Pipelines – Enter the Escher Zone

For the everyday property owner faced with pipeline headed for their property, navigating through the Federal Energy Regulatory Commission (FERC) process is like living in an Escher drawing.

The first any homeowner learns of a pipeline is coming is either through a news article or receiving a letter in the mail from a pipeline corporation.   From that point, up is down, down is up, left is right, right is left and inside-outside is topsy-turvy.

Property owners do not know where to turn for help and information.   Do they take the word of the pipeline corporation? Appeal to elected officials for help, who are more often than not just as confused? Contact FERC? Talk to some organization somewhere out there, assuming one can be found?

The pipeline build outs are the next phase of the natural gas boom. Natural Gas drillers have to get the gas to market. It doesn’t matter to them if the market is domestic or foreign. They have a product to sell, and money to be made.

For interstate pipelines, meaning the pipeline crosses through two or more states, the permitting process is the responsibility of FERC.   If possible, many pipeline corporations will design the route to cross state lines, even a little, to enable them to go through FERC because such permitting is pretty much a done deal.

And Jeff Tittel, director of New Jersey’s Sierra Club, tells his FERC joke: “They’re the Will Rogers of regulatory agencies. They never met a pipeline they didn’t like.”

Since 2006, the agency has approved 451, or 56 percent, of 803 applications for pipelines, compressor stations, storage and liquefied natural gas export facilities. Of projects that failed to advance, 94 are pending and applications for 258 either were denied or were withdrawn by companies. FERC could not provide a more granular breakdown.

And not all 451 approved projects have moved forward, FERC spokeswoman Tamara Young-Allen said. Some failed to meet construction timelines or safety rules, she said.

But some say it’s more than just a numbers game.

An industry source, who asked to remain anonymous for fear of jeopardizing his business before the commission, said FERC is required by Section 7 of the 1938 Natural Gas Act to allow developers to build and operate gas pipelines if they comply with the law and agency regulations and stipulations.

“People may not like this, but it’s just not a regulatory regime set up for FERC to reject applications,” the source said. “It’s really set up for FERC to approve applications that comply with conditions.”

Of the 709 completed pipeline applications since 2006, FERC approved 451 and denied 258, according to a report by the commission last summer. Most of those denials were applications that had been withdrawn rather than rejected, the report says.

So, how many natural gas pipelines have been actually rejected by FERC? According to Carolyn Elefant, a Washington, D.C., attorney and former FERC employee, only one gas pipeline has been outright rejected by FERC in the past 10 years.

Down the Up Staircase
The FERC process typically comprises of two phases. The first is known as Pre-File and is voluntary. Corporations do not have to pre-file, but it is advised that they do so.

The pre-file is like a practice test. It is designed to make sure all the paperwork has been properly completed, all the i’s are dotted and t’s crossed. Technically, at this point nothing is official and the pipeline is not a done deal.

Unlike a practice test where the test taker does not have access to the answers, FERC helps the pipeline corporation with the “answers”.

The pre-file phase is where the chances of successfully stopping a pipeline are the greatest. This is where the property owners need to be the most active. Once a pipeline corporation has officially filed, the odds of defeating it significantly diminish.

What can property owners do? Pipeline corporations are encouraged by FERC to hold public meetings. Note that they are “encouraged” but not required to do so.

Joanna Salidis, President of Friends of Nelson, a group working to oppose Dominion’s pipeline had this to say about her interaction with David Hanobic :

“I told a FERC representative that night, David Hanobic, that FERC needed to provide a second public meeting for those who wished to speak,” Salidis continued. “He said that we were lucky to get a public meeting at all since the National Environmental Policy Act that governs the scoping process does not mandate public meetings and some government agencies don’t offer them. When I responded that those agencies don’t have the extraordinary power of eminent domain, he claimed that FERC didn’t either – rather they just gave that authority to transmission companies like Dominion.”

David Hanobic serves as the Outreach Coordinator for FERC’s Office of Energy Projects, Division of Gas – Environment and Engineering (DG2E).

Most pipeline corporations will hold open houses in selected communities along the proposed route. If a homeowner is looking for concrete useful information, they won’t find it there. Pipeline open house events have been compared to an elementary science fair to a dog and pony show.   These are not designed to inform people, they are designed to sell people on the pipeline.

The next opportunity for people to become more involved is the FERC hearings. This is where people have between 3-5 minutes to stand before a FERC panel and tell them why or why not the pipeline should be built, and what concerns them about the project. The testimony is taken down by transcriber, but it is advised people also submit their statements as a hard copy, especially since the time limit is strictly enforced.

