[Federal Register Volume 64, Number 183 (Wednesday, September 22, 1999)]
[Notices]
[Pages 51309-51319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24617]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission
[Docket No. PL99-3-000]


Certification of New Interstate Natural Gas Pipeline Facilities; 
Statement of Policy

Issued September 15, 1999.
    Before Commissioners: James J. Hoecker, Chairman; Vicky A. 
Bailey, William L. Massey, Linda Breathitt, and Curt Hebert, Jr.

    In the Notice of Proposed Rulemaking (NOPR) in Docket No. RM98-10-
000 \1\ and the Notice of Inquiry (NOI) in Docket No. RM98-12-000,\2\ 
the Commission has been exploring issues related to the current 
policies on certification and pricing of new construction projects in 
view of the changes that have taken place in the natural gas industry 
in recent years.
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    \1\ Notice of Proposed Rulemaking, Regulation of Short-term 
Natural Gas Transportation Services, 63 Fed. Reg. 42982, 84 FERC 
para. 61,087 (1998).
    \2\ Notice of Inquiry, Regulation of Interstate Natural Gas 
Transportation Services, 63 Fed. Reg. 42974, 84 FERC para. 61,087 
(July 29, 1998).
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    In addition, on June 7, 1999, the Commission held a public 
conference in Docket No. PL99-2-000 on the issue of anticipated natural 
gas demand in the northeastern United States over the next two decades, 
the timing and the type of growth, and the effect projected growth will 
have on existing pipeline capacity. All segments of the industry 
presented their views at the conference and subsequently filed comments 
on those issues.
    Information received in these proceedings as well as recent 
experience evaluating proposals for new pipeline construction persuade 
us that it is time for the Commission to revisit its policy for 
certificating new construction not covered by the optional or blanket 
certificate authorizations.\3\ In particular the Commission's policy 
for determining whether there is a need for a specific project and 
whether, on balance, the project will serve the public interest. Many 
urge that there is a need for the Commission to authorize new pipeline 
capacity to meet the growing demand for natural gas. At the same time, 
others already worried about the potential for capacity turnback, have 
urged the Commission to be cautious because of concerns about the 
potential for creating a surplus of capacity that could adversely 
affect existing pipelines and their captive customers.
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    \3\ This policy statement does not apply to construction 
authorized under 18 CFR Part 157, Subparts E and F.
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    Accordingly, the Commission is issuing this policy statement to 
provide the industry with guidance as to how the Commission will 
evaluate proposals for certificating new construction. This should 
provide more certainty about how the Commission will evaluate new 
construction projects that are proposed to meet growth in the demand 
for natural gas at the same time that some existing pipelines are 
concerned about the potential for capacity turnback. In considering the 
impact of new construction projects on existing pipelines, the 
Commission's goal is to appropriately consider the enhancement of 
competitive transportation alternatives, the possibility of 
overbuilding, the avoidance of unnecessary disruption of the 
environment, and the unneeded exercise of eminent domain. Of course, 
this policy statement is not a rule. In stating the evaluation 
criteria, it is the Commission's intent to evaluate specific proposals 
based on the facts and circumstances relevant to the application and to 
apply the criteria on a case-by-case basis.

