By now we probably all know about “flattening the curve” – being smart in our interactions with others, cleaning constantly, social distancing wherever possible. Basically the whole country is stuck at home looking for things to do.
Lucky for you, FERC and PennEast have given you the perfect activity to do at home! FERC has opened a 30 day comment period on the new PennEast “abbreviated” application amendment (you know, the Phase1 PA, Phase 2 NJ thing). This comment period ends at 5:00pm Eastern Time on March 30, 2020. That gives us 15 days left to get comments on the docket. Why not do a comment a day to keep the coronavirus blues away?
Remember, the new docket is CP20-47-000. We are looking to get as many comments as we can on the docket to demonstrate that opposition to PennEast remains strong. To give you some ideas, the Citizens Against the Pipeline (CAP) grassroots organizations across NJ and PA have put together some example comments. Please feel free to submit these, or make comments of your own on the FERC docket CP20-47-000.
So let’s bring on the examples!
Not an Amendment, A New Project.
PennEast’s proposal must be treated as a new project, not an amendment to an existing certificate. PennEast’s attempt to amend its certificate in this manner is in clear violation of the Natural Gas Act (NGA).
PennEast is claiming that both Phase 1 and Phase 2 have independent utility but that issue needs to be explored and proven in a new application since this was not considered in the original application. Phase 1 clearly does not have required independent utility as required under the Natural Gas Act (NGA). It does not show economic justification nor protect the consumer to meet the NGA criteria of being in the “public interest”.
INSIDE DEALING and NEED
How can PennEast claim that Phase 1 is independently viable when 85% of their contracted capacity is with New Jersey local distribution companies but the proposed capacity does not reach New Jersey?
On top of this, PennEast attempted to hide the fact that all of the shippers for Phase 1 are wholly owned subsidiaries of PennEast’s owning companies from the public.
PennEast has not proven there is a need for the Phase I portion of the project. They only have Shippers for 52% of the capacity of the pipeline and all of them are affiliates of PennEast.
RADICAL SHIFT in FLOWS
PennEast’s original Certificate filing had roughly 990,000 dekatherms/day of subscribed capacity, with the endpoints described for each subscription. This included substantial deliveries into NJ. The abbreviated filing now includes 213,000 Dekatherms/day flowing into NJ, presumably via the Adelphia pipeline interconnects. PennEast does not indicate how this 213,000 dekatherms/day is related to the original subscriptions in the Certificate filing, nor does it specify endpoints. This means that PennEast needs to file an entirely new Purpose and Need statement for Phase 1 and Phase 2, it needs to identify what the endpoints are, and it needs to define what subscriptions apply to Phase 1, and what apply to Phase 2. Without this information, the abbreviated filing cannot be accepted by FERC, as the purpose and need calculations have fundamentally changed.
EMINENT DOMAIN and PURPOSE and NEED
FERC’s policy statement on determining Purpose and Need states explicitly that the commission must view purpose and need proportionally with the amount of eminent domain exercised within a project. That is, the greater the amount of eminent domain that will be applied within a project, the stronger the purpose and need has to be justify the takings. At the time FERC issued a Certificate to PennEast on docket CP15-558-000, it did not appear to take eminent domain takings into account when determining purpose and need. However, it is feasible that FERC believed that in the end PennEast would be able to negotiate with a substantial number of landowners in the final hour and avoid eminent domain court in most cases. We know now that is not the case. In fact, PennEast almost immediately filed 198 separate eminent domain cases once it was granted its Certificate. 148 of those cases were in the NJ portion of the route, and represent a staggering 50% of the total route. This means that FERC is now fully aware that Phase 2 of this abbreviated filing would involve 50% eminent domain. Since this is now an established fact, FERC must re-evaluate its purpose and need decision, and determine if the benefits of the Phase 2 project outweigh the outright decimation of property rights by needing to condemn fully half of the route. It is clear that the weak statement of “need” by PennEast cannot justify condemning such a large number of properties, and that FERC must thereby reject this application.
PennEast was always unneeded but is even more so now that an additional four billion, fifty-five million cubic feet per day of capacity (4.055 Bcfd38) has been added to pipelines in, running to, or running through, Eastern Pennsylvania and New Jersey since the original application filing. There was sufficient capacity at the time of the original application’s filing, and now that has dramatically increased to a massive glut of capacity. Old, out-of-date, self-dealing precedent agreements do not justify demand or qualify as proof of public need.
PHASE 1 OVERBUILDING
While PennEast claims independent utility for Phase 1 of the pipeline, it does not justify anywhere the 36” pipe size. With only 338,000 dekatherms/day subscribed to in Phase 1, it would appear on its face that a 36” pipe would represent over building on the part of PennEast. Consumers should not bear the construction costs and rate burden of a 36” pipeline if a pipeline of that size is not actually required in Phase 1. This is especially concerning as PennEast has stated explicitly that Phase 2 may never be built. This would result in stranded unused capacity being paid for by consumers, with violates a critical FERC mandate.
PHASE 2 OVERSIZED
With 213,000 dekatherms/day of capacity proposed to flow to NJ through the Adelphia pipeline in phase 1, the sizing of Phase 2 is now in serious doubt. A large portion of the gas that “required” a 36” greenfield pipeline to be built in NJ may now be flowing through Adelphia and connecting to NJ in Phase 1. As a result, the Phase 2 pipeline sizing almost certainly represents overbuilding on the part of PennEast. As a result, FERC must deny this abbreviated application.
JURISDICTION and Condemnation RIghts
SInce the 2018 Certificate is currently under review by the D.C. Circuit Court of Appeals, the FERC Commission lacks jurisdiction to modify it. Simply put, under the Natural Gas Act (NGA), FERC does not have authority to alter the certificate while the D.C. Circuit Court of Appeals still has jurisdiction.
CONCEALING NJ Issues
In its abbreviated filing, PennEast states that its delays are due to issues with getting its “New Jersey Authorizations”. This is not in fact the case. The true issue facing PennEast is that the 3rd circuit court of appeals has barred PennEast from bringing 42 suits against the State of NJ in Federal condemnation court. Due to the 3rd circuit ruling, PennEast cannot legally obtain rights and build on those 42 properties. Those properties total about 9.2 miles of the ROW, which represents approximately 20% of the route on the Phase 2 proposal within NJ. This means that PennEast is legally barred from ever creating its Phase 2 route. For this reason this abbreviated application must be denied.
The phases in the application all pose significant environmental harms that must be considered by the Commission when determining public interest. All of the phases’ harms must be independently weighed against its purported (nonexistent) need to determine public interest for each phase. This includes a cumulative EIS of Phase 1, including the new Church Road Interconnect, and a reevaluation of all potential HDD drilling impacts that current scientific and industry data demonstrate has been significantly underestimated. The industry acknowledged 50% failure rate of HDD must be accounted for in assessing the impact to wetlands, streams, and animal habitat.
The FERC commission failed to comply with the National Environmental Policy Act (NEPA) and perform a complete EIS for PennEast’s 2015 project and therefore did not correctly weigh the public benefits and costs of the project.