Like a Golden Age explorer staking a flag into a remote beachhead, the Federal Energy Regulatory Commission, or FERC, has chosen Fort Bragg to claim all regulation of alternative energy from water power.
FERC used a Fort Bragg ruling last week to raise the stakes in its national showdown with a fellow federal agency. But FERC also moderated its stance to include more local and environmental measures, apparently in response to local concerns.
The occasion was FERC”s Oct. 15 denial of appeals by the City of Fort Bragg, Mendocino County, the FISH Committee and the U.S. Department of Interior. FERC had rejected all four without comment initially, resulting in appeals.
That dearth of comment has been replaced by the longest opinion yet on a wave energy project by FERC, which recognizes the national preeminence Fort Bragg residents have gained for their unique involvement in the issue.
While FISH (Fisherman Interested in Safe Hydrokinetics) and the City of Fort Bragg were rejected on all counts, Mendocino County was granted intervener status by FERC.
That means the county will have the right to legally contest decisions made by FERC during the ongoing Pacific Gas & Electric study process.
But FERC rejected direct challenges by the County and Interior Department intended to overturn the issuance of the preliminary permit itself. Those two agencies said the permit granted to PG&E was illegal, based on lack of jurisdiction and failure to notify the county.
The Minerals Management Service, or MMS, an agency of the Interior Department, has openly contested FERC”s jurisdiction for waters more than three miles offshore.
The PG&E permit for the WaveConnect project off Fort Bragg extends from near shore to beyond three miles. That brought the legal challenge to FERC”s local permit from MMS.
After more than 20 pages of legal arguments aimed at MMS, FERC pronounced its position in its conflict with MMS to be resolution of the dispute.
“What grandstanding. I love they way they conclude that their arguments are correct,” said Fort Bragg City Manager Linda Ruffing.
“It”ll be interesting to see if Interior takes it to the courts,” Ruffing said.
Agency differences
The showdown illustrates a fundamental difference between the federal fellows.
FERC has been a uniquely independent agency since the Great Depression and has developed a “cowboy” reputation over the decades.
During the Bush Administration, FERC has come to embody the Neoconserative disdain for environmental regulation as “red tape.”
FERC has sought to shift the creation and control of alternative energy regulation to private industry, without the openness or public involvement demanded in government rulemaking. True to cowboy image, they have defied widespread calls from other agencies and even industry supporters for rulemaking.
The Department of Interior has a much more traditional and bureaucratic reputation. MMS is in the midst of the rulemaking process for alternative energy generation both in the ocean and on land. Rulemaking would define the public”s rights and test how new regulations would mesh with existing laws.
FERC”s ruling, if left unchallenged by MMS, would make that process moot in regards to the ocean.
Celeste Miller of FERC said MMS would file in the federal court of appeals if they choose to do so. MMS staffers were working on a response this week, which this newspaper will print in a subsequent edition.
Like the outsized western hero some equate it with, FERC has seized control of a technology that is being developed all over the world but which was languishing in the United States due to disinterest by Congress and the president.
Since stepping up to react to an Indian tribe”s wave energy proposal off Oregon several years ago, FERC has bootstrapped its way into command of the process of electrical generation using the nation”s tides, waves, streams, rivers and ocean currents.
Fort Bragg”s visibility
The process has gone on virtually unnoticed by the national and even local media around the U.S. But Fort Bragg has become the key battleground, even as Oregon has taken the lead on promoting the actual technology
Others have noticed how Fort Bragg residents have moved their area to the top of the list.
Mark Massara, head of the California Coastal Program for the Sierra Club, credited this newspaper with reporting the only in-depth information about wave energy being written. And local people have generated the only viable criticism of the process, he said.
Massara said people all over the nation rely on the Fort Bragg Advocate-News and The Mendocino Beacon”s archives, which are virtually the only record of the issue.
The FERC ruling extensively quotes this newspaper, pointing out that among other articles, Ruffing”s City Hall Notes, published twice monthly in the Advocate-News, showed the City of Fort Bragg was aware of the issue. The FERC ruling catalogs and makes a timeline out of the numerous newspaper articles.
