How to Register as an Intervenor in the FERC Process

Registering as an intervenor does not obligate you to do anything further. However, to comment on or otherwise participate in the FERC process you must have registered by the deadline. On the other hand, if you do not register with FERC as an intervenor by the deadline, you will be shut out of the process and you will have no voice in protecting and preserving your well being.

The easiest way to register as an intervenor is via the FERC website. To preserve your right to participate in FERC’s process, you must register prior to 5:00 PM Eastern Time, Tuesday, February 12, 2013.

There are two levels of participation on the FERC website. “eComment” is the limited method, and only allows you to submit text comments up to 6,000 characters long prior to the deadline. “eFiling” requires an extra registration step, but eFiling also allows you to register as an intervenor, submit longer comments, supporting documents, etc.

We recommend the eFiling option of paperless registration as an intervenor. Here is how:

Step 1: eRegistration: Time to complete: 5 minutes

  1. Go to http://www.ferc.gov/
  2. Mouse over “DOCUMENTS & FILINGS” (near the top of the page, and navigate to the menu item “eFiling”.
  3. Click on the eRegister button to start the registration process. Fill out basic information on the first page, then click “Next” to fill out the remainder of information.
  4. FERC will send you a verification email. You must click the link in the email to enable your new FERC account.

Step 2: File an Intervention as an Individual, an Organization, or a Business: Time to complete: 15 minutes

  1. Go to http://www.ferc.gov/
  2. Mouse over “DOCUMENTS & FILINGS” (near the top of the page, and navigate to the menu item “eFiling”.
  3. Log-in using the button on this page.
  4. After you login, click the “eFiling” link.
  5. Under “Filing Type” choose “General” in the first column.
  6. Among the choices that appear in the second column, choose “Intervention”.
  7. Among the choices that appear in the third column, choose “(doc-less) Motion to Intervene”.
  8. Click the “Next” button.
  9. A search form appears. Search for this docket: CP13-36
  10. A listing for Docket “CP13-36-000” should appear. Click on the “+” under “Select”.
  11. “CP13-36-000” should now appear under a “Selected Dockets” listing. Click the “Next” button.
  12. You are now prompted for a “Document-less Intervention Description”. Fill in a reason that you or your organization is a stakeholder in this matter. See the section below on some examples of how you or your organization might be a stakeholder. You may also request a hearing at this point. (See the “Example for Individuals” below.)
  13. Click the “Next” button.
  14. Specify whether you are filing as an Individual, or on behalf of another party.
  15. Click the “Next” button.
  16. Specify who should get email notices. Add yourself as a “Signer”.
  17. Click the “Next” button.
  18. A draft Submission Description appears. You may simply click the “Next” button to accept the default.

Examples for Individuals, Organizations, and Businesses

  • Jane Doe is a resident of Brooklyn, New York, a taxpayer, a business owner, an energy consumer, and active in community initiatives related to energy strategy, environmental policy, and economic policy. As such, she is a stakeholder both personally and as a community activist. Ms. Doe’s participation is in the public interest. Ms. Doe further requests that there be ample time and opportunity for meaningful participation by local communities, including but not limited to public hearings on public policies, plans, impacts, costs, and risks related to the subject matter of this Docket. Public hearings should be conducted at locations and times convenient to the affected populations in New York City, especially users of Gateway National Recreation Area and residents of the neighborhoods that are proximate to this project.
  • John Doe is a property owner and resident of Queens, New York. As such, he has direct interests including but not limited to personal safety of himself and his family in the event of accidents or terrorist acts, environmental impacts, the value and instability of his property, costs and benefits related to energy policy, and costs and risks related to first responders in case of emergency. Mr. Doe also respectfully requests that public hearings be conducted in Brooklyn and Queens to ensure community awareness, preparedness and participation.
  • OrganizationName is a 501(c)3 corporation that supports healthy living by inner city children. OrganizationName is critically concerned with the direct health and safety impacts on children of of gas transmission, as well as health impacts of gas production activities upwind and upstream of the proposed pipelines that may be indirectly promoted by new and upgraded gas transmission infrastructure. OrganizationName is also concerned with the safe and unimpeded use by children of outdoor spaces for recreation. Organization Name thus respectfully requests full participation as an intervenor, and also requests timely and accessible public hearings on the costs, risks and impacts of the proposed infrastructure.
  • BusinessName runs a business in Brooklyn in the area of the proposed pipeline project. BusinessName respectfully requests full access and participation as an intervenor, based on potential impacts on the insurability and value of its holdings.

Understanding FERC

All interstate natural gas pipelines, including the Rockaway Lateral, fall under the jurisdiction of the Federal Energy Regulatory Commission (FERC). FERC assesses proposals for, approves or denies, and regulates all interstate gas pipelines and related infrastructure.

FERC is supposedly an independent agency, but as with so many of these regulatory bodies, it is essentially rigged against the public and for industry. The agency receives much of its funding from the industry. As with politicians and lobbyists, there is a revolving door between industry and FERC: gas companies often employ former FERC lawyers as consultants. It’s good to understand this from the beginning.

