You are on page 1of 21

How to Participate in the

FERC Process
Developing a Collective Strategy
Anne Marie Garti, Esq.
November 15, 2014

Unconstitutional Timeline
Prefiled April 2012
Open Houses Summer 2012
Scoping Sept - Oct 2012
Filed June 2013
DEIS February 2014
FEIS October 2014
Certificate - ?

Understand the Players

1. Federal Energy Regulatory Commission
2. Other regulatory agencies
3. Kinder Morgan / Tennessee Gas Pipeline
4. Directly affected landowners
5. Citizens: nearby, regional, and beyond
6. Elected officials
7. Entities that want the gas

Federal Energy Regulatory Commission

- Issues license for gas transmission lines
- Requires public convenience and necessity
- Leads an environmental review under NEPA
(National Environmental Policy Act)
Requires 13 Resource Reports (RRs)
The developer applies to FERC and
pays for the environmental review.
- NEPA triggers many other laws

Preparing the Environmental

Impact Statement (EIS)
- FERC will be the lead agency
- KM / TGP will collect the data and
issue huge draft resource reports
- Many agencies and Nations will
participate. Other actions required.
- It will take 2 to 3 years to complete

FERC requires 13 resource reports

RR 1
RR 2
RR 3
RR 4
RR 5
RR 6
RR 7


General project description

Water use and quality
Fish, wildlife, and vegetation
Cultural resources
Geological resources

FERC requires 13 resource reports

RR 8
RR 9
RR 10
RR 11
RR 12
RR 13


Land use, recreation and aesthetics

Air and noise quality
Reliability and safety (LNG)
PCB Contamination (> 50 ppm)
Engineering and design material

See 18 CFR 380.12 (2012), available at

Prepare for Information Overload

The June 13, 2013 application and draft
Resource Reports for the proposed
Constitution pipeline had over 3,700
discrete pages (over 1 GB of data).
Almost all of the documents were
resubmitted twice, and each
submission was larger than the last.
The November 11, 2013 set of draft
Resource Reports included over 160
files, containing over 1.4 GB of data.

Understand the Process I


- Open Houses KM/TGP

- Scoping FERC
Public Comment Period - you


- KM / TGPs application will include

13 draft Resource Reports + Plans
- Motions to Intervene you
- Environmental Information Requests - FERC
Public Comment Period - you

Understand the Process II

- FERC staff will issue Final EIS (FEIS)
- FERC may issue the Certificate of
Public Convenience and Necessity.
- Other agencies have to issue other
certificates and permits, and complete
required consultations.
- Eminent Domain proceedings begin.

Understand the Process III

This is a quasi judicial process
(sort of like a lawsuit)
Everything for a future trial must be
put in the record.
There are only two official public
comment periods under NEPA:
(1) scoping and
(2) DEIS

Understand How to Comment I

If the process is like a trial, then
commenting is like being deposed.
Only tell them what helps you,
not what they need to win.
They will use everything they learn
against you.

Understand How to Comment II

- Use PF14-22 to show the depth and
breadth of the opposition.
- Tell FERC what you want studied in
the EIS in your scoping comments.
(Probably spring 2015.)
- Tell FERC whats wrong with the DEIS
in your DEIS comments.
(Probably winter 2015-2016.)

Understand How to Comment III

- Landowners are in a difficult position.
Should they try to make the best of a
bad situation, or try to stop it?
- Landowners should file their deny /
rescind survey access letters now.
- Also file we refuse to sign easement
agreements. Excessive use of eminent
domain is against FERCs policy.

Understand the Laws

- The Natural Gas Act authorizes FERC
- Need for license triggers NEPA
- NEPA invokes other federal laws,
including CWA, ESA, NHPA
- Property laws
- Privacy laws ex: use of helicopters
- Natural Gas Act preempts state and
local laws

Understand KM/TGPs Weaknesses

1. They dont own the land
2. No eminent domain until the end
3. They need to get onto private property
for some of the environmental review
4. Need approval from other agencies;
not just FERC under the Natural Gas Act
5. They usually act like bullies
6. They are invading our communities

Understand the Power of Unity

If you dont want your land taken:
- Just say NO. Form a coalition to say NO.
Negotiating means everyone loses.
- Educate and organize the landowners.
- Dont suggest putting the pipeline
someplace else.
- Use eminent domain against KM / TGP.
To win, you must unite against KM / TGP.

Deny Survey Access

- They cant complete an environmental
review if they cant acquire needed
information about private property.
- KM/TGP only want to make minor
adjustments to try to show good faith.
- Landowners have the power to exclude
KM / TGP from their land. (MA, NH law?)
- Let FERC know you are denying access.

Dont Let Them Divide & Conquer

- The main reason KM/TGP wants to
study alternative routes is to divide
the opposition. Its also required.
- Dont expect FERC to choose an
alternative in the EIS. FERC does
what the company wants.
- Join with people along alternative
routes to fight your common enemy.

New Allies on Alternative Routes

Win Through Collective Action

- STP found out about the
Constitution pipeline when they
prefiled. We had to figure it all out.
- You have a nine-month head start,
and can stand on our shoulders.
- Deny access and other information.
- Project cannot proceed without
401 Certificate from Mass. DEP.