What follows is the first of a couple of comments we’ll be submitting to FERC expressing our concerns about and opposition to the ET Rover pipeline. In addition to all of the other serious and compelling issues raised by Michiganders, we think it’s important that FERC recognize the failures of its own processes.
October 28, 2014
Ms. Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, D.C. 20426
Re: Docket PF14-14-000
Dear Ms. Bose
I am writing with regard to the Rover Pipeline project (Docket #PF14-14), which is currently at the pre-filing stage. While I share many of the concerns expressed by my fellow southeast Michigan citizens (a very large number of whom have submitted their own comments to this docket) about the lack of necessity of this project, its limited benefits to our state, the disruptions it will cause to private property, and the threats the proposed route poses to sensitive environmental areas, here I will limit my comments to a very important procedural matter: public engagement.
Rover Pipeline, LLC has failed to comply adequately with basic conditions of the FERC pre-filing process and for that reason its application for a Certificate of Public Necessity and Convenience ought not to be accepted by FERC, much less approved.
In its order no. 665 (issued Oct. 7, 2005) mandating participation in the pre-filing process, FERC stressed that “it is desirable to maximize early public involvement to promote the wide-spread dissemination of information about proposed projects”and encouraged applicants “to cooperate with state and local officials, as required by EPAct 2005.” While Rover Pipelines, LLC has held a series of Open Houses along its pipeline route, those meetings, as clearly illustrated by the numerous and uniform comments of local officials listed below (it would be easy to produce dozens more similar comments from landowners), have in no way fulfilled Rover’s obligations as described by FERC. To wit:
Mundy Township Supervisor Dave Guigear said during the meeting he believes more people are concerned about the lack of transparency from Energy Transfer, parent company of ET Rover, rather than [sic] pipeline.
“Nobody I’ve encountered seems to be in favor of this project,” [Mundy Township attorney F. Jack] Belzer said. “There’s not a lot of information forthcoming from them that’s consistent.”
“I think it was an orchestrated disaster in terms of a meeting,” [Atlas Township Supervisor Shirley] Kautman-Jones said. “There was limited parking, the facility was way too small and they only had one set of maps for each county.”
Grand Blanc Township Supervisor Marilyn “Micki” Hoffman said ET Rover’s lack of transparency has raised questions among community leaders and residents. Grand Blanc Township has postponed voting on the issue in hopes of getting more clarity on the project “This hit us so fast and we had so many bad relationships established with ET Rover for how arrogant they were when surveying properties,” she said. “And the lack of transparency has also been an issue. We don’t want to rule it out, but at the same time we have a lot of unanswered questions.”
Instead of a podium with a few speakers, [attendees] walked into a packed hub of information boards and scattered Energy Transfer representatives. While there was a “Welcome” board, there was no rhyme or reason to the open house that Linden Mayor David Lossing referred to as a “debacle.”
Genesee County Commissioner Tony Brown (District 6) said, “When they don’t include local government in the discussion, my knee jerk reaction is to say it’s shady.” He pointed out that he had no side, for or against it, yet, but that at face value the secretiveness says something underhanded is going on.
“It was a well-orchestrated disaster,” said Kautman-Jones of the Rover meeting. “It was overcrowded and another thing I found really ridiculous is they had one table with a set of maps for each county. Of course, everyone wants to look at the Genesee County map, and you had to stand in line… They met the pre-filing application requirement of having a public meeting, but it definitely was not for the benefit of the public. They were just doing what was required.” “It’s hard to trust a company that is not being as forthcoming with information as you wish they would be,” [Kautman-Jones] said.
“I’m really frustrated because if this is how they treat elected officials, how are they treating property owners?” [Kautman-Jones] asked. “They aren’t even telling us what they are proposing to do. I feel (Rover) not giving information is a way to get to the filing process with as little opposition as possible. It takes people awhile to think about things and if your window of time keeps getting smaller and smaller, your response time is, too.”
[Ernest] Monroe agrees. The Hadley supervisor said he began receiving calls from concerned residents at the end of August. Rover never contacted the township, nor Lapeer County officials, he said, they just started showing up and surveying property.
“I can’t get good answers from Rover, they’ve just done a deplorable job,” said [Groveland Township Supervisor Robert] DePalma. “Now they’ve hired PR people that are going to come out. I’ve been in marketing for more than 30 years and this is the worst managed project I’ve ever seen… Facts have been extremely difficult to get from Rover.”
ET Rover has not endeared itself to [Oxford Township Supervisor Bill Dunn]. “To be quite frank, they jerked me around,” Dunn told the audience. “I’m not real happy with them.” “I don’t like being jerked around,” Dunn said. “They did lie to me . . . They were not forthright.”
[Fenton] Township Clerk Robert Krug said that when he attended the recent ET open house hosted at Spring Meadows in Linden, ET’s public relations representatives continually said they would find someone to answer questions they couldn’t, and never did. “Everybody had smiles, but nobody had answers,” said Krug.
[Fenton] Township Supervisor Bonnie Mathis said, “ET Rover says that they notified township supervisors, but they didn’t.”
State Representative Joseph Graves added, “They could have done it better and because they didn’t, now there are suspicions.”