I. Comments Received on the NOPR

    In the NOPR the Commission explained that it wants to assure that 
its policies strike the proper balance between the enhancement of 
competitive alternatives and the possibility of over building. The 
Commission asked for comments on whether proposed projects that will 
establish a new right-of-way in order to compete for existing market 
share should be subject to the same considerations as projects that 
will cut a new right-of-way in order to extend gas service to a 
frontier market area. Also, in reassessing project need, the Commission 
said that it was considering how best to balance demonstrated market 
demand against potential adverse environmental impacts and private 
property rights in weighing whether a project is required by the public 
convenience and necessity.
    The Commission asked commenters to offer views on three options: 
One option would be for the Commission to authorize all applications 
that at a minimum meet the regulatory requirements, then let the market 
pick winners and losers. Another would be for Commission to select a 
single project to serve a given market and exclude all other 
competitors. Another possible option would be for the Commission to 
approve an environmentally acceptable right-of-way and let potential 
builders compete for a certificate.
    In addition, the Commission asked commenters to consider the 
following questions: (1) Should the Commission look behind the 
precedent agreement or contracts presented as evidence of market demand 
to assess independently the market's need for additional gas service? 
(2) Should the Commission apply a different standard to precedent 
agreements or contracts with affiliates than with non-affiliates? For 
example, should a proposal supported by affiliate agreements have to 
show a higher percentage of contracted-for capacity than a proposal 
supported by non-affiliate agreements, or, should all proposed projects 
be required to show a minimum percent of non-affiliate support? (3) Are 
precedent agreements primarily with affiliates sufficient to meet the 
statutory requirement that construction must be required by the public 
convenience and necessity, and,

[[Page 51310]]

if so, (4) Should the Commission permit rolled-in rate treatment for 
facilities built to serve a pipeline affiliate? (5) Should the 
Commission, in an effort to check overbuilding and capacity turnback, 
take a harder look at proposals that are designed to compete for 
existing market share rather than bring service to a new customer base, 
and what particular criteria should be applied in looking at 
competitive applications versus new market applications? (6) Should the 
Commission encourage pre-filing resolution of landowner issues by 
subjecting proposed projects to a diminished degree of scrutiny where 
the project sponsor is able to demonstrate it has obtained all 
necessary right-of-way authority? (7) Should a different standard be 
applied to project sponsors who do not plan to use either federal or 
state-granted rights of eminent domain to acquire right-of-way?

