Talking Points For Docket PL18-1 - FERC Pipeline Reviews
Talking Points to Consider for Your Comment — we will be adding new points regularly, consider checking back each week for new comments you can make:
Feel free to use the language below as a guide or verbatim. New talking points will be added regularly so please check back weekly so you can offer a fresh set of comments to FERC. The more responsive comments they receive from us, the better!
FERC must end the practice of issuing Conditional Certificates and thereby allowing pipeline companies to use eminent domain in order to gain survey access to targeted properties in order to provide outstanding information needed to perfect and finalize their FERC Certificate. NGA Section 7(h) grants eminent domain authority in order to pursue construction and operation of pipeline infrastructure projects, not in order to gather information to gather information and data necessary for project approval. Eminent Domain authority is not authorized for, nor should it be granted in order for, a pipeline company to invade the sanctity of people’s properties so the company can gather data it needs to secure finalized government approval of its project.
FERC Must Reverse Its Decision to Limit Out of Time Interventions. The time allowed for in time motions to intervene is often short -- in some cases a matter of just 2 weeks. A mere few weeks is not enough time for even engaged communities concerned about a project to realize they are in the unique moment when they need to intervene to preserve their legal rights. Given the level of unremediable impact inflicted by these infrastructure projects, communities Individuals, organizations and communities whose interests, properties and/or environments are going to be impacted should be treated with respect and leniency when it comes to intervention.
I urge FERC to please add hearings to ensure a full and fair opportunity for all to be heard. To ensure that FERC identifies a full spectrum of truly meaningful fixes to its pipeline review and approval process, and to ensure everyone has a full and fair opportunity to be heard, FERC’s Commissioners need to hear directly from the communities impacted by pipeline infrastructure and the FERC process. I urge you to schedule a minimum of 6 hearings in affected communities across the nation. Testimony should be open to all who are interested and impacted including community members, impacted landowners, environmental advocates, and their representative organizations.
FERC’s Pipeline Review Process needs to mandate that the public interest, including property rights and the environment, be given priority over the goal of the pipeline companies for profit. This means giving highest priority in FERC consideration of proposed pipelines, compressors, storage facilities and LNG exports, to honoring peoples’ property rights, preventing economic harm, preventing the release of climate changing emissions that will result directly or indirectly from approval of a project, and preventing environmental degradation.
FERC should mandate a legitimate demonstration of and end use “need” for a proposed pipeline/infrastructure project before FERC will consider it for approval. A company’s claim of “need” for their pipeline project should not be deemed justified if supported/demonstrated by contracts from the pipeline company itself, or any of its subsidiaries or business counterparts or affiliates. This assertion of need must be objectively verified by experts who are not tainted by an industry conflict of interest.
A claim of “need” for a project should not be deemed justified if the geographic region to be served already has gas service from other pipelines that would merely be replaced/displaced by gas delivery from the proposed project.
Such illegitimate “need” demonstrations must be prohibited, and cannot be used to fulfill the “public use” requirements needed to support project approval and eminent domain authority.
All applications for pipeline/infrastructure projects must include a demonstration that the energy goals to be achieved cannot be fulfilled by renewable energy options, or by existing or proposed energy sources and infrastructure (e.g. the gas is already being supplied by a pre-existing pipeline supply network).
FERC must respect the authority of other state and federal agencies by instituting a regulatory prohibition on (a) issuance of a FERC Certificate approving a project or (b) FERC approvals for projects to proceed with any element of construction or eminent domain authority, until such time as all state, federal and regional (e.g. from River Basin Commissions) reviews have been finalized and any and all necessary approvals, permits, certificates and/or dockets have been granted. Such a prohibition is essential for ensuring that projects are not allowed to proceed until all government agencies/entities have had the opportunity to fully and fairly evaluate a project and render their own independent determinations regarding necessary approvals. This is required to avoid the current situation where pipeline companies are allowed by FERC to proceed with eminent domain and/or construction only to find that later they have been denied some key permit and are not able to proceed to completion. This prohibition must include the issuances of conditional FERC Certificates or approvals of any kind, because conditional approvals by FERC have resulted in projects advancing prior to securing all necessary reviews, approvals, permits and/or dockets.
FERC must proactively work to remove bias and conflicts of interest from infecting its decisionaking on pipeline and infrastructure projects. FERC must commit to removing bias from the decision-making process, by no longer hiring consultants with demonstrated conflicts of interest (i.e., those who are representing a pipeline company seeking Commission approval), and by prohibiting Commission staff or Commissioners from working on/deciding upon any pipeline infrastructure project in which they, or a member of their family, have a direct or indirect financial stake or have worked to represent the company within the previous five years or from whom they are seeking future employment.
FERC must end the practice of using segmentation, whereby larger projects are broken up into smaller pieces for FERC review and approval, as a means to undermine environmental and community impact reviews. FERC’s practice of segmentation has been firmly rejected by the courts and yet the practice continues at the agency. A prohibition on the practice is clearly warranted to make clear to agency staff and Commissioners that this violation of law will no longer be tolerated.
FERC must commit to a full and fair implementation of the National Environmental Policy Act (NEPA). Full implementation of NEPA mandates that FERC conduct a complete analysis of the costs and benefits of every aspect of a project (i.e. not just segmented pieces) including, but not limited to, fully evaluating social justice impacts; climate change impacts of pipeline construction and operation; community, environment, and climate change impacts of increased natural gas exploration, fracking, and methane emissions that will result from pipeline infrastructure operations; economic analyses that include costs, not just asserted benefits; alternatives not limited to alternate routes but that also include alternative energy sources and the no-build option; and robust health-and-safety impact analyses. This reform must mandate that all data gaps be filled before FERC issues a Certificate approval. This reform must mandate that all demonstrated data inaccuracies, misleading information, and/or false information be fully investigated and addressed by the applicant before FERC issues a Certificate approval.
FERC must mandate that FERC staff issue final responses to rehearing requests within 30 days, or prohibit eminent domain proceeding or the start of construction until a final rehearing request response is issued, thereby allowing legal challenge of their decisions before a project exercises eminent domain or begins any element of construction. In addition and/or by extension, FERC must end the use of tolling orders as a response to rehearing requests. Tolling orders place people in legal limbo and prevent communities from challenging a FERC pipeline approval in the courts before property rights are taken by eminent domain; forests are cut; and irreparable harm is inflicted on communities, farmers, businesses, the environment, public open spaces and our global climate.
Because property owners, community groups, business owners and environmental organizations are unable to challenge a FERC Certificate approving a pipeline project until after they have submitted a rehearing request to FERC and that request has been denied or granted and the rehearing process completed, FERC has developed a strategy whereby it refuses to grant or deny rehearing requests and instead issues a decision termed a “tolling order” which merely grants FERC unlimited time to consider the rehearing request. Tolling orders are commonly in effect for a year or more. Without a final decision on the rehearing request, challengers are placed in legal limbo, unable to challenge the project until FERC renders a final yay or nay on the rehearing request.