As the economy recovers, use of natural gas continues to increase and excavation and development projects ramp up nationwide. Protecting underground pipelines continues to be important.
Unlike most issues where regulatory primacy is left to the federal government or the states, pipeline safety is one of the rare areas where jurisdiction is shared. Interstate pipelines clearly fall under the federal government’s jurisdiction to regulate, while intrastate pipelines primarily fall within the state’s regulatory authority.
While seemingly straightforward, there are other dynamics that complicate the issue of who has greater regulatory authority. For example, excavation and construction activity fall fully within the states’ regulatory authority, but these activities have been among the leading cause of pipeline incidents for years.
Despite the overlap in the power to regulate, the federal government has been content deferring much of the regulation to states while making sure certain basic protections are in place.
The current system works like this: Congress authorized the Pipeline and Hazardous Materials Safety Administration (PHMSA) to promulgate pipeline damage prevention regulations — the laws that govern the processes and procedures surrounding excavation as it relates to protecting underground pipelines — and set minimum threshold guidelines that all states must meet to have their programs certified as effective. The states have unilateral authority to design their own legal and regulatory systems so long as they don’t run astray of PHMSA’s requirements.
The system itself works in most ways, and is an example of cooperative federalism at its best. But, the minimum thresholds established by PHMSA are severely lacking in three ways:
—PHMSA does not require states to implement mandatory incident reporting requirements.
—PHMSA’s guidelines do not detail a path for states to improve outcomes that can be measured against a timeline or other baselines indicating progress.
—PHMSA’s guidelines don’t require periodic updates that would ensure states become aware and take advantage of better technologies and newer safety equipment as time passes and technologies evolve.
Without mandatory reporting requirements, it is impossible to determine if a state’s program is having success, where and why incidents are occurring, and how a state could update its program to better address these issues. Similarly, even if data were available, it would be difficult to hold states accountable for poor performance if there is no timeline specified to demonstrate improvement, or safety baseline against which to measure progress.
Finally, without any requirement to update systems and technologies, the guidelines PHMSA does have in place can become useless. For example, number one in Congress’s and PHMSA’s “Nine Elements of Effective Damage Prevention Programs” is “Enhanced Communication Between Operators and Excavators.” When state programs were initially developed, it’s possible that flags in the grass and spray paint markings were considered an effective way of communicating the location of underground pipeline. However, in a world where everyone carries GPS-capable devices that can share maps, images and other information in real time, continued use of spray paint and flags hardly seems “enhanced” or “effective.”
Proponents of the current system argue that this is an issue within the states’ authority, and that additional intervention from PHMSA would be overreach. But, asking a federal regulator to exercise slightly more authority over our nation’s sprawling natural gas pipeline network is not a bad idea — especially if the additional oversight isn’t too onerous. Finding a state/federal balance is important, but there is no doubt the federal government has the authority to act should it choose to — the Supreme Court clearly stated that the Commerce Clause allows the federal government to regulate all things having a “substantial relation to” or that “substantially affects” interstate commerce. It would be difficult to argue that movement of natural gas doesn’t easily meet both standards. On the practical side, it also addresses serious public safety and economic concerns.
In short, PHMSA needs to play a more active role in guarding our nation’s pipeline network, and the agency has the authority to do so. There are critical improvements that PHMSA could make quickly, and without any new legislation.
First, PHMSA should require all states to implement mandatory incident reporting requirements as a condition of being certified as “having a satisfactory regulatory and compliance program in place.” Second, PHMSA should monitor and track improvements against a timeline to measure if progress is being made. Third, PHMSA should place a condition on all Damage Prevention grants requiring states to make a showing that they are using a part of the funds to facilitate implementation of new or advanced technologies into their damage prevention programs.