April 6, 2020 at 5:00 am ET
The COVID-19 pandemic has disrupted communities, industries and governments at every level. Meeting the challenge, Congress has passed three emergency response and mitigation legislation packages. Now their focus turns to a possible fourth recovery bill, with an emphasis on infrastructure.
One area that must be part of this next conversation has thus far been overlooked: pipeline safety reauthorization. As governments respond to the ongoing public health emergency, pipeline operators are taking the necessary steps to maintain normal operations and the safe delivery of energy to consumers. However, last September, the nation’s chief pipeline safety regulator’s authorization expired.
For over 180 days, the pipeline safety program has relied on its previous authorization. It is past time for legislators to set guidance for this critical agency, and using the infrastructure-focused phase four of COVID-19 response to do so makes perfect sense.
The Pipeline and Hazardous Materials Safety Administration still functions, but only because of a quirk in congressional procedures. This limbo status means that the agency continues to receive appropriations from Congress, but at the previously authorized level, and without new priorities, guidance or authority. Essentially, Congress continues to appropriate funds to PHMSA while failing to authorize new programs or goals.
The agency’s top official even publicly asked for guidance from Congress, because PHMSA is operating on expired and outdated directives from the PIPES Act of 2016.
Four years later, the world is a very different place. New pipeline added — and replaced, repaired and retired — now amounts to a massive 2.8-million-mile network and requires renewed regulatory oversight.
Evolving political, environmental and safety realities necessitate new prioritization. For public safety, this program must be reauthorized with the latest information, priorities and safety objectives.
Delay is not new. A 266-day gap in authorization occurred between PHMSA’s last expiration and the PIPES Act of 2016. But delay is not an intended feature of the process.
The current and previous delays occur for two general reasons: First, because the pipeline safety program is so critical, and great deliberation goes into it; and second, because lawmakers can delay due to separable appropriations and authorizations.
The bipartisan nature of past authorizations explains part of the delay. It takes time for both sides of the aisle to come together and define the objectives and priorities in the nation’s best interest. This is good, and bipartisanship on pipeline safety is a necessity.
Beyond partisan compromise is bicameralism. Like all bills, the pipeline safety program has to be authorized by the House and Senate.
Making matters slower, the House has two committees with overlapping jurisdiction, meaning there could be three total bills to reconcile. Aligning preferences and policies across three committees, two parties and two chambers is a tall order — but a doable and highly precedented one.
The 2016 authorization had two majorly controversial hurdles: a Senate version requiring unredacted oil spill data, and a House version allowing private lawsuits against PHMSA. These were ultimately reconciled to allow the critical safety regulator to get to work. Unfortunately, the current authorization debate has been racked with a new unyielding partisanship.
Disagreement exists between certain House and Senate lawmakers over adding environmental protections that are typically not included in pipeline safety reauthorization — essentially recasting PHMSA into an environmental regulator in addition to a safety regulator.
Even with bipartisan deliberation, delay is unnecessary. Thorough debate and compromise should take place well before authorization expires, and not rely on appropriations to buy time. Secretary of Transportation Elaine Chao provided her proposal four months before the program expired.
Congress could have acted early. Now in the face of a pandemic crisis, reauthorization is still waiting — and still critical.
Even today, the energy for hospitals and many raw materials for cleaning and medical products fall under the purview of this agency.
The continued appropriations safety net means that PHMSA can be pushed to the backburner with the security of knowing it won’t disappear. But money to PHMSA is not the same as programmatic authority and guidance, and for a public safety regulator, delay means weaker safety measures calibrated for the past, not the future.
Authorization delay can lead to financial losses, property damage and casualties. Had new guidance and mandates been put in law months ago, they could be in practice today, providing better oversight and safer outcomes.
The last authorization required a study of new technology and practices. That study was completed, and its findings must be incorporated into the reauthorization. These include innovative technological and communications tools such as enhanced positive response techniques proven to reduce damage and incidents while increasing efficiency.
Congress must seriously consider the reauthorization of this public safety program in this next COVID-19 response package. The pipeline industry is without a doubt critical infrastructure, and reauthorizing this agency would allow more efficient investment, without adding to the bill’s price tag. Our pipeline safety regulators need guidance, and with millions of barrels of critical materials crossing the country every day, it is time they had it.
Benjamin R. Dierker is the director of public policy for the Alliance for Innovation and Infrastructure.
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