The proposed rulemaking calling for a relaxation of FERC’srestrictive policy for off-the-record communications is “essentialto providing timely and adequate information” for the Commissionstaff to conduct environmental reviews of proposed pipelineprojects, 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 communicatewith the Commission after a draft environmental impact statement(DEIS) is issued, perhaps even after the comment period on the DEIShas passed.” Unless such post-DEIS communications were disclosedimmediately, the pipeline and other interested parties would learnof 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 betreated as a comment on the DEIS and disclosed promptly. “Thepipeline and all interested parties should be given an opportunityto respond to the communication,” INGAA told FERC [RM98-1].

The pipeline group’s comments were in response to a notice ofproposed rulemaking (NOPR) issued in mid-September, which, amongother things, would permit Commission staff to engage inoff-the-record communications while preparing an environmentalassessment or a DEIS. In addition, staff could have ex partediscussions with landowners, who aren’t party to the proceedingsthen, but whose property may be affected by pending proceedings.The NOPR also would permit the Commission to request informationfrom federal, state or local agencies, which aren’t parties to aspecific proceeding, or in cases where FERC and an outside agencyshare jurisdiction.

All information received as a result of these proposedexemptions to FERC’s ex parte rules, however, would be required tobe included in the “decisional record” of a proceeding. Notice thenwould be provided to parties to give them an opportunity to reviewand respond to the off-the-record communications.

Overall, INGAA said the Commission has taken a “balancedapproach” to revising its regulations governing ex partecommunications, but it believes there is room for furtherimprovement. For example, given that FERC holds the separation ofthe functions of its decisional and non-decisional staff”sacrosanct,” it should reaffirm in the NOPR that the two shouldnot be permitted to engage in “prohibited communications incontested proceedings,” the pipeline group noted.

INGAA agreed that exempting enforcement investigations from exparte rules was the right move. But it asked FERC to clarify “theparty under investigation…be apprised of the information that wascommunicated to the enforcement staff if an enforcementinvestigation (informal or formal) is initiated.” While thisrequirement is “implicit in the hearing procedures, providingexplicit Commission affirmation leaves no room for parties to arguethat such information sharing is not permitted.”

It also objected to a proposal that would exempt off-the-recordcommunications to the Commission “from” elected officials, butfailed to mention communications from the Commission “to” suchofficials.

Separately, the Environmental Protection Agency (EPA) voiced itssupport for FERC’s effort to relax its restrictions on ex partecommunications. “We are [especially] encouraged by the proposal toexempt communications with other federal, state and local agenciesin matters where there is shared jurisdiction with the Commissionfrom the prohibition against off-the-record communications,” theagency said.

However, it noted, “it is not clear why the Commission hasproposed to limit this exception to only those circumstances wherethe federal agency is not a party to the relevant Commissionproceeding.” Such a limitation “appears to contradict the intendedgoal of encouraging communication, cooperation and collaborationbetween agencies, and we recommend that it be eliminated in thefinal rule.”

In addition, while the EPA favors FERC’s proposal to exemptcommunications relating to the preparation of NationalEnvironmental Policy Act reviews from ex parte restrictions, “werecommend that the final rule clarify that the scope of theexception is broad and is intended to include communicationsregarding both procedural and substantive aspects of preparing theenvironmental documentation,” the agency said.

“We also recommend that the exception not be limited tocommunications that occur prior to issuance of the finalenvironmental document. The need for interagency collaboration andcommunication does not end at [the] issuance of a final NEPAdocument.”

Susan Parker

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