Linear Infrastructure Redux: Adapting Your Projects to Meet the New Regulatory Climate

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the last year. Some of these challenges stem from changes in regulatory schemes, adverse court holdings or drastically shifting policy initiatives. Others result from the uncertainty inherent in pending listing decisions under the Endangered Species Act, updates to the Nationwide Permitting Program under the Clean Water Act, the ever-changing definition of Waters of the United States and the Biden administration’s “30 by 30” initiative.

On June 15, 2021, Rebecca Hays Barho and Brooke Marcus Wahlberg presented a complimentary webinar on potential paths allowing energy providers to move forward and reduce the risk of project delay or cancellation. For those of you who viewed our July 30, 2020 webinar on this topic, we covered a number of regulatory, policy and judicial developments that continue to evolve in 2021. Building on that discussion, during this webinar Rebecca and Brooke examined new developments significantly impacting linear infrastructure and provided insight into how companies can manage risk in this uncertain regulatory climate.

During the webinar, we discussed:

• The latest status of regulations governing implementation of the Endangered Species Act, the National Environmental Policy Act and related litigation;
• Developments addressing the scope of the Migratory Bird Treaty Act’s criminal liability;
• Impacts of recent court rulings on the construction of oil and gas pipelines and other linear projects;
• The status of the litigation definition of Waters of the United States and potential repercussions from litigation challenging the rule;
• Changes to the 2021 Nationwide Permits and what they mean for ongoing litigation on NWP 12;
• Rescission of multiple rules aimed at clarifying agency procedures for issuing guidance documents; and
• Impacts on linear development stemming from revocation of Trump administration executive orders relating to environmental streamlining and Biden administration executive orders focused on linear projects, environmental justice and climate change.