Your water. Your environment. Your voice.

NATURAL GAS

PIPELINES

WHAT THE FERC IS FERC AND

WHAT DO THEY HAVE TO DO

WITH PIPELINES?

WHAT IS FERC?

• FERC is the Federal Energy Regulatory Commission • An independent governmental agency created in 1977. • It oversees the regulation and approval of:

• Hydroelectric • Electric utilities • Natural gas pipelines • Oil pipelines

• Governed by 5 commissioners and is located in D.C.

• Natural Gas Act passed in 1938

• It regulates: • Transportation of natural

gas in interstate commerce. • Sale of natural gas for the

purpose of resale in interstate commerce

• Companies engaged in the interstate transportation or interstate resale of natural gas.

Natural Gas Act

Photo courtesy of FERC

Transportation of natural gas

in interstate commerce

• FERC regulates the interstate transport of natural gas.

– It does not regulate natural gas lines that are truly intra-state.

– It does not regulate distribution lines

– It does not regulate “feeder” lines

Certificate of Public Convenience

And Necessity

• Commonly know as “Certificate of Need”

• The ultimate goal of a pipeline company

• It is the “permit” that authorizes a company to move forward with its project.

• Even with a Certificate of Need, project still needs to obtain environmental permits.

Certificate of Public Convenience

And Necessity

• 15 U.S.C. 717f sets out the requirements for FERC to issue a certificate of need:

“Whenever the Commission, after notice and opportunity for hearing, finds such action necessary or desirable in the public interest, it may by order direct a natural-gas company to extend or improve its transportation facilities . .”

What is “Public Interest”

• The term is not defined in the Natural Gas Act.

• The term is not defined in the implementing regulations.

Standards

FERC’s policy on issuing Certificates of Need:

“the Commission balances the public benefits against the potential adverse consequences. The Commission’s goal is to give appropriate consideration to the enhancement of competitive transportation alternatives, the possibility of overbuilding, subsidization by existing customers, the applicant's responsibility for unsubscribed capacity, the avoidance of unnecessary disruptions of the environment, and the unneeded exercise of eminent domain in evaluating new pipeline construction.”

FERC PROCESS

The process for obtaining a Certificate of Need

• Pre-file

– Some of the work is done in a public process.

– If pre-filed cannot file a formal application for 180 days after pre-file.

• No pre-file

– Applicant does all of the work upfront without public input.

NEPA Process Issuance or denial of Certificate of Need

FERC PROCESS

What to do once there is an application

filed?

• Submit comments to FERC.

• Comments submitted during pre-file are not part of the record. They must be refiled.

• File for Intervention

FERC PROCESS

What is Intervention?

• Must file a motion to request intervener status

• There is a time limit within which to file for intervener status.

• Time line is set out in notice of application.

• Must file for intervener status if want to request rehearing.

After Certificate of Need

What is next after Certificate of Need

• Applicant needs to obtain environmental approvals.

• Obtain Easements

– Voluntary Purchase

– Eminent Domain (Condemnation)

• Challenge to Certificate

– Request rehearing

– Appeal to Court

Environmental Approvals

I thought FERC pre-empted all other

regulations?

NO!

Environmental Approvals

• Federal Laws are not pre-empted.

• Endangered Species Act

• Clean Water Act

• Section 401 Water Quality

Certificate

• Section 404 Dredge and Fill

• Section 402 NPDES

• Clean Air Act

• National Historic Preservation Act

Environmental Approvals

• This is another opportunity to comment

and oppose the project.

• Applicant will submit permit applications

to State/Federal Agencies.

• In NJ that may mean:

• NJ DEP

• Delaware River Basin Commission.

• In other states:

• EPA

• Army Corp

• FWS

Eminent Domain

If the applicant cannot obtain voluntary

sale of property they can file for eminent

domain.

Where do they file:

• Federal if over $3,000

• State if less than $3,000 or chosen.

How do they value the property?

Big question. Some jurisdictions look to

Federal law, some to state law.

Resources

FERC - www.ferc.gov

Environmental Overview by FERC-http://www.ferc.gov/industries/gas/enviro.asp

Information on Pending and Upcoming Projects –

http://www.ferc.gov/for-citizens/projectsearch/SearchProjects.aspx

FERC’s citizens guides: http://www.ferc.gov/for-citizens/citizen-guides.asp

Caroline Elefant’s Knowing and Protection Your Rights When an Interstate Gas Pipeline

Comes to Your Community - http://lawofficesofcarolynelefant.com/wp-

content/uploads/2010/06/FINALTAGguide.pdf

Your water. Your environment. Your voice.

Thank you!