Late applications will no longer be accepted.
The Federal Energy Regulatory Commission (FERC) approves applications for pipeline construction. Like many federal agency actions, the public is given a specific time period in which to comment on new or revised regulations.
Two new orders issued at the beginning of this year make it more difficult for the public, usually non-profit environmental groups or private landowners, to obtain the “party status” required to participate in these discussions.
An article in Energy & Environmental Law Blog by Barbara Jost explains why the new regulations make it more difficult to obtain party status.
“Party status is only achieved at FERC via a motion to intervene. Importantly, grant of party status gives one the right to seek judicial review of FERC actions. Absent such status, affected environmental/landowner groups lack the ability to hold FERC accountable for orders that fail to address their particular concerns.”
There is a 28-day time period for filing applications for participation in the review process that begins after FERC publishes public notice of its proceedings. According to Ms. Jost, FERC, realizing that non-profits have limited financial resources and manpower, has , in the past, allowed these groups to file their motions after the time period has elapsed if they can demonstrate “good cause” for not filing on time.
This is reasonable, given that it takes two weeks for the Federal Register to publish notice of FERC proceedings which reduces the time period for filing by half.
FERC’s February 27, 2018, order states that “’… going forward we [FERC] will be less lenient in the grant of late interventions.’” Late applications will no longer be accepted.
The author argues that two weeks is not enough time for potential participants to review “complex applications” that “can run thousands of pages.”
Ms. Jost believes the new rules indicate a pro-business, pro-construction bias and that FERC’s “longstanding reputation for non-partisan decision-making” is no longer valid.
FERC Raises the Bar for Public Participation in Gas Pipeline Certificate Proceedings, Barbara Jost, Energy & Environmental Law Blog, April 9, 2018.