Understanding Natural Gas Pipeline Approvals and the Importance of Fact-Based, Stakeholder Participation in Scoping and Environmental Evaluations
FERC’s Jurisdiction and Economic Considerations
The Federal Energy Regulatory Commission (“FERC”) serves the mission of “assist[ing] consumers in obtaining reliable, efficient, and sustainable energy services at a reasonable cost through appropriate regulatory and market means.” (www.ferc.gov) (FERC Strategic Plan, March 2014, FY 2014-2018, http://www.ferc.gov/about/strat-docs/FY-2014-FY-2018-strat-plan.pdf). FERC’s jurisdiction includes regulation of the interstate transmission of natural gas, oil, and electricity and of the wholesale sale of electricity and natural gas in interstate commerce. FERC approves the siting of natural gas facilities, including natural gas pipelines and storage facilities upon private lands where there is not currently a utility right-of-way.
The FERC Office of Energy Projects (“OEP”) oversees, in part, natural gas pipeline applications and approvals pursuant to section 7 of the Natural Gas Act, Natural Gas Act, 15 U.S.C. 717 et seq., and related regulations. The FERC Office of External Affairs (“OEA”) oversees FERC public relations. The FERC Office of Energy Policy and Innovation (“OEPI”) advises on emerging technologies, among other innovations. The Office of Energy Infrastructure Security (“OEIS”) seeks solutions to “potential threats to FERC-jurisdictional infrastructure from cyber and physical attacks, including geomagnetic disturbance and electromagnetic pulse events.” Additional FERC offices include the Office of Energy Market Regulation (“OEMR”), the Office of Enforcement (“OE”), the Office of Electric Reliability (“OER”), the Office of General Counsel (“OGC”), the Office of Administrative Litigation (“OAL”), and Office of Administrative Law Judges and Dispute Regulation (“OALJDR”), the Office of the Secretary (“OSEC”), the Office of the Executive Director (“OED”).
Amongst its missions, FERC ensures that the rates, terms, and conditions of energy supply are reasonable, just, and not unduly discriminatory for consumers. In furtherance of these economic protections, FERC leverages competitive market conditions. However, when completive market conditions do not exist, FERC can engage in rate-setting. As stated in the March 2014 FERC Strategic Plan for 2014 to 2018:
Building on its past efforts to enhance competition in organized wholesale electricity markets, FERC will engage regional transmission organizations (RTO) and independent system operators (ISO), as well as other regulated entities and interested stakeholders, to ensure that energy, capacity, and ancillary services markets provide appropriate price signals, support market evolution, and provide appropriate opportunities for all eligible resources, including emerging technologies. The Commission will also identify and remove barriers to efficient trading between regional markets, including both organized and bilateral markets, and will work to improve coordination between wholesale and retail markets.
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FERC also relies on traditional regulatory tools such as cost-of-service ratemaking to ensure that jurisdictional rates, terms and conditions of service are just and reasonable and not unduly discriminatory or preferential. Commission rules require public utilities, natural gas pipelines, and oil pipelines that have not been granted market-based rate authority to establish their rates using a cost-based rate structure. In this way, the Commission protects ratepayers from unjust and unreasonable rates and ensures that natural gas and electric transmission services are provided on an open-access basis, that oil pipelines provide service consistent with their status as common carriers, and that all rates, terms, and conditions comply with FERC requirements.
Pursuant to the Natural Gas Act, a private natural gas company can apply to FERC to obtain a Certificate of Public Convenience and Necessity (“CPCN”) which authorizes the construction or extension of a natural gas facility and the transportation and sale of natural gas. 15 USC 717f(c). A suitable and capable applicant will be granted a CPCN if, among other requirements, FERC finds that the “the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied.” 15 USC 717f(e). The application and certificate must identify the service area to be serviced by the holder of the certificate, and can be limited to the service area. To this end, prior to proposing a pipeline, the natural gas company assesses market need by announcing an “open season,” whereby it gives potential customers an opportunity to enter into nonbinding agreements to purchase a portion of the fuel capacity to be provide by the project.
