FERC Chairman likes to demean pipeline protests in public

Update: Changed post title to indicate Cromwell was not an intervenor but was a protestor on Mountain valley.

Like our President, FERC interim Chairman Neil Chatterjee likes social media, and simply revels in trolling people.  We’ll see if this stays public or not.   Here is his Facebook profile:


If his profile or the thread does not stay public, will post screen shots of it.  The Chairman of FERC is basically engaging in frat boy mocking of a FERC protestor.


The one difference between the President and Mr. Chatterjee, though, is that the President has immunity from most laws.

The FERC Chairman, on the other hand, does not. And is bringing personal attacks against intervenors and people who have legal matters before his commission.  Here are screen shots



Here is an earlier thread (“Boyo”).

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Announcement: Alpha trials of Ferkee Alert! System

As we get closer and closer to a possible decision from FERC on the PennEast pipeline project, I’ve been gorging on FERC decisions to look for patterns and try to gain an understanding of what is common practice for FERC (and what isn’t).  To help automate this, I developed the Ferkee Alert! system (or just Ferkee for short).  What Ferkee does is scrape the ferc.gov web site hunting for new Pipeline decisions.  These could be certificate orders, or acceptance/denial of rehearing on a pipeline application, or similar major order from FERC.  When one pops into the system, an email alert is sent out that looks like this:


This works kind of like the eLibrary system for FERC, but it covers all natural gas pipeline decisions.  Alerts happen within 60 seconds or less of being posted on the ferc site.  For each new decision found, it prints the docket number, a link to the full decision, and the text of the first page of the order.

The above example shows two types of orders.  The first on docket CP17-24-000, shows an order of FERC changing a Certificate order and Presidential Permit.  In this case the pipeline company asked for an amendment to increase the size of its system – FERC of course said “sure thing, rock on dudes!”.

The second on docket CP16-486-000 is a Certificate Order for the Millennium Pipeline Eastern System Upgrade Project.  If/when a decision on PennEast happens, the alert will look like this but on the PennEast docket number CP15-558-000.

This is currently experimental alpha-level software still under development.  If you’d like to be a trial user, shoot an email to ferkeebot@gmail.com and we’ll sign you up.  Future versions will allow self-service signup, more control over the kind of decisions you get alerts on, and alternative alert channels (e.g. maybe texts).

Many thanks to Lorraine Crown for coming up with the name Ferkee, it’s a perfect fit!

The De-Emphasis of PennEast continues

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Today New Jersey Resources, a part PennEast owner and the biggest shipper on the project, held their Fiscal year 2017 earnings call.  The call and associated presentation is available here:


The call confirmed a few things for us:

  1. NJR confirmed slippage on PennEast yet again. They are now saying it will be in-service in “2019”, with no guidance on exactly when in 2019 it will happen.
  2. More importantly – there were no dedicated slides on PennEast.  Just a few mentions here and there in the presentation.  On the earnings call, it was even more stark – PennEast just got two quick sentences about them waiting for FERC approval and the 2019 inservice expectation.
  3. The focus of the call and the presentation was on the new Adelphia Gateway project NJR surprise-announced recently.  Adelphia Gateway is an oil pipeline NJR bought for $156 million, they intend to repurpose it as a natural gas pipeline and extend it down to Philadelphia.

This Adelphia project is now being touted as NJR’s big growth push, with its own dedicated slides and push from the executive management team.  They emphasized on the call and in the presentation that the project has “Minimal impact on the environment” and that there are “no anticipated impacts to wetlands or farmlands”.  They emphasized on the call that they’re just re-using an existing pipe so there is almost no construction involved with it at all.

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I wonder why they’re suddenly focusing so much on minimal environmental and farmland impacts?  Could it be – perhaps – that they’ve had problems in those areas in some other pipeline projects?

What’s also interesting about this project is that it seems to mirror a recent move by South Jersey Industries, another PennEast owner.  SJI announced out of the blue that they were buying Elizabethtown Gas.  And it really was out of the blue – all the financial analysts who cover SJI were caught completely by surprise by the move.  Out of no where SJI is touting this new growth opportunity.  And suddenly not talking so much about PennEast.  Incidentally their stock tanked because it looks like they were over paying for Elizabethtown.  Kind of like they were desperate for an alternative to PennEast, and paid a premium for a competitor instead.

Likewise, on the NJR call, one of the analysts asked about how the Adelphia Gateway project came about, and the midstream executive admitted the pipeline had been on the market for awhile now.  It looks like NJR may have been the only bidder on a pipe that’s been unwanted by anyone else.  Kind of like NJR was desperate for an alternative to PennEast.

