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Keep Barbarians Off The Docket, LNG Project's Lawyers Tell FERC

Lawyers for Rio Grande LNG LLC and affiliates (RG) adopted an "enough is enough" posture in a Wednesday FERC filing on behalf of their client, asking the Commission to reject dozens of motions to intervene that were filed by "...entities that show absolutely no regard for the Commission's rules..."

Noting recent disruptions of Federal Energy Regulatory Commission proceedings (see Daily GPIMay 19), Norton Rose Fulbright US LLP lawyers Erik Swenson and Alisa Chunephisal also cited dockets that have been bloated by inappropriate/poorly prepared filings to intervene.

"The RG Developers recognize that the Commission takes a modern approach to pleadings and emphasizes substance over form, often granting intervenor status to novice participants that do not fully comply with the letter of FERC's regulations governing interventions," the filing said [CP16-454, 455]. "...[O]ver the past year or more, there has been evidence of growing disrespect for the Commission's processes, marked, not just by disruption outside of the Commission's Washington, DC, headquarters, but also within the Commission's meeting room while the Commission is in session."

Between the May 5 filing of the RG applications for a Texas LNG terminal and related pipeline project (see Daily GPIMay 6) and a June 9 deadline for comments, the related dockets garnered filings from 63 individuals and 15 organizations, the lawyers said. The RG lawyers cited numerous instances in which filers failed to follow the basic rules and procedures of the Commission.

"Specifically, the vast majority of the current submissions purporting to be motions to intervene demonstrate an utter lack of a good faith effort to meet any of the Commission's regulations setting forth the requirements for petitions to intervene." Among other things, the lawyers said, filers are required to state whether a formal hearing is being sought, and present a statement of facts of law and specify relief requested.

"A motion to intervene must also state the movant's interest in sufficient factual detail to demonstrate that (i) the movant has a right to participate which is expressly conferred by statute or by Commission rule, order, or other action..." Would-be intervenors must also submit typewritten filings and distribute them to all parties on the docket service list, the lawyers said.

"Despite these clear instructions [provided by FERC], all but a handful of the motions to intervene filed failed to comply with any of the Commission requirements for motions to intervene, not even the mailing/service requirement set out directly in the notice," the filing said.

"Further, none of these submissions makes any assertion that the submitters lacked ready access to the Commission's rules or even asked for forbearance (waivers) with respect to compliance with the Commission's rules. Indeed, all of the submissions appear to have been submitted via email, suggesting the submitters had access to the internet and, thus, ready access to copies of the Commission's rules."

The RG lawyers said that in the case of some of the filings to intervene, it is not possible to tell whether the filer is referring to an RG project or one of the competing LNG projects proposed for the same region.

"Moreover, several [filings] either refer exclusively to a project not being developed by the RG Developers, raise facts pointing to a project not being developed by the RG Developers, or otherwise indicate a lack of understanding as to which proceeding their submission related," the filing said.

"For example, Submission No. 1, a filing by Dr. Terence Garrett, states that Dr. Garret 'do[es] not want to see [his] property devalued by polluting fossil fuel industries such as Texas LNG' and 'wish[es] to preserve [his] rights should [he] need to bring a legal challenge against Texas LNG in the future.' Similarly, Submission No. 50 by Charles W. Doughty voices objection to the facility on the basis that it is within two miles of where he lives and within three miles of the SpaceX rocket launch facility, and Submission No. 47 by the Long Island Village Owners Association expresses concerns for homes 'less than 1.5 miles from the proposed Rio Grande LNG site.'

"However, the RG LNG Terminal site is not within two miles of any residences, is approximately 2.5 miles or more from homes in Long Island Village, and is more than three miles from the SpaceX rocket launch site."

FERC should chuck the "broadly deficient interventions" unless there is an indication that a good faith effort was made to follow Commission rules, the lawyers said. "To grant intervenor status to any entity submitting one of the broadly deficient interventions would encourage further erosion of orderly Commission proceedings, as well as prejudice the RG Developers and other stakeholders..."

The RG companies are units of NextDecade LLC, which proposes to construct a 27 million tonne per annum LNG export terminal near Brownsville, TX, at the Port of Brownsville, along with an associated 137-mile pipeline system from the Agua Dulce Hub.

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