The U.S. Court of Appeals for the Third Circuit has ruled that the New Jersey Board of Public Utilities (BPU) is preempted under the federal Public Utility Regulatory Policies Act (PURPA) from...
the Consensus. Complicate the applicant's effort to demonstrate PFCP consensus across the greater number of non-environmental and environmental issues.
* Go Fishing. Use PFCP communications protocols to discover information for their upcoming protests against the applicant's certificate filed under the NGA, or for agendas extraneous to the application.
Central to the process is the question of which PFCP-produced data will accompany the NGA application. The future certificate applicant and the PFCP participants ordinarily will set PFCP deadlines for all requests to the applicant for scientific environmental studies or alternative route analyses. After the NGA application, additional requests for such studies may be made to the FERC only for good cause shown. Those same procedures obviously apply to non-environmental studies, giving participants the chance to bog down the process with requests for such studies. If an applicant rejects participant requests to produce nonenvironmental studies, the FERC encourages participants to order up the commission's dispute resolution procedures, adding a procedural layer to PFCPs. Even if the studies are produced as requested, the applicant and participants eventually must decide whether such data will accompany the NGA application, adding another opportunity for delay.
PFCPs can lead to nonenvironmental settlements or agreements that may be submitted with an NGA application, distracting attention from environmental issues, if supported by substantial evidence (documents, studies). Anyone may comment on or protest such filed settlements, agreements or applications. Any party to an NGA case may seek to enter additional nonenvironmental data into the record to argue its position. If they wish, the applicant or PCFP participants may select a neutral facilitator or mediator other than the FERC staff to coordinate PFCP handling of nonenvironmental issues.
PFCPs are voluntary. The applicants and participants may choose either not to risk PFCP delay in the first place, or to walk away from a PFCP once begun. Applicants or cooperating participants can petition the FERC to put a stop to a PFCP by showing that consensus no longer exists for its continued productive use. Served on all other participants (who may respond), the petition recommends specific, appropriate procedures. Any responsive FERC order only ends the PFCP, and does not affect the applicant's right to file for the proposed facilities.
What the FERC Should Do
The commission's PFCPs make the perfect the enemy of the good. By opening PFCPs to nonenvironmental issues on the hope of also resolving them, the FERC risks wasting the concrete opportunity to speed up the environmental analysis. It is inevitable: Participants with contentious interests will use the PFCP to address nonenvironmental issues. Any middle ground between substantial delay and outright disuse of PFCPs will be impracticably narrow.
The FERC's goal is commendable. Yes, let's speed up the process. Yet I believe that goal is not served by opening PFCPs to nonenvironmental issues. The FERC should fix its PFCP final rule by limiting it to its main focus.
Michel Marcoux is a partner in Bruder, Gentile & Marcoux L.L.P., a Washington, D.C. law firm specializing in natural gas and electric utility industry work. He principally has represented gas distributors and electric utilities