What landowners should expect in coming weeks and months

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Last week during the West Amwell Citizens Against the Pipeline meeting, we talked with Jeff Tittel of NJ Sierra Club and Tim Duggan, a lawyer at Stark and Stark, about what landowners should expect to happen in the coming days, weeks, and months now that FERC has issued a decision.

There were two big messages I wanted to come out of the meeting.

First – we’re still going to beat this thing.  The FERC decision was expected, and is basically the “end of the beginning” of the process.  Now the real fight happens at a whole different level in other agencies, including DRBC and NJDEP.  They have the power to kill PennEast, and there are strong indications that they will.

Second – it’s not time to pull out the champagne and celebrate, because while we think we will ultimately win, the FERC decision DOES convene eminent domain powers to PennEast so sue landowners, get possession of their land, and in the short term also take one or more legal approaches to get quick access for survey purposes.

We have lots of information on the first part – beating PennEast.  But right now that can wait.  This article is going to focus on the second part – the landowners, and what to expect now that FERC has a Certificate of Public Convenience and Necessity in hand.

Relevant slides from the WACAP meeting are available here:

WACAP Meeting Presentation


To recap, on January 19th, in the dead of the night of a Friday night with a government shutdown looming, FERC snuck in a decision to grant PennEast a Conditional Certificate of Public Convenient and Necessity.  The good news is the “Conditional” part means PennEast still can’t do much of anything, because it has to meet all those conditions (including getting NJDEP and DRBC permits, among dozens of others) before it can actually build.  The bad news is the Certificate grants eminent domain power.  Here’s what that means to landowners in terms of a timeline.

Right now

As of right now, even though PennEast has eminent domain powers, they still have zero right to be on anyone’s property who has not signed an agreement with.  So if you’ve fought PennEast and not signed anything, PennEast still has no right to be on your property at all.

If you see someone trespassing, call 911, then call your local CAP leader, or post it on Facebook in the Stop PennEast Group, or someway or another holler “help”, and we’ll have people come running to help you sort it out.

We are working to educate police departments on this.  I know the West Amwell cops are on board in helping landowners protect their rights against trespassers.  I hope other cops are too.

For the whole process, GET PICTURES.  License plates, individuals, equipment, etc.  If the police for some reason aren’t cooperating, get their badge numbers and let us know, and we’ll see what action can be taken.

The point is, right now PennEast still can’t come on your land, and you have rights.  Be sure to exercise them.

And folks – keep it safe.  Don’t escalate it into any kind of violence, because if you take that route, not only is your safety in jeopardy, but other’s people safety may be as well, and you’ll become a poster child for “those crazy PennEast opponents out there”.  Don’t give them the satisfaction.

Next Two Weeks – Feb 5, 2018 Deadline

Next up, PennEast has FedEx’d “final offers” to all landowners it doesn’t have agreements with.  The agreements have a deadline of February 5th.  Landowners have a choice to agree or to do nothing.  If you do nothing, then PennEast will work to get access to your land.

From what we’ve heard, the offers still are ridiculously low with ridiculous terms that are all in favor of PennEast, and catastrophic for the landowners.  And PennEast is threatening to give a valuation to Condemnation Courts that are 1/2 or 1/3 of their “Final Order”.

In other words, PennEast is once again threatening land owners.

If you are landowner, then this choice is strictly yours, and it’s up to you what your own personal situation is.  But I’ll echo Susan Meacham, who at the meeting said “We got this far and have foiled PennEast at every turn because the landowners have united together, and united we have told them “no“, and if we can stay united we will continue to slow their efforts”.

I couldn’t agree more.  The choice is yours, but look at how much we’ve accomplished at continuing to say “no” to PennEast so far.

Next several weeks

For landowners who choose to say “No” to PennEast, PennEast will try to take your land via condemnation court.  This is a complex issue, and it could happen a few different ways, but this is the rough outline.

