People's Dossier of FERC Abuses: Public Participation Undermined
FERC’s Public Process Is Carefully Crafted to Frustrate Public Input and Deny Full and Fair Opportunity to Participate
The National Environmental Policy Act (NEPA) requires that federal agencies take environmental considerations into account in their decision-making “to the fullest extent possible.” 42 U.S.C. § 4332. In addition, NEPA “guarantees that the relevant information [concerning environmental impacts] will be made available to the larger audience,” including the public, “that may also play a role in the decision-making process and the implementation of the decision.” Robertson, 490 U.S. at 349. As NEPA’s implementing regulations explicitly provide, “public scrutiny [is] essential to implementing NEPA.” 40 C.F.R. § 1500.1(b). The opportunity for public participation guaranteed by NEPA ensures that agencies will not take final action until after their analysis of the environmental impacts of their proposed actions has been subject to public scrutiny. See N. Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011)
And yet, FERC’s public meeting process is notorious for the many ways it disenfranchises the public and creates barriers to public participation. FERC ...
● frequently holds hearings at locations far from the impacted communities,
● fails to respond in a timely manner to requests for confidential information needed to inform public comment,
● ends public hearings prematurely, before all in attendance have been given the opportunity to speak
● fails to provide adequate notice of hearing venues and/or changes, and
● targets comment periods for major holidays, e.g. comment period over Thanksgiving, New Year’s or that end on Labor Day.
FERC routinely denies the public access to vital information regarding pipeline projects prior to comment deadlines
Recently, FERC refused to provide Critical Energy Infrastructure Information (“CEII”) to an environmental organization until after the scoping period for the proposed Project had closed, despite the organization’s timely filing of the request for information and its repeated efforts to secure the documents requested.
➔ April 29, 2016, FERC posted Confidential CEII material relating to the Millennium Eastern System Upgrade to the FERC pre-filing docket (FERC Docket No. PF16-3). Delaware Riverkeeper Network (DRN) submitted its request for the information on the same day.
➔ May 11, 2016, FERC released a request for comments with a deadline of June 10, 2016.
➔ DRN submitted no less than five requests for a comment period extension, to allow time to receive, analyze and comment upon the CEII data before the deadline.
➔ The June 10th comment deadline passed without the Delaware Riverkeeper Network having received the CEII materials.
➔ On July 15, 2016, DRN received a letter from FERC acknowledging, that despite Millennium’s objections, the organization had demonstrated a legitimate need for the information—“to assess the need and true nature of the project being proposed.”
➔ DRN finally received responsive information from FERC on July 29th, nearly two months after the comment deadline and three months after the information was requested. The responsive materials did not include the Flow Diagrams that were needed to assess the true size and scope of the project. That same day, Millennium submitted an Abbreviated Application to FERC (FERC Docket No. CP16-486), which included more complete CEII information, including the Flow Diagrams.
➔ The following business day, August 1, DRN submitted a new CEII request for the latest CEII filing.
➔ On December 6, over four months later, FERC sought to deny release of the CEII Flow Diagrams and Flow Diagram Data required to assess the project. FERC’s rejection of the request was in contrast with the agency’s previous practice of providing such information - no explanation was provided for the change. Delaware Riverkeeper Network filed a challenge to the denial.
➔ In January 2017, Millennium finally agreed to release the information to DRN.
➔ The information was received in January 2017, a full 8 months after the close of the scoping period.
FERC undermines the entire purpose of public participation and fair notice by allowing for significant project alterations after public comment periods have ended
It is not uncommon for FERC to allow a proposed pipeline route to change or to offer new viable alternatives after the filing of a formal FERC application, and after relevant comment periods have ended, but without giving the public a full and fair opportunity to comment.
New Hampshire residents struggled to understand the impacts of the Northeast Energy Direct Project (FERC Docket No. PF14-22) as the pipeline route was repeatedly changed during the project’s scoping period. Members of the community attempted to identify and alert new landowners on ever-changing maps when Kinder Morgan and FERC failed to do so. (Attch 1) As a result, the public was unable to meaningfully comment on a pipeline’s route, and impacted landowners were left unaware that a pipeline was slated to cross their property until the application process was well under way and public comment opportunities had passed. (Attch 2)
FERC creates unnecessary technological barriers to participation
When residents participate in FERC’s “public process” via written comment or intervention, they are often stymied by FERC’s website which is, at best, convoluted, and often, non-functioning at critical times. (Attch 3) FERC could remedy this barrier by participating in The eRulemaking Program and utilizing the far more accessible commenting and notification platform available through Regulations.gov, which was created to “increase public access to federal regulatory materials,” “increase public participation and their understanding of the federal rulemaking process,” and “improve federal agencies’ efficiency and effectiveness in rulemaking development.” FERC is a Non-Participating Agency in the program, despite regular complaints regarding their e-Filing system. (Attch 4)
FERC’s lack of notice for and poor timing of public comment periods and public hearings creates barriers to participation
It is common practice for FERC to provide short notice of upcoming hearings and to offer limited windows within which to comment on significant project proposals.
