New England gas pipelines: attorney general weighs in

In New England, there are now six natural gas pipeline projects active, in review or announced. They would increase total pipeline capacity into the region by about 75 percent. There is no foreseeable market in the region for that amount of new gas. Instead, pipeline companies appear to be speculating on exporting U.S. natural gas through New England into international markets. However, they want New England utility customers to pay for their pipelines, and they have been working to sign up utility companies as business partners.

Northern route: The biggest project remains Northeast Direct, proposed by the Tennessee Gas division of Kinder Morgan, headquartered in Houston, TX. It is intended to connect between a major pipeline hub in Schoharie County, NY, just south of the Adirondacks, and a major hub in Dracut, MA. Most of it was originally routed across northern Massachusetts, carrying hydrofractured shale gas from eastern Pennsylvania into east central New England, with a design capacity of 2.2 billion cubic feet per day (Bcf/d).

The original Tennessee Gas proposal would have increased total gas pipeline capacity into New England by more than half, passing through conservation lands and close to many homes. It has been in state reviews and is in “pre-filing” status at the Federal Energy Regulatory Commission (FERC). It sparked intense protests in Massachusetts, with hundreds of residents turning out at each of several public hearings.

Tennessee Gas recently scaled back capacity to 1.3 Bcf/d, after rerouting much of the line through southern New Hampshire. The “pre-filing” comment period ended October 16. That day, Maura Healey–elected last year as Massachusetts attorney general–sent “scoping comments” to FERC about the Tennessee Gas proposal. The comments recommended measures to organize federal reviews:

• Rather than analyze isolated projects, FERC should prepare an Environmental Impact Statement (EIS) that forecasts regional needs for new natural gas pipeline capacity in New England and considers the combined impacts of all six current pipeline projects.

• The EIS should review potential impacts on both the region’s environment and the global environment. In particular, it should consider protected conservation lands, global warming and human health and safety.

Arguments: The attorney general clearly saw that piecemeal reviews were likely to lead to excess pipeline capacity, costs and environmental risks. However, in order to prevail, the attorney general needs to prepare for federal lawsuits, challenging a hidebound federal agency, and will need to break a logjam of legal barriers.

The attorney general cited Kleppe v. Sierra Club. [427 U.S. 390, 1976] In that case, early in the development of Powder River Basin coal in the Mountain West, the Supreme Court found that a regional review of proposals for coal mines was not required under federal law, but its opinion said regional reviews would be necessary in other circumstances.

The 1976 opinion held, “…when several proposals…that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.” The Kleppe case has rarely been useful. Its range of conditions is so narrow that few practical circumstances qualify. As typically happens, New England gas pipeline projects that the attorney general cited are not now “pending concurrently before an agency.” Instead, they are at different stages:

Spectra, Algonquin Incremental Markets 0.342 Bcf/d under construction
Tennessee Gas, Connecticut Expansion 0.072 Bcf/d final FERC review
Tennessee Gas, Northeast Energy Direct 1.3 Bcf/d FERC pre-filing
Spectra, Atlantic Bridge 0.13 Bcf/d FERC pre-filing
Spectra, Access Northeast to 1.0 Bcf/d open season ended
Portland Natural Gas, Continent to Coast to 0.13 Bcf/d open season ended

As tallied by the attorney general, the projects total up to 2.974 billion cubic feet per day (Bcf/d) of new gas pipeline capacity, compared with 3.951 Bcf/d of current gas pipeline capacity.

The attorney general also cited some marginal cases and statutes: Massachusetts v. Environmental Protection Agency [549 U.S. 497], decided by the U.S. Supreme Court in 2007, and the Massachusetts Endangered Species Act and Global Warming Solutions Act. [St. 1990, C. 408, and St. 2008, C. 298] The Supreme Court case required new regulations from the U.S. Environmental Protection Agency for greenhouse gas emissions but said nothing about FERC projects. State laws might apply to state reviews of pipeline projects, but they do not govern FERC.