The PennEast Pipeline project is a partnership of UGI Energy Services, AGL Resources, NJR Pipeline Company (subsidiary of New Jersey Resources), Public Service Enterprise Group (whose subsidiaries include PSEG Power, PSE&G, and PSEG Long Island), South Jersey Industries (whose subsidiaries include South Jersey Gas and South Jersey Energy Solutions), and Spectra Energy Partners (subsidiary of Spectra Energy Corp.). UGI Energy Services is a subsidiary of UGI Corporation, which holdings include over 12,000 miles of pipeline. Spectra Energy Corp’s holdings include more than 17,000 miles of transition and gathering pipelines, approximately 150 billion cubic feet of natural gas storage, and approximately 4.8 million barrels of crude oil storage.
PennEast’s original proposal was for construction of a 108 mile, 36-inch “greenfield” pipeline from Dallas, Luzerne County, in northeaster Pennsylvania to Transco’s pipeline interconnect in Pennington, Mercer County, New Jersey. “Greenfield pipeline” is an industry term of art for new pipeline construction, as oppose to upgrades or expansion of existing pipeline. The PennEast proposal is one of many proposals in the region, and more are anticipated. (See, i.e. http://extension.psu.edu/natural-resources/natural-gas/news/2014/07/2014-pipeline-roundup-moving-marcellus-and-utica-production-to-new-markets). In January of 2015, PennEast announce an alternative route through portions of Hunterdon County, whereby the pipeline will be a 110 mile 36” pipeline co-located with another utility right-of-way. I additionally saw references to 42″ pipe and am looking into whether this is required for any portion of the pipeline. While co-location still causes negative impacts and encourages fracking, some impacts are reduced in that the existing right of law is already impacted, such as being clear-cut. (See, http://penneastpipeline.com/proposed-route/.)
PennEast announced its Open Season on August 11, 2014, offering the primary purpose of providing “a direct and flexible path for brining natural gas produced in the Marcellus and Utica Shale plays in Pennsylvania to growing natural gas markets [in] eastern Pennsylvania, southeastern Pennsylvania, New Jersey and beyond.” (http://penneastpipeline.com/openseason/). Natural gas is extracted from the Marcellus and Utica Shale using the controversial technique of hydraulic fracturing (“fracking”). PennEast has indicated that it will not be providing natural gas to the homes in the communities directly impacted by the pipeline. The natural gas will fuel electricity generation and will reach end consumers in other parts of New Jersey. Natural gas opponents fear that the momentum in fracking and pipeline construction are, in part, in furtherance of a larger scheme to export natural gas. Many speculate that the Port Ambrose deep water port will be used for such exports: the port will consist of a submerged buoy system for receiving imported liquefied natural gas (LNG) and converting it to natural gas using regasification vessels, which natural gas is then distributed domestically using a subsea pipeline. (www.portambrose.com).
Short and long-term imports and exports of natural gas and LNG are obtained through the Department of Energy. Pending, active, and vacated applications for the import and export of natural gas are listed at https://app.fossil.energy.gov/app/fergas/DocketOrderList.go.
Concerned citizens should monitor the activities of pipeline partners and their affiliates and subsidiaries, and demand full disclosure of the market strategies being implemented. Most local citizens with whom I have spoken do not want to encourage fracking nor bear the impacts of pipelines used to generate exports or service unrelated regions.
Environmental Analysis of Pipeline Impacts: NEPA as Implemented by FERC.
Under authorities granted by the Natural Gas Act, FERC reviews natural gas infrastructure applications with the stated goal of prompt and efficient decision-making that projects the environmental while fostering the growth of a sustainable infrastructure. In its own terms, FERC authorizations include “terms and conditions designed to protect, mitigate, and enhance the environmental resources of project areas.” Application requirements are set forth at 18 CFR 157.6 et seq. (http://www.law.cornell.edu/cfr/text/18/157.6). FERC’s regulations require that the “siting, construction, and maintenance of facilities shall be undertaken in a way that avoids or minimizes effects on scenic, historic, wildlife, and recreational values.” (18 CFR 380.15).
