Adapting Your Linear Infrastructure Projects to Changing Regulatory Frameworks

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges in recent months. Some of these challenges stem from changes in regulatory schemes or adverse court holdings, while others stem from uncertainty of pending Endangered Species Act (ESA) listing decisions and other actions.

On July 30, 2020, Rebecca Hays Barho and Brooke Marcus Wahlberg discussed the path for energy providers to move forward and reduce the risk that projects may be delayed or scrapped down the road. Rebecca and Brooke examined some of the recent court rulings and regulatory developments that have significant impacts on energy infrastructure and provided insight into how companies may consider managing risk during these uncertain times.

Topics covered included:

• Revisions to regulations governing implementation of the ESA and consultation processes (all of which are under litigation);
• Revisions to National Environmental Policy Act (NEPA) implementing regulations;
• Suspension of enforcement of alleged Migratory Bird Treaty Act violations and lawsuits challenging the same;
• Potential listing of wide-ranging species and potential changes in listing status to other species;
• The impact of recent court rulings on the construction of oil and gas pipelines and other linear projects;
• Brief overview of revisions and challenges to the Waters of the United States (WOTUS) rule;
• Potential applicability of the Executive Order encouraging use of emergency approval processes in connection with environmental permitting for infrastructure projects; and
• A recent decision invalidating a transmission line ESA permit that has NEPA and National Historic Preservation Act (NHPA) implications.