August 29, 2018 Articles

Motions to Intervene at FERC: Engagement or Obstruction?

Many contend that intervening is an aggressive tactic to increase the costs of and ultimately stall or defeat projects.

By Jehmal T. Hudson

If you want to challenge a natural gas energy project, one option is to file a motion to intervene at the Federal Energy Regulatory Commission (FERC). A motion to intervene is a submission seeking legal standing in a FERC proceeding based on an interest that may be directly affected by the outcome of the proceeding. Unlike filing a comment on a project, which anyone can do and has no special rights, becoming an intervenor indicates that a party has an ongoing connection with a project and allows it to request a rehearing by FERC and ultimately to sue through the federal court of appeals system if it disagrees with FERC’s decision-making. All motions to intervene should be submitted to FERC pursuant to 18 C.F.R. § 385.214.

While intervening in a project preserves a party’s right to take FERC to court following a commission decision, many contend that it is an aggressive tactic to increase the costs of and ultimately stall or defeat projects. Additionally, there has been a growing concern that many regulatory filings that don’t follow FERC’s guidelines represent a new strategy to obstruct energy projects.

The Problem
In Rio Grande LNG, L.L.C., Docket No. CP16-454, the applicant argued that approximately 20 percent of all motions seeking intervenor status on its project did not file before a recent FERC deadline for that process.

Moreover, the applicant responded to the abundance of intervention requests on its project, contending that nearly 98 percent of intervention requests were broadly deficient interventions that should be denied. Rio Grande LNG argued that many motions to intervene failed to comply with FERC requirements. It referenced requirements that an intervenor clearly state the facts and legal points supporting its position and describe how it would be directly affected by the project. The motion to intervene also must follow formatting and procedural specifications, such as including a FERC docket number and using certain line spacing and font size.

Intervenor Status
Generally, you can intervene when FERC issues a public notice about a proposed project, case, or policy issue and you may be materially affected by FERC’s decision. FERC also allows interventions for a limited time after it releases draft environmental impact statements on a proposed project. 

Timely interventions are automatically accepted if no one protests their filing within 15 days of being filed, but FERC will consider late interventions. A key purpose of the intervention deadline is to determine, early on, who the interested parties are and what information and arguments they can bring to bear. Interested parties are not entitled to hold back the outcome of the proceeding or to intervene when events take a turn not to their partiality. 

Late Interventions
FERC’s regulations dealing with motions for late intervention state that, in acting on such a motion, the decisional authority may consider the following: 

  • whether the movants had good cause for not filing timely;
  • “[a]ny disruption of the proceeding [that] might result from permitting intervention”;
  • whether the movant’s interest is “adequately represented by other parties”; and
  • whether “[a]ny prejudice to, or additional burdens upon, the existing parties might result from permitting the intervention.”

18 C.F.R. § 385.214(d)(i)–(iv).

Late intervention at the early stages of a proceeding generally does not disrupt the proceeding or prejudice the interest of any party. A petitioner for late intervention, however, bears a higher burden to show good cause for late intervention after the issuance of a final order in a proceeding; and, generally, it is FERC policy to deny late intervention at the rehearing stage, even when the movant claims that the decision established a broad policy of general application. 

New Intervention Policy
In the Tennessee Gas Pipeline, Order Denying and Dismissing Rehearing, 162 F.E.R.C. ¶ 61,167 (2018), FERC expressed its concern with the increasing degree to which participants in natural gas certificate proceedings file late motions to intervene without adequately addressing the factors set forth in the regulations. Going forward, FERC decided to be less lenient in granting late interventions. People desiring to become a party to a certificate proceeding are to intervene in a timely manner. If seeking to intervene belatedly, the movant is required to “show good cause why the time limitation should be waived” and should provide justification by reference to factors set forth in rule 214(d) of FERC’s Rules of Practice and Procedure.

However, in DTE Midstream Appalachia, Order Issuing Certificate, 162 F.E.R.C. ¶ 61,238 (2018), Commissioners LaFleur and Glick dissented, stating that they were concerned by the potential consequences of FERC’s pronouncement, particularly as it would apply to landowners and community organizations that lack sufficient resources to keep up with every docket. They were also concerned about lack of public confidence in FERC’s pipeline-siting process and that increased efforts to limit interventions would only accelerate this trend.

Conclusion
In conclusion, FERC made a subtle but important change in the process for a person to formally take part in reviews of the commission’s natural gas pipeline projects. Recently, there has been a significant public interest in these projects. How FERC’s decision will impact intervenor motion filings remains to be seen.

 

Jehmal T. Hudson is an attorney working in government affairs at the Federal Energy Regulatory Commission. The views expressed in this article are solely the views of the author and not necessarily the views of the Federal Energy Regulatory Commission, any individual commissioner, or the United States.


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