B Y , A A R O N S T E M P L E W I C Z

FEDERAL ENERGY REGULATORY COMMISSION: INTERVENTION

LEGAL PRIMER

Presentation Outline

�  What does it mean to be an “intervenor”? ¡  An intervenor is an official party to a proceeding and enjoys

distinct advantages over those who only file comments.  Intervenors have the right to:

1) Be placed on a service list to receive copies of case-related Commission documents and filings by other intervenors 2) File for rehearing of a Commission decision 3) Participate in hearings before FERC’s administrative law judges 4) Have legal standing in a Court of Appeals if they challenge the Commission's final decision

File for Rehearing of a Commission Decision

�  At the Conclusion of the FERC review process, FERC staff will submit the application to the Commissioners for a vote (with the staff’s recommendation).

�  FERC Commissioners then vote on the project application

¡  (note that FERC Commissioners have never voted to deny a pipeline project)

�  A person or organization who is an intervenor may then submit a Rehearing Request (18 CFR 385.713) ¡  The request must be submitted within 30 days of FERC’s approval 18 CFR 385.713(b)) ¡  The Contents of Request for Rehearing must(18 CFR 385.713(c)):

(1) State concisely the alleged error in the final decision or final order; (2) Conform to the requirements in Rule 203(a), which are applicable to pleadings, and, in addition, include a separate section entitled “Statement of Issues,” listing each issue in a separately enumerated paragraph that includes representative Commission and court precedent on which the party is relying; any issue not so listed will be deemed waived; and (3) Set forth the matters relied upon by the party requesting rehearing, if rehearing is sought based on matters not available for consideration by the Commission at the time of the final decision or final order.

¡  It is important to make any and all arguments you plan to pursue in Circuit Court. By doing so you properly preserve those issues for appeal. ÷  An intervenor is not limited to only those arguments and comments the intervenor submitted to FERC,

the intervenor may rely on comments and arguments made by other parties. ¡  FERC is required to “act” upon the Rehearing Request within 30 days (18 C.F.R. § 385.713(f))

�  If a Rehearing Request is granted the matter will be remanded back to FERC staff for further review and consideration of the issues presented in the request ¡  In the context of Rehearing Requests for Pipeline Projects FERC has

never granted a Rehearing Request ¡  Instead, FERC habitually issues “tolling” orders, granting the rehearing

request solely for the purpose of further consideration. ÷  The effect of this “tolling” order is to avoid automatic denial after 30 days

allowing FERC to proceed at its own pace. ÷  This has proven problematic in the past, where FERC tolls the Rehearing

Request, preventing an appeal to the appropriate Circuit Court, while in the interim it issues Notices to Proceed with Construction Activity (including tree felling).

¡  The only remedy is to File a Mandamus Action arguing that you have been deprived all other forms of judicial relief (very difficult standard).

Participate in Hearings Before FERC’s Administrative Law Judges

Have Legal Standing in a Court of Appeals if they Challenge the Commission’s Final Decision

�  Review of a FERC Order: ¡  Intervenors “may obtain a review of such order in the court of appeals of the United States for

any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part.” (15 U.S. Code 717r(b))

¡  Intervenors may request Emergency Stay Motions to prevent the project from moving forward. ¡  Even if the Emergency Motions for Stay are denied and the project is completed, Intervenors

claims are not moot: “Even though it is now too late to prevent or to provide a fully satisfactory remedy for” the harms, the court has the “power to effectuate a partial remedy.” If the Court was to hold that the agencies’ NEPA analysis inadequate or their decisions otherwise arbitrary and capricious, they “would have to correct the decision-making process.” Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585, 591 n.1 (9th Cir. 1981). If the NEPA analysis were legally inadequate, “[the court] could order that the [pipeline] be closed or impose restrictions on its use,” at least on federally authorized segments, “until [the agencies] complied with NEPA.” Airport Neighbors All., Inc. v. United States, 90 F.3d 426, 429 (10th Cir. 1996).

Motion to Intervene Out of Time

http://www.aga.org/Kc/aboutnaturalgas/consumerinfo/Pages/NGDeliverySystem.aspx

�  Even if you miss the deadline for intervention you may still be granted “intervenor” status. ¡  (d) Grant of late intervention. (1) In acting on any motion to

intervene filed after the period prescribed under Rule 210, the decisional authority may consider whether: ÷  (i) The movant had good cause for failing to file the motion within

the time prescribed; ÷  (ii) Any disruption of the proceeding might result from permitting

intervention; ÷  (iii) The movant's interest is not adequately represented by other

parties in the proceeding; ÷  (iv) Any prejudice to, or additional burdens upon, the existing

parties might result from permitting the intervention; and ÷  (v) The motion conforms to the requirements of paragraph (b) of this

section.

Additional Notes

¡  You do not need to be an intervenor to have your comments be heard and responded to by the Commission. ÷ May submit comments directly to FERC which automatically become

part of the official administrative record for the matter ÷ However, being an intervenor does demonstrate the seriousness of your

concern over the project to the agency, and it protects your legal rights later on in time.

¡  FERC’s website states: “Motions to intervene must be served on the applicant.” ÷ Accomplished through efiling the motion. ÷ Unaware of any FERC challenge to a motion to intervene based on

inadequate service where intervenor submitted motion on FERC’s website

¡  Motion to Intervene is automatically granted after 15 days if no Answer has been submitted by FERC. (18 CFR §385.214 (c)(2))