Spectra responds in pipeline certificate rulemaking 2018-08-24

As we’ve seen so often in the Sabal Trail docket, Spectra seems to be acting in place of FERC, responding yesterday to thousands of comments on FERC’s certificate rulemaking.

Spectra’s bottom line: a pipeline company’s bottom line matters more than the Fifth Amendment due process, or water, air, or safety. See page 25:

Contrary to some commenters’ arguments, the Commission’s public interest determinations are not rendered insufficient under the Fifth Amendment public use requirement because the Commission considers precedent agreements among applicants and affiliates to be evidence of public benefits.

Spectra repeatedly argues that FERC does not have authority to consider hardly anything other than whether the pipeline company has customers, yet FERC has authority to give eminent domain to private corporations and to let them gouge through our lands and under our rivers without local agreement or payment first.

Page 9: Tolling Orders, Pages

In this election year, you can ask every candidate for statehouse or Congress whether they support removing private eminent domain from the Natural Gas Act (NGA). If they don’t, you can ask them if they support the Federal Energy Regulatory Commission (FERC) following the Fifth Amendment about due process for takings of land. Only one different FERC Commissioner might make a majority with the two who almost always dissent from FERC’s crony capitalism decisions, and stop FERC from considering pipeline company affiliate contracts to be public benefit.

Meanwhile, here is what Spectra said about the comments WWALS filed, about eminent domain, Tolling Orders, just compensation, laterals (related pipelines), and shuttng down pipelines.

Plus I point out some of what Spectra ignored in that WWALS filing, about LNG export, solar and wind power, and safety.

Land takings, eminent domain, and the Fifth Amendment

Here’s more of what Spectra said (pages 21 and 22) about the Fifth Amendment:

Third, several commenters urge the Commission to ensure that Certificates are issued only to projects with a demonstrated public benefit such that use of eminent domain comports with the Fifth Amendment. Specifically, a number of the commenters assert that the Commission approves projects that are not for public benefit but rather for the private gain of the project proponent, rendering any eminent domain takings for such projects unconstitutional.74 Several commenters also suggested that the Commission’s sliding scale approach is insufficient to determine “public use” as required under the Fifth Amendment for an eminent domain taking, suggesting that the Commission must require a heightened standard for projects that intend to rely on eminent domain to acquire needed right-of- way.75

The Commission’s existing process under the Certificate Policy Statement ensures that eminent domain is used only by projects that have a public benefit. To the extent that these comments question the propriety of the Congressional delegation of eminent domain power to private developers of natural gas projects under the NGA, the comments take issue with the NGA itself, and fall outside of the scope of this proceeding.

74 See, e.g., Delaware Riverkeeper Comments at 2; Piedmont and Shenandoah Valley Comments at 3; Comment of Thomas Bouldin at 3, Docket No. PL18-1-000, Accession No. 20180725-5147 (submitted July 25, 2018) (“Bouldin Comments”); Kaine and Warner Comments at 2; Food & Water Watch Comments at 7; Central Shenandoah Comments at 67; Niskanen Center Comments at 1; WWALS Watershed Comments at 5; Sellars Comments at 8.

75 See, e.g., Delaware Riverkeeper Comments at 39 (“In order to meet constitutional muster, FERC must show that the pipeline ‘unquestionably serves a public purpose,’” Kelo v. City of New London, 545 U.S. 469, 484 (2005)); Comments of the New Jersey Conservation Foundation, the Watershed Institute, and Sierra Club at 26, Docket No. PL18-1-000, Accession No. 20180725-5074 (submitted July 25, 2018) (“[I]in practice, the Commission has not required any greater evidentiary showing for projects requiring extensive use of condemnation relative to those requiring little or none. Rather . . . the Commission relies on a single data point—the existence of a precedent agreement, often between affiliates—to authorize virtually all projects, regardless of the extent to which they involve condemnation, be it for public or private lands.”) (“NJCF, et al. Comments”); PIO Comments at 60; Comment of Rogue Climate at 2, Docket No. PL18-1- 000, Accession No. 20180725-5128 (submitted July 25, 2018).

As we’ve seen with Sabal Trail, and in these very comments by Spectra, FERC’s idea of “public benefit” is the pipeline company has customers, even if they are all affiliates of the pipeline applicant.