We think, based on other past pipelines, that PennEast will go for survey access first.  To do that, they’re going to go to a special condemnation domain court in Trenton, and plead that they need immediate access to your land for survey purposes.  If they take this route, you’ll get notified that PennEast is suing you in court, either in person or certified mail or something similar.  You can choose to fight this or not.  If I were in landowners shoes I’d fight it.  You can choose to also do this on your own, or hire a lawyer.  I suspect people are taking many variations on this.  Some have their own lawyers, others have banded together, and I know HALT is helping pool resources and find lawyers in some capacity as well.

Before March 31st, 2018

If PennEast is really desperate, they may try to go for premature tree cutting like they did on the Constitution Pipeline.  This is very unlikely, as it was only approved a couple of weeks ago, but again if they are really desperate they may try to get this authority from FERC (even in the absence of NJDEP application).  There is some precedent for FERC allowing this.  They call it “non-mechanized” construction, where guys with chainsaws walk the root and cut all the trees down along the PennEast proposed right of way.

We are in the lookout for this, and if PennEast and FERC attempt it, we’ll organize campaigns to fight it.  If NJ objects strongly enough, FERC will in fact back down and not allow PennEast to cut our trees.  The same is true in PA, but that’s a tougher hurdle given that PADEP has given approval and has a tougher political climate.

The good news is that even FERC likely won’t allow tree cutting on land that PennEast han’t already condemned.  So only those who have signed easements with PennEast would be at risk.  But that’s a risk we don’ want to take.

Coming Months

In parallel to all this, PennEast will working on a “permanent taking” of the Right of Way.  This involves going to Federal Condemnation court in Trenton.  There you and PennEast will duke it out in what the value of your land is, and possibly conditions on the “taking”.

Someone will serve you papers when PennEast files (either in person or certified mail or something similar).  So you’ll know.

There are many options you can take here.  You can ignore it.  If you do that, the judge will likely side with PennEast and give you whatever PennEast offers.  PennEast will get permanent access to the ROW, but can’t do anything with it until all conditions are met, and FERC gives a final order to proceed (we think, again, that PennEast will never fulfill those conditions).

You can fight it on your own.  This is possible but difficult. Eminent domain law and condemnations are complex and fraught with traps for the inexperienced.

Finally, as with the survey access stuff, you can have a lawyer working for you (your own, or pooled, or something else).  I’d recommend this given how hard it is to grasp all this.  Keep in mind most lawyers will not charge you up front for this type of work, but instead will take a cut of whatever compensation the judge approves.

You can choose to fight this in many levels and trip up PennEast along the way.  That is harder, and in general you can’t really “stop” this kind of eminent domain easily, you can also slow it up and get better conditions.  Your lawyer may not do this on contingency but may charge you an hourly rate if you want to fight like this (and again look at the lawyer-pooling options!).

But – and this is hard to accept but the reality – you can’t really stop this in condemnation court.  The court will accept the FERC certificate of “proof” of eminent domain rights.  The fight here is all down to your compensation, conditions favorable to you, and possibly throwing sand in the gears to help us slow it all down and maybe prevent some damage like premature tree cutting or taking too quickly with zero NJDEP permits.

The end Game

One long-term thing for landowners to keep an eye on: PennEast can’t build anything until it meets all of the Conditions on the Certificate, and this includes things like the NJDEP Clean Water Act permits, DRBC permits, and a host of other permits.  We think those are going to be shot down and PennEast ultimately won’t get built.

This leaves two risks for landowners, even assuming PennEast is beat.  One, you may still end up with a premature tree cutting as happened on Constitution.  We are working hard to prevent this, and it is mainly a danger to those who already have easements with PennEast.

Two, even if we beat PennEast, you’ll still have that easement encumbering your land.  For those who have signed voluntarily, watch out for PennEast trying to sell it to a third party.  What PennEast can and can’t do is mostly dependent on the exact language of the easement you signed, so it can only be determined on a case by case basis.

For those who’ve gone the eminent domain route, there may be some hope.  The condemnation will be tied to the FERC certificate, and only allow PennEast to be built there and nothing else at all (no other pipelines, no upgrades, etc).  If PennEast is ultimately defeated, PennEast will have worthless ROW rights.  There may be options to get your rights back in the case of a “dangling eminent domain”.