The National Environmental Policy Act, 42 U.S.C. 4321 et seq., fosters the goals of protection, maintenance, and enhancement of the environment, and provides a process whereby federal agencies are required to incorporate environmental considerations into their decision-making. Within the Environmental Protection Agency (“EPA”), the Council on Environmental Quality (“CEQ”) implements NEPA via CE! regulations at 40 CFR Parts 1500 to 1508. Through the NEPA process, the environmental consequences of a proposed federal action are evaluated. In addition, the necessity of, and the alternatives to, the proposed project must be considered. This is done through the NEPA process, which requires environmental impact states on all proposals for major federal action significantly affecting the quality of the human environment. (40 CFR 1502.3).
The Human Environment is, in turn, defined as follows:
Human environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. This means that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment.
40 CFR 1508.14. In determining whether an impact is significant, both the context and the intensity as well as the short- and long-term effects are relevant. (40 CFR 1508.27).Both direct and indirect effects are considered. (40 CFR 1508.8). While individual impacts may be insignificant, they may in combination be found cumulative significant impacts. 40 CFR 1508.27(7).
Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
(40 CFR 1508.7).
It is important to note that, if a negative impact of a proposed project can be mitigated, then the project may be allowed to move forward with the condition that the mitigation measures be implemented. Therefore, impacts alone are not enough to stop a federal project, if adequate mitigation is proposed. Mitigation includes:
(a) Avoiding the impact altogether by not taking a certain action or parts of an action.
(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
(e) Compensating for the impact by replacing or providing substitute resources or environments.
(40 CFR 1508.20).
Concerned citizens must be prepared to discuss the effects/impacts of the proposed project. Both the individual and cumulative impacts, as well as the proposed mitigation measures, must be directly challenged through public participation and agency cooperation. To the extent possible, these comments are ideally based upon actual data obtained by properly trained persons in written reports which can be submitted to FERC.
The Reports: Analysis of the Impacts and Effects of the Project Versus Alternatives
Federal agencies must “Use all practicable means, consistent with the requirements of the Act and other essential considerations of national policy, to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions upon the quality of the human environment.” (40 CFR 1500.2).
The agency seeking approval of a federal project is the “Lead Agency.” Pursuant to the Natural Gas Act 717n(b)(a), FERC is the lead agency responsible for complying with NEPA when reviewing applications for a Certificate of Public Convenience and Necessity. FERC implements NEPA as per its regulations at 18 CFR 380.1 et seq. FERC must comply with CEQ regulations except to the extent that they are inconsistent with the statutory requirements of FERC.
As per both NEPA and the Natural Gas Act, other governmental agencies may contribute to the evaluation if they have special expertise or jurisdiction over the project FERC regulations define a “Resource Agency” as “a Federal, state, or interstate agency exercising administration over the areas of recreation, fish and wildlife, water resource management, or cultural or other relevant resources of the sate of states in which the facilities or services for which a certificate or abandonment is proposed or will be located.” 18 CFR 157.1 EPA CEQ regulations provide that federal agencies with jurisdiction by law or special expertise have a duty to comment, or to reply “no comment” if its views are adequately reflected in the environmental report. (40 CFR 1503.2).
Concerned citizens should demand that local, state, and federal agencies with jurisdiction and/or special expertise participate in the NEPA process in a manner which demands protection of our natural, cultural, and historic resources, without compromise. Although it is impossible to know with certainty whether a potential cooperating agency will take interest in the project, I recommend that citizens aware of concerns, such as potential endangered species, stormwater impacts, compromised organic farming certifications, and so on, demand that agencies with jurisdiction or special expertise over those impacts, participate in the analysis.
As part of the NEPA process, stakeholders are identified, and must be given the opportunity to review draft environmental report. The Department of Energy, which oversees the siting of energy projects not within the jurisdiction of FERC, published a Directory of Potential Stakeholders for DOE actions under NEPA, July 2014 (http://www.energy.gov/sites/prod/files/2014/07/f17/NEPAStakeholdersDirectory_07_07_14.pdf). This document contains a comprehensive list of stakeholders who the DOE considers inviting to participate in the NEPA process, and is readily adapted to FERC applications.