So here’s your pattern:

  1. PSEG pulls out of PennEast
  2. SJI acquires eTown gas out of the blue and touts it as their new growth opportunity
  3. NJR announces Adelphia Gateway out of the blue, touts it as their new growth opportunity and oh-by-the-way-no-environmental-impact.

Seems to me some PennEast owners aren’t all that sure about PennEast’s future.

What, you hit rock? OK, open trench away!

As we come down to the wire on a FERC decision on PennEast, I have been monitoring the FERC dockets daily.  Not just the PennEast one, but all the dockets, to have a better sense of what to come.

As you can imagine, the result is pretty awful.  The pain and suffering of pipeline proposals does not end with a FERC approval.  Or other permits and approvals, or even the start of construction.  Nope.  It often keeps on going well into the project construction.

Here’s one example of many.

I’m sure you’ve heard of the horrors of Leidy Southeast expansion, where the Horizontal Directional Drilling (HDD) attempt went into overdrive as they hit hard rock.  They were drilling constantly.  Broke a few drill bits.  Then they gave up and switched over to open trench.

Perhaps a few of you thought “oh, well, maybe this was an exceptional situation” and is a rare event.

As it turns out, it’s not.  It happens with depressing regularity.  Here’s the same drama happening in near real-time today with a Dominion Energy Project called the “TRANSCO TO CHARLESTON PROJECT” (I’ll call it T to CP).

T to CP is a project involving 55 miles of 12″ pipe that they’re running in South Carolina.  They’ve been given all approvals and have been in construction for awhile now.  The project involves quite a bit of HDD work.

On November 8th of this year, they filed a request to FERC (link here: https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=14752375):

Re: Variance Request for 24-hour Drilling Operations on HDD-021

DECG hereby requests written authorization from the Director of the Office of Energy Projects (OEP) to perform 24-hour drilling operations on HDD-021, HDD of Watkins and Mudlick Creeks, totaling 2,390’ in length. The drilling operations of HDD-021 have encountered hard rock, drastically slowing production down, requiring additional shifts in order to complete the drill by the landowner’s stipulated date of November 15th;

Here Dominion is saying “Hey, our HDD attempt hit hard rock and it’s slowing us down.  Let us drill 24 hours a day to keep our schedule!”.  Yes, 24 hours a day.  Through hard rock.

A day later the request was granted by FERC.  Not the commissioners, but just a regular staffer.

Five days later, Dominion filed another request with FERC (link here: https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=14756303):

Re: Variance Request for Modification to Construction Method

DECG hereby requests written authorization from the Director of the Office of Energy Projects (OEP) to modify the construction method from horizontal directional drill (HDD), for HDD-03 and HDD-04, to a combination of conventional bore and conventional open-cut. DECG has encountered solid rock on nearly all HDDs throughout this Project, drastically slowing production down, and proposes to modify the construction method with the intention to avoid further construction delays and complete the Project by the customer’s scheduled in-service date.

So Dominion is saying “Oh hey, we’re hitting this hard rock everywhere and it’s a real pain in our ass.  Request permission to chuck the whole idea and switch to boring and open trenching instead.

FERC said “sure” two days later, November 16th (link:https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=14758473):

Re: Variance Request for Modification to Construction Method

 I grant Dominion Energy Carolina Gas Transmission, LLC’s (Dominion) November 14, 2017 request to modify the construction method from horizontal directional drill (HDD) for HDD-03 and HDD-04, to a combination of conventional bore and conventional open-cut, along the Moore to Chappells Pipeline for the Transco to Charleston Project. Dominion has encountered solid rock in these locations. With this construction method modification, Dominion intends to avoid further construction delays and complete the project by the customer’s scheduled in-service date.

This variance will require an additional impact on 1.16 acres forested land, 0.78 acre silviculture (planted pine) land, 0.09 acre open land, and 0.83 acre agricultural (cropland, pasture, hay) land from open cutting the upland right-of-way. In addition, trees within 15 feet of the pipeline centerline would be selectively cut at ground level from the permanent right-of-way

This approval was made by a mere Project Manager within FERC.  Not a commissioner, a project manager.