➔ FERC provided a mere 3 weeks public notice for scoping hearings regarding the Atlantic Coast Pipeline -- FERC announced on February 27 that it would hold a scoping meeting on March 18 to receive public testimony. Given the high interest and significant volume of information that needed to be compiled, reviewed, and addressed, 3 weeks was highly deficient.
➔ FERC provided only 24 days before holding public hearings on a 1,174 page EIS document for the PennEast Pipeline project. In total only 45 days was given for those who wanted to submit written comment. Neither the 24 days for verbal comment nor the 45 days for written comment was enough for such a long and detailed proposal.
FERC is known to give even less notice when there is a change in the location of a public meeting.
➔ Notice of a change of hearing venue for the PennEast pipeline project’s August 16th and 17th Draft EIS hearings were postmarked August 11 and in fact did not arrive in mailboxes until on or about August 16, 2016, the same day as the hearing. (Attch 5) The delayed notification of the change denied many concerned members of the public the opportunity and ability to attend the hearings at the new locations. (Note, the notice itself was dated August 5, but the postmark was August 11, indicating the agency waited a full 6 days before actually getting the notice into the postal system for delivery).
FERC’s public meetings are designed to discourage participation and opposition through unnecessary time restrictions and inconvenient timing and locations
FERC public meetings are often held at a limited set of locations along a proposed pipeline route, making it difficult for many impacted community members to travel the long distances necessary to participate, particularly those that have some sort of physical limitation or significant family obligations.
➔ Residents in Buckingham County, VA were not given the benefit of a public meeting or subsequent “listening session” in their community to discuss the Atlantic Coast Pipeline (FERC Docket No. CP15-554) despite the fact that the county would be the site of a large compressor station, the only one in the state, and the proposed pipeline would cut through the entire length of the 584-square mile county. (Attch 6)
➢ Residents had been told that there would be a FERC hearing in their county on the pipeline, as well as additional hearings specific to the compressor station. Instead, the public meeting was held in another county, 45 minutes to an hour’s drive away. This drastically limited Buckingham residents, many of whom are elderly and do not normally drive on a winter’s evening, from attending and expressing their concerns over the project.
➢ Local public officials requested that FERC hold a meeting in the county, as did Senators Kaine and Warner on their behalf. Senator Kaine summarized in his letter to FERC, “the opportunity [to comment] was not sufficiently given.” (Attch 7) FERC did not respond to any of the requests.
➢ Residents who were able attend the meeting later found that their comments were not transcribed accurately and were so riddled with mistakes that their testimonies seemed nonsensical on the record. (Attch 8)
➔ Millennium held “open house” forums on the Eastern System Upgrade project (FERC Docket No. PF16-3) at inconvenient times and locations that were inaccessible for impacted community members, among other problems. The public meeting that was intended to focus on the proposed Highland compressor station was held 30 miles north of the proposed site, at a time that many indicated was inconvenient for the daily realities of those affected. (Attch 9)
FERC public meetings include strict time limits for testimony and turn testifiers away once arbitrary time limits are met:
➔ FERC public hearings traditionally allow only 2 to 3 minutes of time per person for testimony. This time limit is enforced even when the number present is so few that there is clearly the ability to provide more time without reaching the scheduled end time for the hearing.
➢ For example, at PennEast project hearings, a three minute time limit was imposed for the stated purpose of ensuring that everyone had the opportunity to testify, despite the fact that the number of individuals signed up to testify did not warrant the time constraint. FERC’s unnecessary time restriction was evident when all individuals had provided testimony by 8:30 pm and the scheduled close of the public hearing was 10 pm.
