July 1, 2001
L.A. Loves a Loophole
There's no getting around it...
How the FERC risks a free-for-all in cases for gas facility authorization.
By final rule, the Federal Energy Regulatory Commission (FERC) has adopted a new optional process for applicants seeking a pipeline certificate or gas import/export authority under the Natural Gas Act to construct, operate or abandon a jurisdictional facility.[Fn.1] It's known as the Pre-Filing Collaborative Process, or PFCP, but it means trouble.
In seeking to speed up administrative review, the FERC has only invited delay. By embracing this new process, the FERC in effect has set down the cup to reach for the quart.
Ostensibly, the PFCP draws a focus on environmental issues. Yet it invites delay because it leaves the door wide open to all parties to advance other issues as well. Participants whose competitive or otherwise contentious interests so require can clutter PFCPs with nonenvironmental issues, delaying them and causing applicants to avoid them altogether. Instead, the FERC should limit PFCPs only to environmental concerns.
Of course, the FERC is aware that the review process under the National Environmental Protection Act (NEPA) consumes more time than any other step in pipeline certificate cases. Thus, it encourages a preliminary analysis and resolution of environmental issues through PFCPs earlier than would occur otherwise. With the PFCP, the NEPA process can begin before the application is filed, and end after such filing. A successful PFCP, says the FERC, should produce a preliminary draft NEPA document (an Environmental Assessment or Environmental Impact Statement) to accompany an applicant's subsequent NGA filing. (Without the PFCP, the NEPA process normally begins only after the pipeline has filed its NGA application.)
Nevertheless, the PFCP process lets opponents have their cake and eat it too. First, the process makes no change in FERC regulations. An eventual applicant may stop its PFCP at any time and return to the standard NGA procedures. When that happens, however, and after applicants file their NGA applications, no party is then restricted from opening issues that go beyond what the PFCP previously contained. All entities, including non-PFCP parties and parties that withdraw from a PFCP, retain standard rights to intervene, comment, support, protest or otherwise participate once an NGA application is filed.
How Do I Start a Collaborative?
Future applicants that prepare draft environmental documents and who choose the PFCP option must comply with rules requiring proof of notice, consensus and communications, as follows:
Notice. First, the future applicant invites interested parties to participate in the PFCP. Working with guidance from the FERC staff, the future applicant contacts landowners, customers, local governments, Indian tribes and citizens' groups, plus federal, state or interstate agencies having jurisdiction over recreation, fish and wildlife, and management of water, cultural or other resources.
Consensus. The applicant then shows that most of those concerned will support a PFCP, whether by voluntary general agreement or collective opinion. Beyond exchanging letters, the applicant contacts the interested parties - through teleconferences, FERC staff meetings and so forth - and demonstrates to a reasonable degree that the PFCP will prove productive.
Communications. The future applicant, along with participants and FERC staff, then will