Meanwhile, the original Environmental Assessment (EA) of the project is available here (https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=14379602).  The EA of course says that the project can be built with no permanent damage to the environment.  The assessment states that areas where there is “no change in land use” were not considered as in land use requirements and impacts – which included HDD sites.  When discussing things like wetlands impacts, the EA has this to say:

Impacts and Mitigation

The wetland crossing methods proposed for the Project include HDD and horizontal boring methodologies, and are described in detail in section A.7.2 and presented in appendix F. Construction activity in wetlands crossed by the HDD method would be limited to hand clearing of a small path to allow placement and surveying of an electric guide wire along the ground surface between the HDD entry and exit points, where necessary. Conventional bore methods would not require surface activity. The permanent right-of-way through forested wetlands would not require tree clearing per USDOT standards (49 CFR 192) because of the proposed depth of the pipeline. As such, no construction or operational- related impacts on wetlands are anticipated.

In this area, as well as others, FERC is stating that HDD methods are helping to mitigate impacts, and because of this the project is environmental acceptable.

But then they allow the project to arbitrarily switch from HDD if it is inconvenient to their schedule, which completely nullifies the HDD mitigation statements in the EA!

There are many other HDD adventures on this project, I’ve just highlighted a few.  The point is that FERC-generated Environmental Assessments and Environmental Impact Statements are pure, unadulterated bull shit.  They are completely arbitrary and the construction rules can be changed at will by FERC, meaning that the whole exercise is a pointless one just to file a lot of paper.

This pattern is repeated across nearly ever FERC pipeline docket.  FERC prepares a completely B.S. EIS or EA.  Allows construction.  And then if they pipeline company runs into difficulty, they let them change the construction methods and effectively violate the EIS/EA with no penalties at all.

Needless to say, all the people along the many HDD routes for the PennEast pipeline route should take note of this, and in particular should fight hard in eminent domain proceedings to not allow FERC to grant these variances on their land.


FERC Now Trying to Undermine State Rights under the Clean Water Act

While we’ve been fighting against PennEast, obviously many other pipeline battles are going on around the country.  A key player in many of these battles is the New York Department of Environmental Conservation (NYDEC).  NYDEC was key in denying the Constitution Pipeline by denying the pipeline company a Clean Water Act 401 Water Quality permit.  And they’ve been doing the same with other pipelines.

But the new FERC commissioners have been fighting back.  On a lateral project for the Millennium Pipeline in NY, NY DEC denied the pipeline company a CWA permit after FERC issued a Certificate of Public Convenience and Necessity.  But FERC nullified that denial in a recent ruling, and issued an order to proceed with construction for the pipeline.

NYDEC immediately asked for an Stay on that FERC Order and a Rehearing.

Yesterday, those requests were denied.  Which is of course expected – we are talking about FERC here.  But what wasn’t expected is the reasoning behind the denials.  The full FERC order is available here:


Some of the FERC findings here are:

  1. The 1 year clock on CWA applications to agencies starts the minute they file them.  Even if they are woefully incomplete.
  2. NY DEC’s complaints that the pipeline will harm water quality in NY State are overruled by FERC.  FERC says their environmental assessment trumps the NYDEC’s evaluation.
  3. FERC argues that States opinions on these matters don’t count!  

See paragraphs 15, 16, 17, 18, and 27 in the FERC order for the details on these.

Obviously all of these issues are troubling, but the last one is the the most troubling for everyone fighting pipelines, including us with PennEast.  Here is what FERC says on the subject of State’s rights and the Clean Water Act:

“27. As a threshold matter, we disagree with the New York DEC’s contention that

New York DEC, as the certifying state agency, is the appropriate agency to interpret “any ambiguous terms of the CWA.”38 In general, courts do not afford deference to state agency interpretations of federal law even where state agencies are delegated substantial roles in cooperative federalist schemes.39 And while it is true that states are sometimes given deference by courts in interpreting federal law where a federal agency has approved a state agency’s plan or interpretation of federal law,40 that is not the case here. There is no evidence that the Environmental Protection Agency—the federal agency charged with primary federal oversight of the CWA41—has approved any of New York’s procedural regulations it purports to rely on, much less its interpretation of these regulations as applied to the CWA waiver provision.” (emphasis mine)

In this paragraph, FERC is arguing that States rulings on matters such as the CWA don’t matter if they are in conflict with a Federal authority (like FERC!).  This is a bald faced attempt to steal away States administrative rights under the CWA.

FERC of course is not the final arbiter here.  This matter will almost certainly be taken to courts of appeal by NYDEC, and will be watched very closely.  Meanwhile, we have to watch FERC,  NJDEP, and the DRBC very closely as their PennEast FERC decision draws near.

