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UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Trans-Pecos Pipeline, LLC

)
)
)

Docket No. CP15-500-000

MOTION FOR LEAVE TO ANSWER AND ANSWER OF
TRANS-PECOS PIPELINE, LLC
Pursuant to Rules 212 and 213 of the Rules of Practice and Procedure of the
Federal Energy Regulatory Commission (“Commission” or “FERC”), 18 C.F.R.
§§ 385.212 and 385.213 (2014), Trans-Pecos Pipeline, LLC (“Trans-Pecos”) hereby
moves for leave to answer the protests filed by the Big Bend Conservation Alliance
(“BBCA”) and Coyne A. Gibson in the above captioned docket (collectively, the
“Protests”),1 and answers the Protests and comments filed in the above-captioned docket.
This proceeding involves Trans-Pecos’ Application for Authorization under Section 3 of
the Natural Gas Act (“NGA”) and a Presidential Permit (“Application”)2 for the
construction, operation, and maintenance of certain natural gas pipeline facilities at the

1

Trans-Pecos respectfully requests leave to answer the Protests filed by the Big Bend Conservation
Alliance and Coyne A. Gibson. See Motion to Intervene of the Big Bend Conservation Alliance
(“BBCA”), Protest and Comments in Opposition to the Application of Trans-Pecos Pipeline LLC (Jun. 30,
2015) (“BBCA Protest”); Motion to Intervene of Coyne A. Gibson, Protest and Comments in Opposition to
the Application of Trans-Pecos Pipeline LLC (Jun. 29, 2015) (“Gibson Protest”). The Commission permits
answers to protests where, as here, the Commission’s consideration of matters addressed in the answer will
facilitate the decisional process or aid in the explication of issues. Transwestern Pipeline Co., 50 FERC ¶
61,211, at p. 61,672 n. 5 (1990) (citing Buckeye Pipe Line Co., 45 FERC ¶ 61,046 (1988)); Algonquin Gas
Transmission Co., 83 FERC ¶ 61,200, at p. 61,893 n. 2 (1998) (accepting answer in order to ensure “a
complete and accurate record”). Indeed, the Commission has stated that it “generally finds that answers to
protests provide valuable information relevant to its decisionmaking process.” Guardian Pipeline, L.L.C.,
91 FERC ¶ 61,285, at p. 61,961 (2000). Trans-Pecos’s Answer provides additional clarifications and
information in response to the Protests which, in turn, will facilitate the Commission’s decision-making
process and assist in ensuring that the record in this proceeding is accurate and complete. Accordingly,
Trans-Pecos submits that good cause exists to accept this Answer.
2

Trans-Pecos Pipeline, LLC, Application for Natural Gas Act Section 3 Authorization and Presidential
permit to Construct Natural Gas Pipeline Facilities at the United States – Mexico Border, Docket No.
CP15-500-000 (May 28, 2015).

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International Boundary to export and/or import natural gas between the Unites States near
the City of Presidio, in Presidio County, Texas, and Mexico in the vicinity of the City of
Manuel Ojinaga, State of Chihuahua (“Presidio Crossing Project” or “Project”).
The Protests and comments request that the Commission analyze the jurisdiction
of the planned upstream pipeline facilities that Trans-Pecos will connect to the Presidio
Crossing Project and propose that the Commission’s review under the National
Environmental Policy Act (“NEPA”) include both the Presidio Crossing Project and the
Upstream Facilities (as defined herein below). For the reasons set forth below, TransPecos respectfully requests that the Commission conclude that its NGA siting jurisdiction
applies only to the Presidio Crossing Project facilities, and not to the Upstream Facilities.
The Commission also should conclude that it is not required to undertake a full NEPA
review of the Upstream Facilities.
Finally, the Protests and various commenters provide information regarding
environmental matters on the Upstream Facilities and ask that the Commission address
these matters as part of its review of the Project. As discussed below, these matters
involve siting issues on facilities subject to state jurisdiction and therefore are beyond the
scope of the Commission’s review of the Project.
I.
PROJECT BACKGROUND
The proposed Presidio Crossing Project will consist of approximately 1,093 feet
of 42-inch diameter natural gas pipeline that will commence on the north side of the Rio
Grande River in Presidio County, Texas and terminate in the middle of the Rio Grande
River bed at the International Boundary between the United States and Mexico. In
addition to the Presidio Crossing Project, Trans-Pecos intends to construct approximately
2

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143 miles of 42-inch pipeline, multiple meter stations, and ancillary facilities wholly
within the State of Texas (“Upstream Facilities”) pursuant to the jurisdiction of the
Railroad Commission of Texas (“RCT”). The Upstream Facilities will interconnect with
and supply or receive gas into or from the Presidio Crossing Project facilities at the
International Boundary.

When Trans-Pecos places its pipeline system into service,

including both the Presidio Crossing Project facilities and the Upstream Facilities, TransPecos will provide transportation in intrastate commerce and will be an intrastate pipeline
as defined in Section 2(16) of the Natural Gas Policy Act of 1978 (“NGPA”)3 and the
Texas Utilities Code.4 Accordingly, service on the Trans-Pecos pipeline system and the
siting for the Upstream Facilities are subject to the jurisdiction of the RCT.
After commencing intrastate service on the Trans-Pecos pipeline system, TransPecos intends to establish interconnections with interstate pipelines and to commence
providing transportation service in interstate commerce pursuant to Section 311(a)(2) of
the NGPA.5 Any service that Trans-Pecos provides in the future pursuant to Section
311(a)(2) will be subject to the jurisdiction of the FERC, while the Trans-Pecos system
and the intrastate services that Trans-Pecos provides will remain subject to the
jurisdiction of the RCT.
The Presidio Crossing Project, along with the Upstream Facilities, will provide
transportation capacity for natural gas produced in the Texas Permian Basin and
ultimately other domestic natural gas production to the expanding natural gas markets in
3