Such comments convey the overwhelming sentiments of stakeholders along the proposed route in Michigan. Given such widespread dissatisfaction, how can FERC possibly believe that its procedures and processes are working as intended? For instance, in the FAQ for Gas Pre-Filing at the FERC website (under “What happens at open houses?”), it states:
The goal of the Commission’s pre-filing process is to notify all project stakeholders, including potentially affected property owners, so that Company and the Commission Staff can provide a forum to hear the issues relevant to those stakeholders. The Company may then incorporate proposed mitigation measures into the project design from comments received from stakeholders.
As the comments above make clear, stakeholders along the proposed route have NOT received adequate information nor do they believe that “issues relevant” to them have been heard. Rover’s mode of communication with stakeholders has precluded such productive exchanges. As a result, Rover has, at best, only complied with the letter of the pre-filing rule, merely going through the motions in the most perfunctory manner. Rover has certainly not adhered to the spirit of the rules. This makes a mockery of the process and suggests that Rover does not appear to take its obligations to FERC or to the public seriously. What is the point of requiring public engagement on the part of applicants if that engagement is only going to take place in the most superficial and ineffective way?
In its letter approving Rover’s pre-filing request, FERC states “that when ET Rover files its application with the Commission, we will evaluate the progress made during the pre- filing process.” From the point of view of the public, as represented by numerous local elected officials (not to mention dozens of landowners), Rover has made very little progress. I urge FERC to reject Rover’s application for its failure to fulfill even the most basic requirements of pre-filing as well as to protect the integrity of FERC’s own rules and procedures.
Groveland Township, MI
Well, we were able to attend last night’s after all– though we’re not sure it was worth our time. Surprisingly, ET Rover representatives did show up– almost a whole six-pack of them! And they wound up doing most, nearly all, of the talking, though not very satisfactorily. What they said was boilerplate, nothing much new and certainly nothing that couldn’t be learned from other sources, including their website. Honestly, we thought their appearance was mainly perfunctory, evidenced most glaringly by the fact that they couldn’t be bothered to stay one single second past 7:30. Maybe they had a plane to catch or something. But one would think that if they were really serious about honest and open dialogue as they claim to be, that they would be willing to take as much time as necessary to address the questions and concerns of all the people who came to looking for answers.
ET Rover representatives
The press was there as well and a few news stories have been posted (and here and here). But the best account of the meeting we’ve seen comes from a friend of ours, attorney Kim Savage, whose impressions of the meeting are devastatingly accurate. Kim graciously agreed to let us post her comments here. So we’ll just shut up and turn it over to her:
by Kimberly Savage, Savage Law PLC
My thoughts on Rep. Graves’ Town Hall with Energy Transfer Partners, in a nutshell: It could have been a really good thing – a real opportunity to engage and connect with landowners – but it just plain wasn’t. Instead, it was frustrating to sit through, and part of me regrets that I made the drive.
Notwithstanding, I commend Rep. Graves and his staff for this attempt, and I’m glad they were able to bring the ET Rover folks to the table, truly I am. But, I am extremely disappointed that bringing ET Rover to the table seems to have come at a such a price. The bottom line: I think Rep. Graves, intentionally or not, sold out his constituents in order to get ET Rover to attend this meeting. In so doing, he underestimated the intelligence of his constituents – who know by now that the sort of “we will work with you” responses they received tonight are nothing more that pure BS, designed to lull landowners into signing easements. After all, as a state, we’ve lived through the Enbridge disaster and the subsequent “replacement” project, and we’ve heard the exact same things before, more times than we can count.
Here’s my take on the whole thing tonight: ET Rover was given all the time it wanted to sugar-coat the plain and simple fact that it is seeking to permanently take private land for a song and for purely corporate profit, and it was given a stage to try to put a different spin on that and to convince all of us that this project does in fact benefit us as Michiganians.
On the contrary, the ET Rover guy seemed to admit that our distribution utilities are not currently considered “customers” of the proposed project. If I heard him right, even though approximately 18% of the production of the Utica and Marcellus shale might flow through Michigan on its way to Canada, no Michigan utility has indicated a desire to purchase that gas. Instead, I think he admitted that it’s all going to Canada, after Defiance, OH. In fact, I think I heard him advise us to urge our local utilities to contact them, implying that they had not yet done that.
To me, it seemed that Rep. Graves’ office likely promised (in order to get the ET Rover people to come) that the “town hall” would not “degenerate” into a real public forum, where hard questions would be asked and the pipeline company’s answers considered. Rep. Graves’ staff person, whoever that guy was, protected the ET Rover spokesperson throughout the way-too-short meeting. He shut down every landowner attempt to ask the questions that so obviously mattered to landowners, and then, as moderator, he picked through the submitted questions, and only lofted the softballs. In short, he didn’t select a single question that addressed landowners’ rights, and I left feeling like I was misled by the announcement that “Rep. Graves is holding a public forum to explain landowners’ rights.”
