency and effectiveness of the Commission’s certificate processes.”[6]  The current NOI revises and expands upon the questions previously presented by the FERC in those areas.

Regarding Issue 1 (Potential Adjustments to the Commission’s Determination of Need), FERC reissued the questions it previously asked and included three new inquiries.  Specifically, FERC asked whether it should adjust its needs assessment to examine: “(1) if existing infrastructure can accommodate a proposed project (beyond the system alternatives analysis examined in the Commission’s environmental review);  (2) if demand in a new project’s markets will materialize; or (3) if reliance on other energy sources to meet future demand for electricity generation would impact gas projects designed to supply gas-fired generators?  If so, how?”

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