Concerned citizens should carefully inventory the known resources and seek input from stakeholders with knowledge, expertise, and concern about those resources. Public comment can, in part, focus on the adequacy of stakeholder review. PennEast has submitted to FERC a list of Stakeholders. Public comment can, in part, focus on the adequacy of this list.
Two levels of environmental impact evaluation are conducted under the NEPA process: the Environmental Assessment (“EA”), and the Environmental Impact Statement (“EIS”). The EA is a less detailed evaluation than the EIS. IF an EA concludes with a finding of no significant impact (“FONSI”), the project can move forward. If an EA instead concludes that there may be significant impacts, a more detailed EIS is prepared. Federal agencies may decide to skip the EA and prepare an EIS if the complexity of a project warrants more detailed investigation or if experience suggest that an EIS will ultimately be required, anyway. FERC’s regulations at 18 CFR 380.6 require that an EIS be prepared first for “major pipeline construction projects…using rights-of-way in which there is no existing natural gas pipeline,” unless the Commission believes the pipeline may not be a major action significantly affecting the quality of the human environment.
The EPA CEQ describes an EIS as follows:
The primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government. It shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. Agencies shall focus on significant environmental issues and alternatives and shall reduce paperwork and the accumulation of extraneous background data. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses. An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant material to plan actions and make decisions.
(40 CFR 1502.1.)
The draft EIS is published, beginning a period of public comment. During the public comment period, citizens, organizations, a governmental agencies may submit comments on the EIS. This is very important stage of public participation. Relevant and factually based contributions will be considered in finalizing the EIS, when determining if impacts can be mitigated, and when advising on whether the project can move forward, with mitigation.
CEQ regulations implementing NEPA set forth the following overarching goal:
NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.
40 CFR 1500.1.
Scoping: A Critical Step for Public and Stakeholder Involvement
A key step in the NEPA process is Scoping. The scoping process is much as it sounds: determining the scope of factual issues specific to the proposed project which must be included in the evaluation of relevant impacts. “Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement.” (40 CFR 1508.25). As described by FERC (http://www.ferc.gov/help/faqs/prefiling.asp):
Scoping meetings, which are sponsored by FERC, are utilized by staff to identify relevant issues of major Certificate projects, pursuant to NEPA. Scoping is the process of defining and refining the scope of a environmental impact statement (EIS) or environmental assessment (EA) and the alternatives to be investigated. The scoping process is one of the opportunities for public involvement. Affected property owners and other stakeholders can provide detailed comments about issues pertaining to their properties. For example, stakeholders can provide information on sensitive environmental features in the project area; suggest alternatives to be evaluated; or help identify construction constraints.
Concerned citizens should advise on the necessary scope of the environmental analysis during the pre-filing and official scoping periods after official filing. Proposed scopes of review must be carefully scrutinized to ensure that no potential resource and/or impact is overlooked. Public comments should advise on additional impacts (both individual and cumulative), which are omitted from reports or inadequately addressed in reports, and should address potential mitigation, and whether such mitigation is adequate. Backing up such comments with actual data reports prepared by experts is ideal. To this end, the efforts of reliable volunteers and citizen contributions of money towards the hiring of experts is essential to pipeline opposition.
Resource Reports required for NEPA Analysis as Implemented by FERC
Environmental Reports for Natural Gas Act Applications must be prepared in accordance with 18 CFR 380.12, which requires the preparation of thirteen resource reports, some of which do not apply to non-LNG facilities.
Resource Report 1: General Project Description
Resource Report 2: Water Use and Quality
Resource Report 3: Fish, Wildlife, and Vegetation
Resource Report 4: Cultural Resources
Resource Report 5: Socioeconomics (significant aboveground facilities, only)
Resource Report 6: Geological Resources
Resource Report 7: Soils
Resource Report 8: Land Use, Recreation, and Aesthetics
Resource Report 9: Air and Noise Quality (compressor facilities and LNG, only)
Resource Report 10: Alternatives
Resource Report 11: Reliability and Safety (LNG only)
Resource Report 12: PCB Contamination (not applicable to new pipelines)
Resource Report 13: Engineering and Design Material (LNG only)
Review of 18 CFR 380.12 provides detail regarding the manner of investigation and reporting within each of these resource reports.