FERC is not at the hearings to answer questions, so don’t expect answers. The FERC hearings collect the comments and formulated the basis for:

Environmental Impact Statement. A document prepared to describe the effects of proposed activities on the environment. When preparing and EIS, land, water, air, structures, living organisms, environmental values at the site, and the social, cultural, and economic aspects are considered. An impact is a consequence that results from an activity. Impacts can be positive or negative or both. An EIS describes impacts, as well as ways to manage impacts. Managing impacts means lessening or removing negative impacts. Federal laws and regulations require the federal government to evaluate the effects of its actions on the environment and to consider alternative courses of action. NEPA specifies when an EIS must be prepared.

Environmental Assessment. An environmental assessment (EA) is a comprehensive and systematic process designed to identify, analyze and evaluate the environmental effects of proposed projects. EA preparation involves the public in an open and participatory manner and allows for the effective integration of environmental considerations and public concerns.

Cultural Resources. Districts, sites, structures, and objects and evidence of some importance to a culture, a subculture, or a community for scientific, traditional, religious, and other reasons. These resources and relevant environmental data are important for describing and reconstructing past lifeways, for interpreting human behavior, and for predicting future courses of cultural development.

 Property owners and others who are concerned about the project are told they may submit comments on-line at the FERC website.   Navigating the website to find out where and how to submit comments is a nightmare.

Up the Sideway Elevator
While the open houses and FERC hearings are going on, the pipeline company will be sending out their landmen to secure permission to survey properties. The landmen will say anything it takes to get a signature permitting the survey.

Property owners may be told if they don’t sign then the pipeline will be put anywhere the corporation wants, or their property will just be taken by eminent domain, or the pipeline is a done deal so the property owner may as well sign.

As previously mentioned, the FERC website is a nightmare to use to find any useful and understandable information.   Property owners are left to their own devices to find the answers they need.

To add further confusion, the pipeline corporation may pay for a study or two to show how good the pipeline will be for people and communities. Not surprisingly, these studies will show the pipeline will create oodles of jobs, boost local economies, provide a cheap energy source, and other sparkly rainbow filled conclusions.   For those who skim the news headlines it may make them wonder why everyone doesn’t have a pipeline in their backyard.

Switch the Down Escalator to Up in the Middle
During the pre-file phase, the pipeline route may be somewhat changed to avoid crossing something for some reason.   This may happen several times. The new property owners faced with a pipeline in their backyard will not have the opportunity to attend an open house or testify at a FERC hearing. Those are over, done, and completed.

It doesn’t matter if the route change affects 1 or hundreds of new property owners. No new hearings. No open houses.

The only course for these new property owners to express their concerns is to file a comment with FERC by navigating the nightmare website or mailing a hard copy to FERC.

These route changes may be done close to the time when the pipeline corporation is ready to officially file their FERC application.   Comment submission deadlines are not extended to allow newly impacted property owners the time to educate themselves and respond.

You Need a GPS

Where can a property owner get real and useful information? FERC website is a nightmare and pipeline corporate website is filled with sparklies and rainbows.

In self defense, many residents have formed their own groups to find information, discuss options of what they can do and attempt to share it with others. While these local groups are learning and providing needed information, it is still a self-taught process. And what can be done with the information? Where do you go from here?

Many groups fall into the trap of looking for the “magic bullet” that will stop the pipeline. The old saying of “there is more than one way to skin a cat” is more apt.

If there is a magic bullet in this, it lies with money, specifically costing the pipeline corporation more money to the point where the pipeline is no longer a financially feasible project. To effectively shoot a “magic bullet” groups have to employ all methods of “skinning the cat”.

These methods include and are not limited to:

• File FERC comments
• Report pipeline trespassing to FERC hotline
• Refuse or rescind Survey Permissions
• Urge elected officials to take a stand against the pipeline
• Push for more regulations
• Push to change eminent domain laws to prohibit private property being taken by private corporations
• Write Letters to the Editor
• Do your research and share it
• Find common ground with other groups and organizations – work together
• Contact other agencies involved, ask questions, and express your concerns
• Get Local and Be Vocal
• Join a local group – if there is none – start one

Frackorporation is aware of the reasons why no one of these will work on its own, however banging drums and sign waving as the only method to stop a pipeline hasn’t worked very well.

To stop a pipeline it takes many people working together in many ways.

 

© 2015 by Dory Hippauf