Spectra said more:

Although the Commission lacks authority to modify the NGA through a policy statement, the Congressional delegation is appropriate. In the original NGA enacted in 1938, Congress, relying on its exclusive authority to regulate interstate commerce, specifically found that “that the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest.”76 Concerned that states and state courts hostile to interstate pipelines were subverting the public interest by prohibiting Section7 certificate holders from using state law eminent domain authority, Congress amended the NGA in 1947 to confer federal eminent domain authority upon certificate holders.77 Congress explained that “the right of an interstate natural gas pipe line to cross intervening States in which no service is performed is a necessary protection of the free flow of commerce among the States and which can only be furnished by the Congress under its paramount jurisdiction to regulate interstate commerce.”78

76 Ch. 556, § 1(a), 54 Stat. 821 (1938) (currently codified at 15 U.S.C. § 717(a)).

77 See S. Rep No. 429, 80th Cong., 1st Sess. (1947).

78 Id. at 3.

The Commission has authority to follow the higher law of the Fifth Amendment. FERC just chooses not to. Spectra’s argument, through cherrypicking statutes and court decisions, is that “the right of an interstate natural gas pipe line to cross intervening States” is more important than your right to due process.

Take eminent domain out of the Natural Gas Act

NGA is the Natural Gas Act, about which six members of the Georgia House recommended in GA HR 289 (2017) “that Congress remove the power of eminent domain from the Federal Natural Gas Act”. HR 289 roneads in part:

WHEREAS, pursuant to the Federal Natural Gas Act, if the Federal Energy Regulatory Commission approves a pipeline project and no agreement with the landowner is reached, the company may acquire the easement under eminent domain, a right given to the company by statute to take private land for Commission authorized use, with a court determining compensation; and

WHEREAS, allowing a natural gas company to take private property from a landowner without his or her consent tramples on the private property rights that are a foundation of our liberty.

It’s an election year. This is an issue. You can ask every candidate for statehouse or Congress if they support removing private eminent domain from the Natural Gas Act.

Spectra’s FERC filing

You can see the rest of Spectra’s comments as filed with FERC 24 August 2018 as Accession Number: 20180824-5155, “Motion for leave to answer and answer of Spectra Energy Partners, LP under PL18-1.”

Here I’m mostly only going to quote the sections where Spectra cited WWALS.

Tolling Orders

On page 9:

b. Tolling Orders

Numerous commenters asserted that FERC must end its practice of using tolling orders to delay its decision on rehearing requests and allowing pipeline companies to exercise eminent domain before the Commission has made a decision on rehearing.28 A recurring argument of those commenters is that tolling orders allegedly deprive landowners of due process by delaying their ability to challenge the public use of an NGA project until the post-rehearing Court of Appeals review pursuant to 15 U.S.C. § 717r(b).29 Ostego 2000 specifically argues that FERC implements a “gaming mechanism” whereby it uses tolling orders to grant itself unlimited time to consider a rehearing request, which in turn allows pipeline companies to exercise eminent domain authority while the rehearing request is still pending.30

These comments are legally flawed for the same reasons discussed above—i.e., a pre-deprivation hearing prior to the issuance of a project certificate or the commencement of condemnation proceedings is not constitutionally required, and the opportunity to participate in the FERC certificate process, combined with the NGA’s judicial review mechanism under 15 U.S.C. § 717r(b), provide adequate due process for landowners who wish to litigate the public use/public purpose issue or anything else relating to the Commission’s certification of the project.

28

See, e.g., Comments of WWALS Watershed Coalition, Inc. at 5, Docket No. PL18-1-000, Accession No. 20180725-5234 (submitted July 25, 2018) (“WWALS Watershed Comments”); Comment of Delaware Riverkeeper Network at 4, Docket No. PL18-1-000, Accession No. 20180726-5037 (submitted July 25, 2018) (“Delaware Riverkeeper Comments”); Comment of VOICES coalition under PL18-1 representing over 146 communities and 32,644 people from across the nation impacted by FERC fracked gas infrastructure projects, calling for a Public Interest Pipeline Review Process at 2-3, Docket No. PL18-1-000, Accession No. 20180726-5031 (submitted July 25, 2018); Several States Attorneys General Comment at 32; Comment of New York Attorney General at 7, Docket No. PL18-1-000, Accession No. 20180725-5220 (submitted July 25, 2018) (“NY AG Comments”); Comment of Tim Kaine and Mark R. Warner, Docket No. PL18-1-000, Accession No. 20180726-5029 (submitted July 25, 2018) (“Kaine and Warner Comments”); Comment of Appalachian Trail Conservancy at 5, Docket No. PL18-1-000, Accession No. 20180626-5016 (submitted July 25, 2018); Niskanen Center Comments at 25.

