The first thing we want to say about our trip to Washington DC for the Minisink hearing is how grateful we are for the network of activists statewide who joined this caravan. We arrived by bus, van, car and train, from as far away as Penn Yann and Skaneatales. Many people made personal sacrifices to be there, missing work, school, family obligations, and sleep. Others who couldn't make the trip generously donated to match the $1,000 travel fund set up by Sane Energy Project. There's nothing like sharing a half-day bus ride or a skeevy hotel to build solidarity, except maybe seeing a packed courtroom as the result of that commitment.
A court officer was asked if similar hearings were always as crowded. "Never," he said. This is a trend that's building. Before Spectra, the average number of interveners on any project was about 19. Now, it's typical for there to be 300-500 interveners, and for thousands of comments to be filed. Lately, activists are getting under FERC's skin even more, showing up repeatedly at hearings, Commission meetings, and soon, a rally in front of their offices.
Ted Glick, coordinator for Cheseapeake Climate Action Network, one of the main groups fighting the Cove Point LNG export terminal in Maryland, said, "FERC has got to be starting to wonder what more our movement is going to come after them with, or maybe they know: July 13th, when thousands of us will march from Capitol Hill to the FERC headquarters, and the next day, July 14th, when many of us will risk arrest, underlining the urgency of our call for FERC to start protecting the public interest instead of the interests of the oil and gas industry."
The public interest in the Minisink case did not appear to go unnoticed by the judges at Thursday's hearing, either. When FERC's attorney dismissively characterized the massive compressor station as a "rather small project" by FERC standards, audible gasps from the assembled audience prompted one judge to respond, "I hope the commission can understand why comments like that would give people pause."
THE LEGAL ARGUMENTS
Among the 4 main points addressed by Minisink's lawyer, Carolyn Elefant, was the question of whether FERC exhibits a predisposition towards applicants (in this case, Millennium). Because FERC approves 99% of all projects unanimously, one could suppose a prejudice in favor of pipeline and compressor station builders. (Or, as activists who later delivered a singing telegram in front of FERC headquarters, put it (to the tune of "Yellow Submarine"), "We all know FERC's a rubberstamp machine, a rubberstamp machine, a rubberstamp machine . . . ")
In regards to the high approval rate, FERC's attorney stated that the industry knows the operating framework and complies with it. Anne Marie Garti, a founder of Stop the (Constitution) Pipeline and legal volunteer at the Pace Environmental Litigation Clinic, said, "This exchange goes to the heart of the problem. Applicants tell FERC what FERC wants to hear, knowing full well that FERC will not question the truth of their statements, or critique their analysis. The entire review process is just a well-choreographed dance." And this goes without examining who wrote those regulations in the first place, when the revolving door between FERC and industry is well-documented.
Another point that drew the attention of the judges was the issue of the "Wagoner Alternative," and the related "Neversink Segment." The compressor station, as built, is sited in close proximity to 200 homes, many of which are owned by 9/11 first responders (who moved upstate for the "clean country air" before the project was in play). An alternate site, farther away from residences, was rejected. The Wagoner site would have required replacing an existing, under-sized pipeline, the 27-year-old Neversink segment. Millennium argued that the Wagoner site was rejected because replacing the Neversink pipe would have created environmental harms to flora and fauna, and that they cannot predict if there will be enough future demand to justify enlarging the pipe. The judges seized on that nonsensical argument, with Judge Brett Kavanaugh, a Republican appointee, noting that "common sense" would indicate that Millennium would have to replace the Neversink portion of the pipeline in the future anyway. Eventually, Millennium's attorney admitted as much.
THE BROKEN SYSTEM
The Wagoner discussion was the only mention made of the impacts on flora and fauna vs impacts on residents. Many present were dismayed that no protest was made about how close the compressor station is to homes, especially a family with 4 children directly across the road. Anne Marie Garti explains, "You have to argue what's illegal, and not all impacts are against the law (like health impacts). For that, you have to change the law. There are no required setbacks of compressor stations from residences [emphasis added]–so FERC isn't breaking a law by allowing it to be built 500 feet from a home."
In this country, unlike parts of Europe, the precautionary principle is not in play. Basically, the way our American system works, after a project is operating, if someone can prove they are suffering health impacts, they can sue for damages. There has to be proof that the project directly caused the injury, something it is often difficult to demonstrate to legal standards. This is why cases like Minisink's are so critical, and why the July rally and further pressure on FERC must send the message that communities will not stand by and allow unwanted shale gas projects to be rubber-stamped.
Already, the message seems to be making headway, with agencies taking a cue from citizen comments: The DEC requested an extension of the comment deadline on the Constitution pipeline after residents pressed for the same; the EPA requested FERC to include upstream impacts after citizens from NY to Florida repeatedly denounced FERC for not looking at the cumulative impacts of fracking on infrastructure.
We won't hear the judges' decision for about 6-8 weeks, and we hope they are taking the full weight of this precedent-setting case duly taken into account, not just for its impact on industry, but mostly for its impacts on humans.
The Times Herald Record quoted a report from court testimony written by Richard Kuprewicz, a pipeline regulatory adviser and incident investigator as saying, "The velocities on the 24-inch Neversink segment clearly exceed prudent design standards and safety margins." Despite such obvious risks, the Record also noted, "the court case hinges on neither safety nor health issues."
EE News Greenwire (a subscription news service) published an account whose title, "Judges seem open to second-guessing FERC in N.Y. pipeline case" says it all. Their take on the hearing: "Residents of a town in southeastern New York fighting a natural gas compressor station appeared to gain some traction with federal appellate judges today in a packed Washington, D.C., courtroom."
A recording of the complete 45-minute hearing can be heard here:
Directly following the hearing, Minisink farmer, Asha Canalos and Sane Energy Project joined "On The Ground" host, Esther Iverem, at the local DC Pacifica Radio station, to recap the hearing and connect the compressor station to other East Coast infrastructure such as the Cove Point LNG export terminal planned for Maryland. (The show begins after a long guitar solo.)