FERC Acting Chairman Neil Chatterjee warned representatives of the natural gas industry that opposition to pipelines has morphed into an ideological fight, with well-funded project foes hiring "good lawyers" who in turn are using "clever" strategies to frustrate and extend the review process.
There is a silver lining, he said. The Federal Energy Regulatory Commission is becoming more deliberate in its review process, as it wants to render decisions that ultimately would survive any legal challenges.
"It's not hard to see that opposition to natural gas pipeline projects has become much more ideologically driven than it used to be," Chatterjee told attendees last week at the Natural Gas Roundtable in Washington, DC.
"In the past, much of the stakeholder resistance to natural gas pipeline projects resulted from the local interests of individual landowners and communities. That is, these parties' opposition grew from their desire to avoid construction of a pipeline in their community, or from their desire to avoid the exercise of eminent domain on their lands."
Construction and eminent domain remain core concerns, but Chatterjee said increased anxiety over carbon emissions and climate change have led to the rise of the "keep it in the ground" movement, which opposes any oil or gas project as a matter of principle.
"Nowadays, C-list movie stars show up at FERC open meetings, and we have Catholic nuns protesting pipelines and bringing lawsuits against the Commission," Chatterjee said. "There's been a sea change in the identity, volume and goals of stakeholders participating in our proceedings, as well as in the nature and tone of the rhetoric of those who oppose pipeline projects. It's reminiscent of the determined opposition the civilian nuclear industry has faced since its inception."
Chatterjee said pipeline opponents also have greater financial backing and are much more legally sophisticated than in the past. They have allies within state and federal government, and enjoy support from national environmental advocacy organizations that "understand how to use all of the levers of federal and state law to frustrate pipeline development.
"These groups have good lawyers who can exert pressure on FERC review processing. And the legal strategies they employ are clever ones, targeting a variety of avenues," including the National Environmental Policy Act, the Endangered Species Act and the Clean Water Act. Consequently, FERC staff is being "forced to devote significant resources to responding to arguments and ensuring a robust record that can withstand subsequent court challenges."
Another factor, according to Chatterjee, is that pipeline opponents are increasingly looking to federal courts for relief, especially the U.S. Court of Appeals for the District of Columbia.
Opponents Left Out?
"I understand that many of those opposing pipelines feel they have been shut out of the political and administrative processes of the federal government, prompting them to look increasingly to the courts to obtain relief," Chatterjee said. "This impacts FERC not only because it means that we can expect to be involved in litigation on a number of fronts, but also because it could force the Commission to become even more deliberate in its review processes to ensure that they will withstand judicial review. So, even if litigation does not result in a 'win' for pipeline project opponents, it still has a significant effect on our internal processes.
"Now to be clear, I am not suggesting that there's anything sinister about ordinary citizens exercising their right to have their voice heard at FERC proceedings or in the courts. I think that's one of the things that make this country great. But the considerations I just outlined have the inevitable effect of drawing out the FERC review process as staff and the commissioners themselves must address both more substantial and varied arguments than they have in the past, to ensure that our review process is comprehensive and survives judicial scrutiny."
Chatterjee lauded FERC staff and Commission colleagues for clearing the backlog of cases that built up for eight months while it lacked a quorum. Since a quorum was restored in August, the Commission has issued certificates for more than 8 Bcf/d of gas pipeline capacity.
"Getting through the no-quorum backlog was an all hands on deck effort within FERC," Chatterjee said. "It started with the great leadership of my colleagues -- Commissioners [Cheryl] LaFleur and [Robert] Powelson -- and it continued with dedicated work from the staff throughout the building. My hat's off to the staff and both of my colleagues for all of their hard work to help see us over the finish line."
The acting chairman added that FERC was trying to identify more efficiencies in its review process for natural gas pipelines and other facilities.
"There is always the danger that the last project FERC worked on becomes the benchmark for future projects. And there will be a lot of people on the outside arguing that those extended timelines are appropriate. Rest assured, I am committed to working with FERC staff and my colleagues on the Commission to do all we can to streamline the process and provide timely resolution on projects."