Author: Mark Lansing


As the recent decision in Algonquin Gas Transmission, LLC v. Weymouth Conservation Commission[1] illustrates, local units of government have limited options to foreclose the siting of natural gas pipelines and appurtenances. The Natural Gas Act (the “NGA”) provides FERC broad preemptive authority to site natural gas facilities, with only a few enumerated exceptions.[2] On October 22, 2015, Algonquin Gas Transmission, LLC (“Algonquin”) and Maritimes & Northeast Pipeline, LLC (“Maritimes”) filed an application for a Certificate of Public Convenience and Necessity with the Federal Energy Regulatory Commission (“FERC”), seeking regulatory approval of their Atlantic Bridge natural gas pipeline project (the “AB Project”). As a part of the AB Project, Algonquin sought to construct a compressor station (the “Weymouth Compressor Station”) in the town of Weymouth, Massachusetts (the “Weymouth”) on land near the Fore River currently owned by Algonquin and on which Algonquin presently operates a pipeline and metering and regulating station. Following environmental review and the close of a public comment period, on January 25, 2017, FERC issued the Certificate of Public Convenience and Necessity (the “AB Certificate”), authorizing the construction and operation of the AB Project, including the Weymouth Compressor Station.[3] Weymouth’s attempt to preclude construction of the Weymouth Compressor Station is a fascinating case study in the preemptive power of the NGA, as well as the extent localities try to apply NIMBY, even though natural gas supplies are...

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Although it granted Millennium Pipeline Co. LLC’s request, the Federal Energy Regulatory Commission (“FERC”) refused to overrule New York’s denial of a Clean Water Act (“CWA”) permit, rejecting Constitution Pipeline Co. LLC’s argument that the state waived its authority under Section 401 of the CWA. Under Section 401 of the CWA, state agencies have one year to act on a permit application by a pipeline company, or else their authority may be deemed waived. Although New York State Department of Environmental Conservation’s April 2016 denial of a CWA Section 401 water quality permit came nearly three years after Constitution Pipeline initial application, FERC found that the NYSDEC had acted within the statutory limits imposed by Section 401. FERC based its finding on Constitution’s two withdrawals and resubmissions of its applications, finding each resubmission reset the one-year deadline. Constitution Pipeline submitted its original application in 2013, then, refiled its application in May 2014, only to resubmit it again in April 2015 (to give NYSDEC additional time to review). “By withdrawing its applications before a year had passed, and by presenting New York DEC with new applications, Constitution gave New York DEC new deadlines,” FERC said in its order. “The record does not show that New York DEC in any instance failed to act on an application that was before it for more than the outer time limit of one year.”...

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Kentucky’s Limited Energy Renewable Incentives

Incentive Program In August 2007, Kentucky enacted the Incentives for Energy Independence Act (IEIA) (KRS 154.27-010 through 154.27-090). As with many Kentucky administered tax incentive program, the inducements under the IEIA are negotiated by the Kentucky Cabinet for Economic Development (subject to final approval by the Kentucky Economic Development Finance Authority (KEDFA)). For renewable energy facilities, the incentives may include: Credit of up to 100% of the Kentucky income tax or the limited liability entity tax; sales and use tax refunds of up to 100%; and/or a wage assessment credit of up to 4% for associated employees on their income tax. Eligible companies include any company that constructs, retrofits, or upgrades a facility to: Increase the production and sale of alternative transportation fuels; Increase the production and sale of synthetic natural gas, chemicals, chemical feed stocks, or liquid fuels from coal, biomass resources, or waste coal through a gasification process; Increase the production and sale of energy-efficient alternative fuels; and/or Generate electricity for sale through alternative methods such as solar power, wind power, biomass resources, landfill methane gas, hydropower, or other renewable resources.. To qualify, the facility must be: An alternative fuel facility or gasification facility that is carbon capture ready and uses oil shale, tar sands, or coal as the primary feedstock. The minimum capital investment is $100 million. An alternative fuel facility or gasification facility that is...

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The DW Energy Blog is published by Dickinson Wright PLLC to inform the public of important developments within the firm and practice areas. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in this blog.