29 See id.

30 Comments of Ostego 2000, Inc. at 6, Docket No. PL18-1-000, Accession No. 20180725-5052 (submitted July 25, 2018) (“Ostego 2000 Comments”).

If you don’t like it, you can sue. And, as we have seen in two jury trials recently, you may win. But the pipeline still got built through yours and other people’s property, and under our rives and through our fragile aquifer.

Spectra continues on its page 9 with even more double-speak:

Before addressing the constitutional issues in further detail, however, it is important to address several misconceptions about tolling orders that emerge from a number of commenters’ submissions:

First, contrary to some commenters’ assertions, the Commission’s use of tolling orders is fully consistent with the NGA, as recently confirmed by the D.C. Circuit and the Fourth Circuit.31 As these courts explained,15 U.S.C. § 717r(a) provides only that FERC must “act upon” or “take some kind of action” on a rehearing request within 30 days — not to issue a final decision within a month of every rehearing submission.32 Given the complexity of many large infrastructure projects, as well as the prevalence of rehearing requests in general, it is not possible for the Commission to give thorough consideration of, and issue a final decision on, every rehearing request within only 30 days. FERC’s use of tolling orders, thus, furthers the thoroughness of its public interest review by enabling the Commission to have sufficient time to give full consideration to rehearing requests. To the extent that commenters would prefer that the vast majority of rehearing requests simply be denied automatically after 30 days by operation of law under 15 U.S.C. 717r(a), without the opportunity for the Commission to give them thoughtful consideration, that would be inconsistent with the statutory scheme and a bad public policy outcome.

31 See Del. Riverkeeper Network, 895 F.3d at 113 (“FERC’s use of tolling orders is permissible under the Natural Gas Act, which requires only that the Commission ‘act upon’ a rehearing request within 30 days, 15 U.S.C. § 717r(a), not that it finally dispose of it.”); Berkley, 2018 U.S. App. LEXIS 20678, at *10-11.

32 Id.

As we’ve repeatedly seen, FERC routinely denies rehearing requests anyway. More basically, if FERC does not have the staff to handle rehearing requests, it should not be issuing pipeline certificates.

Once again, it’s an election year. Congress can change the Natural Gas Act. And you can ask every candidate to do so.

Just compensation

Among the many things Spectra claims are outside the scope of FERC’s certificate rule review on PL18-01, are clean water review by the U.S. Army Corps of Engineers (USACE) under the Clean Water Act, and this:

Second, several commenters suggest that the Commission should direct pipeline companies that “just compensation” for an easement must include payment for damages to market value and stigma, and/or an assessment of the land’s functional and intrinsic value.45 These comments reflect a fundamental misunderstanding of the concept of “just compensation.” As the Commission has previously acknowledged, under the framework set up by the NGA, the determination of just compensation is beyond FERC’s authority, as it is reserved solely for negotiation between a landowner and project proponent, or is determined by a court in an eminent domain proceeding.46 Like other aspects of the eminent domain process, “the Commission simply has no authority to determine what constitutes just compensation . . . [or to] . . . determine whether a party has sufficient assets to pay such just compensation.”47

43 Comments of Upstate Forever at 5, Docket No. PL18-1-000, Accession No. 20180725-5080 (submitted July 25, 2018) (“Upstate Forever Comments”).

44 33 U.S.C. § 1344(a), (e); 33 C.F.R. Part 330.

45 See, e.g., WWALS Watershed Comments at 5; Comments of the Public Interest Organizations at 56, Docket No. PL18-1-000, Accession No. 20180725-5183 (July 25, 2018) (“PIO Comments”).

