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How to Participate in theFERC Process

Developing a Collective Strategy

Anne Marie Garti, Esq.November 15, 2014

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Unconstitutional Timeline

Prefiled April 2012Open Houses Summer 2012Scoping Sept - Oct 2012Filed June 2013

DEIS February 2014FEIS October 2014

Certificate - ?

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Understand the Players1. Federal Energy Regulatory Commission

(FERC)2. Other regulatory agencies

3. Kinder Morgan / Tennessee Gas Pipeline4. Directly affected landowners

5. Citizens: nearby, regional, and beyond6. Elected officials

7. Entities that want the gas

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Federal Energy Regulatory Commission(FERC)

- 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

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Preparing the Environmental

Impact Statement (EIS)- FERC will be the lead agency

- KM / TGP will collect the data andissue huge draft resource reports

- Many agencies and Nations willparticipate. Other actions required.

- It will take 2 to 3 years to complete

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FERC requires 13 resource reports

RR 1 -- General project descriptionRR 2 -- Water use and quality

RR 3 -- Fish, wildlife, and vegetationRR 4 -- Cultural resources

RR 5 -- SocioeconomicsRR 6 -- Geological resourcesRR 7 -- Soils

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FERC requires 13 resource reports

RR 8 -- Land use, recreation and aestheticsRR 9 -- Air and noise qualityRR 10 -- Alternatives

RR 11 -- Reliability and safety (LNG)RR 12 -- PCB Contamination (> 50 ppm)RR 13 -- Engineering and design material

(LNG)See 18 CFR 380.12 (2012), available athttp://www.gpo.gov/fdsys/pkg/CFR-2005-title18-vol1/pdf/CFR-2005-title18-vol1-sec380-12.pdf

http://www.gpo.gov/fdsys/pkg/CFR-2005-title18-vol1/pdf/CFR-2005-title18-vol1-sec380-12.pdfhttp://www.gpo.gov/fdsys/pkg/CFR-2005-title18-vol1/pdf/CFR-2005-title18-vol1-sec380-12.pdfhttp://www.gpo.gov/fdsys/pkg/CFR-2005-title18-vol1/pdf/CFR-2005-title18-vol1-sec380-12.pdfhttp://www.gpo.gov/fdsys/pkg/CFR-2005-title18-vol1/pdf/CFR-2005-title18-vol1-sec380-12.pdfhttp://www.gpo.gov/fdsys/pkg/CFR-2005-title18-vol1/pdf/CFR-2005-title18-vol1-sec380-12.pdfhttp://www.gpo.gov/fdsys/pkg/CFR-2005-title18-vol1/pdf/CFR-2005-title18-vol1-sec380-12.pdf

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Prepare for Information OverloadThe June 13, 2013 application and draftResource Reports for the proposedConstitution pipeline had over 3,700discrete pages (over 1 GB of data).Almost all of the documents wereresubmitted twice, and eachsubmission was larger than the last.The November 11, 2013 set of draftResource Reports included over 160

files, containing over 1.4 GB of data.

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Understand the Process IPrefiling- Open Houses KM/TGP- Scoping FERC

Public Comment Period - you

Filing- KM / TGPs application will include

13 draft Resource Reports + Plans

- Motions to Intervene you- Environmental Information Requests - FERC- Draft EIS (DEIS) FERC

Public Comment Period - you

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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 othercertificates and permits , and completerequired consultations.- Eminent Domain proceedings begin.

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Understand the Process III

This is a quasi judicial process(sort of like a lawsuit)

Everything for a future trial must beput in the record .

There are only two official publiccomment periods under NEPA:(1) scoping and

(2) DEIS

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Understand How to Comment I

If the process is like a trial, thencommenting is like being deposed.

Only tell them what helps you,not what they need to win.

They will use everything they learn

against you.

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Understand How to Comment II- Use PF14-22 to show the depth and

breadth of the opposition.

- Tell FERCwhat you want studied inthe EIS in your scoping comments.(Probably spring 2015.)

- Tell FERCwhats wrong with the DEISin your DEIS comments.

(Probably winter 2015-2016.)

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Understand How to Comment III- Landowners are in a difficult position.Should they try to make the best of abad situation, or try to stop it?

- Landowners should file their deny /rescind survey access letters now.

- Also file we refuse to sign easementagreements. Excessive use of eminent

domain is against FERCs policy.

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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

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Understand KM/TGPs Weaknesses1. They dont own the land

2. No eminent domain until the end3. They need to get onto private property

for some of the environmental review4. Need approval from other agencies ;

not just FERC under the Natural Gas Act5. They usually act like bullies6. They are invading our communities

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Understand the Power of UnityIf 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.

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Deny Survey Access- They cant complete an environmental

review if they cant acquire neededinformation about private property.

- KM/TGP only want to make minoradjustments to try to show good faith.

- Landowners have the power to excludeKM / TGP from their land. (MA, NH law?)

- Let FERC know you are denying access.

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Dont Let Them Divide & Conquer- The main reason KM/TGP wants to

study alternative routes is to dividethe opposition. Its also required.

- Dont expect FERC to choose analternative in the EIS. FERC does

what the company wants.- Join with people along alternative

routes to fight your common enemy.

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New Allies on Alternative Routes

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Win Through Collective Action

- STP found out about theConstitution pipeline when theyprefiled. 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 without401 Certificate from Mass. DEP.