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FERC’s Critics, And Two Commissioners, Say New Comment Policy Will Hurt Landowners

MARIE CUSICK / STATEIMPACT PENNSYLVANIA Protesters outside the Federal Energy Regulatory Commission in Washington, DC. The agency has announced plans to limit public comments on pipeline projects if the comments are submitted outside the deadline.
MARIE CUSICK / STATEIMPACT PENNSYLVANIA Protesters outside the Federal Energy Regulatory Commission in Washington, DC. The agency has announced plans to limit public comments on pipeline projects if the comments are submitted outside the deadline.

STATE IMPACT PENNSYLVANIA - FERC says it will limit public interventions in its pipeline review process if they are submitted outside the prescribed time, in a new policy that’s being attacked by the agency’s critics as an attempt to stifle comment.

The Federal Energy Regulatory Commission said on March 15 that it won’t be so flexible with “untimely” interventions as it has been in the past. It was responding to Delaware Riverkeeper Network which filed its opposition to a pipeline project at Birdsboro, Pa., five weeks after the deadline.

Three of the five Commissioners said they would allow the DRN submission but warned that future late submissions would not be treated as leniently.

“Delaware Riverkeeper and all other participants are on notice that, going forward … we will be less lenient in the grant of late interventions,” the commission wrote in an order.

In the order, FERC granted a certificate of public convenience to DTE Midstream Appalachia to build and operate about 14 miles of pipeline to carry natural gas from a Texas Eastern pipeline at Rockland Township, Berks County to a new power plant at Birdsboro.

Critics said the policy on intervention is the agency’s latest move to limit comment on pipeline projects at a time of rising public concern about risks to public safety and environmental quality from proliferating pipeline projects in Pennsylvania and many other states.

“Any movement toward denying participation at a time when FERC has declared that it really needs to reconsider the way that it is engaging in the certificate processes is a shift in the wrong direction,” said Jennifer Danis, an attorney with the Eastern Environmental Law Project, a nonprofit public-interest law firm based in Newark, NJ.

Danis argued that the new insistence on timely filing will mostly hurt individual landowners who are faced with the threat of losing their land to a pipeline under eminent domain but are often unfamiliar with FERC deadlines, and can’t afford lawyers to monitor the agency’s procedures.

“You are presuming knowledge and resources exist among landowner communities who may or may not have reason to know at the outset of an initial application that their land is at risk of being taken,” Danis said. “Landowners in general do not sit and monitor the FERC docket. If anything, FERC should err on the side of granting the public a voice in the process.”

FERC spokeswoman Tamara Young-Allen said she could not comment on the Delaware Riverkeeper filing because it’s subject to a pending order on a motion for rehearing. But she said the new policy originated in a February case when the commission expressed concern about an increasing number of late filings.

In a statement on the earlier case, the Commission noted the “increasing degree to which participants in natural gas certificate proceedings have come to file late motions to intervene without adequately addressing the factors set forth in our regulations.”

Carolyn Elefant, a Washington, DC attorney and former FERC staffer, said that even though the FERC statement referred to “all other participants,” she would be surprised if the policy is applied to individual landowners, as opposed to organizations like Delaware Riverkeeper which have the resources and expertise to monitor FERC’s procedures.

“I would be shocked if a pipeline went smack through somebody’s property and they intervened late, and FERC didn’t allow them to intervene,” she said. “I think FERC is trying to send a message to the ones who are more involved.”

The new policy was criticized by two of the five commissioners who said in a dissent that they have “serious concerns” that it will harm individual landowners and fuel public criticism of an agency that critics call a rubber-stamp for the gas industry because of its habitual approval of pipeline projects.

“We are concerned about public confidence in the Commission’s pipeline siting process and increased efforts to limit interventions can only accelerate this trend,” wrote commissioners Cheryl LaFleur and Richard Glick.

The Natural Resources Defense Council, in its own interpretation of the new policy, said it appeared that an intervenor’s lack of knowledge of a FERC deadline will no longer be seen as a “good cause” that would allow “untimely filing.”

FERC chairman Kevin McIntyre said in December 2017 that the agency will review its pipeline application process because “much has changed” in the energy world since the policy began in 1999.

The new policy on public interventions should be part of the review process, argued Maya van Rossum of the Delaware Riverkeeper Network, but the agency has said nothing further about the review since its brief statement in December, so it is not known what the review will cover. “Why would such a decision not be part of that process?” she asked.

Van Rossum, an outspoken critic of FERC, said the new policy seeks to reduce public input into the pipeline application process.

“This is a clear announcement by FERC that they intend to proactively work to further limit access to impacted residents and community members to participate in the review process over pipelines even if  they missed the short window of public notice FERC provides,” she said.