15 U.S.C. § 3301(16).

4

TEX. UTIL. CODE ANN. §§ 101.003(7), 121.001(a) (defining “gas utility” to include, an entity “that owns
or operates for compensation in this state equipment or facilities to transmit or distribute combustible
hydrocarbon natural gas or synthetic natural gas for sale or resale in a manner not subject to the jurisdiction
of the Federal Energy Regulatory Commission under the Natural Gas Act”).
5

15 U.S.C. § 3371(a)(2).

3

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Northern Mexico.6 In addition to providing access to this important export market for
Texas producers, the Trans-Pecos system will benefit air quality in the border region by
replacing Northern Mexico’s less environmentally-friendly fuel sources, like diesel, coal
and wood, with clean burning natural gas. Trans-Pecos will financially benefit local
communities along the pipeline route through the use of goods and services during
construction and operation, direct tax benefits to the counties traversed by the system,
increased local access to multiple natural gas markets for local communities, and for the
City of Presidio, access to natural gas where no gas service existed previously.
By providing access to new natural gas markets, the Trans-Pecos system will
encourage further development of natural gas production in the Permian Basin, thereby
positively impacting the economy in the Permian Basin and throughout the State of
Texas. Additional development of natural gas production will create direct and indirect
jobs to facilitate the drilling operations, equipment manufacturing, and other facilities and
services necessary to support the additional development of production. The increase in
production in Texas not only stimulates state and local economies, but also furthers
national economic policy by encouraging the flow of goods and services between the
United States and Mexico.
II.
ANSWER TO COMMENTS ON JURISDICTION
Mr. Gibson and a number of other commenters request clarification regarding the
jurisdictional status of the Upstream Facilities.7

These commenters suggest that

6

While Trans-Pecos expects that the Texas production initially flowing on its system will be delivered into
Mexico, Trans-Pecos also intends to have delivery locations in local towns and utilities along its system.
7

See Gibson Protest at p. 2 (discussing the need for clarification on “the regulatory status, and
classification of the proposed Trans-Pecos Pipeline”); see, e.g., Comments of Jeanine M. Bishop in

4

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construction of the Upstream Facilities may be subject to the Commission’s jurisdiction
under Section 7 of the NGA. These comments are incorrect.
As Trans-Pecos explains in its Application, the only portion of the Trans-Pecos
system that is subject to the Commission’s jurisdiction is the Presidio Crossing Project at
the International Boundary. In light of the proposed location of the Presidio Crossing
Project facilities, Trans-Pecos is required to obtain NGA Section 3 authorization from the
Commission and a Presidential Permit pursuant to Executive Order No. 10,485,8 as
amended by Executive Order No. 12,038,9 prior to constructing the facilities. No portion
of the Trans-Pecos system, however, is subject to the Commission’s siting jurisdiction
under Section 7 of the NGA, and Trans-Pecos will not be a “natural gas company” under
the NGA. Mr. Gibson and the other commenters who suggest otherwise cite to no law or
Commission or court precedent to support their claim. The entirety of the Trans-Pecos
system, including both the Presidio Crossing Project and the Upstream Facilities, will be
located entirely within the State of Texas, and Trans-Pecos initially will flow only natural
gas produced in Texas. Under these circumstances, Trans-Pecos will be an intrastate
pipeline subject to the jurisdiction of the RCT.10
A.

Trans-Pecos Will Operate in Foreign and Intrastate Commerce When TransPecos Places Its System In Service, not Interstate Commerce.
It is well-settled law that a company, like Trans-Pecos, that will be operating in

foreign commerce, but not interstate commerce, is not a natural gas company under the

Opposition to the Application of Trans-Pecos Pipeline LLC, Docket No. CP15-500-000 (June 17, 2015)
(requesting consideration of the “propriety” of the intrastate classification “and whether or not the entire
pipeline should be subject to FERC review and regulation”).
8

18 Fed. Reg. 5397 (1953).

9

43 Fed. Reg. 4957 (1978).

10

See Border Pipe Line Co. v. Fed. Power Comm’n, 171 F.2d 149 (U.S. App. D.C. 1948) (“Border”).

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NGA and therefore is not subject to the Commission’s siting jurisdiction under Section 7
of the NGA. The United States Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) clearly demarcated foreign from interstate commerce many decades ago
in the Border Pipe Line case. Substantially similar to Trans-Pecos’ proposal, Border Pipe
Line Company (“Border”) owned and operated a natural gas pipeline that received gas
produced in Texas and transported that gas to Mexico. Border received authorization
pursuant to NGA Section 3 from the Commission’s predecessor, the Federal Power
Commission (“FPC”), to export natural gas to Mexico. When Border sought to expand
its operations, the FPC declared Border to be a “natural gas company” pursuant to the
NGA and ordered Border to submit an application under Section 7 of the NGA.
However, the D.C. Circuit reversed the FPC, concluding that because all of the facilities
were located in Texas and transported Texas gas, there was no interstate commerce and,
therefore, no Commission jurisdiction under Section 7 of the NGA.11
The D.C. Circuit’s opinion turned on the definition of “interstate commerce”
contained in the NGA: “commerce between any point in a State and any point outside
thereof, or between points within the same State but through any place outside thereof,
but only insofar as such commerce takes place within the United States.”12 The D.C.
Circuit, relying on legislative history, found that Congress had “first declared the
necessity for federal regulation of transportation and sale ‘in interstate and foreign
commerce’” and then provided for separate NGA sections, Section 3 for foreign
commerce and Section 7 for interstate commerce.13

11

Id. at 150-52.