 

 

 

Materials for WACAP Meeting Tonight

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Below are some materials we will be distributing tonight about the FERC Order and next steps for protecting our properties and ultimately getting this project stopped.

Landowner Handout – letter for landowners:

https://thecostofthepipeline.files.wordpress.com/2018/01/landownerhandout.pdf

Letter to FERC to not allow premature tree cutting by PennEast:

https://thecostofthepipeline.files.wordpress.com/2018/01/ferc-letter-newsletter-january-2018.pdf

Letter to NJDEP to not allow premature tree cutting by PennEast:

https://thecostofthepipeline.files.wordpress.com/2018/01/njdep-letter-newsletter-january-20181.pdf

Letter to PADEP to not allow premature tree cutting by PennEast:

https://thecostofthepipeline.files.wordpress.com/2018/01/padep-letter-newsletter-january-20181.pdf

NJ Senator Kip Bateman’s petition against the PennEast Pipeline:

http://www.senatenj.com/penneast/

 

 

Analysis of FERC Order Issuing Certificates for PennEast Pipeline Company LLC

The Federal Energy Regulatory Commission recently posted an Order Issuing Certificates for PennEast Pipeline Company LLC.  Many people have found the order confusing and full of legal jargon, and have said that ultimately they don’t really understand what it all means.

To help fix that, I’ve translated the Order into plain English for the layman to understand.  Hopefully this will help everyone have a better idea of what FERC is trying to tell us all.


“FERC said in the Final EIS that none of the environmental impacts people have been talking about are real. We, FERC, agree with what FERC said in the Final EIS. The FERC staffers who wrote the Final EIS are fabulous. We, the FERC commissioners, are also fabulous.

PennEast has made claims with no studies or information to back them up.   We accept those claims cause they’re our buds.  And hey, they’re fabulous too.

Landowners A, B, and C made numerous annoying claims. We couldn’t be bothered to read them or understand them. We disagree, and we FERC assert that FERC was correct in originally disagreeing with them all.

In-depth studies showing a complete lack of need for this project from multiple independent sources bother us and give us indigestion. FERC has said ‘precedent agreements are enough’, and if that’s good enough for FERC, that’s good enough for us here at FERC.

Multiple parties asserted that selling gas to yourself is like selling your house to your spouse for $1 and is not an indicator of market need. We disagree, it doesn’t matter who’s buying, if they’re your brother in law or your wife or your best friend, or a complete stranger. Somebody’s buying, and that’s all we, FERC care about. Also the folks at FERC said that ‘affiliates’ don’t matter.  We, FERC,  concur.

We have made an in-depth study of the entire universe of potential environmental, cultural, socioeconomic and financial impacts this pipeline could have on the region, and conclude that none of it is any big deal.

We further find that we actually don’t have most of the information we claim we have in the prior paragraph, and therefore we order PennEast to actually try to find some of it out. Eventually.

We further inform PennEast that we have neither the interest or man power to check they’re work, but please make sure it’s real and not faked or incomplete (wink wink).

Many parties have indicated that a bunch of words on an electronic docket is not appropriate for arguing matters of this magnitude, and have asked for a judicial-style hearing where witnesses may be called, cross examined, and discovery of documentation be initiated. We disagree as such a process would undermine our total phony baloney process, and as we value our phony baloney jobs, we hereby conclude as FERC that FERC was correct in not allowing such hearings to ever, ever happen.   We further thereby plan on banning all judges within 100 square miles of our offices.

While it’s important everyone understand that FERC has done a thorough and complete analysis of the issues at hand on this proposed project, we are attaching the following 9,131 conditions to this Order.  Most of these conditions are meaningless, but our lawyers told us we had better include them to cover our collective asses.  As such we will skip most of them and highlight only those that mean anything.

Condition number 873 – PennEast CEO Tony Cox must wash all of the commissioner’s cars for the next 3 years for doing him this huge favor.

Condition number 120 – Please send Patricia Kornick to an island and throw away the map on how to find it.  Even WE can’t stand her.

Condition 8,133 – Please get all permits from other agencies.  If you can’t get them all, let us know and we’ll do what we can to force those agencies to give them up and admit FERC is the most awesomeness agency ever.

