(February 18, 2004) -- With a February 23 deadline approaching on whether the City of Long Beach will seek intervenor status in a federal agency proceeding that will make decisions on a Liquefied Natural Gas (LNG) facility which a Mitsubishi subsidiary seeks to build in the Port of LB, an activist who opposes the project urged the City Council on February 17 to seek intervenor status with the Federal Energy Regulatory Commission (FERC) before the city's deadline for doing so passes.
Using the period for public comment on non-agendized issues, LB writer Bry Myown sparked two separate Council colloquies on the matter (one immediate, another at the end of the Council meeting) with City Attorney Robert Shannon.
Mr. Shannon indicated to the Council that he would devote time on Feb. 18 to consider the matter and will communicate further with the Council on it.
LBReport.com posts a transcript (unofficial, prepared by us) of salient portions of the discussion below.
The FERC web site provides the following background Q&A on intervenor status:
Q: What is an intervenor?
An intervenor is an official party to a proceeding and enjoys distinct advantages over those who only file comments.
Intervenors have the right to:
1. Participate in hearings before FERC's administrative law judges;
2. File briefs;
3. File for rehearing of a Commission decision;
4. Have legal standing in a Court of Appeals if they challenge the Commission's final decision; and
5. Be placed on a service list to receive copies of case-related Commission documents and filings by other intervenors.
Q: When is an intervention appropriate?
A: It depends on your unique circumstances.
As a general rule, you should intervene when you may be materially affected by FERCís decision on a specific case, project or policy.
Intervention gives you the right to challenge FERCís decisions in Court. Non-intervenors can not take the FERC to court.
If you wish to only keep track of case-related correspondence, please use eSubscription
...Q: What are my obligations when I intervene?
A: An intervenor must serve other parties in the case.
This means that anytime you send correspondence to FERC about a specific case or project, you must also send copies of it to the Applicant and all the intervenors on the Service List. You are obligated to do this no matter how many intervenors are on the Service List, whether it is 10 or 700. Other intervenors also are obligated to do the same to you.
There is no obligation to send copies of correspondence to other intervenors when you are not sending material to FERC.Ms. Myown: ...[Feb. 23] is the deadline in which parties may file a motion to intervene. Intervenor status is not a prelude to a lawsuit. It preserves your rights to get copies of all other filings, to be heard, to file motions, to be heard at the administrative level and give testimony, to file for an appeal of any portion of any FERC decision, and ultimately should you so desire, to take the matter to court...
...I do not know if the [City] Attorney can file as a matter of course without your vote, but just to be safe I hope that all or several of you will step up as heroes and call a special meeting between now and Friday and direct your [City] Attorney to file [for] intervenor status for us.
I have brought you [gestures to document] the FERC decision tree, a little Q&A from FERC, that says as a general rule, should file as an intervenor if you believe you'll be materially affected by the decision. I think you will be.
I have also brought a story about the Fall River, Massachusetts City Council that has filed for such status, along with a report about why they believe an LNG facility will bear public safety costs they cannot bear and be bad for their downtown tourism investment...
Now, it should not surprise you to know that many individuals and organizations have filed with FERC. As you know, FERC is changing the safety guidelines as we speak, and many individuals and organizations want to see that those guidelines will set the bar higher. It shouldn't surprise you to know that many corporations and investors have similarly filed. They would like to see the bar set lower.
And finally I don't have to tell you that even though we are promised that umpty-dump number of state and federal agencies will weigh in on this, state and federal agencies do not always agree with each other. That is why we have elected you to protect our interests in this matter.
...I know that many of you will say it is the [LB] Harbor Commission that is involved in this deal, but...[i]t was your agreement putting LB Energy into a side agreement [with a Mitsubishi subsidiary seeking to build the facility] that lets you be the celebrity endorsers for this process.
Absent that [Council] vote, the claims that we are now evaluating about whether or not this will indeed give us low gas prices, or result in a fueling station, or conversions of truck traffic, or a franchise fee for you, they would not be in the picture.
Mayor O'Neill: Thank you very much.
Ms. Myown: You can correct this. Please call a special meeting this week to direct your attorney to file this status. Otherwise, we will not believe that you have done the minimum you could to protect us. [audience applause]
[after other speakers]
Councilman Val Lerch:: ...I'm a little concerned about this issue of the LNG. If we are going to miss a deadline and have no standing, I think we need to look at this, and I'd like to ask the City Attorney to look and see if we're going to lose any standing with this intervenor and get back to us as soon as possible. If we have to call a special session, then let's do so. [applause] I'd hate to lose any standing that we have on this. [applause continues]
City Attorney Bob Shannon: As I indicated to you, Mr. Lerch at the sidebar, we will be looking into this tomorrow morning and I'll get back to you. [applause]
[At conclusion of Council meeting]
City Attorney Shannon: [indicates he's spoken with Dep. City Attorney Carol Shaw who said the city has previously filed with FERC as an "interested party"]...so we're receiving all documentation. I only need now to determine in my own mind that filing as an intervenor would not add anything substantial to our rights.
Keep in mind that there are a number of city agencies that are permitting parties, so they too would be notified of anything that occurred and have the right to comment at any stage of the FERC proceeding.
But that said, there still may be an off-chance that filing as an intervenor would add something to the city's rights incidental to the proceeding, and so I will get back to you with a brief memo.
Now the problem is that if filing as an intervenor in any way indicates our taking a position as an adversary party, that would require your direction to me to become involved. If, on the other hand, it doesn't add anything of that nature, I feel confident that we could do that unilaterally, either (a) do it unilaterally and not become an adversary in the proceeding or (b) determine that it really would add nothing because we're already an interested party.
So one way or another I will get back to all of you in the middle of this week.
Mayor O'Neill: And, Mr. Shannon, this would mean if there is something that you determine needs Council action, we would have to meet by Friday [Feb. 20]?
City Attorney Shannon: That is correct, but that would only be if it's our opinion that joining or filing as an intervenor would in some way put us in some kind of an adversarial position. I doubt that that is the case. That would be the only circumstance under which it would require that you give direction to the City Attorney's office.