I am undoubtedly biased, but it seemed to me that landowners were much more interested in learning about their rights as landowners, to either oppose this project altogether, or to have a real voice as to where it is sited, or to negotiate more favorable easement terms or compensation. It seemed to me (based on the shouted, but unanswered questions) that landowners were substantially concerned about the fact that Energy Transfer Partners will likely be granted the right to condemn their land for, let’s be honest here, private corporate profit. But as it was, “Mr. Staff Person” did not ask a single question about condemnation, at least as I recall. I am also admittedly cynical, but this does not seem coincidental. In fact, I submitted several questions personally on this topic, and none of my questions were selected to pose to the ET Rover spokesperson.
Regarding missed opportunities, ET Rover staff could have elected to stay and engage with impacted landowners. Imagine what it would have been like to have your concerns heard and noted. Had ET Rover stayed longer (and responded to all questions, not just the softballs), chances are they would have found a way through these landowners’ lands.
But, as with all early-on meetings with Enbridge, I was left with the sinking feeling that landowners (a characteristically non-litigious bunch) are truly are on their own when confronted with these projects. The MPSC admitted outright tonight that it really plays no role in projects like the ET Rover project. You should read that as, “we won’t be there when all the rosy promises fall flat”– for example, “we will restore your land to the same or better condition as existed prior to construction.” Heck, the MPSC wasn’t even there for landowners on Enbridge’s (supposedly) intrastate Line 6B project, when a long list of promises were ultimately broken. Nor will FERC be there when the time comes, I suspect. They didn’t even bother to show up tonight.
Once again, if they have any hope for relief, landowners will be forced into the ridiculously uncomfortable position of having to file lawsuits to receive only what they’re entitled to under the law, against a proverbial Goliath. To be crude, if experience holds, most landowners will simply bend over rather than file suit against such an intimidating enemy. The current system is not fair, nor does it do much at all to make landowners whole.
As my client and friend Carol said tonight, we need to change the laws. REPEAT, WE NEED TO CHANGE THE LAWS. In the meantime, we need to challenge this private corporation, and not be lulled into complacency, as our regulators and legislatures seem to have been.
A quick post to alert you to two noteworthy news items:
Photo courtesy of kctv5.com
First, a natural gas pipeline ruptured in Missouri yesterday. Fortunately, no one was hurt, but the fireball, as you can see, is dramatic and frightening. The company that owns that pipeline (in part)? Our very own Energy Transfer. But as a friend of ours put it, you don’t have to worry; they are diverting supply so shipping will continue as normal…
The other news item is that Pulitzer Prize-winning journalist David Hasemyer of Inside Climate News has written an article about the grassroots efforts opposing ET Rover. As always, it’s excellent, and features a cast of some of our favorite characters, including our hero Kathy Thurman and our friend Jeff Axt, the Brandon Brawler. The money quote is from Thurman. Recalling the protracted Enbridge nightmare, Thurman said, “”We weren’t going to let this happen again.”
We left off yesterday’s post about ET Rover’s recent meetings with local officials by expressing some concern about whether some of those officials are equipped– for whatever reasons– to adequately inform and assist landowners. So far, we’ve been very impressed with the willingness of several township officials to speak out forcefully against Rover and the company’s shabby treatment of pretty much everyone. But now that Rover has launched a charm offensive and is (presumably) doing some behind-the-scenes glad-handing, backslapping, and smoke-blowing, we’re a little nervous. We’ve seen before what that sort of thing can do.
Recent news reports have provided little comfort. In fact, judging from what we’ve read, the meetings have served only to confuse matters. It’s starting to look like our public officials are neither receiving nor providing citizens with reliable, accurate information. That’s why we’re also nervous about this week’s Town Hall meeting (Oct. 15 at Holly High School from 6:30 to 7:30 p.m). We have serious fears about the potential spread of bad information.
Here’s a run-down, with examples drawn from two recent news articles about last week’s meetings, of the kinds of imprecise or just plain wrong information that has us so very worried:
Is there anything local governments can do? Yes!
According to Susan Bromley at the Brandon Citizen, Groveland Township Supervisor Bob DePalma doesn’t think “any thing of worthwhile consequence was discussed.” (No surprise there.) But DePalma also told Susan Bromley of the Brandon Citizen that “They [ET Rover] fully realize the federal government has regulations on them, what we say or do has little benefit.” No doubt this is what ET Rover said. It’s the same line Enbridge used when they rolled into town: “pipelines are regulated at the federal level.” As we recall, DePalma accepted that line then just as he appears to accept it now.
In fairness, it’s not entirely clear what DePalma’s point is here, though we do fear it’s the same old shoulder-shrugging, helpless attitude we’ve seen from him before. Whatever the case, it is clearly NOT true that what township officials “say or do has little benefit.” Yes, FERC has ultimate approval of the pipeline project. But there are plenty of things township supervisors, state representatives, and citizens can do. One of them is registering their objections and concerns about this project publicly and with FERC. Another is working hard to provide accurate, reliable information about the project, the process, and the things landowners can do to protect themselves. That could benefit landowners tremendously if this project is approved.
Why did Rover re-route? Nobody really knows (except Rover, and they won’t tell it straight)
Unfortunately, we’re not sure whether DePalma can distinguish between accurate information and pipeline company spin. For example, DePalma also reports that ET Rover shifted their original route north “because it affected 53-54 homes that were going to have to be taken.” We don’t doubt that this is what Rover told him. The question is whether it’s true. In fact, we’re not sure what “53-54 homes were going to have to be taken” even means. It’s vague to the point of meaningless (more on this below). Nor is there any way to verify it.