A. Reliance on Market Forces To Determine Optimal Sizing and Route for 
New Facilities

    PG&E, Process Gas Consumers (PGC), Tejas Gas, Washington Gas, 
Columbia, Market Hub Partners, and Ohio PUC agree that the Commission 
should continue to let the market decide which projects to pursue. PG&E 
states that the Commission should authorize all projects that meet 
minimum regulatory requirements, looking at whether the project will 
serve new or existing markets, the firmness of commitments and 
environmental and property rights issues. PGC urges the Commission to 
refrain from second guessing customers' decisions. Tejas suggests that 
the Commission rely on the market to the maximum extent; regulatory 
changes that affect risk/reward allocation will increase regulatory 
risk and deter new investment. Washington Gas suggests letting the 
market decide on new construction with market based rates subject only 
to environmental review and landowner concerns. Columbia comments that 
it would not be economically efficient to protect competitors from the 
competition created by new capacity. Market Hub Partners specifies 
that, when there is no eminent domain involved, the focus should be on 
competition, not protecting individual competitors from overbuilding. 
Ohio PUC supports authorizing all applications for new capacity 
certification which meet the minimum regulatory requirements. Ohio PUC 
does not support approving a single pipeline's application while 
excluding all others.
    The Regulatory Studies Program of the Mercatus Center, George Mason 
University suggests allowing projects to be proposed with no 
certification requirements, but allowing competitors to challenge the 
need. Investors would be at risk for all investments. Tejas proposes 
holding pipelines at risk for reduced throughput, thereby avoiding 
shifting the risk to customers. On the issue of overbuilding, 
Millennium, Enron, PGC, Columbia, and Wisconsin PSC disagree with the 
presumption that overbuilding must be avoided. Millennium asserts that 
all competitive markets have excess capacity. Enron urges the 
Commission to be receptive to overbuilding in areas of rapid growth, 
difficult construction, and environmental sensitivity. PGC agrees that 
some capacity in excess of initial demand may make environmental and 
economic sense in that it will reduce the need for future construction, 
but argues that the pipelines be at risk for those facilities. Columbia 
alleges that the concern about overbuilding is misguided. Wisconsin PSC 
contends that concerns of overbuilding should not operate to limit the 
availability of competitive alternatives to customers currently without 
choices of pipeline provider. Wisconsin PSC believes the elimination of 
the discount adjustment mechanism and the imposition of reasonable at 
risk provisions for new construction will deter pipelines from 
overbuilding.
    On the other hand, UGI recommends that overbuilding be minimized. 
UGI states that the Commission should ensure a reasonable fit between 
supply and demand. The Commission should limit certification of new 
projects to ones which demonstrate unmet demand or demand growth over 
1-3 years.
    Coastal stresses that competition should not be the only or primary 
factor in deciding the public convenience and necessity.
    Amoco contends that, if the Commission chooses the right-of-way, it 
will in many cases have chosen the parties that will ultimately build 
the pipeline. Amoco urges the Commission not substitute its judgement 
for that of the marketplace unless there are overwhelming environmental 
concerns. Tejas also objects to the option of the Commission approving 
an environmentally acceptable right-of-way and letting potential 
builders compete for a certificate because it believes it would be 
difficult for the Commission to implement.
    Colorado Springs supports the concept of having the Commission 
select a single project in a given corridor rather than letting the 
market pick winners and losers.
    PGC and Ohio PUC recommend that the Commission authorize all 
construction applications meeting certain threshold requirements, 
leaving the market to decide winners and losers. PGC urge the 
Commission to facilitate construction of new pipelines that will 
increase the potential for gas flows. Under no circumstances should the 
Commission deny a certificate based on a complaint by an LDC or a 
competing pipeline that new construction will hurt their market 
position or ability to recover costs. The Commission should not afford 
protection to traditional suppliers or transporters by constraining the 
development of new pipeline capacity.
    PGC believes that only in unusual situations, where insuperable 
environmental barriers cannot be resolved through normal mitigation 
measures, should the Commission select an acceptable right-of-way. Ohio 
PUC does not support approving a single pipeline's application while 
excluding all others. Ohio PUC recommends having market forces guide 
construction projects unless or until obvious shortcomings begin to 
emerge. In such instances, the option of designating a single right-of-
way with competition for the certificate could be used to spur needed 
construction.

B. Reliance on Contracts To Demonstrate Demand

    A number of parties commend that there is no reason to change the 
current policy regarding certificate need (AlliedSignal, Millennium, 
Southern Natural, Tejas, Williston, Columbia). National Fuel Gas Supply 
believes the Commission should keep shipper commitment as the test 
because it is more accurate than market studies. National Fuel Gas 
Supply further believes the Commission's present reliance on market 
forces to establish need, and its environmental review process, form 
the best approach to reviewing certificate applications. Foothills 
agrees, but states that a new, flexible regulatory structure for 
existing pipelines is needed. Indicated Shippers also wants to keep the 
current policy, but stresses that expedition in processing is needed to 
lower entry barriers.
    Amoco, Consolidated Natural, and Columbia urged the Commission to 
continue requiring sufficient binding long-term contracts for firm 
capacity. Millennium and Tejas stated that there is no need to develop 
different tests for different markets. Columbia also argued that there 
is no need to look behind contracts. Williams argues that the 
Commission should not second guess contracts or make an independent 
market analysis. Williston alleges that

[[Page 51311]]