Additionally, FERC regulations at 18 CFR 380.13 set forth a procedure by which a natural gas company must comply with the procedures of the Endangered Species Act. (See also, 18 CFR 380.13). FERC regulations at 18 CFR 380.14 sets forth the consultations which a natural gas company must have in compliance with the National Historic Preservation Act. (See also, 18 CFR 380.14).
Concerned citizens should be prepared to compare the data and findings of these resource reports against their own knowledge for accuracy and completeness and integrity. Insufficiencies in resource reports must be met with clear, fact-based public comment that identifies the insufficiency and demands further investigation. Facts and concerns which are raised through public comment should be, whenever possible, be backed with actual data and/or documentation.
Bifurcation of Authorities: Safety and Green Energy Considerations Delegated Elsewhere
Conspicuously absent from FERC’s jurisdiction is evaluation of alternative energy resources. By comparison to FERC’s jurisdiction, the U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy (“EERE”) “accelerates development and facilitates deployment of energy efficiency and renewable energy technologies and market-based solutions that strengthen U.S. energy security, environmental quality and economic vitality. (www.energy.gov/eere/). There appears to be little if any interplay between alternative energy resource considerations and FERC’s finding of the economic necessity of natural gas facilities, with the limited potential exception of evaluating alternative energy sources as a project alternative in the NEPA process.
Also absent from FERC’s jurisdiction is oversight of pipeline safety or security, which is delegated to the U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration (“PHPMSA”), which in turn relies upon state authorities to inspect and enforce state pipeline laws with respect to natural gas pipelines (See U.S. Department of Transportation Call to Action To Improve the Safety of the Nation’s Energy Pipeline System, www.opsweb.phmsa.dot.gov). The PHPMSA investigates incidents relating to pipelines, such as the September 9, 2010 breach of a 30” natural gas transmission pipeline in San Bruno, California (http://opsweb.phmsa.dot.gov/pipelineforum/facts-and-stats/recent-incidents/sanbruno-ca/), and the February 9, 2011 breach from an out-dated cast iron natural gas distribution pipeline in Allenton, Pennsylvania (http://opsweb.phmsa.dot.gov/pipelineforum/facts-and-stats/recent-incidents/allentown-pa/).
The 2014 -2018 FERC Strategic Plan clearly acknowledges that the practices necessary to recognize, minimize, and provide counter measures for cyber and physical threats to natural gas infrastructure remains un-identified and underdeveloped. FERC is charged with collaborating with government partners and industry to identify facilities presenting the greatest risks, assess security, and propose protective mitigation measures. However, as for the evaluations conduced for specific underground natural gas pipeline proposals, Resource Report 11, Reliability and Safety, is not required. Additionally, the Congressional Research Service issued a January 2013 report, Keeping America’s Pipelines Safe and Secure: Key Issues for Congress, which fact-based report clearly identifies the need for development of measures to address intentional threats to pipelines. (http://fas.org/sgp/crs/homesec/R41536.pdf).
Concerned citizens should lobby government officials, demanding that these issues of local and natural security, and energy policy to favor green, re-newable sources of energy, be immediately factored in to the appropriateness of pipeline applications. While we do not want to burden our neighbors, co-location of multiple pipelines within existing pipeline easements is one argument which many opponents of the greenfield pipeline advocate as a lesser of evils. However, so long as our laws favor this momentum in fracking and natural gas development, green energy sources will struggle to obtain market share, and we will continue to lay out a network of pipelines throughout our communities, without having FIRST addressed the issues of local and national security and long-term energy sustainability. This is, personally, my greatest concern.
Simple Overview of the CPCN Application Process
The NEPA Process, as Supplemented by the Natural Gas Act, generally involves, in part, the following:
- Pre-Filing. (18 CFR 157.21). During the pre-filing stage, the Natural Gas Company holds open houses to obtain public input on a proposed project. As stated by FERC, “The goal of the Commission’s pre-filing process is to notify all project stakeholders, including potentially affected property owners, so that Company and the Commission Staff can provide a forum to hear the issues relevant to those stakeholders. The Company may then incorporate proposed mitigation measures into the project design from comments received from stakeholders.” FERC sometimes sends staff to open houses. The Pre-Filing process begins deadlines for providing notice of public meetings, submitting a stakeholder mailing list, and preparing draft resource reports.
