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 114
th Congress; no
congressional action was taken on that bill.
Application
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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