ET Rover reps apparently repeated this story in their meeting with Lapeer County Commissioners, according to Maria Brown at the Tri-City Times:
Company officials told Lapeer County leaders on Tuesday that the route had been moved north from Oakland County where more than 50 homes would have had to be condemned since they had been built on an existing natural gas line easement.
As we said above, it’s not at all clear what this means, especially with the use of the word “condemn” here– which could suggest the legal process of condemnation (using eminent domain) but here seems to mean something more like destroy. Nor is it clear what “existing natural gas line easement” they’re talking about. The Vector pipeline? Are we to believe that homes have been built on top of the Vector (or some other) pipeline easement? And that somehow, originally, Rover thought they would build their pipeline in the same place? Both of those things seem impossible. So maybe the reporter got something mixed up here? Whatever the case, none of this makes much sense, which makes us awfully skeptical. Even worse, none of this, whatever the source of such poor information, is even remotely helpful to concerned landowners.
We’re even more skeptical of this comment from Lapeer Commissioner Dave Eady about the re-route: “It had nothing to do with politics or resolutions in opposition to the project,” Eady said. We have no doubt this is what ET Rover told Eady and the other commissioners. But surely Eady isn’t naive and gullible enough to believe it. Anyone can readily understand that ET Rover would never ever admit to moving the pipeline route because of landowner opposition; that would only invite landowner opposition elsewhere. So why in the world would he repeat that claim as if it were true? That’s frightening.
We feel a little better about the comment of Commissioner Lenny Schneider who notes, simply, “It’s not our job to take their word for it.” Hopefully, he has repeated that to his colleague Dave Eady.
How much gas will benefit Michiganders? Again, no one knows (and Rover won’t tell)
Even worse than the above are the (hollow) assurances ET Rover gave about where the gas they’ll transport is going. DePalma reports that contrary to initial reports, the natural gas is not mainly for Canadian export and “a good amount” of the natural gas transported by ET Rover will stay in Michigan. This statement only raises more questions:
What’s “a good amount”? Who decides what a good amount is? Is this what Rover reps said or is that DePalma’s characterization? Was DePalma able to verify that claim? Did Rover say exactly what percentage of the gas will stay in Michigan versus the amount that will be exported to Canada? We’re pretty sure that answer to those last three questions is “no.” Those are questions that are virtually impossible to answer. Answers to them may– if we’re lucky– be included in Rover’s application to FERC, which they plan to file in January. But since FERC doesn’t require that kind of information and because Rover doesn’t really want anybody to know (they’ll likely claim that it’s proprietary), chances are it won’t even be included there. We can’t say for sure, but it sounds like DePalma believes Rover when they say such things. But he shouldn’t. That’s what scares us.
Is Rover prohibited or even discouraged from routing their pipeline along a highway? No.
Here’s one reason DePalma shouldn’t believe the things ET Rover reps tell him. Evidently they told him this:
Rover representatives also explained that the reason the pipeline can’t follow a suggested route along the I-69 corridor is because close proximity to highways is discouraged for safety reasons.
Note here the passive construction “is discouraged” We have little doubt that this is exactly how ET Rover phrased it. It’s the sort of verbal construction we discourage our students from using, because unlike our sentence (where we say “we discourage”), the passive version omits the agent of the action. It begs the question of who, exactly, discourages routing pipelines along highways for safety reasons. The implication is that it’s some federal agency. But there are no federal guidelines on this matter. In fact, highway corridors are not even considered “high consequence areas.” Of course, this is not to say that it’s necessarily a good idea to build a pipeline along a highway. But doing so is no worse than building a pipeline in close proximity, say, to a school or suburban subdivision, yet that happens routinely. The point here is that companies like Rover are NOT “discouraged” for safety reasons from building pipelines along highways. They’re just saying that as a convenient excuse to stick with their preferred route.
Is there a deadline for public comments to FERC? No.
This one comes from Lapeer County Commissioner Lenny Schneider:
Schneider said the company can’t provide all the answers county officials want until land surveys are complete and considering this task might not be done by year’s end, which is also the public comment deadline; the county board seeks to go on the record with their concerns.
The first part of this is probably more or less true: some questions will be unanswerable until surveying is complete and the route is finalized with a bit more precision (although we suspect this is also another convenient way for Rover to evade questions). But the second part is absolutely NOT true. There is no year-end “deadline” for public comments. After Rover officially files its application with FERC, citizens have much more time and opportunity to comment— and they should do so. We don’t know where Schneider got the idea that public comment will be prohibited after the first of the year. But this is another example of how unreliable information gets disseminated.
Can FERC approve this project without giving Rover the power of eminent domain? No.
And one final bit of information to correct, this one also from the Lapeer Commissioners:
Commissioners are also urging the public and affected landowners to file their own concerns and complaints with the federal agency by year’s end, asking that the commission either halt the project or approve it without granting eminent domain. Without eminent domain, Energy Transfer would be required to negotiate with individual landowners for easement payments.