- Scoping meetings may occur during the pre-filing phase, and can also be held after the application is officially filed with FERC.
- The Application for Certificate of Public Convenience and Necessity is filed with FERC. FERC publishes the Notice of Application within 10 business days. (18 CFR 157.9(a)). Official federal publications occur in the Federal Register. (https://www.federalregister.gov). The Notice of Application will additionally fix the time within which a person or interested regulatory agency may intervene in the NEPA process. (18 CFR 157.10(a), 18 CFR 380.10(a)). Failure to timely file a motion to intervene is grounds for denial of participation in the environmental evaluations under the NEPA process. 188 CFR 157.10(a)(3).
- Schedule for Environmental Review. Within 90 days of the notice of application, FERC must publish a notice of schedule of environmental review within the Federal Register. (18 CFR 157.9(b)).
- Scoping meetings can again occur to determine the environmental issues which must be evaluated. The natural gas company issues a Notice of Intent for Preparation of an EIS to begin the scoping period.
- Draft EA/EIS. Draft EA/EIS is prepared and shared with cooperating agencies. The draft EA/EIS is then filed and issued to the public
- Public Comment Period. (The forty five (45) day public comment period begins from the date of publication in the Federal Register, which the time period can be reduced with permission or enlarged by the Lead Agency).
- Final EA/EIS. Final EA/EIS is prepared after consideration of public comments.
- Order. FERC issues an Order either approving or denying the project. The final actions (i.e. Orders) of administration agencies must not be arbitrary or capricious.
- Re-Hearing. NGA, 717f(a). Within 30 days of a FERC Order on the Natural Gas Act, any person, State, municipality, or State commission aggrieved by a FERC order to which that person, State, municipality, or State Commission is a party may apply for re-hearing within 30 days.
- Appeal. NGA 7a7f(b). Within 60 days of a FERC Order on the Natural Gas Act, any person, State, municipality, or State commission aggrieved by a FERC order to which that person, State, municipality, or State Commission is a party may appeal to the United States Court of Appeals. If appealed, the existing record will be reviewed as against the agency decision to determine whether the agency action was arbitrary or capricious.
FERC encourages pre-planning prior to the submission of the official application for a CPCN. PennEast has proposed a 50 foot right-of-way (ROW), to be located within a 400-foot wide corridor which is the focus of its survey area. The pipeline route is not finalized. If during the application process, PennEast seeks to alter the route, it must file a motion to amend the proposed route. PennEast prefiled in October of 2014, and is hosting open houses throughout November 2014. (http://penneastpipeline.com/news/).
Permanent Right-of-Way and Temporary Workspace Easements
It should be noted that the natural gas company requires two types of easements. First, is the permanent right-of-way. Second, are temporary easements utilized for construction, such as for the storage of equipment and stockpiled soils. Property owners are entitled to compensation for both types of easements.
FERC requires landowner notifications during the application process. 18 CR 157.6(d) defines affected landowners, which include the “owners of property interests” as noted in the most recent county/city tax records as receiving the tax notice. However, property interests include the interests of easement holders, whom are typically not identified in tax records. 18 CR 157.6(d) additionally provides that land owners include those who are directly affected (i.e. crossed or used), and the abutters to either side of a proposed right-of-law which runs along a property line, or contains a residence within 50 feet of the proposed construction work area.
Contemporaneous to the early planning stage, pre-filing process, and application, the natural gas company, upon selecting a proposed pipeline route, will identify and contact landowners to obtain access to lands for survey purposes. They surveys are used, in part, to compile resource reports. They are additionally used, in part, to provide a more detailed description of the proposed right-of-way takings, which can then be used for appraising the right-of-way. During this time, the natural gas company will begin negotiations with the landowner to obtain voluntary consent to the sale by the landowner of a utility easement/ right-of-way to the natural gas company. Landowners are not obligated to participate in this process. Prior to FERC approval, the natural gas company is not entitled to access properties simply by virtue of its proposal to construct a pipeline. Access is governed by state trespass laws.