46 MVP Rehearing Order 163 FERC ¶ 61,197 at PP 76, 90 (“The compensation landowners receive for property rights is a matter of negotiation between the gas company and landowner, or is determined by a court in an eminent domain proceeding.”).

Spectra’s citation for this alleged incapacity of FERC to do its job is a FERC decision. Maybe you’d like to ask candidates whether they will require FERC to do its job.

Sure, a jury may, like one in Florida recently, say stigma and damages to market value count, and, like another jury in Georgia, award five times what the pipeline company offered for easement compenstation. But meanwhile the pipeline has been built.

These two jury decisions were not among those that Spectra cited, perhaps because they contradict Spectra’s assertions.

LNG export

Third in Spectra’s series here is its excuses for liquid natural gas (LNG) export. Spectra claims FERC does not have jurisdiction over that, only the Department of Energy does. FERC Commissioner Norman Bay spelled out why that is not so in his dissent to FERC’s 2015 decision to shirk its LNG export oversight duty. You can help WWALS sue FERC about that.

Despite FERC and Sabal Trail repeatedly saying Sabal Trail had nothing to do with LNG export, now that it is difficult to deny that LNG export is planned using Sabal Trail gas, Spectra claims on page 15 that LNG export is a public benefit:

Third, several commenters assert that the Commission should not certificate, and eminent domain should not be used for, projects where capacity is to be used for export, arguing that such projects do not have a public benefit.48 These comments are based on the argument that the export of natural gas is not consistent with the public interest.49 To begin, and as noted below, FERC does not have authority to approve or disapprove the export or import of natural gas, a decision reserved to the U.S. Department of Energy (“DOE”). In any event, Congress has concluded that export authorization does serve the public interest. NGA Section 3(a) 50 contains a “‘general presumption favoring [export] authorization. . . . [T]here must be an affirmative showing of inconsistency with the public interest’ to deny the application.”51 And where a proposed export of gas is “to a nation with which there is in effect a free trade agreement requiring national treatment,” the application is legislatively “deemed to be consistent with the public interest” and must be authorized “without modification or delay.”52 In addition, Congress declared in NGA Section 1(a) that regulation of the transportation and sale of natural gas in “interstate and foreign commerce is necessary in the public interest.”53

48 See, e.g., Comment of PIEDMONT ENVIRONMENTAL COUNCIL and the Shenandoah Valley Network at 3, Docket No. PL18-1-000, Accession No. 20180725-5257 (submitted July 25, 2018) (“Piedmont and Shenandoah Valley Comments”); Upstate Forever Comments at 3; Comment of Ohio Valley Environmental Coalition at 1, Docket No. PL18-1-000, Accession No. 20180724-5135 (submitted July 25, 2018) (“OVEC Comments”); Comment of Carolyn Elefant at 11, Docket No. PL18-1-000, Accession No. 20180727- 5062 (submitted July 25, 2018) (“Elefant Comments”); Comment of Pipe Line Awareness Network for the Northeast, Inc. at 3, Docket No. PL18-1-000, Accession No. 20180725-5010 (submitted July 25, 2018); Comment of Food & Water Watch, et. al. at 8, Docket No. PL18-1-000, Accession No. 20180725-5113 (submitted July 25, 2018) (“Food & Water Watch Comments”); Comment of Oregon Wild at 8, Docket No. PL18-1-000, Accession No. 20180725-5118 (submitted July 25, 2018) (“Oregon Wild Comments”); Comment of Thomas Hadwin on behalf of Friends of the Central Shenandoah at 66, Docket No. PL18-1- 000, Accession No. 20180723-5015 (submitted July 25, 2018) (“Central Shenandoah Comments”); Comment of Franklin Regional Council of Governments under PL18-1. on regulatory process for gas pipelines, incl: determination of need for a pipeline; Eminent Domain and consideration of landowners’ interests; consideration of environmental impacts at 2, Docket No. PL181-000, Accession No. 20180615-5087 (submitted July 25, 2018) (“Franklin Regional Comments”); Comment of Carolyn Sellars at 6, Accession No. 20180725-5013 (submitted July 25, 2018) (“Sellars Comments”).

