Texas Gov. George Bush on May 26 signed into law a comprehensive bill, H.B. 2128, that makes sweeping changes in the way the state regulates telecommunications. The bill allows competitors to...
negotiate a protocol on how they will communicate on the merits of the proposal and make their recommendations. They identify how information will be documented, distributed and made publicly available.
With these steps completed, the future applicant then describes to the FERC the project's purpose, location, scope and estimated construction dates. This step includes scoping out the environmental issues to discover the public's concerns and to prepare a preliminary draft environmental document. The applicant also schedules an initial public information meeting, sending copies of its request to all affected agencies and interested parties, plus copies of PFCP regulations and instructions on how to file comments.
At last, with the FERC's approval, the PFCP is under way.
How the FERC Loses Control
If PFCPs speed environmental review and leave existing procedures intact, where is the problem? Answer: The FERC invites a free-for-all by abdicating the central role in deciding PFCP issues.
The final PFCP rule says that potential applicants and participants will decide which issues will be covered in each collaboration. Yet in the regular run of cases, it is the FERC that defines the issues, giving them reasoned consideration[Fn.2] and a "hard look."[Fn.3] Thus, with its PFCP, the FERC permits participants to slow down the process or grind it to a halt:
[N]othing in [the final rule] precludes the applicant and the participants from voluntarily deciding to use the process to address non-environmental issues which are not required to be a part of the NEPA process.[Fn.4]
That marks a substantial grant of authority, even to a PFCP - a process that officially does not take place before the FERC. However, the PFCP today is officially adopted by the FERC; during the PFCP, the FERC may even impose deadlines on other federal and state agencies for preliminary recommendations, conditions and comments; and the FERC officially will entertain proposed settlements or agreements among the PFCP parties.
Mischievously exercised, this relaxed authority over issues will threaten PFCP workability.
How the Agenda Grows
What are examples of nonenvironmental issues? In certificate cases the FERC typically will examine issues such as rates, capacity allocation and project need, and will draw comparisons with competing projects. It will identify how the project might affect current customers. The FERC also cites other issues considered by many to be nonenvironmental. Such questions include matters related to markets and competition, plus terms of service, landowner concerns, and alternatives to the project described in the NGA certificate proposal.
Plainly, these are big-ticket items, worthy of close consideration by any affected participant.
Moreover, the FERC intends that PFCPs should generate data on nonenvironmental issues for Endangered Species Act, National Historic Preservation Act and other non-NEPA statutory purposes, and that PFCPs resolve any non-NEPA legal processes mandated by federal or state agencies.
How the Process Slows Down
How can the participants in the process employ nonenvironmental issues to delay PFCPs? They can do it in these ways, at least:
* Fault the Notice. Challenge the applicant's PFCP notice as inadequate, inappropriate or prejudicial, given the greater number of issues, both nonenvironmental and environmental.