Condition 1 – under no condition are you to commence any construction until you have all permits and meet all conditions.  Unless you ask us nicely. Then we’ll like totally let you get away with it.

Condition 2 – For the purposes of this certificate, we are hereby defining “non-mechanized” construction to include all equipment 500 tons and below.  Equipment 501 tons and greater is strictly prohibited from being used until all permits have been obtained.

Condition 3 – You may commence non-mechanized construction next Tuesday so long as you submit a request to FERC using the same cool font they use for Game of Thrones.

Condition 9,131 – Try not to run anyone over in your rush to get this done.

Condition 5,000 – Commissioner LaFleur feels bad about all this and has said she would really, really like to see those HDD plans BEFORE you actually start drilling.

Condition 10 – In the event construction causes an unprecedented environmental disaster, please file a report with FERC in triplicate documenting that none of it is PennEast or FERC’s fault.



Finally, we apologize that 75% of the content of this Order is missing and the rest is incomplete. You see, the government was shutting down literally any minute, and Commissioners Chatterjee and Powelson said they were going to lose their club memberships and industry paid vacations if we don’t get this out the door pronto, so we had have Intern Kate rush this out as is literally as the janitor was turning the lights out in the building. We hope everyone is too distracted by the shutdown to notice this fact and take us to court.

Because we really, really hate court.

They are mean to us.

Pipeline Opposition Meeting Wed January 24th

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What:      Meeting to discuss FERC approval and next steps on PennEast
Who:       West Amwell Citizens Against the Pipeline
Guest speaker Jeff Tittel, NJ Sierra Club
When:    Wednesday, January 24th @ 7pm
Where:  West Amwell Municipal Building, 150 Rocktown Lambertville Road


It’s January 19th, 2018.  The news is swirling with warnings of an imminent government shutdown and political chaos.  Everyone is preoccupied with the Senate and the President and the minute-by-minute negotiations.

At 7:56pm of that evening, FERC snuck their decision on the PennEast Pipeline project onto their website.  That’s right.  FERC decided the perfect time to post their decision was in the middle of the night on a Friday on the eve of a government shutdown.

Their decision (of course) was to approve the project.  But it’s important people realize that this is not the end of the fight. It is merely the end of the beginning.  We collectively always knew FERC would approve this project, and that the real decisions would be made by agencies such as the Delaware River Basin Commission and the NJ Department of Environmental Protection and others.  Those agencies hold the real key to PennEast’s fate, and the ascension of Phil Murphy to the governorship in NJ gives me hope that those agencies will revert to enforcing environmental law as it should be.

But meanwhile, there’s a lot of work to do, and landowners along the PennEast route in particular are going to have a hard time ahead of them.  PennEast is going to be taking many landowners to condemnation court.  They’re going to be seeking injunctions to get early access to land for survey purposes.  We have deep concerns PennEast may seek to get an early tree cutting approval from FERC prior to a March 31st tree clearing deadline, and wipe out trees along the route before they even have environmental approvals in place (approvals which we fully expect they will ultimately be DENIED). Based on past behavior, I have little doubt that some PennEast contractors will be once again trespassing and shrugging their shoulders and saying “oopsie!” if caught at it.  But this time possibly with chainsaws in hand.

And we still have to lobby the DRBC and NJDEP to do the right thing and adhere to environmental regulations that are supposed to protect us from projects like PennEast.

Join us Wednesday, January 24th @7pm at the West Amwell Municipal building.  We’ll talk about all this, answer your questions, and we’ll demonstrate that the FERC approval is really a “nothing burger” in the grand scheme of things, with the gigantic caveat that FERC’s eminent domain authority is going to mean a lot of pain and misery for directly impacted landowners in the coming days and weeks.

Remember, folks, hope is a good thing, maybe the best of things, and no good thing ever dies.

FERC has not killed our hope, this is only the end of the beginning, and we still have every expectation that the PennEast Pipeline project will be killed in the coming months.