49 E.g., Piedmont and Shenandoah Valley Comments at 3 (arguing that “serious questions” are raised “whether a proposal is in the public interest if a portion or all of that capacity is shipped overseas”); Oregon Wild Comments at 8 (“How does FERC consider LNG export to have a public benefit that allows the legal use of eminent domain?”).

50 15 U.S.C. § 717b(a) (providing an application for export of natural gas shall be approved unless, after notice and hearing, it is determined that it “will not be consistent with the public interest”).

51 See Sierra Club v. U.S. Dep’t of Energy, 867 F.3d 189, 203 (D.C. Cir. 2017) (internal citation omitted).

52 15 U.S.C. § 717b(c); see also Sierra Club, 867 F.3d at 203.

53 15 U.S.C. § 717(a) (emphasis added).

All those landowners, states, and rivers you used eminent domain to gouge your pipeline through may be interested to learn now, after the fact, that Spectra is so sure that LNG export is a public benefit. It’s for sure not something Sabal Trail or FERC ever alleged as a public benefit during permitting.

Spectra does admit FERC has some oversight over LNG export terminals, which I have marked with boldface below:

If FERC were to implement a policy that would prohibit certification of projects with an export component, it would exceed its jurisdictional authority by making energy policy decisions that are legally the sole responsibility of the DOE. The Commission no longer has responsibility under NGA Section 3 for reviewing the public interest of proposed natural gas exports or imports. Rather, in 1977, that responsibility was delegated to DOE pursuant to section 301(b) of the Department of Energy Organization Act,42 U.S.C. § 7101 et seq.54 The DOE subsequently delegated back to FERC the authority to approve or disapprove the construction and operation of the particular facilities and sites proposed in natural gas import and export applications.55 The question of whether the proposed exportation of natural gas is in the public interest, however, remains a policy decision solely for the DOE to make.56 Thus, in deciding whether to approve any natural gas export facilities, the Commission is not permitted to decide whether the proposed commodity export of natural gas is in the public interest, as that would result in “duplicating and possibly contradicting the Secretary [of Energy’s] own decisions.”57

54 See Dominion Cove Point LNG, LP, 148 FERC ¶ 61,244 at P 26, n. 32 (2014) (“Cove Point”).

55 Id. The Commission noted that the most recent delegation is in DOE Delegation Order No. 00-044.00A, May 16, 2006. Id. In addition, under the Energy Policy Act of 2005, FERC was given exclusive authority to “approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal.” 15 U.S.C. § 717b(e)(1).

56 Id.; see also Algonquin Gas Transmission, LLC, et al., 161 FERC ¶ 61,255 at P 39 (“It is the U.S. Department of Energy (DOE), not the Commission, that has jurisdiction to act on any applications for natural gas export or import authority.”).

57 Cameron LNG, LLC, et al., 147 FERC ¶ 61,230 at P 28 (2014).

Spectra just admitted that FERC has some jurisdiction over LNG export terminals, yet Spectra tries to assert there can be no overlapping authority with DoE. Spectra fails to mention that even FERC admitted, in its own Order giving Sabal Trail eminent domain, that FERC’s LNG export terminal authority includes environmental aspects. Are greenhouse gases, as in Sierra Club vs. FERC (Sabal Trail) not an environmental aspect?

Spectra goes on about LNG export on pages 15-18, so it seems quite concerned about this issue. As it should be. And as every candidate for office should be.

Shut down pipelines

Spectra says this like it would be a bad thing. Maybe because its only idea of “benefits” is profit for itself and its affiliates.

C. Other comments suggest modifications that amount to infrastructure development obstacles without any countervailing benefits.

The apparent goal of a series of comments is not to refine the Commission’s Certificate Policy Statement, but instead delay or shut down pipeline development. These comments vary in approach, but include requests that pipelines obtain all state permits and complete all environmental surveys before FERC may issue a certificate.92 Upstate Forever, for instance, recommends that the Commission should “require each impacted state to certify an assessment of demand, future demand, and supply options as part of the Certificate application process.”93 But, as previously explained, giving states or local agencies the power to veto FERC certification of a Section 7 project through a certification of demand would conflict with Congress’s decision to vest the Commission with exclusive jurisdiction to make public convenience and necessity determinations under the NGA.