reviewing the firmness of private contracts is ineffectual and futile. 
Market Hub Partners cautions the Commission not to substitute its 
judgment for that of the marketplace.
    PGC argues that there should be no change to current policy where 
construction affects landowners. Eminent domain is a necessary tool to 
delivering clean burning natural gas to growing markets; no individual 
landowners should be given a veto over pipeline construction. PGC adds 
that the absence of prefiling right-of-way agreements does not mean 
that a project is less good or necessary or should be treated more 
harshly. Southern Natural, Millennium, and National Fuel Gas Supply 
agree that no market preference should be given for projects that do 
not use eminent domain. National Fuel Gas Supply agrees that such a 
preference would tilt the power balance to landowners. Millennium 
argues that the Commission should not establish certificate preferences 
for pipelines that do not require eminent domain; such preferences are 
not needed because a pipeline that does not want to use eminent domain 
can already build projects under Section 311.
    On the other hand, Amoco, El Paso/Tennessee, ConEd, and Wisconsin 
PSC recommend modifying the current policy. El Paso/Tennessee recommend 
that the Commission look behind all precedent agreements to see if real 
markets exist. ConEd suggests considering forecasts for market growth; 
if there is a disparity with the proposal, the Commission should look 
at all circumstances. Wisconsin PSC urges the Commission to consider 
market saturation and growth prospects by looking at market power 
(HHIs) and the degree of rate discounting in a market. Amoco suggests 
that the Commission analyze all relevant data. Peco Energy believes the 
current Commission policy, which provides for minimal market 
justification for authorizing construction of incremental facilities, 
coupled with its presumption in favor of rolled-in rate treatment, has 
contributed to discouraging existing firm shippers from embracing 
longer term capacity contracts.
    Consolidated Natural recommends creating a settlement forum for 
market demand and reverse open season issues. Washington Gas urges the 
Commission to adopt an open entry, ``let the market decide'' policy. 
IPAA supports a need analysis focusing on the ability of existing 
capacity to handle projected demand. IPAA alleges that the overall 
infrastructure is already in place to supply current demand 
projections.
    Some commenters support a sliding scale approach to determine need. 
ConEd states that the Commission should determine need on a case-by-
case basis, using different standards for large or small projects. 
Enron advocates use of a sliding scale, requiring more market support 
for projects with more landowner and/or environmental impact. Enron 
supports requiring no market showing for projects using existing 
easements for mutually agreed upon easements. Enron also suggests, in 
addition to requiring that at least 25% of the precedent agreements 
supporting a project be with non-affiliates, that the Commission relax 
its market analysis if 75% or more of those agreements are with non-
affiliates. Enron would require more market data for an affiliate-
backed project. American Forest & Paper would allow negotiation of risk 
if there is no subsidy by existing customers. Sempra and UGI urge the 
Commission to look at whether projects serve identifiable, new or 
growing markets. NARUC states that each state is unique and that the 
Commission should consider those differences. Market Hub Partners 
believes that a project which is at risk, requires little or no eminent 
domain authority, and has potential to bring competition to a market 
that is already being served by pipelines and strong operators with 
market power should be expedited.
    The development in recent years of certificate applicants' use of 
contracts with affiliates to demonstrate market support for projects 
has generated opposition from affected landowners and competitor 
pipelines who question whether the contracts represent real market 
demand. ConEd, Ohio PUC, and Enron believe that a different standard 
should be applied to affiliates. ConEd argues that the at risk 
condition is inadequate when a pipeline serves a market served by an 
affiliate; risk is shifted. Ohio PUC states that pipelines should 
shoulder the increased risk and that the Commission should look behind 
contracts with affiliates. Enron would require more market data for 
affiliate-backed projects and would require that all projects be 
supported by precedent agreements at least 25% of which are with non-
affiliates.
    Nevertheless, most of the commenters support applying the same 
standard to contracts for new capacity with affiliates as non-
affiliates. Amoco, Coastal, Millennium, National Fuel, Southern 
Natural, Tejas, Texas Eastern, Columbia, Market Hub Partners, El Paso/
Tennessee, and PGC all support applying the same standard to affiliates 
as non-affiliates. Market Hub argues that a contract is a contract; 
treating affiliates differently would be in the interest of incumbent 
monopolists. El Paso/Tennessee agree that affiliate precedent 
agreements are sufficient as long as they are supported by market 
demand. PGC agrees that the same standard should apply as long as the 
proposed capacity is offered on a non-discriminatory basis to all in an 
open season. Amoco makes an exception for marketing affiliates, arguing 
that they do not represent new demand. Columbia also makes an exception 
for affiliates that are created just to show market for a project.
    Other parties also offered comments on affiliate issues. PGC 
recommends addressing affiliate issues on a case-by-case basis. Exxon 
support offering comparable deals to non-affiliates. If there is 
insufficient capacity, it should be prorated. AGA supports prohibiting 
discount adjustments connected with new construction by pipelines or 
affiliates. National Fuel Gas Supply and Tejas support permitting 
rolled-in rates for facilities to serve affiliates. PGC argues that 
there should be no presumption of rolled in rates for affiliates.
    The commenters also express concern with the current policy's 
effect on existing pipelines and their captive customers when the 
Commission approves pipeline projects proposed to serve the same 
market. In those cases, they believe that need should be measured 
differently by, for example, assessing the impact on existing capacity 
or requiring a strong incremental market showing and more scrutiny of 
the net benefits. They urge the Commission to balance all the relevant 
factors before issuing a certificate. A number of parties argued that 
need should be measured differently when a project is proposed to serve 
an existing market. UGI urges requiring a strong market showing for 
such projects. Coastal proposes that the Commission fully integrate the 
standards announced by the courts \4\ with its certificate construction 
policies, balancing all the relevant factors including the ability of 
the existing provider to provide the service. El Paso/Tennessee would 
require more scrutiny of the net benefit. Sempra would require that, 
prior to construction, all shippers be given the opportunity to turn 
back capacity. Similarly, Texas Eastern would require the pipeline to 
use unsubscribed capacity before construction (e.g., a reverse 
auction).
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    \4\ Citing FPC v. Transcontinental Gas Pipeline Corp., 365 U.S. 
1, 23 (1961) and Scenic Hudson Preservation Conference v. FERC, 354 
F.2d. 608, 620 (2nd Cir. 1965).