 

Lambertville East and Adelphia Gateway Pipeline FERC applications

In the past month pipeline companies have been busy in our area while FERC was distracted with its coal/nuke subsidy fight with the Department of Energy and the Trump Administration.  In particular, NJR has been moving forward with its potential “Plan B” alternative to PennEast, the Adelphia Gateway project.  And Texas Eastern is also charging forward with the Lambertville East project, a proposed upgrade of the compressor station on Rt. 179 in West Amwell.


NJR/Adelphia

First up, the NJR/Adelphia Gateway project (fully owned by New Jersey Resources) stealth-filed with FERC on Friday January 12th.  There were no press releases or announcements, just a  new docket popped up on the FERC site (which I found while developing a “new docket” scraping feature for Ferkee over the weekend).

The new docket is CP18-46-000.  The full application along with resource reports is here:

https://elibrary.ferc.gov/idmws/search/intermediate.asp?link_file=yes&doclist=14634543

Based on Adelphia’s documentation, the project is a bit more than the “no environmental impact” they’ve been touting to people to date.  Several laterals are proposed, along with new compressor stations and 8 blow down assemblies.

Most interesting to me – the identity of the project’s subscribers is not revealed anywhere in the public portion of the application.  Earlier NJR/Adelphia indicated that their open season got twice the proposed capacity – they proposed 250,000 dekatherms a day, and got bids for 500,000.  But we have no idea who bid.

In the application they say that the precedent agreements are still being worked on and will be filed with FERC.  But those likely will be filed as a “privileged” information, which you need to sign an NDA with Adelphia to see.  It seems NJR/Adelphia is trying to hide who the subscribers really are.

Why would they do that?

One theory is that the subscribers may be companies like Elizabethtown Gas, South Jersey Gas, UGI, and New Jersey Natural Gas.  Those names may ring a bell to you.

There will be comments on the docket demanding that the open season bidder identities be made public on the docket so we can see if this is another case of self-dealing, or if this pipeline project is a PennEast clone and constitutes over building (or, alternatively, PennEast’s owners believing their effort is doomed and doing this as a “Plan B” effort).

Either way, those following PennEast should be concerned about this as well.  In particular, imagine a worse case scenario where both NJR/Adelphia and PennEast get approved, with very similar pipeline routes paralleling each other and similar customers.  We have to make sure that doesn’t happen.

Everybody interested in this should get moving and intervene on the Adelphia docket. And hurry.  All signs indicate that NJR/Adelphia is trying to get this fast tracked.  They stealth-applied, and they indicate in the application they want to be approved and up and running this year.


Texas Eastern Lambertville East Project

Then there’s the Lambertville East project.  It’s FERC docket is CP18-26-000.  The full application along with resource reports is available here:

https://elibrary.ferc.gov/idmws/search/intermediate.asp?link_file=yes&doclist=14626092

This project may end up being a good thing for the area (with emphasis on may).  The current compressors are old, the area smells of gas all the time when you’re anywhere near the vicinity, and apparently emits dangerously high levels of noxious substances. The new compressors, while bigger, may be safer and emit less.

But – we need to look closely here.  I’d like to convince them to use electric compressors instead of natural gas, which will eliminate local emissions entirely and make the compressor station a much better neighbor to the poor people in the Mt. Airy neighborhood of West Amwell.  It’s also damn close to West Amwell Elementary and the Hunterdon South Branch library.

Also it’s possible Texas Eastern is up-playing some benefits and not talking about potential drawbacks.  We need to dive into the application in detail to see what’s being proposed here, and what the impacts really will be.

People should intervene on this docket as well to ensure their voices are heard.


Why Intervene?

On both matters I mention people and townships and groups who are in any way concerned or impacted by these two projects should intervene.  This is really important.  We’ve learned through PennEast and other projects that FERC only listens to and responds to intervenors on the Commission’s dockets.  Other non-intervenors are “welcome to comment” by FERC, but those comments seem to basically go into the circular file.

By intervening on a docket, you ensure that FERC has to listen to you and has to respond to your concerns.  While we may not like how FERC responds, making them work for it and make the effort is far better than being totally ignored.

