PRESENTED AT 14 th Annual Gas and Power Institute September 10 11, 2015 Houston, Texas Exports of Liquefied Natural Gas (LNG) Steven A. Porter Steven A. Porter Assistant General Counsel Electricity & Fossil Energy U.S. Department of Energy Washington, D.C. steven.porter@hq.doe.gov 202.586.4219 The University of Texas School of Law Continuing Legal Education 512.475.6700 utcle.org
Contents I. Free Trade Agreement Nations... 1 II. LNG Export Statutory Provisions... 2 a. Natural Gas Act, 15 U.S.C. 717 et seq.... 2 i. Section 1... 2 ii. Section 3... 3 iii. Section 7... 5 iv. Section 15... 7 b. Department of Energy Organization Act, 42 U.S.C. 7172... 9 c. Energy Policy Act of 2005, Subtitle B Natural Gas... 11 III. LNG Export Regulations... 20 a. DOE Administrative Procedures with Respect to the Import and Export of Natural Gas, 10 C.F.R. 590... 20 b. NEPA and Agency Planning, 40 C.F.R. 1501... 35 c. Other Requirements of NEPA, 40 C.F.R. 1506... 36 d. FERC Regulations under Natural Gas Act, 18 C.F.R. 153... 37 e. FERC Pre-Filing Procedures, 18 C.F.R. 157... 43 IV. DOE Economic and Environmental Studies... 47 a. 2012 LNG Export Study... 47 b. DOE Addendum to Environmental Review Documents Concerning Exports of Natural Gas from the United States... 47 c. Life Cycle Greenhouse Gas Report... 47 V. DOE/FE Policy Guidelines... 49 a. New Policy Guidelines and Delegations Order Relating to Imported Natural Gas... 49 b. Procedures for Liquefied Natural Gas Export Decisions... 63 VI. DOE/FE FTA LNG Export Authorizations... 69 a. Cameron LNG, LLC, DOE/FE Order No. 3680... 69 b. Floridian Natural Gas Storage Company, LLC, DOE/FE Order No. 3961... 69 VII. DOE/FE FTA LNG Authorizations Related to Re-Export Proposals... 69 a. Pieridae Energy (USA), Ltd., DOE/FE Order No. 3639... 70 b. Bear Head LNG Corp. and Bear Head LNG (USA), LLC, DOE/FE Order No. 3681... 70 VIII. DOE/FE Final Non-FTA LNG Export Authorizations... 71 a. Sabine Pass Liquefaction, LLC, DOE/FE Order No. 2961-A... 71 b. Carib Energy (USA) LLC, DOE/FE Order No. 3487... 71 c. Cameron LNG, LLC, DOE/FE Order No. 3391-A... 71 d. Freeport LNG Expansion, L.P., et al., DOE/FE Order No. 3282-C (FLEX I)... 71 e. Freeport LNG Expansion, L.P., et al., DOE/FE Order No. 3357-B (FLEX II)... 72 f. Dominion Cove Point LNG, LP, DOE/FE Order No. 3331-A... 72 g. Cheniere Marketing, LLC and Corpus Christi, LLC, DOE/FE Order No. 3638... 72 i
h. Sabine Pass Liquefaction, LLC, DOE/FE Order No. 3669... 72 IX. DOE/FE Conditional Non-FTA Export Authorization... 73 a. Alaska LNG Project, LLC, DOE/FE Order No. 3643... 73 X. FERC Orders Defining the Limits of Jurisdiction... 74 a. Gulf Oil Limited Partnership, 148 FERC 61,029... 74 b. Shell U.S. Gas & Power, LLC, 148 FERC 61,163... 74 c. Pivotal LNG, Inc., 148 FERC 61,164... 74 d. Emera CNG, LLC, 148 FERC 61,219... 74 ii
I. Free Trade Agreement Nations Countries with which the United States has a free trade agreement (FTA) requiring national treatment for trade in natural gas are currently identified by DOE/FE at: http://www.fossil.energy.gov/programs/gasregulation/index.html As of August 2015, the United States has FTAs requiring national treatment for trade in natural gas with: Australia Bahrain Canada Chile Colombia, Dominican Republic El Salvador Guatemala Honduras Jordan Mexico Morocco Nicaragua Oman Panama Peru Republic of Korea Singapore FTAs with Israel and Costa Rica do not require national treatment for trade in natural gas. 1
II. LNG Export Statutory Provisions a. Natural Gas Act, 15 U.S.C. 717 et seq. i. Section 1 717. Regulation of natural gas companies (a) Necessity of regulation in public interest. As disclosed in reports of the Federal Trade Commission made pursuant to S. Res. 83 (Seventieth Congress, first session) and other reports made pursuant to the authority of Congress, it is hereby declared that the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest, and that Federal regulation in matters relating to the transportation of natural gas and the sale thereof in interstate and foreign commerce is necessary in the public interest. (b) Transactions to which provisions of 15 USCS 717 et seq. applicable. The provisions of this Act [15 USCS 717 et seq.] shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, and to the importation or exportation of natural gas in foreign commerce and to persons engaged in such importation or exportation, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas. (c) Intra-state transactions exempt from provisions of 15 USCS 717 et seq.; certification from state commission as conclusive evidence. The provisions of this