Now, we very much appreciate this sentiment. And we wish this were a realistic option (and in other cases, we’ve made a similar argument). But in this case, urging citizens to request approval without eminent domain demonstrates a basic misunderstanding of the FERC process. That’s because eminent domain is precisely what “approval” means. ET Rover is going to apply for a “Certificate of Public Necessity and Convenience.” According to the law, that means the authority to condemn. So ET Rover isn’t just asking for permission to build a pipeline. They’re asking for permission to build the pipeline with or without the approval of property owners in the pipeline’s route. In this context “approv[ing] it without granting eminent domain” simply does not make sense. By law, FERC cannot grant a certificate without eminent domain.
Obviously, these are not simple matters. And there is no reason to expect township supervisors and county commissioners to be experts on them. But it’s NOT too much to expect them to be deeply skeptical of what ET Rover tells them and to be careful about reporting what Rover says as fact. We’re going to do everything we can to make it to Wednesday’s Town Hall in the hopes of preventing (or correcting) the spread of inaccurate information. Stay tuned.
The ET Rover news in the last week or so has not been good. First, Lapeer prosecutors performed some very shoddy legal research which led them to issue a misinformed, Rover-friendly memo regarding Rover’s right to survey. Our guess is that some crafty ET Rover lawyer whispered some sweet legal nothings in the prosecutor’s ear, seducing him into adopting Rover’s (mistaken, we believe) view of the law.
Meanwhile, some ET Rover executives had a sit down this week with some local officials and state representatives. At a meeting at the Groveland Township offices (that’s our township), ET Rover officials met with a half dozen township supervisors, State Senator Dave Robertson, and State Representative Joseph Graves. According to Groveland Supervisor Bob DePalma, ET refused to hold a public meeting. Frankly, that’s unsurprising: refusing to communicate openly with the public is typical of the industry (because they’re both secretive and cowardly). Enbridge did the same thing.
It’s hard to get too worked up about ET Rover’s tactic, which, while reprehensible, is totally predictable. What’s more infuriating about this is the fact that the township supervisors agreed to play by ET Rover’s rules instead of calling their bluff. The supervisors could have (and should have!) just refused to have a closed door meeting, then informed FERC and the press about Rover’s unwillingness to deal openly with Michiganders. We’re reasonably confident Rover would have caved, just like Enbridge did.
The same goes for Lapeer County Commissioners, who also gave in to Rover’s stealth approach and participated in a similar closed door meeting. But that meeting appears mainly have to confused matters, rather than providing any clarity (more on this soon).
In better news, Rep. Graves has organized a Town Hall meeting for this coming week, Oct. 15 at Holly High School from 6:30 to 7:30 p.m. Evidently, Rover has not accepted Graves’s invitation to participate– because, as we said above, they are cowardly. A Town Hall is a great idea and we’re glad it’s happening, even though we have a conflict and can’t attend. On the other hand, we’re more than a little worried about what kinds of information will be presented at the meeting. It’s not clear who is going to be in charge of this town hall and how knowledgeable those persons are.
For example, we understand that Graves has invited a representative from the Michigan Public Service Commission “to give a broad outline of property owners’ rights.” Honestly, we find that prospect terrifying, for several reasons. First, the MPSC has no role to play whatsoever in regulating interstate natural gas pipelines, so they’re an odd choice to participate in this town hall to begin with. Secondly, even in those areas where the MPSC does have a role, they really don’t have much to do with property rights (although we think they should). Lastly, even worse is that we can tell you from experience that the MPSC is no champion of property rights; frankly, they seem to us rather indifferent to them (see our full series on how the MPSC failed Line 6B landowners). So while someone from the MPSC might be able to provide some general remarks about eminent domain– the sort of thing you can get from, say, the Pipeline Safety Trust or FERC’s Citizens’s Guide, they certainly are not going to be equipped to speak about the realities and complexities of negotiating easements and preparing for a pipeline construction project on your land. Put simply, an MPSC rep is a bad choice for this very important task.
We’re going to write to Rep. Graves today to share our worries about the meeting. And we’re encouraging some people we know who really are informed to attend. Hopefully, this will help counteract or clear up any incomplete or bad information.
Unfortunately, that little problem only points to an even bigger one, which involves the way (mis)information about projects like this is parceled out by various parties, some of whom may not be trustworthy (the pipeline companies), some of whom are a bit too inclined to believe those who aren’t trustworthy (state representatives and regulators), and some of whom may not be sure what to believe or may not understand these complicated processes (local officials, ordinary citizens). This is a serious problem, one that, if news accounts are accurate, is illustrated vividly by last week’s closed door meetings. The remarks by some of the officials who attended those meetings seem to indicate that at least some of those officials are either confused or credulous. Either way, that’s not going to allow them to inform vulnerable landowners and concerned citizens very helpfully.
We’ll discuss specific examples of this confusion and credulity in a follow-up post. In it, we’ll try to bring a little more clarity and accuracy to some not-so-clear and not-so-accurate statements we’ve seen in newspaper accounts about those exclusive meetings between Rover reps and local officials. Please stay tuned.
