P roduction of natural gas and crude oil from shales and other unconventional formations in the United States has expanded significantly due to new technologies such as hydraulic fracturing and horizontal drilling. This boom in production has increased investment in new pipeline infrastructure to gather and transport these resources from producing regions to domestic and foreign consumers. Pipelines represent a relatively safe means of transporting oil and gas as compared to other modes of transportation, but have the potential to cause harm to public health and the environment because of the hazardous materials they carry and the proximity of some pipelines to highly populated areas. Construction of new pipelines and related facilities may prompt congressional interest in the relationship between federal and state authority over siting and safety of pipeline infrastructure. Siting of Interstate Natural Gas Pipelines

Siting, construction, and operation of interstate natural gas pipelines require specific approval from the federal government. In the past, FERC has apparently taken the view that state or local laws that affect siting of an interstate natural gas pipeline facility might not be preempted unless they conflict with FERC's exercise of its jurisdiction under federal law or would pose an obstacle to the facility's construction. As discussed further below, the NGA also contains a savings clause preserving states' "rights" under three federal laws: the Coastal Zone Management Act (CZMA), Clean Air Act (CAA), and Clean Water Act (CWA). Federal laws and regulations also provide several avenues for a state to provide input into FERC's siting review of an interstate natural gas pipeline. Siting of Crude Oil Pipelines

In contrast to siting review of proposed interstate natural gas pipelines under the NGA, no federal law establishes a specific approval process for the siting of pipelines that would transport crude oil within the borders of the United States. However, state or local laws may establish requirements for siting a pipeline, provided such requirements are not preempted by federal law (e.g., federal pipeline safety laws). For example, no federal law broadly preempts state and local siting requirements for these pipelines, and thus pipeline companies must obtain approval of the pipeline route on a state-by-state basis. Additional Federal Authorizations and Review

In addition to obtaining certificate authority from FERC (for siting, construction, and operation of interstate natural gas pipelines) and complying with any nonpreempted state or local siting requirements, an entity seeking to build, operate, or maintain an oil or gas pipeline may have to obtain additional federal authorizations, depending on the pipeline's proposed route and its potential impact on environmental, natural, historical, and cultural resources. While states play a minimal role with respect to applications for ROW over federal lands or permission to cross an international border, states retain broad authority to regulate to control pollution, as well as to protect and conserve natural, cultural, and historical resources. Section 60105 of the PSA establishes a state pipeline safety program certification process by which states may become authorized to administer and enforce PHMSA's baseline safety standards for intra state pipeline facilities and pipeline transportation. This provision prohibits, with certain exceptions, PHMSA from prescribing or enforcing safety standards for an intrastate pipeline facility "to the extent that the safety standards and practices are regulated by a State authority ... that submits to the Secretary annually a certification for the facilities and transportation...." However, for a state's certification to be valid, the state must certify that it has adopted, by the date of certification, "each applicable standard prescribed [by PHMSA under the PSA] or, if a standard under [49 U.S.C.
New technologies such as hydraulic fracturing and directional drilling have dramatically increased U.S. production of natural gas and crude oil from shales and other unconventional formations. As a result, companies have invested in new pipeline infrastructure to transport these resources from producing regions to domestic and foreign consuming markets. Siting, construction, operation, and maintenance of this infrastructure may raise environmental, health, and safety concerns, particularly when oil or gas moves by pipeline through heavily populated areas. Such concerns may prompt congressional interest in the relationship between federal and state authority over the siting and safety of pipeline infrastructure.
Under the Natural Gas Act (NGA), siting of interstate natural gas pipelines and related facilities requires specific approval from the Federal Energy Regulatory Commission (FERC). When the pipeline company receives a certificate of public convenience and necessity from FERC, state or local laws that conflict with FERC's exercise of its jurisdiction under federal law or would pose an obstacle to construction of the pipeline (e.g., local zoning laws) are preempted unless FERC requires the company to comply with them as a condition of granting the certificate. The NGA specifically preserves state authority over pipeline projects under the federal Clean Air Act (CAA), Clean Water Act (CWA), and Coastal Zone Management Act (CZMA). However, state authority under these laws remains subject to federal administrative and judicial oversight and review. Federal law also provides several avenues for a state to provide input into FERC's siting and environmental reviews of a proposed interstate natural gas pipeline.
In contrast to siting review of proposed interstate natural gas pipelines, interstate crude oil pipelines undergo a state-by-state siting approval process. No federal law broadly preempts state and local siting requirements for these pipelines. Construction or operation of any oil or gas pipeline, whether interstate or intrastate, may require additional federal or state authorizations or consultations, depending on the proposed route of the pipeline and its potential to discharge pollutants or affect natural, cultural, or historical resources. States retain broad authority to regulate to control pollution, as well as to protect and conserve natural, cultural, and historical resources. States play a significantly reduced role, however, with respect to applications for pipeline rights-of-way over federal lands or permission to cross an international border, which implicate powers of the federal government over federal lands, foreign trade, and/or foreign affairs.
Although pipelines represent a relatively safe form of transporting oil and gas as compared to other modes of transportation, the presence of new pipelines in populated areas, including gathering lines, has increased interest in federal and state oversight of pipeline safety. The Pipeline Safety and Hazardous Materials Administration (PHMSA) within the Department of Transportation (DOT) has broad authority to promulgate minimum federal safety standards for pipeline facilities and transportation. States may also become authorized to administer and enforce PHMSA's baseline safety standards for intrastate pipeline facilities and transportation; adopt and enforce stricter state standards for intrastate facilities compatible with DOT standards; and inspect interstate facilities for compliance with DOT regulations. Federal pipeline safety provisions specifically preempt state "safety standards" for interstate oil or gas pipelines. Generally, federal courts have held that federal pipeline safety laws do not preempt a state or local siting law that only incidentally affects safety. However, the NGA could potentially preempt a state's or locality's application of such a law to an interstate natural gas pipeline facility.