92 See, e.g, NY AG Comments at 2 (arguing that FERC should not issue a Certificate until the applicant receives all state permits and certifications required to commence construction); WWALS Watershed Comments at 3 (requesting that the Commission withhold certificating a pipeline without the explicit approval of every state public service commission, city council, county commission, state legislature, and tribal authority through whose territory such a pipeline would run); Comment of the New Jersey Department of Environmental Protection at 4, Docket No. PL18-1-000, Accession No. 20180726-5017 (submitted July 25, 2018) (requesting that the Commission not issue a final certificate until all environmental surveys have been completed and all required permits under federal statute have been issued); No Fracked Gas Comments at 1 (suggesting that FERC should not grant a certificate until all other state and federal permits are cleared) (“NJDEP Comments”); Upstate Forever Comments at 2 (providing that the Commission should require each impacted state to certify an assessment of demand, future demand, and supply options as part of the application process).

93 Upstate Forever Comments at 2.

Why yes, WWALS did write:

FERC should approve no pipeline without explicit positive approval of every state public service commission, city council, county commission, state legislature, and native American governing body, through whose territory such a pipeline would run. Such an ideal situation may not be possible without changes in current laws, but FERC needs to follow existing laws, and that will get much closer to that ideal.

FERC ignored the next WWALS sentence:

If such a rule would mean no new interstate natural gas pipelines would be built, remember solar and wind power have no such difficulties.

Spectra had nothing to say about solar or wind power. If it did, it might have to admit its Sabal Trail partner NextEra Energy is constantly bragging about being a world leader in solar and wind and no longer even mentions Sabal Trail in its quarterly earnings calls. See also solar and wind below.

Laterals

On pages 26-28, Spectra says it would be impractical for FERC to follow the law that already says it must consider related projects.

Other commenters suggest modifications to the Certificate Policy Statement that are unnecessary and unjustifiably time-consuming. For example, WWALS Watershed Coalition suggests that FERC should not approve a pipeline without including all “intended laterals.”95 Contrary to WWALS Watershed Coalition’s suggestion, the Commission, under the NGA, makes its determination as to whether a particular proposed project is in the public convenience and necessity.96 The NGA does not provide the Commission authority to direct “the design of specific projects;” the Commission must respond to applications as they are presented by applicants.97

95 WWALS Watershed Comments at 17.

96 See 15 U.S.C. § 717f(c).

97 Texas Eastern Transmission, LP, 146 FERC ¶ 61,086 at P 46 (2014).

Was it not FERC that decided all three parts of the Southeast Markets Pipeline Project would have the same environmental review? Unless Spectra is admitting that the applicants presented that environmental review to FERC, FERC did indeed direct the design of those projects.

The Commission and the courts have made it very clear that pipelines cannot be compelled to build a project different from the one the pipeline has determined to build.98

98 See Panhandle Eastern Pipe Line Co. v. FPC, 204 F.2d 675, 680 (3d Cir. 1953) (“Congress meant to leave the question whether to employ additional capital in the enlargement of its pipeline facilities to the unfettered judgment of the stockholders and directors of each natural gas company involved.”); see also Tennessee Gas Pipeline Co. v. Columbia Gulf Transmission Co., 113 FERC ¶ 61,200 at PP 25-30 (2005); El Paso Natural Gas Co., et al., 104 FERC ¶ 61,045 at P 104, n. 104 (2003).

Spectra ignores the example of state and federal agencies requiring a different pipeline project in the same WWALS comments, which quote the Florida Public Service Commission (FPSC), emphasis added:

We direct FPL to issue a new Request for Proposals (RFP) to fill FPL’s natural gas transmission requirements. The results of the RFP will provide a market proxy against which we will be able to measure the cost-effectiveness of proposed projects to meet FPL’s need for transmission capacity. The terms of the RFP shall be reviewed by our staff before it is issued.

That RFP produced Sabal Trail and the other two parts of the Southeast Markets Pipeline Project (SMPP). FERC in its own Order giving private eminent domain for SMPP cited FPSC’s approval of that pipeline project, thereby rubberstamping FPSC’s direction to FPL to come up with a different pipeline project.