Carolyn Elefant, a lawyer specializing in FERC practice, has put together a 1-hour webinar on the FERC process. It can be accessed here: http://www.anymeeting.com/carolynelefant/EC55D882804C

Stages in the FERC Approval Process

The approval process for gas infrastructure projects involves a series of stages:

  1. Prefiling: The gas company submits a construction proposal to FERC, the essence of which is the environmental impact statement (EIS). The public and various concerned entities, such as the Army Corps of Engineers, then comment on the company’s EIS. This stage is the most open to the public and the best time to register comments.
  2. Filing: Any comments that were not adequately addressed in the prefiling stage have to be resubmitted at this stage. From this point on, only those who have registered as intervenors may submit comments or objections. See section below on how to register as an intervenor. (Note: it’s easy.)
  3. Draft EA/EIS: FERC issues a draft environmental assessment or environmental impact statement of the proposal. Intervenors may comment at this point as well until the end of the designated comment period.
  4. Final EA/EIS: FERC issues its final environmental assessment.
  5. Rehearing request: Intervenors may file a request for a rehearing within 30 days of the final EA. After that, the rehearing process may go back and forth for 6 to 9 months, until a final ruling is issued.
  6. Court challenge: This follows the final ruling on the rehearing request and also takes about 6 to 8 months.

Enter Kafka: FERC will allow the company to go ahead with eminent domain seizures and construction of the pipeline even while rehearings and court challenges are still in progress. This is the case with the Spectra pipeline in the West Village: Sane Energy’s first court hearing took place three days after the Spectra pipeline construction was completed. Theoretically, if the court rules against Spectra and for Sane Energy, the company could be forced to dismantle the pipeline or never be allowed to use it. In fact, however, the FERC process process – and the entire build-out of gas infrastructure – is designed to create Facts on the Ground. It’s almost inconceivable that a company would be forced to abandon a pipeline that has cost millions of dollars to build. And the purpose of the pipeline is to create a high-speed interstate highway system for natural gas that is being fracked at enormous social and environmental cost all over this country.

Williams Transco has now entered the filing stage. The docket number is CP13-36. It is seeking FERC approval for the Rockaway Lateral pipeline project, and hopes to begin construction in October 2013. Anyone who wishes to comment or object at this stage must register with FERC as an intervenor. The process for registering is explained below.

Some Points from the Elefant Webinar 

FERC’s job is to approve or deny pipelines and related infrastructure based on “public necessity and convenience.” The public has two points of leverage against the Rockaway Lateral:

  • At the federal level: The company can be challenged under NEPA (National Environmental Policy Act), This necessitates a close scrutiny of the Williams Transco EIS and EA.
  • At the state level: FERC approval can be overridden if the state fails to grant a “consistency finding” under the Coastal Zone Management Act, or water and air quality certificates under the Clean Water and Clean Air Acts (minute 14 of webinar).

Expert advice would be required to find out where we might have leverage in all these areas. No other state or local statutes have standing.

Many FERC disputes center around the gas companies’ use of eminent domain. Industry has wide rights in seizing both public and private land. When there is a dispute about the location of a pipeline – too close to someone’s house or school or to a given watershed, virgin woodland –  FERC may occasionally make adjustments. But disputes over location do not generally appear to be grounds for denying an application altogether.

According to Elefant, FERC deems certain issues utterly irrelevant and gives them no standing whatsoever. For example:

  • Fracking, methane, climate change are nonissues – white noise to FERC regulators.
  • Safety issues are not considered by FERC at all in its approval process. Safety issues are determined by the Department of Transportation (DOT) — and only after a pipeline has been approved by FERC.
  • Multiple identical or near-identical comments are all lumped together as a single comment by FERC. So when 5,000 people object to a pipeline because it will carry radon-laced shale gas, this is considered a single objection. And irrelevant in any case, because fracking, radon, and shale gas are just white noise to FERC.

Access to information (minute 32 of webinar): Industry may categorize certain information as privileged or confidential: for example, diagrams and charts may be withheld from the pubic under the Critical Energy Infrastructure Information Act. CEII documents can be requested through FERC at this website: http://www.ferc.gov/legal/ceii-foia/ceii.asp. Information relating to historical structures may be withheld under FOIA. For FOIA documents, go to the FOIA website. Three important caveats:

  • Requests may only be made by people registered as intervenors.
  • The information may not be shared with anyone except other registered intervenors. So if one person in a group gets a CEII document, he/she cannot reveal the contents of the document unless everyone else in the group is registered as an intervenor.
  • It sometimes takes a very long time to get these documents, particularly FOIA documents, and may involve significant legal time and money resources.

 All of these rules work against the public and in favor of industry, which has lots and lots of money and armies of lawyers working on its behalf. Many of the lawyers have worked as FERC employees and are familiar with the process.

Registering as an Intervenor in a FERC Proceeding

Transcontinental Gas Pipe Line Company, LLC (Transco) has applied for permits at the Federal Energy Regulatory Commission (FERC) to build a gas pipeline in Gateway National Recreation Area. This new gas infrastructure, which includes a 26-inch high-pressure gas pipeline to be constructed in Jamaica Bay, in proximity to the Jamaica Bay Wildlife Refuge, which is home to over 300 species of bird and a dozen endangered and threatened bird, amphibian, marine, and insect species, and under Jacob Riis Park, a public beach that is used by thousands of New Yorkers and other visitors every year; and a metering and regulating station in landmarked hangars in Floyd Bennett Field, adjacent to the East Coast’s largest community garden. This gas pipeline project will have a severe impact on the wildlife refuge in Jamaica Bay, on the environment, and on the very character of Gateway, which is a national park held in the public trust.

Affected citizens, businesses, and organizations have a right to participate in FERC’s decision making process. To preserve this right, you or your organization must register with FERC as an “intervenor” NO LATER THAN THE REGULATORY DEADLINE OF 5:00 PM Eastern Time, on February 12, 2013.