We should alert Governor-Elect Murphy and his staff to this situation as well, along with our State and Federal legislators.  FERC attempting to undermine State’s administrative rights under the CWA is completely unacceptable and we must fight back against this.  NJ in particular has extraordinary administrative rights under the CWA where we administer not only the 401 Water Quality permits, but also 404 Wetlands permits (which are ordinarily administered by the Army Corps of Engineers).  If FERC approves PennEast (which is almost certain), we must make certain that none of this line of reasoning is attempted in the PennEast project should NJDEP do the right thing and deny PennEast’s CWA applications down the line.

Ditto with the DRBC application as well.

Given the scattershot and morally bankrupt policies of our current Presidential Administration, it up to the States and other agencies to fight back to preserve our rights.  But that’s not going to happen unless we all stand up and let our State governments and agencies what is happening here.

The Law of Unintended Consequences

Wikipedia says that “Unintended Consequences” are a social sciences term that describes “outcomes that are not the ones foreseen and intended by a purposeful action“.

That effect is in full-swing within the Trump Administration, and FERC is playing a big part in it.

In general terms, the impact of unintended consequences is that if that if you take a radical action in any given context, chances are there’s going to be results that you never dreamed of.  Part of the reason why is that you are often going from a known and possibly static situation into uncharted territory where you may unwittingly be unbalancing the system.  And I think it’s clear to most people that the the Trump Administration is turning into a Massive Experiment of Unintended Consequences writ large.  The President is promoting new and radical change, and the effects in many cases are not at all what the President was probably looking for.  Today we’re focusing on one – energy policy.

We now have a President who is pushing for coal in all conceivable areas – coal mining, coal burning, coal infrastructure, coal, coal, coal, bring him more coal!

But he’s doing this just as the coal  industry was ramping down into a slow slide towards oblivion.

The result is that “the system” is reacting in unintended ways.  I’ll bet when Trump was elected you figured projects like Natural Gas Pipelines would suddenly be approved in whole sale, right?  Well actually, no.  Instead, Trump’s coal push is putting natural gas into a tail spin, and leading agencies like the Federal Energy Regulatory Commission (FERC) to defend natural gas as a new status-quo (and not the wave of the future at all), and to increasingly look to renewables for growth.

The Administration’s stumbling on agency nominations have further thrown FERC into chaos.  The debacle with Norman Bay, the late nominees, and the two absences still on the commission have sowed confusion and opened cracks of bipartisan in-fighting.

The DOE 90-day fuel requirement NOPR

To help promote Trump’s “Coal, coal, coal, coal everywhere!” mantra, the Department of Energy recently issued a “Notice of Proposed Rulemaking” to FERC, available here:


What this NOPR is saying is that coal and nuclear power represent “Fuel Secure” generation, and are keys to resiliency and reliability on the American power grid.  They are stating that many generation plants must have 90 days fuel supply on-hand in case of problems with things like Pipelines.  In effect, they are trying to de-emphasize natural gas and renewables on the grid, and instead use “fuel secure” plants like coal and nuclear instead.

As part of its rationale, the NOPR points to the 2013/2014 “polar vortex” winter, and uses the arguments that sky-high power prices showed strains in the system, and that we were near the breaking point, and the problem was too much natural gas and renewables, and not enough nuclear and coal.  Bring on more coal and we’re all good people!

The response?  The coal and nuclear industries love it.

Everyone else hates it.  Literally – everyone else.

Including FERC.

8 former FERC commissioners, including 5 ex-chairpersons, sounded off against the proposed rule making:


One ex-Commissioner was quoted saying “To me he’s effectively proposing to subsidize them and put a tax on consumers in doing so. It’s a tax in different clothing. It’s going to cost customers more money to run dirty old coal plants”.

Current commissioners agree.  Commissioner Powelson spoke at a conference recently on this topic, debunking the polar-vortex angle:


In his talk, Powelson said:

“There’s a dirty little secret going around that the gas guys didn’t perform during the Jan. 6 and 7 timeline,” he said. “I am here to tell you unequivocally that is not the case, and I can’t stand here and represent what we call a mistruth that the gas industry caused the interruptions of the Polar Vortex.”

The industry agrees.  The final North American Electrical Reliability Corporation (NERC) issued a report talking about the real causes of price spikes during the polar vortex winter:


They indicated that poor maintenance, lack of cold-weather readiness, and poor pipeline scheduling were the true culprits.  As one example, at many coal plants coal supplies were frozen solid and unable to be used during the coldest days when power was needed the most.  In other cases whole plants were full of frozen equipment.

