Monday, June 24, 2019

HR 3290 Introduced – Pipeline Mandamus

Earlier this month Rep. Speier (D,CA) introduced HR 3290, the PHMSA Accountability Act. The bill would allow civil suits against DOT to compel performance of a non-discretionary duty under pipeline safety laws. The bill is identical to HR 5443 that Speier introduced in the 114th Congress; no congressional action was taken on that bill.


In my blog post I generically addressed how this change could affect the rulemaking process at DOT’s Pipeline and Hazardous Material Safety Administration. Today, I will look at one of the 12 rulemakings currently listed in the DOT’s Spring 2019 Unified Agenda that are listed as being pipeline safety related. This rulemaking could be considered for mandamus law suits if this bill was current law.

RIN: 2137-AF31 – Pipeline Safety: Coastal Ecological Unusually Sensitive Areas.

Section 19(b) of the PIPES Act of 2016 (PL 114-183) required DOT to “revise section
195.6(b) of title 49, Code of Federal Regulations, to explicitly state that the Great Lakes, coastal beaches, and marine coastal waters are USA ecological resources for purposes of determining whether a pipeline is in a high consequence area (as defined in section 195.450 of such title).”

Instead of reading this requirement as a directed rulemaking to add a sub-paragraph (6) to §195.6(b) that reads “An area on or adjacent to the Great Lakes, coastal beaches, and marine coastal waters.” The current Unified Agenda indicates that the Administration intends to offer an Advanced Notice of Proposed Rulemaking (ANPRM) later this year. In that rulemaking abstract it mentions that “PHMSA must change the definition of USA and further define what is included in "coastal beaches" and "marine coastal waters." In this rulemaking, PHMSA will solicit broad input from the pipeline industry and other stakeholders, propose definitions and geographic extents for the new terms to be included in the revised USA definition, and understand industry implications and concerns with the proposed revisions.”

A mandamus suit by an environmental activist organization might be expected to try to compel DOT to issue a directed final rule on the more limited reading of the intent of §19(b).

Moving Forward

While Speier is not a member of any of the three committees to which this bill was assigned for consideration, one of her cosponsors {Rep. Eshoo (D,CA)} is a member of the House Energy and Commerce Committee. Her influence on that Committee would be enough for Committee consideration of the bill, but the bill would not move to the floor without the active support of the Chair of the House Transportation and Infrastructure Committee.

This bill would draw significant opposition from the Republicans in the House, preventing the bill from being passed under the House suspension of the rules process which requires a super-majority for bill passage. Consideration of the bill under a rule is unlikely. The only other hope for passage of this bill would be to include it as language in an authorization bill.

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