Various states have “right of entry” laws which permit private surveyors, under certain circumstances, to enter upon lands for the purpose of conducting surveys without permission. In New Jersey, a survey may be prohibited by refusing consent and by either constructing an enclosure at least 6 feet in height (i.e. a fence) or by posting signs which prohibit trespassing and contain the name and the address of the owner or lessee of the land. N.J.S.A. 45:8-44.1. More specifically, 45:8-44.1, Authority of land surveyors to go on, over and upon lands of others during reasonable hours, provides:
A person licensed to practice land surveying as provided in P.L.1938, c. 342 (C. 45:8-27 et seq.) and any of his agents, servants or employees under his direction who are necessary to make a land survey shall have the authority to go on, over and upon lands of others during reasonable hours when necessary to make land surveys if:
a. The licensed professional land surveyor has made a reasonable attempt, as defined in this section, to notify the owner of the land and, in the case of a lease, the lessee thereof, of his desire to enter on, over and upon the owner’s or lessee’s land to make a land survey and, the attempt having failed, the licensed professional land surveyor has given written notice, seven days prior to the proposed entry, to the municipal police department of the municipality in which the land is located of his intention to enter, containing the names, addresses, and telephone numbers of those who propose to enter the land and the date, time, duration, and location of the proposed entry; and
b. The land or any part thereof, to which entry is sought, is not enclosed by a constructed or natural barrier which is at least 6 feet in height or is not posted with signs or notices which prohibit trespassing and contain the name and address of the owner or lessee of the land;
c. As used in this section, a “reasonable attempt” to notify an owner or lessee means: an attempt to seek acknowledgment of the owner of the land and, in the case of a lease, the lessee thereof, by certified mail, return receipt requested, the attempt to be made a second time if unsuccessful the first time and a third time if unsuccessful the second time, each attempt to be made on a separate business day.
N.J.S.A. 45:8-44.1 (emphasis added).
Denying access to the natural gas company for survey purposes obstructs the progress of the planning stages, and restricts the natural gas company’s ability to determine the resources existing on the lands which are affected by the proposed pipeline route, and to evaluate whether the proposed route should be revised. Denying access has been used locally as an obstruction to the planning process and as a mechanism for protest.
Whether or not to oppose a survey and obstruct property access is not a matter which I can responsibly advise on generally: I only advise my clients on this question after individual consultation. Each individual landowner must evaluate his/her/its property, the impacts, and short and long term goals when determining at which point they should engage with the natural gas company, and to what extent. Of importance is that, during the pre-filing and application stage, the landowner has control over property access. Once the CPCN issues, the natural gas company will file for eminent domain. Another consideration to be individually evaluated with respect to each property is strategy regarding submissions of complete and accurate data during the environmental evaluation stage. There is no one-size-fits all answer to these questions, in my professional opinion.
Eminent Domain: The Taking of the Right-of-Way and Temporary Workspace Easement (or more).
However, underlying these individual property access and right-of-way negotiations is the threat of eminent domain, should the landowner refuse to grant the utility easement. The Natural Gas Act, 15 USC 15B-717f(h) confers eminent domain powers upon a natural gas company issued a certificate of public convenience and necessity:
When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts. The practice and procedure in any action or proceeding for that purpose in the district court of the United States shall conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated: Provided, That the United States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned exceeds $3,000.
(15 USC 15B-717f(h)).
Upon obtaining the right-of-way, whether a voluntary transaction for a negotiated price or through eminent domain with “just compensation,” construction begins, and the pipeline is put into service.
It is very important that each landowner consult an attorney for guidance in negotiating the terms of both temporary work easements as well as the permanent right-of-way. Risks and factors unique to each property must be considered and negotiated. In limited circumstances, the natural gas company may purchase a property outright due to very specific limitations of the property. Land values are often undervalued in the initial settlement proposal. Conditions prior to and after construction must be carefully documented. Reservation of future damages should be negotiated, and so forth. Again, such factors are best evaluated on a property-by-property basis.
