March 26, 2018 by Gillian Giannetti, Staff Attorney, Sustainable FERC Project
Three of the five members of the Federal Energy Regulatory Commission (FERC)—which oversees the siting and approval of America’s interstate natural gas pipelines—recently suggested a new policy that will hamper public participation in FERC’s review of applications for new natural gas pipelines, including those that directly affect their land and communities. It could box out people who, through no fault of their own, don’t learn about a proposal to build a new pipeline before the formal deadline for entering the case.
First, some background. When a pipeline developer files an application with FERC to approve a new natural gas project, FERC publishes a Notice of Application. While federal regulations require the applicant to “make a good faith effort” to notify affected people and communities, in reality, Notices of Application aren’t something that you’d fall onto by mistake—you generally need to know where to find it. The Notice outlines a “comment date,” whereby essentially anyone (assuming they meet some basic requirements) can file a request with FERC to intervene and become a “party” in the proceeding. The comment deadline typically is 21 days after publication of the Notice, even for enormous infrastructure projects that affect hundreds or thousands of landowners and others (see, for example, the Notice of Application for the 700-mile-long Rover Pipeline Project).
The importance of being a party
Being a formal party is important because only parties have the right to later request rehearing of a FERC order approving or rejecting a pipeline proposal – or to appeal that order to the federal courts. Having the right to challenge a FERC order is important because the orders give developers a lot of power—no pun intended. Critically, a FERC order gives pipeline developers a path to take private land via eminent domain.
In other words, if a pipeline developer wants to build a pipeline through your property, being a party in the FERC proceeding is the only way that you’ll be allowed to protest the FERC order. If you’re not a designated party, your voice—legally speaking—doesn’t matter.
However, if someone has “good cause” to miss the deadline, federal rules allow FERC to grant what’s known as an untimely request to intervene. Whether it’s due to not learning about the project until later because it’s not well publicized, or not having the resources to meticulously follow FERC projects, or simple human error, late motions to intervene are common at FERC, even from highly sophisticated parties represented by elite law firms. As such, FERC historically has approved most untimely intervention requests, especially those filed before FERC undertakes its environmental reviews of pipeline projects.
But on March 15, three of FERC’s Commissioners—a majority—strongly implied that will be changing.
FERC suggests a new policy
Buried within FERC’s certificate order authorizing the Birdsboro Pipeline Project in Berks County, Pennsylvania, three members—Chairman Kevin McIntyre and Commissioners Neil Chatterjee and Robert Powelson—expressed concern with the volume of late interventions it receives without allegedly sufficient “good cause.”
In that case, Delaware Riverkeeper filed a motion to intervene five weeks after the comment deadline, but four months before FERC issued its environmental review. Delaware Riverkeeper argued that good cause existed because it moved to intervene the day that it learned of the application.
However, the FERC majority termed that explanation “not persuasive.” They said Delaware Riverkeeper and “all other participants” are on notice that “going forward…we will be less lenient in the grant of late interventions.”
As noted by Commissioners Cheryl LaFleur and Richard Glick in dissent, the order “suggests that good cause for late intervention does not exist where an entity seeking to participate as a party in the proceeding submits a motion on the same day it learned that the application had been submitted.” In other words, the language in the order strongly implies that, from now on, lack of knowledge will no longer qualify as good cause for granting an untimely intervention.
Commissioners LaFleur and Glick expressed “serious concerns” with this change, “particularly as it would apply to landowners and community organizations that lack sufficient resources to keep up with every docket.”
The change is unnecessary and shortsighted
No question: timely interventions are better than late ones. But federal regulations provide flexibility for a reason: allowing untimely interventions acknowledges the real limitations of the Notice of Application. There is no need for a blanket policy that could leave a landowner vulnerable to eminent domain, with no voice in the FERC process, just because, like most Americans, the owner didn’t learn about a proposed project within 21 days of FERC’s Notice of Application. This is particularly true when there are legitimate concerns about whether these disturbances to people’s property are even necessary.
FERC already can evaluate whether “lack of knowledge” qualifies as “good cause” on a case-by-case basis, and can deny untimely interventions where applicable, such as when the intervention could disrupt the proceedings or impose additional burdens upon existing parties.
The change suggested in the order would only reinforce concerns that FERC is a black-box, closed-door agency that no one knows about, but has an impact on everyone. To that point, Commissioners LaFleur and Glick noted their concerns about waning public confidence in FERC in a recent opinion.
Restricting public participation based on bright-line rules unnecessarily limits the public’s ability to access justice and FERC’s transparency, a priority that Chairman McIntyre highlighted himself in December 2017. That’s why the three commissioners should reconsider whether to implement the policy.
The views expressed in this blog are those of the author, and do not necessarily represent the views of the Sustainable FERC Project or Natural Resources Defense Council.