SwEPt Under the Rug: DOJ Bans Use of Popular Tool to Resolve Civil Environmental Enforcement Actions and Considers Further Restrictions

On November 7, 2025, the New York Department of Environmental Conservation (NYSDEC) and the New Jersey Department of Environmental Protection (NJDEP) reversed their prior positions and approved Clean Water Act (CWA) Section 401 Water Quality Certifications and other environmental permits for the Transcontinental Gas Pipeline Company’s (Transco) Northeast Supply Enhancement Project (NESE). NESE is a 25-mile natural gas pipeline expansion project certificated by the Federal Energy Regulatory Commission (FERC) that is intended to deliver 400,000 dekatherms per day of natural gas produced in Pennsylvania to local distribution company customers in New York City through new facilities in Middlesex County, New Jersey and an underwater segment traversing the Raritan and Lower New York Bays.

The market for the direct procurement of energy by commercial and industrial buyers has been active in the U.S. for a decade.  In years past, buyers often engaged in such purchases on a voluntary basis to achieve their goals to use renewable energy.  These days, C&I buyers are turning to direct procurement or self-supply to obtain a reliable source of energy.  Sufficient and accessible energy from a local utility may not be available or may be materially delayed or trigger significant capital costs.  This is a material change driven in part by increased demand for electricity, including demand from data centers, EV infrastructure and industrial development.       

On October 23, 2025, the Secretary of the U.S. Department of Energy (DOE) directed the Federal Energy Regulatory Commission (FERC) to conduct a rulemaking to assert jurisdiction over load interconnections to the bulk electric transmission system and establish standardized procedures for the interconnection of large loads.¹ The Directive included an advanced notice of proposed rulemaking (ANOPR) that sets forth the legal justification for asserting jurisdiction over transmission-level load interconnections and fourteen principles that should inform FERC’s rulemaking process. The Secretary has directed FERC to take “final action” on the Directive no later than April 30, 2026.

On October 21, 2025, the U.S. Department of Energy (DOE) issued a final order (DOE/FECM Order No. 5264-A¹) granting Venture Global CP2 LNG, LLC long-term authorization to export up to 1,446 billion cubic feet per year of domestically produced liquefied natural gas (LNG) from its Louisiana facility to countries without a free trade agreement with the United States (Non-FTA Countries). The final order follows a March 2025 Conditional Order,² which issued while DOE was still completing its review of the agency’s 2024 LNG Export Study.³ The final order confirms that the project’s export volume and term authorization (through December 31, 2050) are unchanged, but provides for a three-year “make-up period” to allow export of any approved volume not shipped during the original term.