➔ For meetings where there is significant turnout, when the scheduled end time of the meeting is reached, people are turned away without ever getting a chance to testify -- regardless of how long or far they travelled, or how long they waited to speak. Providing an opportunity for written comment does not serve the same function as an opportunity to verbally testify for the benefit of FERC and two to three minutes is simply not enough.
FERC separates and intimidates commenters at public hearings
FERC recently began implementing a new hearing format designed to take the “public” out of the concept of public hearings and deny the ability of attendees to hear the testimony offered by others in attendance; commenters are escorted individually to rooms to state their testimony, in private, to a FERC-hired stenographer out of earshot of others in attendance. The press is prohibited from hearing comments given (even if testifiers request that press be allowed to hear their testimony) and are also prohibited from taking photos and/or video for their news reporting. The public is also told that they are prohibited from taking photos of the public meeting.
➔ At a summer 2017 public hearing for the PennEast Pipeline, individuals who took photos were quickly admonished by FERC representatives, told that photos were prohibited and suggested they would have to leave the event if they persisted.
➢ During this same faux hearing, FERC sought to use state police to intimidate a community member from sharing information and free T-shirts regarding the pipeline in the hearing “waiting room”, where testifiers were awaiting their chance to speak to the FERC-hired stenographer.
➢ At this same meeting FERC employees stated that they had neither made, nor were making, any special accommodations for members of the public with sight impairment.
➢ At this series of faux hearings a parent had to argue with a FERC employee for the right to sit with her minor child during delivery of the child’s testimony to the stenographer. When challenged by the FERC employee as to the need to be present the mother stated her concerns, and had to forcibly assert her right as a parent to be present.
➔ At a November 3, 2016 FERC public meeting in Roanoke, Virginia for the Mountain Valley Pipeline (MVP) (FERC Docket No. CP16-10), FERC again replaced the public meeting with one-on-one three minute individual testimonies to a FERC stenographer. The FERC Project Manager Paul Friedman took it a step further by “badgering, speaking over people and refutation of citizens’ concerns” as they attempted to give their testimony. According to residents, “Friedman, who was present for many of these recording sessions, interrupted individuals, disrupting their carefully prepared statements, disputing their concerns, and thereby (once again) whitewashed the public record.” (Attch 10)
➔ At a FERC public hearing on the NEXUS Pipeline (FERC Docket No. CP16-22), Ohio residents attempting to voice their concerns, and to share with and gain insights from their neighbors, were instead taken into separate rooms to give their statements to FERC contractors. As a result, many people left that meeting without commenting because “they felt uneasy talking one-on-one and they wanted to hear what everyone else had to say.” (Attch 11)
As a result, the public is disenfranchised, confused, intimidated and angered by the wealth of hurdles and challenges they face from FERC employees and security. (Attch 12)
Some public participants have even been injured when exercising their rights at FERC meetings. Dr. Norris, a 73-year old man, had his shoulder severely injured when he was forcibly removed from a FERC hearing, even though Dr. Norris did not resist and force was absolutely unnecessary. (Attch 13)
FERC turns a blind eye when the public process is abused by the industry and expresses clear bias in the public process
➔ For example, 347 letters were filed on the docket for the NEXUS pipeline-- supposedly on behalf of individuals by a group called the “Consumer Energy Alliance”. When FERC was informed that these letters of support were false; had been filed “on behalf of” people who had been dead for nearly 20 years, people with dementia whose and family said they could never have written such a letter, and others who stated they never filed such a letter, FERC’s response was simply that it is not the Agency’s job to investigate such issues and that they do not have the resources or a relevant protocol to investigate. One FERC staffer told concerned residents that “people who believe their signature was improperly used could file a letter in the docket to refute it, otherwise it would stay.” Even when provided with evidence of these misrepresentations on the record, FERC failed to take appropriate action. (Attch 14)
➔ At public scoping meetings for the Mountain Valley Pipeline in Elliston, Virginia on May 5, 2015, commenters complained that FERC Project Manager Paul Friedman “conducted the Elliston meeting in a highly unprofessional, partisan manner, allowing the few supporters of the MVP to exceed the three minute speaking limit, while strictly limiting opponents and ordering the stenographer to erase opponents comments that ran over or he ruled out of order.” (Attch 15)
Often, unexplained shenanigans occur at public meetings that further impede the ability of impacted landowners and community members to testify:
➔ For example, Virginia residents were not given a fair opportunity to voice their concerns over the Atlantic Coast Pipeline at FERC scoping meetings because members of the public arrived at the meetings’ announced start time only to find that all speaking slots were claimed hours prior.
