FERC Review Comment Period

On April 19, 2018, FERC issued a Notice of Inquiry of its own review policy for the  Certification of New Interstate Natural Gas Facilities as defined by the 1999 Natural Gas Policy Statement, initiating a comment period ending June 25.

» Notice of Inquiry for Certification of New Interstate Natural Gas Facilities
(Docket No. PL18–1–000)
Federal Register Volume 83, Issue 80 (April 25, 2018)

We urge everyone to submit comments in this rare call for public input.

» See PLAN-NE’s recommendations
and instructions for commenting


From VOICES (Victory Over InFRACKstructure, Clean Energy inStead):

• Review Process Must Begin with a Series of No Less than Six Public Hearings Held in Affected Communities, and 90 Days for Written Comment, so FERC Can Learn How the Current Process Is Failing and the Public Interest Reforms that Are Needed.

Prioritize the Public Interest Over the Goals of the Pipeline Industry, giving highest priority to People, the Environment, Protection Against Climate Changing Emissions and Protection of Future Generations.

Mandate a Legitimate Demonstration of “Need” for a Proposed Pipeline/Infrastructure Project that is Verified by Unbiased Experts, Is Not Comprised of Contracts to Supply Gas to the Pipeline Company Itself or Any of Its Business Counterparts, and Is Not/Cannot be Supplied by Renewable or Existing Energy Sources.

• Prohibition on FERC Issuing (a) Certificates of Public Convenience or Necessity, (b) Notices to Proceed with Any Aspect of Construction, Including Tree Felling, and/or (c) Approval for Exercise of Eminent Domain, Until Such Time as an Infrastructure Project Has Secured All State, Federal and/or Regional Permits, Dockets and/or Approvals. This Includes a Prohibition on Conditional FERC Certificates.

End Its Strategic Practice of Failing to Affirmatively Grant or Deny Rehearing Requests, Instead Issuing Responses that Provide FERC More Time for Consideration (i.e. a Tolling Order), and as a Result Prevent Pipeline Challengers from Bringing a Legal Challenge in the Courts while FERC Grants the Pipeline Company the Power of Eminent Domain and Approval for Construction.

Prohibit the Practice of Hiring Third-Party Consultants to Assist in the FERC Review Process who Have Any Business Contracts (Past, Present or Future) with a Pipeline Company Seeking FERC Approval, and Must Prohibit FERC Commissioners or FERC Staff from Working on or Deciding upon Any Pipeline or Infrastructure Project in which They or a Family Member Have a Direct or Indirect Financial or Employment Interest.

End the Practice of Using Segmentation, Allowing Pipeline Companies to Break Up Projects into Smaller Segments in Order to Undermine a Full and Accurate Review of Community and Environmental Impacts.

Commit to a Full and Fair Implementation of the National Environmental Policy Act, Including Full and Fair Evaluation of Climate Change Impacts; Induced Fracking/Drilling Operations; Costs of Construction, Operation and Maintenance (not Just Benefits); Health and Safety Impacts; the Full Array of Community, Business and Environmental Impacts that Will Result; and that All Inaccurate, Missing, False or Misleading Data and/or Information Identified by FERC and/or Public Commenters Are Fully, Completely and Accurately Addressed.

End the Practice of Allowing Pipeline Companies to Secure a 14% Rate of Return on Equity on All New Pipeline Projects

» The above statement is a condensed version of their comments. Read their full filing
» Sign their Sign-On Letter (for organizations or individuals)

From Natural Resources Defense Council, Sierra Club, Acadia Center, Conservation Law Foundation, et al:

This group of 11 environmental groups has outlined what it calls a “21st Century Approach to Pipeline Review”.

Here are the basics:
(these are greatly condensed, please see their full filing for more detail)

– Determining “need” and whether a project is in the public interest
1) determine whether the proposed pipeline can be paid for without subsidization by existing customers
2) evaluation of the project’s economic interests
3) determine whether the project is needed to support energy demands

– Considering “all relevant factors” in determining need, not just precedent agreements.
FERC typically relies exclusively on precedent agreements—contracts between pipeline developers and prospective shippers—to determine project need.

(1) precedent agreements are not necessarily a good proxy for market need
(2) environmental and/or other factors may override private contractual interests in determining public need
(3) there may be alternatives to the proposed capacity to meet the purported demand, such as using underutilized existing pipeline capacity or alternative, cleaner energy resources.

– Perform deeper review when proposed projects depend on pipeline affiliate agreements.
When the pipeline developer essentially is contracting with itself, the actual market need for the pipeline is questionable at best. Further, when the affiliate shipper is a monopoly utility, customers end up paying for the pipeline via higher utility bills, despite the Commission never truly determining whether the project is needed. Simultaneously, the utility will reap lucrative profits through FERC-approved rates of return.

– Conduct a regionally-focused assessment.
An integrated, more comprehensive review [rather than considering each project in isolation] would assess the need for new pipelines based on the energy needs of the region(s) directly affected by the project. Such an assessment would examine factors such as:
– existing and proposed pipeline capacity
– long-term energy needs
– state policies.

FERC also could address the need for a more regionally-focused review by incorporating some degree of regional planning into FERC’s analysis. FERC already has a model to draw from, as the electric sector has incorporated regional planning through the regional transmission organizations (RTOs) and other planning constructs in areas without RTOs. We recommend FERC’s adoption of a regionally-focused review.

– Fully evaluate climate pollution and other environmental impacts.
FERC’s current approach discounts the quantitative and qualitative relevance of downstream environmental impacts. Last year, the D.C. Circuit vacated a FERC certificate due to FERC failing to quantify and consider downstream indirect greenhouse gas effects. FERC should use every available tool to consider all direct, indirect, and cumulative environmental impacts, including downstream effects. FERC must consider these environmental impacts in its “all relevant factors” and NEPA reviews.

– Ensure meaningful opportunities for public participation.
Given that FERC is responsible for determining whether a project is in the public interest, it is critical to ensure that every stakeholder—regardless of resources—has the tools to fully participate in FERC proceedings.

Develop deliberate, concrete methods to:
(1) incorporate the voices of environmental justice communities as required by Executive Order 12,898,21
(2) consult and collaborate with all tribal communities.

» Read their full filing

» See FERC News for more on this review