12

15 U.S.C. § 717a(7).

13

Border at 150-51.

6

The D.C. Circuit determined

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therefore that the phrase “only in so far as such commerce takes places within the United
States” specifically excluded from the definition of “interstate commerce” the export or
import of natural gas between the United States and a foreign country.14 Accordingly, the
D.C. Circuit concluded that a company operating in foreign and intrastate commerce, but
not interstate commerce, was not a “natural gas company” under the NGA, and thus was
not required to obtain a Section 7 certificate of public convenience and necessity.15
This distinction between foreign and interstate commerce is well settled, and there
is no reason for the Commission to revisit this well-settled interpretation now. The
Commission’s “jurisdiction over interstate commerce may not include facilities within a
state carrying in-state gas to an international border [but the Commission does have]
foreign commerce jurisdiction, under which [a pipeline transporting in foreign commerce
must] obtain [S]ection 3 approval and a Presidential Permit for its exports to Mexico and
its facilities at the border.”16 Commission case law defines the “facilities at the border”
to be only those facilities at the site of the importation/exportation of natural gas close to
the border.17 Accordingly, the Commission cannot assert jurisdiction over the Upstream
Facilities. Trans-Pecos has appropriately defined the Presidio Crossing Project, and
Trans-Pecos’ Application correctly requests authorization under Section 3 of the NGA
and a Presidential Permit for the Project facilities.
14

Id. at 151-52. Since the Border case, courts and this Commission have consistently construed the NGA
definition of “interstate commerce” to exclude the transportation of natural gas between one state and a
foreign country. See, e.g., Distrigas Corp. v. FPC, 495 F.2d 1057, 1065 (D.C. Cir. 1974), cert. denied, 419
U.S. 834 (1974); Yukon Pacific Corp., 39 FERC ¶ 61,216, at p. 61,758 (1987).
15

Border Pipe Line Co., 171 F.2d at 150-52.

16

Sound Energy Solutions, 107 FERC ¶ 61,263 at P 15 (2004).

17

Valero Transmission, L.P., 57 FERC ¶ 61,299, at p. 61,955 (1991) (“The Commission’s authority under
[S]ection 3 is limited to approval of the site of the import/export of gas where the construction and
operation of the facilities is involved.”); see also Southern LNG, Inc., 131 FERC ¶ 61,155 at P 15 n.17
(2010) (stating that “only a small segment of the pipeline close to the border is deemed to be the import or
export facility for which [S]ection 3 Authorization is necessary”).

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The Commission has consistently applied this approach to its jurisdiction over
pipelines that transport intrastate production from a point within one state to an
international border between that state and a foreign country.

For example, the

Commission recently granted NGA Section 3 authorization and a Presidential Permit to
NET Mexico Pipeline Partners, LLC (“NET Mexico”), a newly formed entity with no
existing assets, for approximately 1,400 feet of natural gas pipeline located at the
international border between the United States and Mexico.18 The NET Mexico system
was proposed to include 120 miles of upstream natural gas pipeline located within the
State of Texas that would interconnect with the 1,400-foot pipeline segment at the United
States-Mexico border.19 NET Mexico stated that initially its facilities would “provide
only intrastate service on [the 120-mile] upstream pipeline,” but that NET Mexico
intended “at a later time to provide interruptible transportation services under [S]ection
311 of the [NGPA] on behalf of two interstate pipelines in Texas.”20 The Commission’s
order granting NET Mexico NGA Section 3 authorization and a Presidential Permit for
the 1,400-foot cross-border segment described the 120-mile upstream pipeline as
“nonjurisdictional facilities” and noted that entities that requested to intervene based on
“interests potentially affected by the proposed nonjurisdictional intrastate pipeline that
would supply gas to the border-crossing facilities” should address their specific concerns
with state regulators.21

18

NET Mexico Pipeline Partners, LLC, 145 FERC ¶ 61,112 at PP 2, 4 (2013).

19

Id. at P 5.

20

Id. at P 7.

21

Id. at P 8, n.5.

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The Commission’s treatment of the upstream pipeline in NET Mexico is
consistent with the Commission’s treatment of indistinguishable facilities in Coral
Mexico Pipeline, LLC (“Coral Mexico”)22 and CMS Gas Transmission & Storage Co.
(“CMS Gas”).23 In Coral Mexico, the pipeline applicant, Coral Mexico, did not own any
existing assets and planned to construct approximately 97 miles of greenfield pipeline as
an intrastate pipeline to transport Texas production from a point in Kleberg County,
Texas to an interconnect with approximately 1,375 feet of pipeline owned by Coral
Mexico at the international border between the United States and Mexico.24

The

Commission concluded that the 1,375 feet of pipeline at the international border was
subject to its jurisdiction under Section 3 of the NGA, but the 97 miles of upstream
pipeline extending from within Texas to the border were non-jurisdictional intrastate
pipeline facilities.25
Similarly, in CMS Gas, the Commission rejected a protest claiming that the
Commission had jurisdiction over pipeline facilities converted from natural gas liquids
service to natural gas service. The facilities were located in Michigan upstream of
border-crossing facilities used to import and export gas in foreign commerce between the
United States and Canada.26 The Commission explained that it did not have jurisdiction
over the facilities, stating that “CMS will be transporting gas in foreign, not interstate

22

89 FERC ¶ 61,171 (1999).

23

72 FERC ¶ 61,146 (1995).

24

Coral Mexico, 89 FERC at p. 61,516.

25

Id. at p. 61,517.

26

CMS Gas, 72 FERC at pp. 61,743-44.

