Homeowners Against Land Taking PennEast filed a formal protest with the Federal Energy Regulatory Commission concerning unauthorized communications between the commission and PennEast staff.
On Earth Day, Homeowners Against Land Taking (HALT) PennEast filed a formal protest with the Federal Energy Regulatory Commission (FERC) concerning unauthorized off-the-record and ex parte communications between FERC professional staff and PennEast Pipeline Company, LLC (PennEast) executives and attorneys. On April 20, 2016, FERC and PennEast conducted a ‘project update conference call’ that violates the Administrative Procedure Act (APA) and FERC’s own rules.
Wiley Rein Environment & Safety partner Steven Richardson represents HALT, a fast-growing non-profit organization comprised of more than 300 homeowners in New Jersey’s Hunterdon and Mercer Counties whose homes, farms, and livelihoods are directly threatened by PennEast’s proposed pipeline route. HALT is expanding into Pennsylvania to include many of the more than 800 homeowners directly impacted in Luzerne, Northampton, Carbon, and Bucks Counties in Pennsylvania.
“Federal law and FERC’s Rule 2201 are very clear, there should be no off-the-record or ex parte communications between FERC staff and an Applicant for Section 7 Application for a Certificate of Public Necessity and Convenience,” Mr. Richardson said. “After the law and the rules were violated, FERC posted ‘Meeting Minutes’ on its website in a vain attempt at curing the harms to 1,200 parties that have direct stakes in FERC’s on-the-record proceedings. Based on FERC’s April 21, 2016 posting, it appears that FERC staff also may have violated the ex parte prohibition of the APA, section 557(d)(1), requiring agency proceedings, including Section 7 Applications, be determined on the record and not in secret. It is well settled that whenever ex parte communications prohibited by the APA occur, FERC or any other federal agency must place on the record ‘memorandum stating the substance of all such oral communications.’ 5 U.S.C. § 557(d)(1). Here that clearly has not been done.”
Mr. Richardson, on behalf of HALT, has intervened in the FERC proceeding for PennEast’s Application. HALT is uniquely qualified to discuss the adverse environmental, historical, cultural, and economic impacts of the pipeline because its members reside in the carefully preserved and unique rural area. Additionally, HALT is more qualified than PennEast to verify the accuracy of PennEast’s data on milepost locations and acreages—which FERC’s own ‘Meeting Minutes’ describe as ‘inconsistent’ based on FERC’s opinion of PennEast’s on-the record filings—because HALT members own the parcels of land for which PennEast has provided the incorrect information.
Because of its exclusion from the conference call, HALT is unable to determine whether FERC addressed any of the numerous misstatements, errors, and omissions that HALT has already identified in PennEast’s record filings. This action deprives HALT of its right to fully participate in the FERC proceedings, to ensure the accuracy of information provided by PennEast, and to protect the interests of its members.
HALT requests that FERC immediately disclose all of the documents, the substance of all oral communication and whether PennEast attorneys of record participated in its April 20 conference call and place that information on the public Record for CP15-558-000.
Contrary to PennEast’s assumptions and FERC staff’s conduct, the outcome of PennEast’s Section 7 Application is not a certainty. Since HALT intervened in the FERC proceeding, PennEast has:
- failed to adequately respond to data requests from FERC staff;
- misrepresented key information about the extent of landowner permissions it has voluntarily obtained to survey proposed pipeline alignments;
- refused to provide the public with details it gave to FERC that could affect intervenors’ interests, saying that the documentation was ’too voluminous’ to make public;
- refused to make public details it gave FERC, because data about proposed route deviations is ‘privileged’ and ‘should not be publicly available’; and,
- violated FERC Rule 2201 and APA, 5 U.S.C. § 557(d)(1).
“If there is communication, it must be public. Here, FERC had several alternatives at hand that comply with the law and its own Rule 2201. For example, FERC could have written PennEast a letter requesting information, which it did previously in November 2015, February 2016, and March 2016. Alternatively, FERC could have given the 1,200 parties to the on-the-record proceeding prior notice of the call and posted a call-in number. Lastly, FERC could have held a public meeting.”
PennEast’s Section 7 Application is extraordinarily weak. Recently published research by Skipping Stone, a group comprised of former gas industry executives, disputes PennEast’s use of precedent contracts as the evidence of market need.
“In our experience, research by gas industry experts is rarely conducted to dispute pipeline claims of market need in FERC proceedings,” Richardson continued. “The Skipping Stone study raises serious concerns about the market need for and very premise of the PennEast pipeline project. Based on this study and other evidence in the FERC record, FERC commissioners should immediately appoint an Administrative Law Judge (ALJ) to conduct thoroughgoing evidentiary hearings to determine whether the PennEast pipeline meets any market demand or provides any public benefit. Without a demonstrated, measurable public benefit as opposed to mere private profit for PennEast, the project cannot be approved. In addition, given the recent conduct of FERC and PennEast, either an ALJ or Inspector General should probe the serious questions about the fairness of the FERC process and FERC objectivity.”
“Last Friday, the State of New York rejected the disastrous Constitution natural gas pipeline on Earth Day. That is very good news. Hopefully before the next Earth Day, the PennEast project will be terminated by FERC, the State of New Jersey or the courts. This cannot happen if the public’s business is conducted in secret. To that end, bringing FERC and PennEast’s off-the-record and ex parte communications into the light of day will be a step in the right direction.”