 

 

 

 

Trying to decipher the new FERC chairman

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So I’ve heard people going back and forth on the new Chairman McIntyre at FERC and his call for a review of FERC’s 1999 policy statements. Some are (very) cautiously optimistic that this could be an opportunity to possibly reform FERC to some degree. Others think this is a transparent ploy by FERC to streamline their procedures even further and will turn the agency into the agency equivalent of fast food (“Your pipeline decision in 30 minutes or it’s free!”).
 
I think there’s merit to both sides. The new FERC Commissioner was the co-leader of the global Energy Practice at the law firm Jones Day, where he spent most of his legal career.  He’s represented clients before FERC, and is clearly an energy industry “insider”.

On the flip side, he’s a hard core lawyer, and has been involved a lot in actual litigation – rather like former Chairman Norman Bay.  He’s not an energy CEO or a regulator, which maybe counts for something.  Hard core technical lawyers are a different kind of beast than normal industry hacks.

A McIntyre Pipeline Case Before FERC

To try to get inside the man’s head, I decided to search the FERC docket for his cases.  Since he’s a lawyer who’s represented actions before FERC, it makes sense that he’d be on the docket.  And as it turns out, he is.  In the past 30 years, Mr. McIntyre has filed submissions to FERC dockets or been named in them 129 times.  The vast majority of those docket entries are on electric rate cases.  But there are a dozen or so natural gas pipeline submissions.

Among those submissions is this one from Mr. McIntyre from March 2012:
https://elibrary-backup.ferc.gov/idmws/common/opennat.asp?fileID=12914270

In this submission, Mr. McIntyre is arguing for his clients Chevron Corporation, who is protesting the Spectra Energy New Jersey – New York Expansion Project.  Yes, protesting.  The request itself is a “EMERGENCY MOTION TO HOLD PROCEEDINGS IN ABEYANCE AND FOR TECHNICAL CONFERENCE”.

Specifically, Mr. McIntyre claims in his submission that Spectra Energy and FERC are ignoring important, in some cases vital, information in it’s Draft Environmental Impact Statement, from McIntyre’s client Chevron.  He claims that the level of ignorance is so bad that the proceedings be immediately put into abeyance, and a technical conference convened for Spectra, FERC, and Chevron to debate the issues at hand e.g. stop everything!

In the opening paragraph, he states:

“the result may be the issuance of a Final Environmental Impact Statement addressing a Project route that not only no longer represents the current intentions of the parties (as discussed herein), but also carries significant risks of profound environmental damage to the land and public waters of New Jersey – hence this Emergency Motion.”

Note: the emphasis there is not mine but was added by Mr. McIntyre.  The site in question is described in this way:

“the Chevron site is both a remediation and redevelopment site and is under the guidance of the New Jersey Department of Environmental Protection (“NJDEP”) for remediation of petroleum constituents to support residential redevelopment.6 Constituents of concern include benzene, non-aqueous phase liquids and lead, resulting from the site’s past use as a Texaco petroleum terminal/lube blending facility and General/Pirelli cable manufacturing facility.”

Mr. McIntyre then speaks to the wholly inadequate response of Spectra Energy to Chevron’s environmental concerns at the site:

“Although subsequent filings by Spectra suggested to the Commission that Chevron’s serious environmental concerns have been resolved, that is simply not the case. Notwithstanding the optimistic words set forth in Spectra’s filings and data request responses, the profound and significant environmental issues raised by Chevron remain completely unresolved.”

After this a number of issues and concerns are detailed in the motion.  All these concerns were filed with FERC.  But instead of responding to Chevron’s concerns, McIntyre says this happened instead:

“Although Spectra filed a response to various parties’ comments on the DEIS, Spectra expressly refrained from responding to Chevron’s comments and environmental concerns.15 Instead, Spectra indicated to the Commission that Spectra and Chevron would meet to resolve those concerns.16

[….]

In its response, Spectra averred that the Chevron alternative was not viable, and once again, Spectra implicitly assured the Commission Staff and the Commission that Chevron’s grave environmental concerns with the Project route would be resolved:

To date, Spectra has never responded to Chevron’s DEIS comments. Nor has Spectra ever provided information on these matters sufficient to enable the Commission Staff or the Commission to be properly cognizant of, let alone to meaningfully assess, the profound environmental risks involved with the DEIS-described route.”