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commerce,” and that the “Commission’s NGA Section 7 jurisdiction does not attach to
foreign commerce.”27
More recently, in Southern LNG, Inc., the Commission explained that when
companies construct a pipeline to transport import or export volumes, only a small
segment of the pipeline close to the border is deemed to be the import or export facility
for which NGA Section 3 authorization is necessary.28 The Commission noted that the
remainder of the pipeline may be jurisdictional under Section 7 of the NGA if the
pipeline will be used to transport natural gas in interstate commerce, or exempt from
jurisdiction under the NGA if the pipeline will be used to gather natural gas or, as is the
case with Trans-Pecos, for intrastate service.29
The Trans-Pecos system is structured similarly to the pipeline facilities in NET
Mexico, Coral Mexico, and CMS Gas, and the Upstream Facilities are exempt from the
Commission’s NGA jurisdiction for the reasons that the Commission articulated in
Southern LNG. In each of those cases, the Commission concluded that only the facilities
located at the international border are FERC-jurisdictional facilities and that upstream
pipeline facilities, when used to transport gas in intrastate commerce to the international
border, are “nonjurisdictional facilities” subject only to state jurisdiction.

The

Commission should reach the same conclusion here.
B.

Any Future Interstate Services That Trans-Pecos Provides Under the NGPA
Will Not Affect the Intrastate Character of the Upstream Facilities.
Mr. Gibson and other commenters suggest that the Upstream Facilities are subject

to the FERC’s jurisdiction because Trans-Pecos intends to establish interconnections with
27

Id.

28

Southern LNG, Inc., 131 FERC ¶ 61,155 at n.17 (2010).

29

Id.

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interstate pipelines and provide transportation service in interstate commerce in the
future.30 However, future changes in a pipeline’s configuration or operation cannot be
used by the FERC to confer jurisdiction on an otherwise NGA-exempt project.31 Thus,
the NGA precludes the Commission from taking jurisdiction over the Upstream Facilities
because Trans-Pecos will not provide interstate service initially on its pipeline system. In
any event, as explained above, if and when Trans-Pecos commences providing interstate
services, Trans-Pecos will do so only after it has established itself as an intrastate pipeline
and Trans-Pecos will provide such interstate service pursuant to Section 311(a)(2) of the
NGPA and the Commission’s Part 284, Subpart C regulations.
III.
ANSWER TO COMMENTS ON SCOPE OF COMMISSION NEPA REVIEW
A.

The Commission’s NEPA Review Will Extend Only to the Presidio Crossing
Project and Not to the Upstream Facilities.
Contrary to the claims of BBCA and Mr. Coyne, the Commission’s NEPA review

for the Presidio Crossing Project is not required to include the Upstream Facilities.
NEPA requires a federal agency to evaluate the relevant environmental effects of the
proposed federal project or action that is before the agency for approval.32 Accordingly,
NEPA requires the Commission to evaluate the environmental effects of the Presidio
Crossing Project. However, in determining whether the Commission’s NEPA review
30

See Gibson Protest at p. 3 (asserting that the Project should not be split into a jurisdictional segment and
a non-jurisdictional segment because the pipeline will be used in interstate commerce).
31

See Georgia Strait Crossing Pipeline LP, 100 FERC ¶ 61,280 at P 31 (2002) (stating that it “would be
inappropriate to claim jurisdiction over [facilities] based exclusively on the expectation that lateral lines
eventually will be built” despite the installation of taps and meters along the line in anticipation of later
construction).
32

42 U.S.C. § 4332(2)(C) (all federal agencies must include in every recommendation/report on proposals
for major federal actions significantly affecting the quality of the human environment a detailed statement
on the environmental impact of the proposed action, any unavoidable adverse environmental effects,
alternatives, and irreversible/irretrievable commitments of resources).

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must also include related non-jurisdictional facilities, like the Upstream Facilities, the
Commission must decide “whether there is sufficient federal control and responsibility”
over the Trans-Pecos Project as a whole – both the Presidio Crossing Project and the
Upstream Facilities – to warrant environmental analysis of the portion of the Trans-Pecos
Project outside of the Commission’s direct sphere of responsibility.33

As the

Commission explained in Algonquin Gas Transmission Co., “[t]he agency must have
sufficient control and responsibility over the entire project to warrant an assessment of
the non-federal portion.”34

Accordingly, absent sufficient federal control and

responsibility over the entirety of the Trans-Pecos Project, the Commission has no
discretion to assess the environmental impacts of the Upstream Facilities.
Proposed border-crossing projects, like the Presidio Crossing Project, frequently
involve the construction of additional pipeline facilities upstream or downstream of the
jurisdictional border-crossing facilities for the purpose of transporting natural gas in
intrastate commerce. In such cases, the Commission consistently has determined that
there is not sufficient federal control and responsibility over the entire project as a whole
to warrant environmental analysis of the non-jurisdictional pipeline facilities.35 The
Commission should make the same determination here.36

33

Algonquin Gas Transmission Co., 59 FERC ¶ 61,255, at p. 61,934 (1992) (“Algonquin”); see also
Winnebago Tribes of Nebraska v. Ray, 621 F.2d 269, 272 (8th Cir.), cert denied, 449 U.S. 836 (1980)
(finding that an agency’s “discretion to consider environmental impacts . . . must be exercised within the
agency’s authority”).
34

Algonquin, 59 FERC at p. 61,934.