If you’ve been paying attention, you might know that up in Canada Enbridge has been all in a flurry to get their Line 9 pipeline reversal online and running. They’ve gone about it in their typically ham-fisted way, despite the legitimate concerns of lots of Canadians, like our friend Emily Ferguson. (And how did Enbridge respond to those concerns? Why, by making up fictional stories about Emily. Seriously!)
Well, last week Enbridge thought they were finally going to get their way– that is until the National Energy Board pointed out that they have failed to meet a basic condition of the project’s approval: installing shut-off valves on both sides of all major water crossings. Just how badly did Enbridge bungle their compliance with this requirement? We’ll let the NEB tell you about it:
As noted above, CSA Z662-11 states that valves shall be installed on both sides of MWCs. The valves do not appear to be placed on both sides of many of the MWCs. Although in its response to Information Request No. 1 for Condition 16, Enbridge added 85 MWCs to its original list of MWCs, Enbridge did not adjust the number of valves to the Project, for example by increasing the number of valves, or explain why the number remained unchanged. As a result, the Board notes that only 6 of the 104 MWCs identified by Enbridge to date appear to have valves installed within 1 km on both sides of the water crossing, while the majority appear to have valves installed more than 10 km from the water crossing on at least one side.
That’s right. Not only did Enbridge fail to accurately identify all major water crossings (the NEB elsewhere says Enbridge needs to revisit their mode of determining MWCs). For the ones they did identify, Enbridge failed to comply with the shut-off valve condition for NINETY-FIVE PERCENT of them.
Just think about this: at a moment when they are under more scrutiny than ever before, when the whole world is looking for their next mistake, when they are desperately trying to convince regulators all over North America to trust them, when changing public perceptions about them has become one of the company’s top priorities– at a moment like that, they fail, abjectly, to abide by a simple regulatory requirement. It almost defies belief.
Is it incompetence or arrogance? We still don’t know which.
Over the past few years, we’ve grown accustomed to Michigan public officials’ willingness to allow pipeline companies to have their way with Michigan citizens. We can’t for the life of us understand why so many of our politicians and regulators seem so much more interested in protecting out-of-state corporations rather than the citizens they have been elected (or appointed) to serve. But we fear that the pattern is continuing with ET Rover. Have ANY officials other than township supervisors stepped up to support and assist the landowners in their districts?
The latest instance of this failure of leadership in Michigan comes from Lapeer County Prosecutor Tim Turkelson who has apparently decided to weigh in on the thorny survey question that has been the source of controversy over the past couple of weeks. According to the Lapeer County Press (see the image at right), Turkelson this week issued a memo to county law enforcement supporting ET Rover’s right to survey without landowner permission. Why? Well, Turkelson apparently assigned his assistant prosecutor Mike Hodges the task of looking into the matter and Hodges went and generated what we believe is a serious misreading of the law, which Turkelson appears to accept.
Interestingly, Hodges did not turn to the UCPA that ET Rover has cited in its letters to landowners. Rather, Hodges cited a different Michigan statute, one that may or may not be applicable to the matter at hand; we’re not sure. We’re also not sure whether ET Rover has altered its legal strategy or whether Hodges and Turkelson have taken it upon themselves to apply a different statute to the matter. We’re still investigating these questions with the help of our crack team of brilliant legal minds. Stay tuned for our full analysis.
In the meantime, here is one example of how Hodges is mistaken that we’re pretty confident about: At one point, Turkelson’s memo warns property owners about disturbing the survey stakes that ET Rover is sure to place on their properties: “Property owners need to be aware that removing survey markers is a 180 day misdemeanor,” the memo says. This is a very serious warning; Hodges is telling landowners that they can be arrested (and possibly jailed!) for removing the survey markers ET Rover places on their property.
However, this appears to be a very basic misreading of the law– either that or a fundamental misunderstanding of what the ET Rover survey crews will do. We don’t know which.
Here is the part of the law Hodges refers to, section 54:210(d):
(1) A person who defaces, destroys, alters, or removes a corner monument or reference monument is guilty of a misdemeanor and shall be punished by a fine of not more than $1,000.00, or imprisonment for not more than 180 days, or both, and shall be responsible for the costs of reestablishment and replacement of the monument and filing of the corner record by a surveyor.
However, section 54.202 very clearly defines the terms “corner,” “monument” and “reference monument.” Here’s what the statute says:
(d) “Corner”, unless otherwise qualified, means a property corner, a property controlling corner, a public land survey corner, or any combination of these.
(f) “Monument” means a marker that occupies the position of a corner and that possesses or is made to possess a magnetic field.
(g) “Reference monument” means a special monument that does not occupy the same geographical position as the corner itself but whose spatial relationship to the corner is recorded and that serves to witness the corner.
In other words, corner monuments and reference monuments are stakes or other markers that are meant to establish the boundaries lines of a property. But that’s not what ET Rover’s survey crews are seeking to establish. Frankly, they don’t care much where one property ends and another begins (although they’ll need to know that). At this point, they just need to know where they can put their pipe– and that’s what their survey crews will mark. They will establish what the boundaries of their easements and temporary workspaces might be as well as where the pipeline might be placed. They need to know what kinds of things they might need to go around or under and so forth. So the stakes they put in the ground– the “monuments” are unlikely to be at corners. They’re going to be in all sorts of other places.