Of great concern to many landowners and affected communities along the proposed PennEast pipeline, is the vast amount of land preserved due to its natural, agricultural, and/or woodland values, which preservation easements were obtained using local, state, and federal dollars. Other properties enjoy reduced agricultural or woodland assessments, which may be compromised by loss of acreage, amongst the other impacts of concern. Concerned citizens and professionals are currently reviewing the implications of the pipeline on the certifications and tax structure of preservation, reduced assessment, organic farming. In my opinion, our preserved lands are our habitat: a critical component of our human environment preserved due to the rapid losses of such lands. I believe the FERC process and just compensation for takings are entirely inadequate for redressing this loss. However, FERC regulations at 18 CFR 380.15 do attempt to instruct natural gas companies to avoid locating pipelines within such lands, and local citizens groups are committed to a strong fight on this issue.
Participating in FERC Public Comment: Open Houses, Public Comment, Intervention
Concerned citizens may obtain official information on natural gas pipeline applications at http://www.ferc.gov/docs-filing/ferconline.asp. Individuals may register with FERC, creating a login and password. Individuals may then eSubscribe to receive all information related to a docket, without officially intervening. PennEast’s prefiling process has been assigned docket PF 15-1. Even without registering, FERC’s eLibrary is a searchable database of all FERC submissions. eComments of up to 6,000 characters may be submitted in the pre-filing stage. eFiling is used to intervene in a proceeding and file comments in excess of 6,000 characters and/or containing non-text materials. After the prefiling stage and once an application is filed, a person, organization or agency may become an official “party” to a proceeding, by eFiling a Motion/Notice of intervention, and must then serve all of its submissions on all parties/intervenors. A party must, in part, intervene to have standing to request re-hearings or to appeal final FERC action on the application.
Additionally, open houses are being conducted at various stages of the proceedings, during which the public can discuss concerns with the project, and ask questions of PennEast, FERC, and citizens groups.
Concerned citizens should join a citizens group which will keep them up to date on opportunities for public comment and opportunties for lobbying elected officials. Concerned citizens should evaluate whether they will simply submit comments, or intervene, or use and support a citizens group for participation in the process. Impacted landowners should evaluate the need for private legal counsel.
One such citizens group is www.dtcap.org, which is currently seeking donations of money for its efforts which will be used, in part, to lobby opposition to local pipeline projects and, in part, to hire environmental consultants. I should disclose that I am President and Trustee of this organization. I will gladly post links to other areas groups, as well. Please email me at firstname.lastname@example.org.
Nicole L. Voigt is Managing Partner of Shanahan & Voigt, LLC and focuses her law practice in commercial and residential real estate transactions, as well as related contracts, leases, land use, zoning, and environmental matters, and tax assessment appeals. Ms. Voigt additionally practices landlord-tenant law, including commercial lease negotiations for landlords or business tenants, and representing residential landlords in all aspects of the landlord/tenant relationship. Ms. Voigt is a Court appointed landlord tenant mediator. Ms. Voigt also focuses in business formation and business contracts and commercial transactions. Ms. Voigt offers litigation services arising from business, real estate, environmental, land-use, landlord-tenant, collections, construction, and administrative permitting and proceedings. Ms. Voigt collaborates with partner Robert J. Shanahan, Jr., regarding elder law, complex commercial litigation, estate documents, including wills, trusts, powers of attorney and living wills;, and estate administration and probate. Ms. Voigt received her Juris Doctor from Northeastern University School of Law in 2000, and obtained licensure in Massachusetts (2001), Pennsylvania (2008), and New Jersey (2008). Ms. Voigt received a Bachelor of Science degree in Ecology & Systematic Biology with a minor in Statistics in 1995 from California Polytechnic State University. Ms. Voigt enjoys using her interdisciplinary background to facilitate due diligence, land use matters, ISRA closures, and remediation of contaminated sites pursuant to the Site Remediation Reform Act. You may contact Nicole at (908) 751-1551, ext. 20, or email@example.com. For more information, visit www.legalcounselnj.com.
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