According to the North Dakota Pipeline Authority, the state is home to almost 7,000 miles of transmission and distribution pipelines which support the “production, transportation, and utilization of North Dakota energy-related commodities.” If a pipeline, compressor station, or LNG facility is or will be involved in interstate transportation of natural gas, the Federal Energy Regulatory Commission (FERC) regulates that facility under Congressionally granted authority under the Natural Gas Act. As part of this authority, FERC approves siting and abandonment of facilities through an application process that grants a Certificate of Public Convenience and Necessity (the “Certificate”) to the company proposing the project. Interstate natural gas projects cannot be built without the Certificate.
Through the certification process, the government conveys the power of eminent domain to the company building the project. According to FERC:
“Eminent domain is used as a last resort if a landowner and the project proponent cannot reach an agreement on compensation for use or purchase of property required for the project. The project proponent is still required to compensate the landowner for the use or purchase of the property, and for any damages incurred during construction. However, the level of compensation would be determined by a court according to state law.”
The constitutional basis for the “necessity” required to justify the federal government’s power of eminent domain is formed by the FERC proceedings that are part of the Certificate application process. FERC expects and encourages feedback from the public, and “notice and comment” periods are integrated into the Certificate application process. If you are a property owner with a proposed project that will cross or abut your land, the company proposing the project may contact you to negotiate an easement or collect environmental information required for its application. If they fail to do so, or if you are an otherwise-interested stakeholder, there is still a way to stay informed and make your voice heard.
Although individual projects can be tricky to locate starting directly from FERC’s website, it is a great place to begin to get acquainted with the Certificate process. The website features a section devoted to Landowner Topics of Interest which include subscriptions to notifications for specific projects, information for the FERC Landowner Helpline, and directions to identify other federal and state agencies involved in a Natural Gas Project. This online pamphlet is particularly helpful.
Step 2: Search for Notices of FERC Proceedings Relevant to North Dakota on the Federal Register and Get the Project’s Docket Number.
The Federal Register is a website developed by the National Archives and Records Administration (NARA) and the U.S. Government Publishing Office (GPO) to “make it easier for citizens and communities to understand the regulatory process and to participate in government decision-making.” Federal Register, “About this Site” https://www.federalregister.gov/reader-aids/government-policy-and-ofr-procedures/about-this-site (last visited Dec. 3, 2020). The following steps outline a process that can be used to find notices from the Federal Register’s Home Page. If you already know the docket number of the project, skip below to the instructions for searching the docket on FERC’s website.
Go to Federal Register’s Home Page.
Hover over “Browse” from the top bar, and click on “Energy Department” under the “Explore Agencies” tab.
On the Energy Department Page, click on “Federal Energy Regulatory Commission.”
On the Federal Register’s FERC page, type “North Dakota” in the search field, click the “N” to narrow the search to Notices, and then click the magnifying glass icon to search. Since FERC regulates more than just natural gas pipeline siting, this search will yield a lot of results that are not specific to pipelines, such as notices for rate filings. If you would like to narrow to results involving only pipelines, type “North Dakota” and “pipeline” in the search box.
After reaching the search results, click on a particular matter to view FERC’s Published Notice.
The “Published Notice” document in the gray box contains all the information needed to comment on the matter contained in the Notice, including a link to FERC’s eLibrary, the FERC docket number relevant to the Notice, deadlines for public comment, and directions for filing a comment by electronically or by mail. The Notice itself will have general details about the project, so to get more specific information, it is critical to visit the FERC website to access the docket. Remember to write down or copy the docket number before moving over to the FERC website.
FERC’s docket search can be difficult to navigate, particularly if the person searching is unclear of what kind of information they are looking for. Getting the docket number through The Federal Register first ensures facilitates efficient searching on the FERC website and helps prevent you from “looking for a needle in a haystack.”
Step 3: Visit FERC’s Website to Access Docket Details.
Clicking through from the Federal Register Notice to the FERC eLibrary website will bring you to the eLibrary Page. To search the eLibrary for the docket you need, click on “go here” under the “eLibrary Search Form.” You may also use this link.
Once you are at the site above, click “Docket Search” and enter the docket number for the matter that you saw on the Federal Register Notice. Be sure to narrow by date; dockets contain all documents filed with FERC, so a search that has too broad of a time period will yield many documents that are not relevant to the matter being investigated. For example, the topic of the search used for this blog post was Docket CP20-52-200, associated with the North Bakken Expansion Project. Notice of availability of the Environmental Assessment was published on the Federal Register on December 23, 2020. Narrowing the search to just the month of December to the present yielded six results, one of which was the Environmental Assessment containing the information relevant to the Federal Register notice (second from bottom in the list).
Once you find the document desired, click on the blue highlighted number under “accession” (in this case No. 20201217-3041) and then select “go to file list.” From there, you may generate and download a PDF of the document.
Step 4: Read the Docket, Comment, and Stay Informed.
After you read the docket, you can make your voice heard by eFiling a comment through FERC’s website or regular mail by submitting comments to the address listed on the original Notice in the Federal Register. You can also access a service list of all official parties to a project that are recognized by FERC, or subscribe to receive notices of future submittals and issuances to a specific docket by registering an account through FERC’s website.
Through the Federal Register, it is also possible to subscribe to notifications specific to a particular search term if signed up for an account through that site. For example, after searching for notices relevant to the search term “North Dakota,” subscribe for updates on that search result by clicking on “subscribe” to the right of the search field and clicking on “Published” and the green “Subscribe” button. This will keep you informed on matters beyond an individual docket.
In summary, you can ensure that FERC hears your voice by reviewing the agency’s Landowner Resources, checking the Federal Register for notices, searching FERC dockets for the critical information, and commenting on projects that affect you and your fellow North Dakotans.