Meanwhile pipelines were flowing just fine with no outages.  The only problem on the pipeline side was scheduling – effectively gas was going to people who didn’t need it all that badly at the time (like industrial users), and meanwhile electrical generators were turned away.

“More Coal” won’t fix this problem.  Better maintenance and preparedness will.

What is interesting here for us is that multiple agencies and pseudo agencies are all saying the same thing: there were no natural gas shortages during the Polar vortex winter, and pipelines were not a problem.  Which complete neuters the arguments of companies like PennEast using the polar vortex price spikes to justify their pipelines.

The FERC 2017/2018 winter outlook

Meanwhile, FERC issued its annual Winter Outlook report last week on October 19th.  This is a regular report which talks about the state of the Electric and Natural Gas markets in the country, and make projections on potential issues to look for throughout the winter months.

The full report is available here:


The report is summed in its first slide, recreated below:

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In a nutshell, it says that power markets and natural gas markets are in very good shape.  The only “growth” in natural gas is from exports (surprise, surprise!).  The report specifically mentions that changes in the markets from the “extreme winter events of 2014” have largely fixed systematic problems, and as a result we are in excellent shape going into the winter (all without PennEast).

They do mention pipeline additions which are further stabilizing markets, stating:

“Since 2016, nearly 2.5 Bcfd of new field-to-market capacity has been added and another 3.4 Bcfd is expected to come online between now and April. Collectively, these additions provide consumers in markets from New York City to Chicago with cheaper supply from which to feed winter needs.”

Again, all without PennEast.  They are too little, too late.

Later on in the slide deck, they explicitly talk about energy trends as shown below:

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This shows a massive decline in coal-powered plants.  And that while natural gas remains huge in the power market, the real growth stories are Solar and Wind. Together solar and wind are growing at a ferocious rate.  The story is simple: coal is on the way out, natural gas is our present, and renewables are our future.

The FERC Partisan Split

As if this wasn’t enough going on in FERC and the industry, Trumpian stumbles in agency nominations have roiled things even farther.  When Trump assumed the Presidency, he elevated Cheryl LaFleur over Norman Bay (Despite Bay warning that he’d resign if that happened).  In response, Bay did in fact resign, and on his way out the door he issued a blistering critique of how FERC operates, and changes that must be made to fix it:


Note that Bay and LaFleur are democrats.

As a result of Bay resigning, FERC was without a quorum for 6 months and unable to do much of anything.  Finally a quorum was resumed, but instead of cleanly installing a new set of Commissioners, the Trump Administration and the Senate instead installed a temporary new Chairman as a Republican representative, plus one more Republican to the commission, barely meeting a quorum of 3.  Meanwhile the presumptive chairman has yet to be officially brought to the Senate, so the current Chairman pro-tem is seen as a lame duck from day one.

Amongst all this, FERC recently approved the Mountain Valley Pipeline, but, in a surprise move, Cheryl LaFleur dissented.  Just as Norman Bay (a Democrat) called for reforms and better looks at true public need for pipeline projects, LaFleur said much the same, indicating that the Mountain Valley Pipeline looked an awful lot like another pipeline being approved at the same time, and maybe it was time FERC stood back and looked at more than just self-dealing precedent agreements and actually looked at the market conditions themselves (heaven forbid!).


The net result of this coal-push from Trump is that there has been a radical shift in how agencies are presenting the energy industry.  Under Obama natural gas was the focus and there was massive growth there.

Now, under Trump, things are different.  Trump has gotten behind Zombie Coal.  Meanwhile, natural gas is starting to become the New Coal – it’s taken on most of the generation load, but there is more emphasis on the “transition” aspect of it.  Renewables are where the future and growth is at.

And while this is happening, FERC is for the first time cracking along partisan lines, and the minority party is calling for new looks at public purpose and need behind pipelines, and saying the self-dealing agreements may not be a good indicator of actual need.

And while all this is going on, PennEast is falling behind as a “me, too!” natural gas pipeline proposal that appears to have missed the market, missed its opportunity, and faces as massive a set of protests as any.

To gauge just how screwed PennEast is, let’s circle back and look at this NOPR 90-day fuel issue.  It’s been reported that FERC’s systems are melting down from the massive commenting on the FERC docket on this issue.  See the below for details:


The article indicates that they received “over 300 comments”.  Looking at the docket there are now 589 comments.

By way of comparison, the PennEast application docket has seven thousand, eight hundred and eighteen comments on it, including thousands of intervenors (and the pre-filing docket has another 2,856).