Obviously, we are not encouraging people to mess with survey stakes. Rather, our point here is simply that the law that Hodges and Turkelson are citing is completely inapplicable to the case at hand. Which just goes to show that they really don’t understand the situation. As a result, their hasty attempt to inform themselves and render some sort of guidance to law enforcement is inaccurate at best– and inaccurate in ways that could negatively affect landowners, not ET Rover.
Three quick conclusions about this:
First, if Turkelson and Hodges get something as basic as this matter of “reference monuments” wrong, there is plenty of reason to doubt their other claims about the law.
Secondly, this is a terribly unfortunate situation. If citizens can’t get any helpful clarity about the law from the public guardians of the law, where in the world are they supposed to turn?
Thirdly, one can’t help but wonder what motivates such sloppy legal research on the part of these public officials, It appears– and we would like to believe that this is not the truth– that their legal conclusions are based upon a predisposition to do what is in the best interests of a big corporation like ET Rover rather than the interests of the residents of their very own county.
Stay tuned for more as this story develops.
There’s been a lot of news about ET Rover this week, owing to an unfortunate incident in which their survey crews entered or tried to enter the properties of some landowners without permission, in one case sparking a potentially dangerous confrontation. It’s unfortunate that it’s come to this, though it was also probably inevitable. ET Rover’s ham-handed dealings with landowners have done nothing but fuel the understandable frustration and anger of landowners. We hate to say “we told you so,” but several months ago, we told ET Rover that the industry’s thoughtless routine ways of communicating with landowners were not going to go over well here in southeast Michigan. They clearly did not listen to us.
At the center of this week’s story, however, is a legal question that we’ve addressed, though only briefly, before. ET Rover is claiming that they have the right under Michigan Law to enter private property to conduct surveys without landowner permission. Here is spokesperson Vicki Granado just this week:
“We do have, under Michigan Compiled Law, the right to enter, knock on the door and, if the landowner isn’t home and we’re following specs, we do have the right to enter,” ET Rover spokeswoman Vicki Granado said. “Again, if the landowner tells us that they don’t want us surveying (we won’t survey).”
And here is Granado in a different article this week:
“We have consulted with many attorneys and many sided with Rover in this particular process,” said Granado. “We have the right to conduct surveys and have given proper notification to landowners we are needing to survey. We would much rather do it in cooperation, that is our goal, but we do have permission from the state. They are not trespassing.”
Setting aside the legal question for a moment, Granado’s comments strike us as a bit contradictory. In the first one, she indicates that Rover won’t survey if the landowner does not give permission– even though this week’s incidents prove that statement not to be true. In the second remark, Granado seems to suggest the opposite: that ET Rover is going to conduct surveys even if landowners do not cooperate. Regardless of the legalities, we have to say that we think that is very bad policy. That sort of aggression and disrespect for property rights is only going to inflame landowners. In fact, even the natural gas industry’s main trade organization agrees with us on this point. The Interstate Natural Gas Association of America (INGAA) recommends avoiding trespass without landowner authority: “Trespassing by pipeline or contractor personnel should be avoided; approval by the landowner or duly authorized state agency of court is required for access to the right-of-way.” (See page 13 of this document)
So ET Rover appears to be violating their own industry standards. But are they violating the law?
In letters to landowners and comments to the press, ET Rover cites Michigan Compiled Law 213.54(3) as granting the company the right to survey without landowner permission. The law they point to is the state’s Uniform Condemnation Procedures Act (UCPA), passed in 1890, which stipulates “procedures for the condemnation, acquisition, or exercise of eminent domain of real or personal property by public agencies or private agencies; to provide for an agency’s entry upon land for certain purposes; to provide for damages; to prescribe remedies; and to repeal certain acts and parts of acts.”
The section of the law that Rover cites might, at first glance, appear to support ET Rover’s position. Here’s part of what 213.54(3) says (this is the part ET Rover thinks applies to them):
(3) An agency or an agent or employee of an agency may enter upon property before filing an action for the purpose of making surveys, measurements, examinations, tests, soundings, and borings; taking photographs or samplings; appraising the property; conducting an environmental inspection; conducting archaeological studies pursuant to section 106 of title I of the national historic preservation act, Public Law 89-665, 16 U.S.C. 470f; or determining whether the property is suitable to take for public purposes. The entry may be made upon reasonable notice to the owner and at reasonable hours.
There’s a serious problem with Rover’s citation of this section of the UCPA. As Atlas Township attorney David Lattie points out, ET Rover is ignoring another part of the law, 213.54(4), which says this:
(4) If reasonable efforts to enter under subsection (3) have been obstructed or denied, the agency may commence a civil action in the circuit court in the county in which the property or any part of the property is located for an order permitting entry. The complaint shall state the facts making the entry necessary, the date on which entry is sought, and the duration and the method proposed for protecting the defendant against damage.
So it would appear that the best case scenario here, for ET Rover, is that if they’re right and Michigan law does give them permission to survey, they can ONLY do so after first obtaining a court order. ET Rover has NOT received any court orders.