◆ Pipeline proponents had been somehow notified that the sign up sheet for speaking slots would be available an hour prior to the official hearing start time, while pipeline opponents had not been similarly made aware.
◆ In the end, 203 people signed up to speak and only 75 were allowed to do so. FERC declined to allow more time for public comment and declined to conduct additional public hearings. (Attch 16)
FERC does not fulfill its NEPA obligation to consider and address relevant issues raised in public comments
When members of the public, and even elected representatives, participate in the public process, either in-person or in writing, their concerns and valid legal arguments fall on FERC’s deaf ears.
➔ For example, 22,093 people and 37 elected state officials informed FERC of their opposition to the Marc-1 Pipeline in Northeast Pennsylvania; the EPA even questioned the need for yet another pipeline in the area, yet FERC rubberstamped the project and hastily granted eminent domain authority to the pipeline company.
➔ Residents impacted by the Spectra AIM pipeline (FERC Docket No. CP14-96) watched helplessly as the pipeline company and FERC ignored the questions and objections or community members and elected officials at every level of government in the four impacted States (NY, CT, RI, and MA), including Senators and members of Congress, the New York Governor and four New York state agencies, during the scoping period and through the Draft and Final Environmental Impact Statements. (Attch 17)
This behavior is not regionally-limited. FERC has acted similarly when approving two fiercely contested pipelines in Texas; Trans-Pecos and Comanche Trail, and in countless other situations across the nation.
Key-Log Economics has undergone a thorough analysis of all comments submitted to the FERC docket during key comment periods for the Atlantic Coast Pipeline, the PennEast Pipeline, and for Millennium’s Eastern System Upgrade (ESU) project. Across the board, these analyses have found that the vast majority of comments submitted to FERC express negative opinions and serious concerns about the proposed pipelines. Moreso, these concerns are greatest among people who would be directly affected by the proposed pipelines. Under NEPA, FERC must consider and address relevant concerns raised in public comments. These comments are important to the process as they “provide direct and clear information about the issues of concern to the people living in communities through which the pipeline would pass as well as to people who, as visitors, downstream water users, business owners, and others, use and enjoy the affected landscape. The comment letters help FERC understand the nature and extent of the effects of the proposed pipeline.” (Attch 18) However, FERC regularly fails to meet its legal obligation to consider the full range of environmental effects raised on the record in their final EIS or EA. (Attch 19)
FERC misleads and discourages landowners from participating in the public process
FERC has gone so far as to actively mislead and discourage landowners who stand to lose their property to eminent domain from participating in the public process.
➔ William F. Limpert, who, along with his wife, stands to have his retirement property cut in half by the Atlantic Coast Pipeline (ACP) (FERC Docket no. CP15-554), was discouraged from participating as an intervenor by FERC staff when he inquired about the process. He was told, falsely, that “being an intervenor is very difficult because [he] would have to send letters to hundreds of other intervenors.” The FERC employee made the process sound so daunting and time consuming that the Limperts decided not to intervene at the time. The ACP would cut a 3,000 foot by 125 foot path cut through the virgin forest on their property within several hundred feet of their home, taking down hundreds of old growth trees. (Attch 20)
FERC’s disregard for public concern is reckless, illegal, and appears intentional
Members of the public have reported overhearing FERC employees disparage the public process and, when they thought they were not being overheard, laughing at the notion that the public believed that their input could have any impact on the pre-determined outcome of approval of a pipeline by FERC.
The public is denied any opportunity to testify before the FERC Commissioners directly before they render the final decision on a pipeline infrastructure project – and if they attempt to speak at a FERC Commissioners meeting they are forcibly removed or arrested. (Attch 21) And so people who are losing their lives, livelihoods, properties, protected lands and healthy environments are never even given the opportunity to be heard by the very decisionmakers who are making the decision to inflict the harm.
The steps taken by FERC to deny people their right to be heard and to participate in the public review process are particularly egregious in light of the fact that these proposed projects take their private property rights, irreparably damage natural resources and lands communities have worked hard to preserve and restore, take jobs and harm small businesses, impede farmers from being able to most successfully grow their crops, and put communities in a literal blast zone that could take their lives. This clearly frustrates provisions of the National Environmental Policy Act, the Clean Water Act, and the Natural Gas Act.
Complete People's Dossier: FERC's Abuses of Power and Law
available at http://bit.ly/DossierofFERCAbuse