When you talk to people who have experience with FERC and past pipeline battles, they’ll often tell you about problems with the FERC process and attitude. You’ll hear about boilerplate cut and paste language in evaluations. You’ll hear about timelines created to help the pipeline in the ground faster. For the environment…well, forget it, we’ll get the environmental impact analysis in sometime later. You hear that FERC will bend over backwards to help companies get their gas flowing as fast as they can.

We’re seeing this now, live and in color, with FERC and PennEast. Those of us watching the docket and reading the meeting minutes between PennEast, FERC, Tetra Tech, and NJDEP and other agencies are seeing the broken process unfolding before our eyes.

The good news is that have allies in this process, and FERC is seeing many monkey wrenches thrown into the works they have never had to worry about before. FERC may have gotten away with this in the past, but the times, they are a’changing, and together we’re going to make them change.

First, some background in the latest issues. PennEast has met with the NJDEP on several occasions in the months of July and August to discuss the project. Many issues came out of those meetings, which were documented in meeting notes filed to the FERC docket for PennEast. There were, in fact, so many substantial issues that the citizens’ groups organized against the pipeline in New Jersey got together and drafted a letter detailing those concerns (I’m proud to say that I was able to pitch and help with that effort). We sent it off a few weeks ago and are looking to meet with the NJDEP in person to discuss all of our concerns and see what we can do to help them. I’ll be covering more of that in coming weeks, but suffice to say that we’re seeking to work closely with the NJDEP to ensure our environmental safe guards are honored. And meanwhile, let’s all cheer them on for all of their efforts to date.

More recently, the NJDEP meetings between PennEast and FERC were discussed in a meeting between FERC, PennEast, and the firm contracted to perform the Environmental Impacte Statement (EIS) on the project, Tetra Tech. The full meeting minutes are available here:

http://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=13988551

The purpose of this meeting was to discuss when PennEast plans to formally file with the FERC, and issues that need to be corrected before they file, and issues that are still up in the air or may have significant impacts to them. A number of pieces of these meeting notes caught my eye, including the ones listed below. These are verbatim from the meeting minutes:

• Survey status
  • Access to New Jersey parcels continues to be a problem; however, survey status is above 50% for wetlands, cultural, and RTE species
• Project Schedule
  • Expect to submit application in mid-September, may slip from September 18th filing
  • Expect to receive Certificate in August 2016
• NJDEP and Green Acres
  • PennEast has conducted several meetings with NJDEP to discuss process and review route
  • NJDEP doesn’t appear to understand the FERC process; have requested opportunity to review RRs prior to 7(c) application
  • Medha proposed conducting a separate meeting with NJDEP to try (again) to explain process and differentiate between EA and EIS
  • Certificate will be conditional on surveys being completed
• Concerned about timeline with regards to Green Acres review which can take 12-18 months and requires township participation
  • 100 percent of municipalities in New Jersey are being uncooperative.  PennEast stressed willingness to compensate and mitigate for impacts to Green Acres parcels

What’s going on here is that FERC does not, as a general rule, follow its own regulations properly. They are charged under the National Environmental Policy Act (NEPA) with thoroughly evaluating any project that will have a significant impact to the environment. For large projects like PennEast they have to create what’s called an Environmental Impact Statement (EIS). This quantifies and clearly states all of the impacts the project will have on the environment, both temporary from construction and permanent ones from subsequent operation. The project also has to justify it’s Purpose and Need – it has to state how this project will benefit the people of the United States.

Under NEPA, FERC has to then weigh the project justification against the environmental impact, and evaluate whether the impact is worth the benefits.

That’s what FERC is charged to do under the law. Unfortunately, they appear to take a number of short cuts along the way, and we’re seeing that live right now with PennEast.

First, they are required to create a full EIS, and study the area and its issues as deeply as possible e.g. determine the true impact. They often do not do that. FERC allows companies to file incomplete EIS’, and FERC accepts them. To make this technically legal they make finishing the surveys and EIS a condition of their approval – they have to finish their surveys and reports before the company can begin construction.

However, this is all just boilerplate. Once FERC approves a project, no one seems to check the EIS later to see if it’s really complete, and the surveys are meaningless because no one evaluates them. This takes NEPA from being a critical tool for evaluating environmental impact to being just a lot of paperwork that has to be filed.

Second, they sometimes allow the company to go into projects almost blind. They are supposed to physically survey, on the ground and in person, a substantial majority of the route. However they often approve of projects that are missing large amounts of surveys. These surveys are usually missing because property owners who are affected refuse the company access to their land. Here again they use loop holes to circumvent the intent of the regulations. In these cases they grant approval, which gives the company eminent domain powers. They can then condemn the properties and have free reign to survey them at all, and the property owners cannot object.

However, these surveys are again just paperwork. The route at approval time is fixed. If they find something significant from the surveys they can’t change the route. And often disaster happens as a result. This has happened on past projects, where mitigation of environmental impact failed because the companies had insufficient survey data, and they couldn’t change the route once eminent domain was granted and they found out what was really there.

Looping back to the meeting minutes – PennEast, Tetra Tech, and FERC are all complaining that NJDEP is stubbornly insisting on enforcing regulations both at the NJ state level, and also on the federal level as stewards of the Clean Water Act in New Jersey, and as part of the FERC process. NJDEP is resisting the “short-circuiting” of the process that FERC does as a matter of course in their business. And FERC is stating bluntly that they’ll allow an incomplete application and just make surveying a condition of their approval (which as I indicated is empty and meaningless).

Yet another issue is timing. Energy companies are always rushing to get these projects approved because they want first-mover advantage in the market and delays cost them a great deal of money. And FERC supports this rushing. The problem with that is that the regularly miss very serious environmental and other issues and cause far more damage in real life once construction begins than their studies indicate. Here PennEast is claiming that they will formally file in late September 2015 – and get approval from FERC in August 2016. This means PennEast is pushing to get approval in a bare 11 months. This is an incredibly short time for an EIS of a 100+ mile long project along a green fields route. And here again they are complaining that Green Acres evaluations alone can take 12-18 months – and require township cooperation. As you probably know 100% of the impacted towns in NJ have passed resolutions against PennEast. PennEast is asking FERC to help them work around these regulations so they can get their pipe in the ground as quickly as possible.

All of this are gross violations of the letter and spirit of NEPA, and an horrible abuse of eminent domain. NEPA is supposed to be used to fully define a project’s true impact before eminent domain is ever granted. Eminent domain should never be granted without full knowledge of what’s being attempted and what harms it will create. Yet FERC routinely does exactly this.

But things don’t have to be this way, and we intend to change it.  FERC has acknowledged that the landscape has changed in the past few years, and they need to change with it.  Court cases are being won against them and precedents are being set.  And the opposition against PennEast has been both powerful and effective.

Looking forward – the opposition to PennEast are putting out letters for the NJDEP and other organizations. Get copies as they come out, sign them, and forward them to the NJDEP to show your support for their stance and actions.

And Write your legislators. They need to hear our voices in unison. Tell them about the meeting minutes and how FERC is trying to subvert NEPA right out in the open for everyone to see.

As PennEast is close to officially filing their application, now is the time to turn up the heat even higher and let them know we’re watching, we’re taking action, and we won’t let up for an instant.