35

See, e.g., Impulsora Pipeline, LLC, 151 FERC ¶ 61,117 at P 19 (2015) (stating that “the EA clarifies that
the [nonjurisdictional] facilities are not subject to the Commission’s review”); Houston Pipe Line Co. LP,
146 FERC ¶ 61,195 at P 18 (2014) (clarifying that the “related [nonjurisdictional] facilities are not subject
to the Commission’s review procedures”); Oasis Pipeline, LP, et al., 127 FERC ¶ 61,263 at PP 18-19
(2009) (holding that “the only portion of the project subject to the Commission’s jurisdiction is the 836 feet
of proposed pipeline” and discussing the EA results for the 836 feet of pipeline constituting the bordercrossing facilities, but not assessing the environmental impacts for the 188 miles of non-jurisdictional
intrastate pipeline to be built upstream of the border-crossing facilities); West Texas Gas, Inc., 101 FERC

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When

determining

whether

to

assess

the

environmental

impacts

of

nonjurisdictional facilities, the Commission’s regulations contemplate implementing a
four-factor test to determine whether there is sufficient federal control and responsibility
over a project as a whole to warrant environmental analysis of the portions of the project
outside of the Commission’s direct sphere of responsibility.37 These factors include:
(i) whether the regulated activity comprises “merely a link” in a corridor-type project
(e.g., a transportation or utility transmission project); (ii) whether there are aspects of the
nonjurisdictional facility in the immediate vicinity of the regulated activity that affect the
location and configuration of the regulated activity; (iii) the extent to which the entire
project would be within the Commission’s jurisdiction; and (iv) the extent of cumulative
federal control and responsibility. When the four factors are applied to the overall TransPecos Project, it is clear that there is not sufficient federal control and responsibility over
the project to warrant environmental analysis of the non-jurisdictional Upstream
Facilities.
Regarding the first factor, the Presidio Crossing Project is merely a small link
between two parts of a larger, nonjurisdictional corridor-type project—the Upstream
Facilities and the facilities in Mexico. The Commission has consistently determined

¶ 61,058 (2002) (no assessment of environmental impacts associated with 9 miles of non-jurisdictional
intrastate pipeline to be built upstream of the border-crossing facilities); Coral Mexico Pipeline, LLC, 89
FERC ¶ 61,171 at p. 61,517 (1999) (highlighting the “relatively small link in a much larger project” when
determining that there was not sufficient federal control and responsibility over the project to warrant an
environmental analysis of the nonjurisdictional intrastate pipeline); Coastal States Gas Transmission Co.,
78 FERC ¶ 61,046 (1997) (no assessment of environmental impacts associated with 18 miles of nonjurisdictional intrastate pipeline to be built upstream of the border-crossing facilities); MidCon Texas
Pipeline Corp., 77 FERC ¶ 61,205 (1996) (no assessment of environmental impacts associated with 9 miles
of non-jurisdictional intrastate pipeline to be built upstream of the border-crossing facilities).
36

The Upstream Facilities, however, are being assessed under NEPA by the United States Army Corps of
Engineers, which is the lead agency under the authority of Section 404 of the Clean Water Act.
37

See 18 CFR § 380.12(c)(2)(ii) (2014); see also Algonquin, 59 FERC at p. 61,934.

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under such circumstances that analysis of an intrastate project with border-crossing
facilities under the first factor indicates that federal control and responsibility is
insufficient to warrant an environmental analysis of the non-jurisdictional facilities.38
Regarding the second factor, although the Presidio Crossing Project proposed by
Trans-Pecos is at a point where such facilities will connect with the nonjurisdictional
portion of the pipeline, the location and configuration of the Upstream Facilities do not
dictate the location of the Project facilities. The location and configuration of the Project
facilities are dictated by the location of the markets to be served in Northern Mexico.
The Commission has determined that under these circumstances, analysis under the
second factor indicates that federal control and responsibility is insufficient to warrant an
environmental analysis of the non-jurisdictional facilities.39
Regarding the third factor, the vast majority of the entire pipeline—greater than
99.5 percent—is nonjurisdictional.

Under these circumstances, the Commission has

determined that federal control and responsibility is insufficient to warrant an
environmental analysis of the non-jurisdictional facilities.40

38

See e.g., San Diego Gas & Elec. Co., 64 FERC ¶ 61,221, at p. 62,652 (1993) (“San Diego Gas”) (finding
the 2.1 mile border-crossing facilities to be merely a link between two parts of a nonjurisdictional project);
Gas Co. of New Mexico, 64 FERC ¶ 61,226, at p. 62,669 (1993) (“Gas Co. of New Mexico”) (finding a
meter station and 150-foot pipeline connected to a 22-mile upstream intrastate pipeline “merely a small link
in a larger corridor-type project”).
39

See, e.g., San Diego Gas at p. 62,652 (stating that “[a]lthough the [project] is designed to provide the
necessary capacity, there is nothing about its design that is uniquely influenced by the location of the
nonjurisdictional facilities”); Gas Co. of New Mexico at p. 62,669 (holding that the “location and
configuration of the nonjurisdictional facilities do not dictate the locations of the border crossing”).
40

See, e.g., San Diego Gas at p. 62,652 (finding that the bulk of the entire 80-mile project is
nonjurisdictional with only 2.1 miles of jurisdictional facilities and therefore not sufficient to extend the
environmental analysis to the nonjurisdictional assets); Gas Co. of New Mexico at p. 62,669 (finding that
the jurisdictional border-crossing facilities do not support a finding that an environmental analysis of the
nonjurisdictional assets is warranted).

