By Michael Kuser

A proposed law that would give FERC authority over the licensing of all hydropower projects has advanced to the House Energy and Commerce Committee along with four related bills — but only after a hearing that revealed a partisan divide on much of the legislation.

The Energy Subcommittee on Thursday sent the Hydropower Policy Modernization Act of 2017 — and four other energy infrastructure-related bills dealing with natural gas pipelines, electric transmission and grid security — to the full committee despite complaints from Democrats about the Republican-controlled process for drafting the bills and on the substance of some clauses.

The hydropower legislation modifies the definition of renewable energy under the Energy Policy Act of 2005 to include hydropower and designates FERC as the lead agency for federal authorizations, granting the commission discretion to extend preliminary permits and the time limits for construction.

“As we always strive to do, these bills have been drafted with bipartisan input, and in large part we’re picking up where we left off with on last year’s energy bill conference,” subcommittee Chair Fred Upton (R-Mich.) said in his opening remarks.

Not a ‘Murmur’

Ranking member Bobby Rush (D-Ill.) disagreed with Upton’s take on the proceeding.

Rush said that despite coming to negotiate in good faith, two of the bills presented for the markup — the hydropower policy and the Promoting Interagency Coordination for Review of Natural Gas Pipelines Act (H.R. 2910) — “are vastly different from the discussion drafts that had been part of the staff negotiations.”

The two bills did not reflect any of the changes sought by Democrats, such as not allowing aerial surveillance to supplant on-the-ground inspection of proposed project sites. They “instead moved in the opposite direction and are even more problematic for our side to accept,” Rush said. He added that Upton had not responded to the Democrats’ request for a hearing on the hydropower policy legislation with officials from the departments of Interior, Commerce and Agriculture.

“This is yet another instance where once again, Mr. Chairman, our side is left to wonder whether we will ever hear directly from the administration on any bill or topic in our jurisdiction,” Rush said. “Where is the administrator of the EPA, and where is the Secretary of Energy? Six months into the Trump administration and we haven’t heard a murmur from the administrator or the secretary, and it’s high time that we hear from those in the administration who have responsibilities to this subcommittee and to the Congress.”

Minor Amendment

The subcommittee also discussed drafts of the Enhancing State Energy Security Planning and Emergency Preparedness Act of 2017; an amendment to the Federal Power Act related to qualifying a conduit hydropower facility (H.R. 2786); and the Promoting Cross-Border Energy Infrastructure Act (H.R. 2883).

The subcommittee agreed to an amendment to H.R. 2786 — offered by the ranking member of the full committee, Rep. Frank Pallone (D-N.J.) — to reduce the public comment period on facilities from 45 days to 30, rather than the 15 days set out in the draft legislation, which Pallone thought insufficient. The proposed law also would lift the 5-MW cap on what constitutes a conduit hydro plant.

Other Democratic-sponsored amendments did not win acceptance, with the subcommittee dividing on party lines. Democrats voted to forward all the bills except for H.R. 2910.

Rep. Greg Walden (R-Ore.), chair of the full committee, said “We’ve learned that oftentimes dozens of agencies are involved in the permitting process, so it’s time that we address these issues head-on and improve the federal licensing procedures and processes to ensure that we get these projects to market sooner for consumers.”

The bill to streamline gas pipeline permitting substitutes “safety for expediency,” Rush said. Republican members voted down his proposal to cut a section of the bill, “so that states, tribes and local community stakeholders can continue to play an important role in the pipeline permitting process.”

Rep. Kathy Castor (D-Fla.) proposed another failed amendment that would have the Office of Management and Budget determine if the legislation would duplicate other federal efforts or result in wasteful government spending.

More Dissent

Pallone said he was “deeply concerned” over the process the subcommittee had used for the markup.

“The draft released on Tuesday night [June 20] not only failed to address any of the concerns we raised, but actually went so far as to add new sections taken directly from provisions of last year’s Senate energy bill that we had explicitly rejected,” Pallone said. “And this does not bode well for making this a bipartisan process.”

Pallone added that Upton had marked up changes on legislation on state energy security plans that Democratic members first saw Tuesday night and that was never the subject of a legislative hearing or member-level discussion. And the gas pipeline bill was a “completely new and different bill” from the one discussed in May, he said.

“I hope today’s issues represent an aberration and not a new and unfortunate way of doing business,” Pallone said.

Subcommittee Vice Chairman Pete Olson (R-Texas) mentioned that Tropical Storm Cindy the previous day had hit the nation’s first LNG export terminal, Sabine Pass on the Texas-Louisiana border, and led to the evacuation of several offshore rigs in the Gulf of Mexico.

“These threats are real, and as cyber threats evolve, let’s get this right,” Olson said. While Texas isn’t famous for hydropower, it is an important baseload power and should be developed without hindrance, he said. “Lastly, on pipelines, we need these reforms. We’ve seen time and time and time again that the process takes too long and is way too messy. The better we are at getting infrastructure built, the better our economy is.”

Cross-border or Borderline?

Also drawing opposition from Democrats was H.R. 2883, the draft bill authored by Markwayne Mullin (R-Okla.) to “establish a predictable and transparent process to permit the construction of cross-border pipelines and electric transmission facilities.”

Pallone offered an amendment that would not restrict the purview of National Environmental Policy Act reviews to the border area, but have EPA look at environmental impacts across the whole length of such projects. The subcommittee divided 18-12 in rejecting the revision.

Mullin and Rep. Gene Green (D-Texas) said the bill does not impinge on federal environmental reviews necessary under existing law, but heightens the focus on the border-crossing itself.

Rush also opposed H.R. 2883, saying the bill would shift the burden of proof to pipeline opponents to prove that a given project was not in the public interest.

The bill would “allow parties to push projects that are not necessarily in the public interest to move forward in the permitting process,” Rush said. “The new bill would make the process worse, less transparent, less inclusive and ultimately less effective … and lead to greater controversy, increased litigation and longer delays.”