We Can’t Let FERC Silence Public Participation Through the Blanket Certificate Program

Let’s go back to the pipeline in your local park and assume that it crosses multiple states before it gets to your town (making it, in legal jargon, an “interstate pipeline”). Under federal law, FERC is required to evaluate whether that pipeline is required to serve “the public convenience and necessity” before approving its construction. To make that determination, FERC must consider a wide range of evidence, including comments from affected landowners, Tribes, community members, and anyone else who is interested.

Except when it doesn’t. That’s where “blanket certificates” come in. 

Under the blanket certificate program, FERC allows certain smaller-dollar gas pipelines, upgrades, and affiliated infrastructure to go forward without full environmental review or an opportunity to comment. The program was intended to enable small upgrades with minimal impact and to ensure safety and reliability.   

There are two types of blanket certificates. The smallest projects qualify for “automatic” authorization: The gas company doesn’t even need to notify surrounding communities (only owners of the land the pipeline is actually crossing) of its intention to build or modify a piece of infrastructure before the project is automatically approved. For slightly larger projects, gas companies must file what’s called a “prior notice” disclosure with FERC. Only if someone sees the notice and properly protests within 60 days does the pipeline undergo any review and comment.  

FERC is now seeking to dramatically expand the blanket certificate program in a way that caters to the gas industry over the public. Among other changes, the proposal would double the “automatic” authorization threshold and more than double the “prior notice” threshold. It would also allow gas companies to expand existing compressor stations by any amount, despite the serious air quality and noise impacts associated with these facilities. And it would replace transparent economic analysis with a proprietary evaluation tool that is not publicly available. Separately, FERC has also expressed interest in expanding the blanket certificate program to include LNG export terminals. 

If FERC follows through with its proposed blanket certificate expansion, even more gas projects will be taken out of the standard review process and fast-tracked into the blanket certificate program. It’s thus especially important that FERC provides a straightforward process for people to object to “prior notice” projects, thereby opening further opportunities for review and comment.  

Instead, FERC is making it even harder to satisfy its highly technical requirements. For example, FERC has obtuse and pedantic technical requirements that distinguish “comments” from “protests.” Only “protests” can elevate a “prior notice” project into FERC’s standard review process. A couple of months ago, in Cheniere Creole Trail Pipeline, L.P., FERC determined that a filing submitted by a small grassroots environmental organization (i.e., a group without the sophisticated law firms used by the industry) was a “comment” and not a “protest” because it did not meet FERC’s technical requirements, even though the filing clearly opposed the project and raised substantiated concerns about its environmental and noise impacts. Because FERC treated the filing as a “comment,” it wasn’t enough to move the project out of the blanket certificate process. As such, FERC automatically approved it, effectively silencing the community and ending the discussion.  

Multiple FERC commissioners have claimed that examples like this one—and the proposed changes to the blanket certificate program—are just “efficient permitting.” That is not the case: It is an abdication of statutory responsibility to consider whether gas infrastructure is in the public interest, and it is a handout to the gas industry at the expense of the American people.  

It’s not too late for FERC to change course. As FERC considers the comments on its proposed rulemaking (you can find NRDC’s comment with partners here), it should decline to expand the blanket certificate program and ensure that all potentially impacted communities remain able to protest. FERC should also not expand the blanket certificate program to include LNG export facilities. And, importantly, FERC should do everything it can to make it easier rather than harder for the public to weigh in on infrastructure that impacts their communities.  

For example, FERC should robustly support and promote its Office of Public Participation (OPP), an unbiased and understaffed division of FERC tasked with reaching out to people potentially impacted by FERC’s decisions and helping them to navigate the review process. In the case of blanket certificates, FERC could ask OPP to create explainers and trainings outlining the blanket certificate process and ensuring that stakeholders know how to meet the technical requirements of a protest. The FERC commissioners could, additionally, give concerned groups or individuals—like those in Creole Trail—the benefit of the doubt, much like the court system treats parties without an attorney (pro se).  

FERC is taking steps to quietly erode public participation. The best antidote is for the public to speak up.