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Finally, regarding the fourth factor, the extent of cumulative federal control and
responsibility for the entire pipeline is limited. The Upstream Facilities are subject to the
jurisdiction of the RCT, a state agency. The Upstream Facilities also will be subject to
Texas environmental regulation and safety regulation delegated to Texas. Although there
may be some limited federal involvement due to permitting required from the United
States Army Corps of Engineers and consultation with the United States Fish and
Wildlife Service, the Commission has concluded in the past that this level of involvement
constitutes “minimal cumulative federal control . . . not large enough to warrant
‘federalizing’ the much larger non-jurisdictional portion of the project” for NEPA
purposes.41
Neither Mr. Coyne nor any other commenter cites to any law or other cases in
support of their request for the Commission to extend its environmental review to the
Upstream Facilities, and BBCA cites only to the SunShine Interstate Transmission Co.
(“SunShine Interstate”) case.42 Neither Mr. Coyne, BBCA or any other commenter
attempts to distinguish or even mention the myriad of cases directly on point that are
discussed above in this Answer. Unlike the cases cited above, the facts of the SunShine
Interstate case are completely different from the facts in the instant proceeding.
SunShine Interstate involved a request pursuant to Section 7 of the NGA by the applicant
to construct, own, and operate an approximately 145-mile interstate natural gas pipeline.
The applicant proposed to interconnect the 145-mile pipeline with an approximately
500-mile intrastate pipeline. SunShine Interstate did not include a request for NGA
41

See, e.g., San Diego Gas at p. 62,652.

42

SunShine Interstate Trans. Co., 67 FERC ¶ 61,229 (1994) (evaluating whether non-jurisdictional
facilities must be included in the environmental review of a proposed approximately 145-mile interstate
pipeline in a Section 7 certificate proceeding).

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Section 3 authorization and a Presidential Permit for border-crossing facilities and did not
involve a short segment of pipeline linking major upstream and downstream pipeline
facilities, like the Presidio Crossing Project. The Algonquin four-factor analysis is very
different when the FERC is considering construction of a lengthy jurisdictional interstate
pipeline system. SunShine Interstate simply is not applicable to the four factor analysis
here, and the Commission should disregard that case and follow the numerous
Commission cases directly on point that are cited above in this Answer.
In short, the Commission has determined under similar circumstances involving
intrastate pipeline projects with border-crossing facilities that “none of the four factors is
sufficient to cause the construction of the non-jurisdictional facilities to become federal
actions requiring environmental analysis under NEPA.”43 The Commission should make
that determination here and reject the suggestion in the Protests and comments for the
Commission to analyze the environmental impacts of the Upstream Facilities.
B.

The Commission Will Appropriately Prepare An Environmental Assessment
and Not An Environmental Impact Statement for the Project.
The BBCA Protest and the Gibson Protest both request the development of an

environmental impact statement (“EIS”) for the Project, even if the Commission

43

See, e.g., San Diego Gas at p. 62,652. The four-factor test analysis and subsequent conclusion aligns
with the Commission’s precedent when reviewing similar related nonjurisdictional facilities in a Section 3
Authorization proceeding. See, e.g., San Diego Gas & Elec. Co., 64 FERC ¶ 61,221, at p. 62,652 (1993)
(“In light of the above analysis, we conclude that none of the four factors is sufficient to cause the
construction of the nonjurisdictional facilities to become federal actions requiring environmental analysis
under NEPA. Accordingly, we find it is unnecessary for the Commission to analyze the environmental
impact of [the project’s] nonjurisdictional facilities or to impose mitigation measures on the construction of
such facilities.”); Gas Co. of New Mexico, 64 FERC ¶ 61,226 at p. 62,669 (1993) (“In light of the above
analysis, the first three factors support a finding that the overall degree of federal involvement associated
with the project is not sufficient to warrant an environmental analysis of the nonjurisdictional facilities by
the Commission under NEPA. While factor 4 evidences federal control over the nonjurisdictional
facilities, as noted, the BLM is already performing an environmental analysis of the entire project and it is
therefore unnecessary for the Commission to duplicate this effort. Accordingly, we find it is unnecessary
for the Commission to analyze the environmental impact of this project’s nonjurisdictional facilities or to
impose mitigation measures on the construction of such facilities.”).

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determines the environmental review will only cover the Presidio Crossing Project.44
However, the Commission routinely prepares an Environmental Assessment (“EA”) for
border-crossing facility proposals with related nonjurisdictional pipeline facility
construction,45 and the Protests provide no reason for the Commission to depart from this
precedent.
The Commission’s regulations implementing NEPA provide that an EIS “will
normally” be prepared for “major pipeline construction using rights-of-way in which
there is no existing natural gas pipeline.”46 Further, the regulations provide that “[i]f the
Commission believes that a proposed action . . . may not be a major Federal action
significantly affecting the quality of the human environment, an [EA], rather than an
[EIS], will be prepared first.”47

As discussed herein, the Presidio Crossing Project

involves extremely limited facilities – a mere 1,093-foot segment of steel pipeline that
will be constructed in approximately 40 days with little environmental impact by using a
horizontal directional drilling technique to place the pipeline beneath the Rio Grande
River.

Compared with other projects where the Commission prepares an EIS, the

Presidio Crossing Project unquestionably would not fall under the “major” category for
which an EIS is normally prepared under the regulations.
The Council on Environmental Quality (“CEQ”) regulations implementing NEPA
provide that one of the purposes of an EA is to assist agencies in determining whether to

44

BBCA Protest at pp. 28-30; Gibson Protest at 4 (asserting that the proposed environmental assessment is
insufficient to comply with NEPA requirements).
45

See, e.g., supra note 35 (providing examples of proceedings where the Commission prepared
environmental assessments for the proposed border-crossing facilities).
46

18. C.F.R. § 380.6(a) (2014).

47

Id. § 380.6(b).

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prepare an EIS. Here, Commission Staff will appropriately prepare an EA. If the EA
reveals significant environmental impacts necessitating the preparation of an EIS, then
the Commission Staff will proceed with preparing an EIS at that time.48 Trans-Pecos
submits that approval of the Project would not constitute a major federal action
significantly affecting the quality of the human environment.

