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FERC's Relaxation of Ex Parte Rules Elicits Support, Concerns

FERC's Relaxation of Ex Parte Rules Elicits Support, Concerns

The proposed rulemaking calling for a relaxation of FERC's restrictive policy for off-the-record communications is "essential to providing timely and adequate information" for the Commission staff to conduct environmental reviews of proposed pipeline projects, the Interstate Natural Gas Association of America (INGAA) said last week.

But it took issue with two provisions in the initiative, contending they would "allow parties or non-parties to communicate with the Commission after a draft environmental impact statement (DEIS) is issued, perhaps even after the comment period on the DEIS has passed." Unless such post-DEIS communications were disclosed immediately, the pipeline and other interested parties would learn of them only when the final environmental impact statement (FEIS) is issued, INGAA said.

The pipeline group called on FERC to revise the proposals so all off-the-record communication received post-DEIS would be treated as a comment on the DEIS and disclosed promptly. "The pipeline and all interested parties should be given an opportunity to respond to the communication," INGAA told FERC [RM98-1].

The pipeline group's comments were in response to a notice of proposed rulemaking (NOPR) issued in mid-September, which, among other things, would permit Commission staff to engage in off-the-record communications while preparing an environmental assessment or a DEIS. In addition, staff could have ex parte discussions with landowners, who aren't party to the proceedings then, but whose property may be affected by pending proceedings. The NOPR also would permit the Commission to request information from federal, state or local agencies, which aren't parties to a specific proceeding, or in cases where FERC and an outside agency share jurisdiction.

All information received as a result of these proposed exemptions to FERC's ex parte rules, however, would be required to be included in the "decisional record" of a proceeding. Notice then would be provided to parties to give them an opportunity to review and respond to the off-the-record communications.

Overall, INGAA said the Commission has taken a "balanced approach" to revising its regulations governing ex parte communications, but it believes there is room for further improvement. For example, given that FERC holds the separation of the functions of its decisional and non-decisional staff "sacrosanct," it should reaffirm in the NOPR that the two should not be permitted to engage in "prohibited communications in contested proceedings," the pipeline group noted.

INGAA agreed that exempting enforcement investigations from ex parte rules was the right move. But it asked FERC to clarify "the party under investigation...be apprised of the information that was communicated to the enforcement staff if an enforcement investigation (informal or formal) is initiated." While this requirement is "implicit in the hearing procedures, providing explicit Commission affirmation leaves no room for parties to argue that such information sharing is not permitted."

It also objected to a proposal that would exempt off-the-record communications to the Commission "from" elected officials, but failed to mention communications from the Commission "to" such officials.

Separately, the Environmental Protection Agency (EPA) voiced its support for FERC's effort to relax its restrictions on ex parte communications. "We are [especially] encouraged by the proposal to exempt communications with other federal, state and local agencies in matters where there is shared jurisdiction with the Commission from the prohibition against off-the-record communications," the agency said.

However, it noted, "it is not clear why the Commission has proposed to limit this exception to only those circumstances where the federal agency is not a party to the relevant Commission proceeding." Such a limitation "appears to contradict the intended goal of encouraging communication, cooperation and collaboration between agencies, and we recommend that it be eliminated in the final rule."

In addition, while the EPA favors FERC's proposal to exempt communications relating to the preparation of National Environmental Policy Act reviews from ex parte restrictions, "we recommend that the final rule clarify that the scope of the exception is broad and is intended to include communications regarding both procedural and substantive aspects of preparing the environmental documentation," the agency said.

"We also recommend that the exception not be limited to communications that occur prior to issuance of the final environmental document. The need for interagency collaboration and communication does not end at [the] issuance of a final NEPA document."

Susan Parker

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