Recently, the Federal Energy Regulatory Commission (FERC or Commission) rejected a request by a federally-recognized Indian tribe to intervene and seek rehearing of the Commission’s grant of a certificate of public convenience and necessity pursuant to section 7(c) of the Natural Gas Act (NGA). The case provides a warning to tribes and other stakeholders to monitor for Commission notices (via the Commission’s website and elsewhere) on infrastructure projects of interest because the Commission will not necessarily provide flexibility on its timing requirements for filings.

I. Tennessee Gas Pipeline’s Connecticut Expansion Project

On March 11, 2016, FERC issued Tennessee Gas Pipeline Company, L.L.C. (Tennessee) a certificate of public convenience and necessity to construct its Connecticut Expansion Project in Albany County, New York; Berkshire and Hampden Counties, Massachusetts; and Hartford County, Connecticut. Tennessee Gas Pipeline Co., L.L.C., 154 FERC ¶ 61,191 (2016), order on reh’g, 160 FERC 61,027 (2017).

On April 10, 2017, the Narragansett Indian Tribe, through its Tribal Historic Preservation Office (NITHPO), filed an untimely motion to intervene in the proceeding. To support its late motion to intervene, NITHPO contended that the Commission’s regulations were unclear as to whether a consulting Tribal Historic Preservation Office (THPO) may intervene because the Commission’s ex parte regulations provide an exemption to the prohibition against ex parte communications involving certain off-the-record communications to or from tribal agencies that are not parties to the proceeding. NITHPO had been communicating with the Commission in its role as a THPO; consequently NITHPO assumed that the ex parte exemption prohibited it from intervening. Moreover, NITHPO stated that, in general, the Commission’s form letters sent to tribes requesting consultation are misleading because the letters invite tribes to comment but are silent regarding tribes’ right to intervene.

On April 12, 2017, Tennessee filed a motion to answer and respond to NITHPO’s late intervention. On that same day, Commission staff granted Tennessee’s April 6, 2017 request to proceed with tree clearing and full construction activities for the project. On April 30, 2017, Tennessee commenced tree-clearing activities.

On May 9, 2017, NITHPO followed its late intervention request with a request for rehearing. In supporting the request for rehearing, NIHTPO claimed the Commission violated section 106 of the National Historic Preservation Act by failing to: (1) ensure the study of ceremonial stone landscapes prior to issuing its Environmental Assessment and certificate order; (2) meaningfully consult; and (3) require NITHPO as a signatory to a Memorandum of Agreement to finalize the section 106 process.

On May 24, 2017, Tennessee filed an answer to NITHPO’s rehearing request. Tennessee requested that the Commission deny NITHPO’s late intervention because confusion about the Commission’s intervention regulation is not good cause for intervening over two years late. Tennessee also maintained that NITHPO was aware of the project since 2014 and had the opportunity to timely intervene.

On January 10, 2018, the Commission denied NITHPO’s late intervention and rehearing requests. Tennessee Gas Pipeline Co., L.L.C., 162 FERC ¶ 61,013 (2018). Initially, the Commission explained that Tennessee’s answer to NITHPO’s rehearing request was prohibited by the Commission’s rules. 18 C.F.R. §§ 385.213(a) (2) and 385.713(d)(1) (2017). The Commission then considered Tennessee’s arguments as to NITHPO’s late intervention, as FERC’s rules and regulations do not prohibit answers to late interventions.

The Commission pointed out that the deadline to intervene in the proceeding was September 4, 2014.[1] The Commission then observed that NITHPO filed its untimely motion to intervene about thirteen months after the certificate order was issued. Recognizing that a late intervention is not fatal, the Commission noted that in determining whether to grant a late motion to intervene, it may consider “whether the movant had good cause for filing late, whether the movant’s interest is adequately represented by other parties to the proceeding, and whether granting the intervention might result in disruption to the proceeding or prejudice to other parties.” 18 C.F.R. § 385.214(d).

In conducting this analysis, the Commission examined NITHPO’s contention that Commission rules are unclear as to whether a consulting THPO may intervene. The Commission initially found that “NITHPO failed to show good cause to intervene at this late stage of the proceeding.” The Commission determined that NITHPO failed to explain why it waited to seek clarification about the Commission’s intervention policy until 13 months after Tennessee’s certificate order was issued. The Commission also rejected NITHPO’s argument that the Commission’s ex parte communication regulations muddled the Commission’s intervention policy by explaining that the Commission’s general ex parte prohibition excludes “an off-the record communication to or from a Federal, state, local, or Tribal agency that is not a party in the Commission proceeding” if the communication involves certain matters. The Commission also noted that the Federal Register notice of Tennessee’s application proceeding described how an interested entity could intervene in the proceeding and cited the relevant regulations. In short, the Commission admonished that “an entity cannot ‘sleep on its rights’ and then seek untimely intervention.” See California Department of Water Resources, 120 FERC ¶ 61,057 at P 14 (footnote omitted); see also Constitution Pipeline Company, LLC, 154 FERC ¶ 61,046, at P 6 (2016) (holding that entities or individuals with potentially affected interests are not entitled to wait until the outcome of a proceeding is known and then file a motion to intervene if the outcome conflicts with their interests).[2]

The Commission also rebuffed NITHPO’s suggestion that the timing of the survey and identification of the ceremonial stone landscapes along the project route, which occurred after the certificate order was issued, justified NITHPO’s late intervention. The Commission reiterated that study submissions during the course of a proceeding that raise issues for a late intervenor does not excuse a late intervention. Indeed, the Commission recounted that “NITHPO was aware when the application was filed, or at the latest by December 2015, prior to the issuance of the Commission order authorizing the project in March 2016, that the project could impact ceremonial stone landscapes, yet it did not move to intervene at that time.” Although the Commission has a fairly liberal policy of accepting late interventions in natural gas certificate proceedings, it reminded NITHPO and other interested entities that “[i]t is the intervene if, as occurred early on here, they became aware that resources of concern to them may be affected by the proposed action.” The Commission held firm that allowing an intervention 13 months after the issuance of a certificate order “would delay, prejudice, and place additional burdens on the Commission and the certificate holder.” As a final matter, the Commission rebuffed NITHPO’s contention that the Commission’s consultation letters inviting tribes to comment on the project “should provide intervention instructions,” pointing out that the consultation letters are issued in relation to the NHPA.

II. What’s an Interested Entity to Do?

The Commission has announced that it will be reviewing its Certificate Policy Statement.[3] In the Tennessee case, NITHPO argued that the Commission’s notice was inadequate. Among the issues raised for the Commission’s review, interested parties may seek to weigh in on whether closer examination is warranted in how notice is provided to consulting agencies, and how those agencies are integrated into the Commission’s certificate review process.