Scoping is an important stage for us to make the pipeline appear as untenable as possible and hope the application is withdrawn. PennEast is using the scoping process to evaluate how to propose a pipeline route and environmental impact report that can get approved. Consider the analogy of a poker game. During scoping, we play our hand. We lay down cards – each card a known resource that will be impacted. In response, they draft an environmental impact report saying that they can mitigate all impacts and still build the pipeline – they play their hand.
We want some good cards in our deck, and we want to play every card we can – hundreds and hundreds of cards. Scoping is not about general protests, but about documenting actual impacted resources, and explain WHY the impacts can NOT be mitigated. Challenges to the economic necessity are also relevant in the scoping process.
With the “death by a thousand pin pricks” approach, we want to get before FERC our comments advising PennEast of known resources: wetlands, streams (including intermittent), ponds, historic, cultural, archeological, geological, species of concern, high quality soils, protected farmland, protected conservation land, organic certifications, etc. AND we want to explain WHY the impacts cannot be mitigated. If there is documentation of the resource, such as a wetlands Letter of Interpretation, confirmation of C1 streams and their tributaries, historic resource designations, confirmation of protected species and/or its habitats, etc. etc. etc. – we want to put this documentation in the record, AND establish that the pipeline construction and/or operation cannot co-exist with the resource through mitigation.
PennEast is using this process to identify the “Scope” of the Environmental Impact Report that it will prepare. If it doesn’t self-disclose an impacted resource, and no one goes on the record advising them of the resource, then that resource may be overlooked, the pipeline will be more likely to be approved, and then the overlooked resource damaged or destroyed. This is a very FACT based public comment period. Organizations opposing this pipeline are seeking funds to hire experts to assist with identifying AND documenting these resources and why impacts can’t be mitigated. But resources are limited, and each concerned person needs to take some responsibility. We need the completed surveys of impacted landowners to even know what is out there in the field.
We can submit written comments to FERC at any time during pre-filing. The February deadline was arbitrary. The speaking time at public hearings will be limited. However, I still encourage our best attempts at timely participation in both the public meeting and written comment “forums” while also demanding extensions of time. I, personally, am expecting additional meetings to be rescheduled (but I don’t have a crystal ball). Whether the publicized comment period is extended or not, we can submit comments at any time during pre-filing. But we don’t know with certainty when the pre-filing period will end and the official application will be submitted, aside from PennEast’s tentantive timeline for the process.
However, this is happening now. Our timely and expedited participation in part establishes our very important record regarding impacted resources, creates an accumulation of identified resources sooner in the process which is helpful to the goal of withdrawal of the application, and demonstrates our ability to organize and provide competent, relevant facts and analysis and let them know what, and who, they are dealing with.
Adjustments to the route of the pipeline are proposed by PennEast so that it may claim the impacts are less and/or easier to mitigate. Adjustments make the pipeline more approvable. This is why we want to play every card (i.e. documented as many key affected resources as possible). The message: with so many resources along this path and nearby, which cannot be adequately mitigated, there is no route that works, there is no mitigation that is acceptable, especially considering the cumulative impacts. Our task at hand is to document those resources to the best of our abilities and put them on the record.
PennEast and FERC know that they have to provide adequate opportunities for public participation. It is an underpinning of administrative law that corporations at this level skillfully navigate. Failure to provide adequate participation makes any administrative approval vulnerable to due process challenges. They must know this. And so I encourage the continued demands for adequate public meeting advanced notice, and adequate comment period, and adequate meeting locations. My speculation is that they will want to demonstrate at least a minimally adequate response to our challenges to the adequacy of public participation.
Again – I can’t predict the future or get inside the heads of PennEast, but based upon my experience and my gut – this is my best assessment of the situation as of today.