Act [15 USCS 717 et seq.] shall not apply to any person engaged in or legally authorized to engage in the transportation in interstate commerce or the sale in interstate commerce for resale, of natural gas received by such person from another person within or at the boundary of a State if all the natural gas so received is ultimately consumed within such State, or to any facilities used by such person for such transportation or sale, provided that the rates and service of such person and facilities be subject to regulation by a State commission. The matters exempted from the provisions of this Act [15 USCS 717 et seq.] by this subsection are hereby declared to be matters primarily of local concern and subject to regulation by the several States. A certification from such State commission to the Federal Power Commission that such State commission has regulatory jurisdiction over rates and service of such person and facilities and is exercising such jurisdiction shall constitute conclusive evidence of such regulatory power of jurisdiction. (d) Vehicular natural gas jurisdiction. The provisions of this Act [15 USCS 717 et seq.] shall not apply to any person solely by reason of, or with respect to, any sale or transportation of vehicular natural gas if such person is-- (1) not otherwise a natural-gas company; or (2) subject primarily to regulation by a State commission, whether or not such State commission has, or is exercising, jurisdiction over the sale, sale for resale, or transportation of vehicular natural gas. 2
ii. Section 3 717b. Exportation or importation of natural gas; LNG terminals (a) After six months from the date on which this Act takes effect [effective June 21, 1938] no person shall export any natural gas from the United States to a foreign country or import any natural gas from a foreign country without first having secured an order of the Commission authorizing it to do so. The Commission shall issue such order upon application, unless, after opportunity for hearing, it finds that the proposed exportation or importation will not be consistent with the public interest. The Commission may by its order grant such application, in whole or in part, with such modification and upon such terms and conditions as the Commission may find necessary or appropriate, and may from time to time, after opportunity for hearing, and for good cause shown, make such supplemental order in the premises as it may find necessary or appropriate. (b) With respect to natural gas which is imported into the United States from a nation with which there is in effect a free trade agreement requiring national treatment for trade in natural gas, and with respect to liquefied natural gas-- (1) the importation of such natural gas shall be treated as a "first sale" within the meaning of section 2(21) of the Natural Gas Policy Act of 1978 [15 USCS 3301(21)]; and (2) the Commission shall not, on the basis of national origin, treat any such imported natural gas on an unjust, unreasonable, unduly discriminatory, or preferential basis. (c) For purposes of subsection (a), the importation of the natural gas referred to in subsection (b), or the exportation of natural gas to a nation with which there is in effect a free trade agreement requiring national treatment for trade in natural gas, shall be deemed to be consistent with the public interest, and applications for such importation or exportation shall be granted without modification or delay. (d) Except as specifically provided in this Act [15 USCS 717 et seq.], nothing in this Act affects the rights of States under-- (e) (1) the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.); (2) the Clean Air Act (42 U.S.C. 7401 et seq.); or (3) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.). (1) The Commission shall have the exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal. Except as specifically provided in this Act [15 USCS 717 et seq.], nothing in this Act is intended to affect otherwise applicable law related to any Federal agency's authorities or responsibilities related to LNG terminals. (2) Upon the filing of any application to site, construct, expand, or operate an LNG terminal, the Commission shall-- (A) set the matter for hearing; (B) give reasonable notice of the hearing to all interested persons, including the State commission of the State in which the LNG terminal is located and, if not the same, the Governor-appointed State agency described in section 3A [15 USCS 717b-1]; (C) decide the matter in accordance with this subsection; and (D) issue or deny the appropriate order accordingly. 3