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[[Page 51312]]

    Other commenters oppose a policy requiring a harder look at 
projects proposed to serve existing markets. They maintain that market 
demand for service in order to escape dependence on a dominant pipeline 
supplier should be accorded the same weight as demand by new 
incremental load growth. They contend that the benefits of competition 
and potentially lower gas prices for consumers should control over 
claims that an existing pipeline needs to be insulated from competition 
because its revenues may decrease. National Fuel Gas Supply, PGC, 
Florida Cities, Market Hub Partners, and Southern Natural in particular 
object to having different policies for new or existing pipelines. 
National Fuel Gas Supply contends that generally the policies on new 
construction and existing pipelines should match. PGC opposes any 
policy that protects incumbents by requiring a harder look at projects 
proposed to serve existing markets rather than new demand. Many 
existing markets have unmet demand. Likewise, Florida Cities is 
concerned that the NOPR is intended to elicit a new policy where the 
import and influence of competition is downplayed to minimize or 
eliminate the risk of unsubscribed capacity on existing pipelines. 
Florida Cities supports pipeline-on-pipeline competition as a primary 
factor in determining which new capacity projects receive certificate 
authority and are constructed. Florida Cities believes that additional 
pipeline competition would benefit customers and any generic policy 
that would decrease or inhibit pipeline competition would not be in the 
best interest of the consumers the Commission is obliged to protect. 
Market Hub Partners urges the Commission to attempt to limit market 
incumbents' ability to forestall competition by defeating the efforts 
of new market entrants to build or operate new capacity. Market Hub 
Partners contend that incumbents protest on the basis of project safety 
and environmental concerns when they are primarily concerned with their 
own welfare and market share. Southern Natural contends the NGA does 
not permit a rule disfavoring projects that enhance competitive 
alternatives. Taking a harder look at competitive proposals would 
effect a preference for monopoly, clearly not endorsed by the NGA or 
the Courts of Appeal.
    Wisconsin Distributor Group believes that meaningful pipe-on-pipe 
competition can only exist where there are choices among or between 
pipelines and unsubscribed firm capacity exists. Wisconsin Distributor 
Group argues the Commission should view favorably new pipeline projects 
that propose to create competition by introducing an alternative 
pipeline to markets where no choices exist. Wisconsin Distributor Group 
contends the Commission's policy should not be driven by self-
protective arguments but by the need for competitive alternatives. 
Wisconsin Distributor Group supports the Commission's analysis in 
Alliance and Southern because it considers the benefits of competition 
and potentially lower gas prices for consumers as controlling over 
claims that an existing pipeline needs to be insulated from competition 
because its revenues may decrease. Market demand for service in order 
to escape dependence on a dominant pipeline supplier should be accorded 
the same weight as demand by new incremental load growth.
    UGI, Sempra, and El Paso/Tennessee would require assessing the 
impact on existing capacity. Sempra states that if existing rates are 
below the maximum rate, new capacity may not be needed. Sempra adds 
that the Commission should look at whether expansion capacity can stand 
on its own without rolled-in treatment. Texas Eastern believes the 
Commission must consider how best to use existing unsubscribed capacity 
and capacity that has been turned back to pipelines.