Is this starting to sound familiar?


The saga continues.  Rather than acknowledge the potential issue, Spectra comes out and asks for their application to be expedited instead!

“Spectra responded to the Staff’s scheduling notice. Rather than recognize the legitimate need of the Staff for additional time to permit a thorough environmental analysis, particularly in light of changes to the proposed Project route, Spectra instead filed a response urging that the environmental review be expedited – and that a certificate for the Project be issued by “March or early April” 2012.24 Nowhere in Spectra’s filing did it respond to the environmental concerns raised by Chevron in October 2011.25 Nor did Spectra – in the course of asking that the environmental analysis of the Project be accelerated – inform the Commission or the Staff that no resolution had been reached regarding a safe route for the Project across the Chevron site.26

McIntyre’s motion goes on to outline the specific relief they want (basically: FERC should force Spectra to acknowledge these issues and deal with them BEFORE the Final EIS is issued, not at some hand-wavey later date).

Ultimately, FERC ignored McIntyre’s motion, and it went completely against him.  FERC  did exactly what we would expect – in the Certificate Order for the NJ-NY Expansion project, FERC set condition 20:

“20. Prior to construction between Mileposts 5.68R and 8.60R, Texas Eastern shall file with the Secretary for review and written approval by the Director of OEP, a site-specific plan addressing the concerns of Texaco Downstream Properties, Inc. and Chevron Land and Development Company (collectively, Chevron) about the slurry wall, groundwater contamination, and the timing of construction activities. This plan shall:
a. include a diagram verifying the actual separation between the bottom of the slurry wall and the top of the horizontal directional drill (HDD) alignment;
b. include provisions for a pre- and post-construction assessment of the slurry wall’s integrity;
c. include monitoring of the Kill Van Kull during construction for benzene- contaminated groundwater and include mitigation measures to contain and control any potential release of contaminated water into the river;
d. describe the measures that will be implemented to avoid adverse impacts on Chevron’s mitigation plans; and
e. discuss how conflicts between pipeline construction and site remediation work will be managed if Chevron will be conducting its next remediation phase at the same time the pipeline will be constructed.

This condition basically says “Hey, try to work out this spat with Chevron, OK?”.  And that’s about it.  And hey, if you release benzene, please let us know!

Conclusion?

As I mentioned, Mr. McIntyre is pretty light on the FERC docket on pipeline matters.  Nearly all of his arguments are on electric rate cases with very few exceptions.  But his work on  the Chevron/Spectra Energy dispute and his submission to the docket on behalf of Chevron makes a few things clear.  He knows, from his own experience, that FERC ignores major environmental issues, even from energy industry executives and colleagues.  He knows FERC never gives in to any request, no matter how reasonable, to look at certain critical issues or to delay proceedings.  He has seen how FERC prepares totally incomplete Final Environmental Impact Statements, and uses conditions in the Certificate Order as a band aid to fix it.

Maybe this experience means nothing to Mr. McIntyre, and he could care less about the Chevron case and its outcome.  Maybe he is just another industry hack who’s part of the FERC revolving door with industry.  Maybe we’re all screwed when they start reviewing the 1999 FERC policy statements.

Or maybe – just maybe – there’s a glimmer of Norman Bay in Mr. McIntyre.  And maybe a hard-core technical nerd of a lawyer like he’s demonstrated to be chafes somewhere deep down inside at all of the screwed up stuff FERC does on a routine basis.  Maybe.

I don’t expect miracles.  I think the policy statement review will likely end up being a disaster for people who are against the explosion of irresponsible pipeline development in the country.  Most likely they will move to streamline the hell out of the regulations and make it easier to push pipeline through.

But maybe – maybe – maybe there is a silver lining in here.  Perhaps there is a positive way through this mess, if we can see our way through the maze.  Before we pre-condemn Mr. McIntyre, why don’t we do everything we can to move him in the right direction and make FERC a federal agency that is actually responsible and responsive. Let’s hope that the public is invited as stakeholders in this review, and if so let’s ensure our comments on FERC are heard loud and clear, along with ways to fix them.