Regulations: Potentially stronger arguments from the attorney general are based on federal regulations implementing the National Environmental Policy Act of 1970. Under rules for scope of review [40 CFR 1508.25], federal agencies must consider “cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts,” as well as “similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences.”

Gas pipeline projects in New England certainly “have similarities.” They are all “reasonably foreseeable,” and they look likely to have “cumulatively significant impacts.” Beyond those strong suits, environmental objections from the attorney general might be overstated. They cite provisions of “guidance” documents, construing them as “requirements.” Section IV.B, third paragraph, asks for compliance with a draft document, “2014 CEQ Climate Impact Guidance,” which is also mentioned in Section IV.D of the comments.

Need versus greed: The attorney general’s comments said FERC is brushing off analyzing needs for more gas pipeline capacity as part of an environmental review. “FERC has indicated that this inquiry will not be part of the EIS.” [Detailed comments, first paragraph] Moving proactively, the attorney general arranged a professional review of those issues, described as follows:

“The Attorney General’s Office will soon release a study it commissioned…that examines the extent of New England’s need for additional energy supplies to ensure electric system reliability through the year 2030 and analyzes alternative solutions to meeting any such need, including costs to ratepayers and effects on greenhouse gas emissions.” [Introduction and summary of comments, sixth paragraph]

When first announced in early July, the study by Analysis Group of Boston was to be “completed by October, 2015.” Since then, its release has been postponed at least twice and was most recently promised for some time in November. It is to consider, in particular, the ocean import terminals for liquefied natural gas (LNG) now serving New England, specifically: “whether [needed] gas can by supplied by LNG or additional pipeline capacity is needed.”

New England is served by four ocean import terminals for LNG, with total capacity about 3.2 Bcf/d. However, because of high prices in overseas markets, during 2011 through 2014 only the Distrigas terminal in Everett, adjacent to Boston Harbor, received deliveries. The operator, GDF Suez, had long-term contracts at favorable prices. This past winter, price spikes in New England gas and electricity appear to have been trimmed by reactivation of the Northeast Gateway terminal off Gloucester.

Nearly doubling gas pipeline capacity into New England, as originally proposed, never made financial sense, if it were intended to meet needs of New England. The motive behind the giant proposals from the pipeline companies always looked like speculation on shipping hydrofractured shale gas coming from the Appalachians, particularly Pennsylvania, into Canada.

From Canada, the pipeline companies would export gas as LNG, coupling U.S. natural gas into international markets and expecting to raise prices. There are now permits for two Canadian terminals to export a total of about 1.5 BCf/d. From the viewpoints of the pipeline companies, New England has become a shipping route.

– Craig Bolon, Brookline, MA, November 1, 2015


Attorney General Healey calls on FERC to weigh gas needs and pending projects as part of review of Kinder Morgan pipeline, Office of the Massachusetts Attorney General, October 19, 2015

Scoping comments for the Northeast Energy Direct project, Office of the Massachusetts Attorney General, October 16, 2015 (edited for internal consistency)

Office to lead regional gas capacity study, Office of the Massachusetts Attorney General, July 6, 2015

Tux Turkel, Deliveries of liquefied natural gas, Portland (ME) Press Herald, February 1, 2015

Mary Serreze, Gas pipeline foes form three-state coalition, Springfield (MA) Republican, January 30, 2015

Joe Mahoney, Pipeline plan crosses archaeological site, sparks feud with FERC, Oneonta (NY) Daily Star, September 21, 2015

Alvin L. Alm, National Environmental Policy Act: past, present and future, U.S. Environmental Protection Agency, 1988

Scope of environmental review, Federal Regulations 40 CFR 1508.25, Cornell University Law School, 2015

Craig Bolon, New England gas pipelines: need versus greed, Brookline Beacon, August 29, 2015

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