FERC even tracks the movements of leaders of the issue, like Jim Martin of the Recreational Fishing Association, who was among the founders of FISH. The tracking was done in support of FERC”s point that locals knew about the PG&E permit in sufficient time to comment. All the comments but Interior”s were submitted late.
“Obviously FERC lawyers have been burning the midnight oil on this document. They searched the archives of the Fort Bragg Advocate-News and the RFA Website very thoroughly and cite both sources,” Martin said.
While FERC was able to make a convincing and stunningly in-depth case that locals did know about PG&E”s proposal in time to make timely filings, the agency doesn”t discuss how difficult it was to know what to file and why.
Local governments, which were never considered when planning was done, got no invitation or explanation from FERC.
Because of a lack of foundational rulemaking by FERC, the meaning of a preliminary permit has changed and evolved over the past year.
And with the process not defined, what rights the city and county would gain by FERC intervener status has confused even experienced lawyers.
MMS has also been very active in Fort Bragg, if not to the extent of tracking movements of local residents.
MMS first announced that offshore Fort Bragg and Eureka would be its national test site for wave energy. When PG&E withdrew from the process last summer, MMS was active enough to go back to a previous applicant to discuss the area claimed by PG&E through FERC.
The stakes may be going up.
Legal challenge
On Friday, Oct. 17, the Department of Interior mounted a surprising new legal challenge to FERC in Oregon.
The National Oceanic and Atmospheric Administration (NOAA) demanded that FERC cease its proceedings on a liquid natural gas facility, calling FERC”s license issuance improper. FERC has issued a license for the LNG terminal ahead of any environmental permits — a Neoconservative innovation.
The Department of Interior says that violates the cooperative process needed to comply with laws governing the ocean. In this case, NOAA has accused FERC of violating the Endangered Species Act.
As the dispute has escalated, PG&E has tried to please both feuding federals.
“PG&E encourages FERC and Interior to continue to work towards resolution of their jurisdictional overlaps. PG&E will continue to work with, listen to, and discuss WaveConnect issues and details with all stakeholders, regardless of FERC intervener status,” said Jana Morris of PG&E.
The head of the California Resources Agency also pleaded with the two agencies to get better organized and resolve their differences before granting permits for development in the ocean off California.
Despite its cowboy demeanor, FERC has backed off many of its original positions, apparently in reaction to legal challenges, primarily filed locally.
FERC asserts in this ruling that no in-water testing is allowed under a preliminary permit.
That was not the case at the start of the process and was a key reason locals protested the permit. Less than a year ago, the only rule was that the applicant could not plug power devices located in the water into the power grid during the term of a preliminary permit.
“On the bright side, they are not taking our motions lightly,” said Martin. “They clarify what the [preliminary] permits allow and do not allow. For the first time they state that the permits do not allow testing devices in the water.”
FERC now says it won”t issue a permit in areas where a “legal bar” exists.
What is a legal bar?
“An example of a legal bar would be a project proposed to be located on a part of the Wild and Scenic River system, where the commission is precluded by law from licensing a project,” said Celeste Miller of FERC.
FERC continues to assert that a preliminary permit gives no property rights and has no environmental impacts.
The problem with this is that FERC gives an exclusive permit to the first applicant who files, while MMS seeks competition. And the FERC permit gives that applicant the automatic first right to a FERC license, which even FERC admits it has environmental impacts.
The Fort Bragg ruling reveals that FERC has also modified that position.
“A competitor could nonetheless be awarded a license instead of the entity that had held the permit if the commission ultimately determined that a competing applicant”s plans were better adapted to develop, conserve, and utilize in the public interest the water resources of the region at issue,” the ruling states.
Despite the complexity of the issue Martin says ocean lovers need to stay on top of the issue.
“Fishermen and conservationists need to take a look at the wave energy issue, and find out where this is going. The Federal Energy Regulatory Commission just declared that it can condemn any area of the ocean in U.S. waters from the shore out to 200 miles and block off public access in favor of energy plants in the ocean,” Martin said.