However, theres’ an even bigger problem here, one that even Atlas Township attorney David Lattie overlooks. Both Lattie and ET Rover seem to take for granted the idea that ET Rover qualifies as the sort of “agency” described in the statute above. However, they do not, which means that the very law ET Rover cites does not apply to their activities at all. Here’s why:
The first section of the Act (213.51), provides a list of “definitions” of the key terms used in the Act. One of them, of course, is “agency”– since it is an “agency” to which the part of the law ET Rover cites applies. The definition of an “agency” according to the Act is as follows:
(c) “Agency” means a public agency or private agency.
Because that definition isn’t terribly helpful, the terms “public agency” and “private agency” are also defined. And since ET Rover is obviously not a public agency, we’ll just give you the definition of a private one:
(h) “Private agency” means a person, partnership, association, corporation, or entity, other than a public agency, authorized by law to condemn property.
The important part here is “authorized by law to condemn property.” That means having the legal right of eminent domain (condemnation is the legal term for exercising eminent domain). ET Rover– this is an unassailable fact– does NOT have the legal right of eminent domain. They have NOT been “authorized by law to condemn property.” That authorization is what the FERC application process is for. If FERC approves ET Rover’s application– an application that Rover has not even filed yet— then and only then will ET Rover be “authorized by law to condemn property.”
What that means, then, is that ET Rover clearly– according to the plain language of the very statute they cite– does not meet the definition of a “private” agency (and hence an “agency.”) So while it is true that a private agency can get a court order to survey your property without your permission, ET Rover cannot do so because– again– they are NOT a private agency according to the law.
So ET Rover is either just plain wrong or they are willfully distorting the law for their own purposes. Of course, we can understand why they might think they qualify as a “private agency,” since in their mind receiving approval from FERC (and hence being granted the power of eminent domain) is a foregone conclusion. That’s how oil and gas companies think–and with good reason, given our industry-friendly regulatory agencies. It’s why Enbridge ran around invoking the power of eminent domain in front of Line 6B landowners– they did so with us– before they were even given that power by the MPSC. Here, ET Rover seems to be doing the same thing.
Of course, we’re not attorneys (though we sometimes play one on this blog). Sooner or later, some smart lawyer (we know who we’d like that person to be!) is going to have to make some version of the argument we’ve made above in front of a judge somewhere in order to bring some kind of clarity to this legal matter. Perhaps a township attorney like David Lattie will do it. But if he does, we hope he does not concede the crucial point– not about whether the UCPA gives ET Rover the right to survey that they claim, but whether the UCPA applies to ET Rover in the first place. We think it’s plain that it does not.
Today in the comments section of one of our posts, a reader reports that ET Rover is or will soon begin making cash offers to landowners to acquire easements from them. We cannot verify this. But it’s not at all hard to believe. Pipeline companies acquire easement rights well before projects are approved all the time. In fact, it serves the pipeline companies quite well because– among other things– it lets them say to regulatory agencies that landowners approve of the project. Just look at how many easements we’ve already acquired!
It’s also a way for pipeline companies to take advantage of landowners, who may not really know what they are getting into. And let’s be honest, when someone says pleasing-sounding things to you and waves a check in front of your face, it’s awfully tempting. But this is why it is so very important that landowners inform themselves. To help with that education process, we recently posted some “basics” that landowners need to know about ET Rover along with some links to valuable resources. Please visit that post and those links. In it, we also provided some advice, based on experience, that we’re going to reproduce below.
We’ll just preface this advice by saying that land agents can sound persuasive. They can even be likable. You will want to believe them. But you really shouldn’t. The truth is that you simply cannot trust them. Their job is just to get you to sign an easement. Despite what they will tell you, they don’t really care very much about you or your property or your concerns– none of that is what gets them paid. Therefore, you should be very skeptical of everything they tell you, especially as it relates to time. There is NO rush for anyone to sign any agreements. ET Rover has not even filed an application with FERC yet. Approval, if the project is approved, is probably two years away. Even if you believe the project will ultimately be approved, it is important to understand that there is NO advantage to signing early. In fact, the opposite might very well be the case. Do NOT be pressured into entering into an easement agreement until you have a full command of the facts and implications of that agreement and are completely and totally certain that you are not being taken advantage of in any way. We beg you!
That said, here is the substance of our advice from the earlier post:
- Don’t trust land agents. We’re sure some of them are honest and professional. And many of them are perfectly pleasant people. But their interests are NOT your interests. Their job is to tell you pleasing things. But those pleasing things often do not correspond to reality. Be skeptical. Protect yourself.
- Understand eminent domain. They can’t (and don’t want to) take your house or your whole property. They only want to access a portion of it. If they do get that easement, they do not own that part of your property. You do. There are restrictions on what they (and you) can do with that portion of your property.
- Money isn’t everything. A certain monetary offer for easement rights might sound appealing. But keep in mind that there are many, many more things that come with the installation of a pipeline on your property. The stress, strain, disruption, destruction of your property, and potential accidents might well make whatever dollar amount you are eventually offered seem not so great in retrospect.
- Lastly, if it does come down to negotiating an easement (though again, this is probably two years away), consult an attorney with experience in this area. There are dozens of things that the ordinary landowner would never think of that could be a potential problem. Just ramble through our archives (like these posts) and you’ll see what we mean.