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'Different by necessity': Attorney fighting gas projects by FERC rules presses for change

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'Different by necessity': Attorney fighting gas projects by FERC rules presses for change

The relentless pursuit of new and creative legal argumentsagainst natural gas infrastructure expansions is helping one attorney "eke"out concessions in FERC cases for her clients that are opposed to new projects.

Carolyn Elefant, the founder of the Law Offices of CarolynElefant PLLC, acknowledged that colorful protests against the commission can bean effective tool to publicize concerns and try to influence decision making.But she has found a different tack for representing her clients, who are oftendirectly impacted landowners, conservation trusts or municipalities.

"My approach is different by necessity," she wrotein an email. "Although often we will raise arguments in opposition to thepipeline, recognizing the difficulty of prevailing on these points, I alsoadvocate for alternatives and protective measures as a fallback."

Alternatives could be changes in a pipeline route to avoid aproperty. Additional protective measures could be a decommissioning bond, arequired "hold harmless" agreement in land leases, or strictconstruction schedules that keep a pipeline contractor from leaving "equipmentlying around on properties six months after the line is in the ground,"Elefant said.

"My clients face significant economic and healthconsequences (the latter in close-proximity compression stations) that can't beadequately safeguarded through protests," she wrote.

Elefant's law firm specializes in energy issues and shespeaks from enough experience to write an "Art of War" treatise onFERC proceedings. Her description of strategy was filled with terms like "win"and "protective measures." And on March 21, showing her effort toleave no stone unturned, her firm notifiedFERC and Kinder Morgan Inc.'sTennessee Gas Pipeline Co.that it intends to bring a citizen suit charging that approval of theConnecticut Expansion pipeline project violated the Clean Water Act.

"As Einstein has said, insanity is banging your headagainst the wall hundreds of times and expecting a different outcome," shesaid. "Each time FERC rejects one of my arguments, I try to devise a newapproach. I don't believe that all of the possible arguments have beenexhausted, and until they are, I'm not willing to throw up my hands as I stillbelieve that there are issues that are winnable — if not at FERC, then at thecourts."

Elefant said she can see why some opponents of gas infrastructurehave given up on the FERC process. "I probably eke a win out of every 10matters that I handle, so believe me, I understand the frustration,"Elefant said.

"I also believe that at some point FERC will not beable to continue to close its eyes to the need for programmatic review,"she said, "because with the pace of development proceeding as it is, weare headed for significantoverbuild, and landowners will bear the brunt."

Many environmentalists and opposition groups have begunpressing FERC for a programmaticenvironmental review, which would evaluate the impacts of all gastransportation infrastructure and gas production in an area as a single system.

FERC has turned down these requests for programmatic review,labeling them as unnecessary. And FERC said its project evaluations alreadykeep an eye on the potential for overbuild.

Tamara Young-Allen, FERC spokeswoman for natural gas andLNG, cited the commission's 1999 "Statement of Policy on Certification ofNew Interstate Natural Gas Pipeline Facilities," which establishedcriteria to determine whether there is a need for a project and whether it isin the public interest. (PL99-3)

"The certificate policy statement explains that, indeciding whether to authorize the construction of major new natural gasfacilities, the commission balances the public benefits against the potentialadverse consequences, including criteria to guard against overbuilding,"Young-Allen said in a March 29 email.

Young-Allen observed that in federal appeals court, "thecommission's environmental review policies/procedures have been upheld time andagain." She raised the examples of the U.S. Court of Appeals for theDistrict of Columbia Circuit's decision on Millennium Pipeline Co. LLC's in August2014, and the same court's decision on SpectraEnergy Corp's New Jersey-New York in July 2014. (U.S.Court of Appeals for the D.C. Circuit Nos. 12-1481 and 12-1470)

Elefant agreed with former FERC Commissioner Marc Spitzerand other observers that the only way critics can change the way FERC operatesis to have Congress change thelaw, which is the Natural Gas Act, for permitting pipelines and LNGterminals.

"Many protestors don't realize that before the ElectricConsumers Protection Act in 1986, FERC would authorize new hydro or relicenseprojects with barely a glance at environmental impacts," she said. "Afterbeing overturned a few times (by the 9th Circuit), Congress passed ECPA thatrequires FERC to give equal consideration to energy and environment.

"Although I believe that the 'public convenience andnecessity' standard of the NGA gives FERC sufficient flexibility to considerthese issues, it may be that FERC [will have to be] forced to consider them,"Elefant said. "Even enacting legislation that gives FERC planningauthority over pipelines (as it has over electric transmission) would helpexpand FERC's perspective and serve as a basis for programmatic review."

Elefant said she did not agree with protest campaigns thatconsider the doorsteps of FERC commissioners' homes within the playing field — "althoughthey are public officials, they are also entitled to their privacy" — butshe observed that many landowners put up with similar treatment. People livingnear proposed projects might receive visits and correspondence from agents ofthe developers, some of whom can be rude or confrontational.

The FERCValentine Project, put together by Beyond Extreme Energy and othergroups in February, posted commissioners' home addresses online andhand-delivered mock Valentine's Day cards with anti-gas messages. On March 24, "" documentarydirector Josh Fox, who is screening a new film on climate change in March andApril, and other protesters against FERC's permitting of pipelines werearrested outside commission headquarters in Washington, D.C.

"To clarify, I am not opposed to public protests,"Elefant said, "whether it's sending thousands of letters to FERC opposinga project; picketing outside of FERC or attending the meetings and holding upsigns; fasting; or as my Minisinkclients did, sitting in the front row and introducing themselves tothe commissioners afterwards.

"And I also think that the commissioners, in light ofthe protests, might try to figure out a way to make themselves more accessible— perhaps going out to speak with protesters or allowing a short time beforemeetings for public comment," Elefant said.

FERC spokeswoman Young-Allen said commissioners do meet withboth opponents and supporters of gas projects when the projects are in thepre-filing stage, before an application is filed. "Once a formalapplication is filed, the commission is subject to ex parte rules," shesaid, which among other things, means most of what a party might say to thecommissioners must be part of the public file for that project. "There areample opportunities for the public to file their concerns/comments in FERCproceedings — electronically through eFiling or eComment, U.S. postal mail orscoping or comment meetings in conjunction with environmental documents."