Thus, an EIS is not

required.
C.

The Presidio Crossing Project Has Independent Utility From Other Projects
and Is Not “Connected” to Other Actions.
Mr. Gibson asserts that Trans-Pecos impermissibly segmented the environmental

review for the Trans-Pecos Pipeline from Comanche Trail Pipeline, LLC’s (“Comanche
Trail”) proposed pipeline and requests that FERC consider the environmental impacts of
both the Trans-Pecos Pipeline and the Comanche Trail Pipeline together.49 Similar to
Trans-Pecos, Comanche Trail’s principal business will be the transportation of natural
gas from a hub in West Texas to a point on the International Boundary between the
United States and Mexico. Accordingly, Comanche Trail filed an application for Section
3 Authorization and a Presidential Permit for its border-crossing facilities (“San Elizario
Crossing Project”).50
The Trans-Pecos Pipeline, specifically the Presidio Crossing Project, which is the
subject of this proceeding, and the Comanche Trail Pipeline, specifically the San Elizario
Crossing Project, which is the subject of a separate proceeding in Docket No. CP15-503-

48

The CEQ’s regulations provide that, where an EA concludes in a finding of no significant impact, an
agency may proceed without preparing an EIS. See 40 C.F.R. §§ 1501.4(e), 1508.13 (2014).
49

Gibson Protest at p. 3.

50

Application for Natural Gas Act Section 3 Authorization and Presidential Permit to Construct Natural
Gas Pipeline Facilities at the United States-Mexico Border, Docket No. CP15-503-000 (May 29, 2015).

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000, are not “connected” because both pipeline projects have independent utility from
each other. Actions are “connected” if they: (i) “[a]utomatically trigger other actions
which may require environmental impact statements”; (ii) “[c]annot or will not proceed
unless other actions are taken previously or simultaneously”; or (iii) “[a]re interdependent
parts of a larger action and depend on the larger action for their justification.”51 An
“independent utility” test is employed to determine whether actions are connected such
that they should be considered in a single EIS.52 The focus of this test is whether the
projects would have taken place without the other.53 In other words, the inquiry is
whether a project serves a “significant purpose” separate and apart from the other
project.54
The Trans-Pecos Pipeline and the Comanche Trail Pipeline are stand-alone
projects that serve a significant purpose separate from each other and have distinguishing
characteristics. Although the pipelines are both intrastate pipelines originating in the
same vicinity for the transportation of natural gas produced in Texas to the International
Boundary for serving natural gas market needs in Mexico, that is where the similarities
end. Trans-Pecos will intersect with Mexico at the International Boundary in Presidio
County, Texas, in the vicinity of the City of Manuel Ojinaga, State of Chihuahua, while
Comanche Trail will intersect with Mexico nearly 250 miles west in El Paso County,

51

40 C.F.R. § 1508.25(a)(1) (2014).

52

Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1228-29 (10th Cir. 2008); Great
Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2006); Utahns for Better Transp. v. U.S. Dep’t
of Transp., 305 F.3d 1152, 1183 (10th Cir. 2002); see also Maryland Conservation Council, Inc. v.
Gilchrist, 808 F.2d 1039 (4th Cir. 1986).
53

Wilderness Workshop, 531 F.3d at 1229; see Great Basin, 456 F.3d at 969 (“When one of the projects
might reasonably have been completed without the existence of the other, the two projects have
independent utility and are not ‘connected’ for NEPA’s purposes.”)
54

See Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 69 (D.C. Cir. 1987).

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Texas, in the vicinity of the City of San Isidro, in the State of Chihuahua. The pipeline
projects each originated from separate and distinct requests for proposals and will be
constructed for and serve different markets in Mexico that are not remotely near each
other. Each pipeline has an independent utility because they will serve areas of Mexico
250 miles apart, and each will be constructed regardless of whether the other pipeline is
constructed.

A single NEPA review of the Presidio Crossing Project with the San

Elizario Crossing Project is neither warranted nor appropriate.
IV.
OTHER COMMENTS
A.

Environmental Impacts of the Presidio Crossing Project Will Be
Appropriately and Thoroughly Addressed In This Proceeding.
The Presidio Crossing Project proceeding received hundreds of comments

primarily addressing topics such as the surrounding Big Bend area, specific towns near
the proposed pipeline, environmental impacts, and mitigation measures, all of which are
primarily related to the Upstream Facilities. Very few of the comments received were
from stakeholders directly affected by the Presidio Crossing Project. As detailed above,
the Upstream Facilities will be wholly intrastate pipeline facilities subject to the
jurisdiction of the RCT, and, accordingly, specific environmental and other concerns
arising from the intrastate pipeline facilities should be addressed with the state and
federal regulators with jurisdiction. Any environmental impacts and mitigation measures
directly related to the Presidio Crossing Project will be addressed throughout the NEPA
review process in this proceeding.55

55

Trans-Pecos notes that of the 143 miles of Upstream Facilities, Trans-Pecos to date has completed 115
miles of civil survey and 84 miles of environmental assessments. Further surveys and assessments are
ongoing.

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B.

Trans-Pecos Has Engaged in Extensive Community and Stakeholder
Outreach.
Some commenters express dissatisfaction with the level of transparency of the

sponsors of the Presidio Crossing Project and the methods by which Trans-Pecos is
seeking to develop the Project.

