Natural gas pipelines, local distributors and industrial customers said they backed FERC’s current inquiry that potentially may limit the public’s access to sensitive critical energy infrastructure information (CEII), but some cautioned the agency not to go overboard in its effort. A few legal experts, however, adopted the surprising position that the Commission should use “all available legal means” to limit access to certain details about energy facilities in the wake of Sept. 11.

FERC should invoke every applicable exemption under the Freedom of Information Act (FOIA) to protect against the public disclosure of CEII to would-be terrorists or saboteurs, said the Washington Legal Foundation (WFL) and its Economic Freedom Law Clinic at George Mason University School of Law.

“To the extent there remains any doubt about FERC’s authority to withhold CEII under current FOIA law, FERC should consider securing additional authority from the president or Congress or both,” noted WFL, a non-profit public interest law and policy center based in Washington, DC.

WFL’s remarks were in response to a notice of inquiry (NOI) that FERC issued in mid-January, seeking public comment on the level of post-Sept. 11 access that FERC should permit for parties to obtain information on critical energy facilities [RM02-4]. While a number of federal agencies withheld once-public information on energy facilities after the September terrorist attacks, the Commission is the only agency to open a formal NOI process on the issue.

The Interstate Natural Gas Association of America (INGAA), which represents interstate gas pipelines, said it recognized that the Commission was walking a tightrope “between the existing policies that favor openness in the government and the need for new policies that restrict access to certain documents in order to protect our nation’s infrastructure.” However, it urged FERC not to take agency-specific action to limit access.

Rather, the trade association recommended that the Commission coordinate with the Bush administration via the Office of Homeland Security and/or Congress to come up with consistent standards that would be applied uniformly across all agencies that regulate gas pipelines.

“These standards would identify the proper balance that FERC and other federal agencies, such as the Department of Energy and the Department of Transportation, should give to securing the nation’s infrastructure while simultaneously maintaining public access to documents and proceedings that may contain or disclose CEII,” INGAA told FERC.

The pipeline group said there must be a public policy debate at FERC, as well as within the Bush administration and/or Congress, to determine “what the proper balance must be, in cases where a conflict between these policies arise — security of our nation’s energy infrastructure or unfettered public disclosure.”

The Process Gas Consumers Group, as well as other industrial gas users, called the Commission’s inquiry “logical,” but it asked FERC to cautiously balance the interests. “In its effort to guard against future terrorist-type attacks targeted at energy-related facilities, the industrials ask that FERC not…lose sight of certain fundamental principles on which our society is based, including the Commission’s own ‘open access’ values.”

Foremost, industrials said they opposed FERC’s consideration of a higher threshold for parties to achieve intervenor status in a proceeding. “Such a change would be an unwarranted degradation of rights for all energy consumers and a restriction on the ability of these consumers to comment on or protest important issues…Frequently the only access certain energy consumers have to information about the details of a particular proposed project or rate issue is through the information available to them as intervenors, and any restriction on this information would be unjust.”

Atlanta Gas Light Co. (AGL) and two affiliates wholeheartedly backed the Commission’s efforts, saying that the agency “should take all steps available to protect disclosure of CEII to only those entities and individuals with a legitimate need for the information.” When deciding to withhold certain information, the AGL companies suggested that FERC consider: 1) the location of the facilities; 2) access to those facilities; 3) the size and operating pressure of gas facilities; and 4) the magnitude the loss of service would have on customers of a particular facility.

Given the fact that many LDCs are “small diameter buried pipes,” the AGL companies said they believed the risk or threat from attacks was “very low.” As a result, they urged the Commission to limit its definition of CEII to liquefied natural gas and liquefied petroleum gas facilities, transmission lines and major citygate stations.

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