Wednesday, December 13, 2006

FERC's Broadwater Environmental Review: Who Is Responsible and How Important Is It That The Study Has Serious Flaws?

How important were the criticisms of the Federal Energy Regulatory Commission’s Broadwater environmental impact study that four Connecticut scientists made last week, and what might they mean for the future of the LNG terminal? In the comments to yesterday’s post, Sam Wells, one of my more astute readers, indicates that they won’t ultimately mean much at all. Here’s what he wrote:

Not to sound negative here, but just because the quality of work might be cheesy doesn't mean the permit review is inherently wrong or invalid.

That is why most appeals to Federal District Court which win are based on administrative law, not substance. For example, if a public hearing was not properly noticed, that could send the entire shebang back to square one. If the EPA failed to be consulted about the NY/CT State Implementation Plan for ozone and particulate, that would be another. If the FERC "fast track" approval process was ruled invalid, that would also have repercussions for Broadwater.

But my impression is you can't win by arguing about the pipeline trenches.

Sam is saying that legal process is paramount and that in terms of substance the courts give the people who are doing the work a lot of leeway to decide what is important.

That’s no doubt true but it doesn’t mean you can’t win by arguing about trenches. You probably can’t win directly, but you can win indirectly, by arguing that the environmental impact statement is incomplete and incompetent. One of the ways to do that is to raise enough serious, substantive objections to force FERC to require a supplemental environmental impact statement. Compiling the supplement, writing it, reviewing it publicly, holding hearings etc. could add a year or more to the environmental review, during which time everything can change – the economics of liquefied natural gas, the need for the project (if some of the many LNG proposals being considered get approved first), the politics (if opposition in New York hardens and Eliot Spitzer decides to stake his reputaion on not letting Broadwater get built.)

The classic example took place 20 years ago, in New Rochelle, when a developer, with the city’s complete approval, proposed building 2,000 condos on Davids Island. Grassroots opposition was fairly weak until the draft impact statement came out and failed to mention that Long Island Sound – in particular the area of Long Island Sound around Davids Island – was in a severe ecological crisis called hypoxia. The DEIS also failed to account for how sewage from the island would be treated at a time when the sewage plant in New Rochelle was operating about a million gallons a day above capacity (which it still is). The Coast Guard, which was the federal agency reviewing the environmental impacts of the proposal, was forced to prepare a supplemental environmental impact statement. Delays ensued, other agencies and levels of government weighed in with criticisms, and eventually (in 1991 or 1992, I think) the city of New Rochelle kicked the developer out.

It’s important to note that they key opinion in the Davids Island review came from the New York Department of State, which determined that the development was inconsistent with state policies for use of the coastal zone. The word back then was that Governor Mario Cuomo would have been happy to let the development proceed but, after some serious internal disagreements, he backed off and let his secretary of state, Gail Schaffer, do the right thing. In the Broadwater proposal, the Department of State has the same role.

The other point Sam and Brian Brown make – that FERC’s consultant rather than FERC itself writes the bulk of the environmental impact statement – is true but not particularly relevant. All environmental impact statements are written by consultants. The consultants, however, do what they’re told and what they’re paid to do. No matter who the consultant is, the Broadwater impact statement in FERC’s document and FERC is responsible. If the Connecticut scientists say the work is incompetent, we don’t blame the consultant, we blame FERC.

Now, FERC can blame the consultant if it wants, but that brings up the next relevant point. FERC oversees the study, but Broadwater pays for it. That means that FERC got from its consultant exactly what FERC and Broadwater (and Shell and TransCanada) wanted: an environmental study that glosses over the real issues in hopes that no one will notice. Broadwater pays the piper; Broadwater calls the tune. (There are people who disagree with me on this point, including some in government; the comment in this post is one example.)

But even so, it’s FERC’s document, and if it’s a whitewash and a sham, FERC is responsible.

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2 Comments:

Anonymous Bryan said...

Tom,
I hope the four scientists do have some substantial and demonstrable evidence that the DEIS is incomplete or incompetently compiled. Unfortunately, the newspaper article was lacking in detail, so we'll have to wait for the written comments.

If the DEIS is as grossly negligent in ignoring an obvious negative impact on the order of the Davis Island sewage issue, it should be a straightforward matter to destroy the Broadwater DEIS in court.

I don't know if trenches, to take one example, will do it. I see the problem as precedence. The EIS for the Islander East pipeline wasn't overwhelmingly attacked here on LI. In fact, the pipeline has been supported, or at least ignored, by some of the same groups fighting Broadwater and using the pipeline argument. Ditto for the Cross-Sound cable. I also haven't heard anyone taking exception to the environmental aspects of the Neptune cable or the spiderweb of cables that will be installed with the LI offshore wind farm.

The folks in CT deserve credit for consistency. Right or wrong, they've been fighting Islander East and Cross-Sound all along based on the trenching issue.

When a project is supported by the environmental community, or a good portion of the community, the EIS is an exercise and does not get the scrutiny of a controversial project. Wait and see what happens with the LI wind farm. Lets see if four scientists can make mince meat of LIPA's EIS, or if anyone from the environmental community evens bothers to make the effort.

Bryan

9:49 AM  
Blogger Sam said...

Thanks for the discussion, Tom. Perhaps I should have simply said that it is far easier to stop or delay an environmental review based on administrative procedure.

Should there be some compelling reason based on substance, such as major flaws in the environmental analysis, there would indeed be a higher threshold to cross. What one has to prove is that there is compelling evidence that there would be significant, negative impacts.

After being on both sides of the issue on several large projects in Texas, both as a project consultant and as plaintiff, I can assure you that is a very tough thing to do. Yes, it can be done and as Byan says, I respect the tenacy of our CT friends.

The bane of many environmental groups is that do not have the hunndreds of thousands of dollars to take the same models used by the applicant and show opposing results. Remember, the judges reviewing the case are not scientists but if you demonstrate that the same models and assumptions would yield opposite outcomes, then the court simply must (after considering all the facts and testimony) call for a supplemental review, which by the way is an administrative remedy.

So it can be done; it is just expensive as heck.
-Sam

12:14 PM  

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