FERC also repeatedly told Sabal Trail to come up with alternate routes, and Sabal Trail several times changed major parts of its path. How is that not FERC compelling a pipeline “to build a project different from the one the pipeline has determined to build.”?

Spectra ignores another counter-example in the same WWALS comments it cites:

Moreover, NEPA regulations already require the consideration of cumulative, connected, and similar actions. Specifically, section 102(2)(C) of NEPA applies to “proposals” for major Federal actions significantly affecting the quality of the human environment.99 In addition, the Council on Environmental Quality’s (“CEQ”) regulations require that “[p]roposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.”100

CEQ’s regulations differentiate between a project that has been planned or generally contemplated, and an actual “proposal” under NEPA. The Commission need only consider the impacts of “proposals” for major Federal actions. In Kleppe v. Sierra Club,101 the Supreme Court concluded that the moment at which an agency must have a NEPA document prepared is the time at which it makes a recommendation or report on a proposal for federal action.102 The Court further held that federal courts may not impose NEPA requirements at a point during the germination process of a potential proposal before the proposal becomes formal.103 Contemplating a course of action or conducting studies to gain background information to use in a subsequent formal decision-making process does not trigger NEPA. Thus, the suggestion that the Commission must include in its certificate authorizations all “intended” projects goes far beyond the requirements under NEPA. Moreover, it is impractical. Although a project may be under consideration and in preliminary analysis, the specific impacts are not sufficiently concrete to allow the Commission to evaluate them in relation to the proposed project. And, to the extent such details are reasonably foreseeable, the NEPA regulations require the Commission to take those impacts and implications into account.104

99 42 U.S.C. § 4332(2)(c); 40 C.F.R. § 1502.3.

100 40 C.F.R. § 1502.5(a).

101 427 U.S. 390 (1976).

102 Id. at 406.

103 Id.

FERC well knew (because it cited FPSC’s decision on Sabal Trail) that FPL had planned its Martin County to Riviera Beach Martin-Riviera Natural Gas Pipeline Lateral (MR-RV) as early as 2009. FERC knew MR-MV was related to Sabal Trail, since it was included in FPL’s 2009 EnergySecure proposal to FPSC, and it gets its gas from SMPP constituent Florida Southeast Connection (FSC). If FERC cannot take a laterally that blatantly connected into consideration, FERC is incompetent and should stop approving pipelines.

Solar and wind power, conservation and efficiency

Spectra says on its pages 19-21 that FERC does not want to consider renewable energy. Spectra’s filing never mentions the words “solar” or “wind”, or even (except in footnotes) “battery” or “storage.”

Safety

Spectra did include a good joke, on page 27 in its only mention of safety:

(which is within the jurisdiction of the Pipeline and Hazardous Materials Safety Administration under the federal Pipeline Safety Act), there are many other measures— already in use—that ensure safety….)

Tell that to the women in Homerville with third-degree burns from a pipeline PHMSA doesn’t even map.

Fifth Amendment

Fifth Amendment, U.S. Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

If candidates for public office do not support that, what do they support?

Also, if Spectra gets a chance to respond a month after the comment deadline, maybe everybody else should get a chance to respond to Spectra. According to 18 CFR 385.213(a)(2), apparently FERC could allow that.

Cover page, Pages

Even if FERC does not allow such responses, it’s still an election year.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

You can join this fun and work by becoming a WWALS member today!

1 thought on “Spectra responds in pipeline certificate rulemaking 2018-08-24

  1. Cecile Scofield

    The following should make compelling legal arguments for landowners to use in fighting property land takings via eminent domain for a natural gas pipeline where the pipeline is going to service:
    1. An LNG export facility that has made false claims to the U. S. Department of Energy in order to avoid National Environmental Policy Act (NEPA) review by the DOE;
    2. An LNG export facility where the Federal Energy Regulatory Commission has abdicated Congressional jurisdictional authority over the siting and construction of the facility (under the Natural Gas Act).
    3. An LNG export facility where Federal jurisdiction is “unknown.”
    4. An LNG export facility where compliance with the Code of Federal Regulations Title 49, Part 193, is not assured or is unknown.

    The above (Items #1 through #4) represent existing or proposed LNG export facilities in the state of Florida.

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