To the extent commenters are concerned with the

nonjurisdictional Upstream Facilities, such comments would be more appropriate to
address to the RCT. However, Trans-Pecos hereby provides the following information
with regard to these comments.
Trans-Pecos has been working with landowners and is committed to continuing
an open dialogue with the goal of ensuring that landowners are fully informed about the
Project. Trans-Pecos is committed to acquiring easement rights and constructing the
pipeline in a manner respectful of landowner needs. In this regard, Trans-Pecos sent
letters to all affected landowners and published ads in newspapers generally circulated in
the impacted counties inviting residents to attend an Open House where Project
representatives were available to answer questions regarding the Project timeline, the
proposed route, and the local benefits. Trans-Pecos held three Open Houses, two on
April 21, 2015, in Presidio, Texas and in Alpine, Texas, and one on April 22, 2015, in
Fort Stockton, Texas. Trans-Pecos presented information on the details of the TransPecos Pipeline, including the timeline, the permanent and temporary land requirements,
routing selection methodologies, economic benefits, the construction process, TransPecos’ commitment to safety, and maps showing the proposed pipeline route in each
county. Trans-Pecos also conducted a town hall meeting in Presidio, Texas on July 7,
2015, and one in Alpine, Texas on July 8, 2015, where Trans-Pecos presented currently
available information about the Project, a panel of Project representatives received and
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answered questions, and Project representatives listened to statements presented from
interested parties.
To further facilitate landowner outreach following the Open Houses, Trans-Pecos
regularly published advertisements in publications of general circulation in Presidio,
Brewster, Pecos and Jeff Davis counties. These advertisements highlighted aspects of
natural gas pipelines and specifically the Trans-Pecos Pipeline proposal. Trans-Pecos
also has a publicly available website that features information about the Project, includes
downloadable PDF files of all the public documents and maps for the Project, and
descriptions of the regulatory, safety and environmental aspects of the Project.56 In
addition, Trans-Pecos established a toll-free number for stakeholders to call and receive
information about the Trans-Pecos Pipeline, and included the toll-free number on all
project-related correspondence and advertisements.

Trans-Pecos is dedicated to

answering each call, addressing issues presented, and incorporating the requests of
landowners to the extent practicable.
C.

The Trans-Pecos Project Is Designed to Meet or Exceed Safety Standards.
Commenters also discussed the safety and reliability of the proposed facilities and

their operations.

The RCT, with delegated authority by the U.S. Department of

Transportations’ Pipeline and Hazardous Materials Safety Administration (“PHMSA”),
will regulate the safety of the Trans-Pecos pipeline. Trans-Pecos will design, construct,
operate, and maintain the facilities to meet or exceed the federal safety standards set by
PHMSA and any more stringent standards set forth by the RCT’s Pipeline Safety
department. The RCT, with its delegated authority, is responsible for ensuring the safety
56

See
Trans-Pecos
Pipeline
Project,
http://www.transpecospipelinefacts.com/
or
http://www.transpecosfacts.com/ (containing identical content from two URL configurations) (last visited
July 15, 2015).

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of all intrastate natural gas transmission pipelines, and the RCT “continues to lead the
nation in adopting and enforcing safety rules to enhance the integrity of pipelines
throughout the state.”57 The RCT “also promotes and enforces an underground pipeline
damage prevention program for Texas. The Pipeline Safety department is responsible for
the enforcement of the damage prevention regulations involving the movement of earth
(excavation) surrounding pipeline facilities.”58
Trans-Pecos is committed to safety, protecting the environment, preventing
accidents and incidents, and maintaining the highest standards for its pipeline operations
and maintenance. In light of its commitment to safety, Trans-Pecos will construct the
pipeline with safety features in mind, including inspecting every weld both visually and
with x-rays, installing shut-off valves along the pipeline, hydrostatically pressure testing
at higher-than-normal operating pressures prior to placing the pipeline into service,
installing emergency shutdown systems on the compressor stations, and installing
pressure-regulating devices. Trans-Pecos will continue its safety goals during operations
by performing routine preventative maintenance and pipeline patrols, maintaining an
emergency response plan and pipeline integrity management program. Trans-Pecos is
committed to maintaining a safe environment in the areas where its pipeline is located.
Trans-Pecos will implement all federal standards into the design and operations of the
pipeline, and in many instances, Trans-Pecos will exceed applicable federal standards to
ensure a safe and reliable pipeline both during construction and throughout the
operational life of the facility.

57

Railroad Commission of Texas, Pipeline Safety, http://www.rrc.state.tx.us/pipeline-safety/ (last visited
July 10, 2015).
58

Id.

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V.
CONCLUSION
For the reasons stated herein, Trans-Pecos requests that the Commission
(1) accept this Answer with the clarifications and information provided herein;
(2) conclude that its NGA siting jurisdiction applies only to the Presidio Crossing Project
facilities, and not to the Upstream Facilities; (3) determine that the scope of the NEPA
review for this proceeding covers only the Presidio Crossing Project; and (4) grant
Trans-Pecos’s request for authorization under NGA Section 3 and a Presidential Permit
for the Presidio Crossing Project.
Respectfully submitted,
/s/ Jim Wright
Mr. Jim Wright
Deputy General Counsel
Trans-Pecos Pipeline, LLC
1300 Main Street
Houston, Texas 77002
(713) 989-7010
James D. Seegers
Suzanne E. Clevenger
Jennifer C. Cornejo
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2500
Houston, Texas 77002
(713) 758-2939
Counsel for:
Trans-Pecos Pipeline, LLC

July 15, 2015

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CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing document upon each person
designated on the official service list compiled by the Secretary in this proceeding.
Dated in Houston, Texas, this 15th day of July, 2015.

/s/ Suzanne E. Clevenger
Suzanne E. Clevenger
Counsel for Trans-Pecos Pipeline, LLC

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Document Content(s)
2015.07.15--CP15-500 Trans-Pecos Answer.PDF...........................1-25