C. The Pricing of New Facilities

    A number of commenters submit that the existing presumption in 
favor of rolled-in rates for pipeline expansions sends the wrong price 
signals with regard to pricing new construction. They urge the 
Commission to adopt policies such as incremental pricing for pipeline 
projects or placing pipelines at risk for recovery of the costs of 
construction. They submit that such a policy would reveal the true 
value of existing capacity and properly allocate costs and risks. A 
number of parties also raised issues concerning rate design in general, 
but the Commission is deferring for now consideration of those kinds of 
issues which also affect the Commission's policies for existing 
pipelines in order to focus on issues concerning the certification of 
new pipeline construction.
    AGA, ConEd, and Michigan Consolidated stress the importance of 
ensuring the right price signals. AGA urges the Commission to adopt 
policies that reveal the true value of existing capacity. ConEd states 
that rate policies should send proper price signals by properly 
allocating costs and risks.
    AGA contends that the Commission's certification policies should 
protect recourse shippers. AGA and BG&E recommend that the Commission 
ensure that pipelines are not able to impose the costs of new capacity 
or the costs of consequent unsubscribed existing capacity on recourse 
shippers. Amoco asserts pipelines should be at risk for unsubscribed 
capacity. Similarly, AGA and Philadelphia Gas Works urge the Commission 
to ensure that pipelines are at risk for unsubscribed capacity relating 
to construction projects by the pipeline or its affiliate. However, 
Tejas believes that treatment of any under recovery must address the 
unique circumstances of deepwater pipelines.
    APGA argues that, if the Commission allows initial rates based on 
the life of the contract rather than the useful life of facilities, the 
Commission must at least require a uniform contract with the same terms 
and conditions for all customers involved in the expansion.
    The Williams Companies recommend that all new capacity be subject 
to market-based rates. the Williams Companies argue that, for new 
capacity priced on an incremental basis rather than a rolled-in basis, 
competitive circumstances in the industry support the use of market-
based rates and terms of service.
    AlliedSignal contends depreciation should be based on the life of 
the facilities not the life of a contract. If the Commission were to 
promulgate a general rule, it should state that depreciation rates for 
pipeline facilities in rate and certificate cases should be set at 25 
years unless factors are brought to the Commission's attention 
justifying a lesser or longer time period. NGSA believes that the 
Commission's current depreciation methodology is appropriate. NGSA also 
urges that the appropriate asset life of new facilities be determined 
when the facilities are constructed and adhered to for the life of the 
asset. On the other hand, the Williams Companies point out that market-
based rates would negate the need for the Commission to approve 
depreciation rates.
    Coastal believes pipelines should have the flexibility to address 
new facility costs in certificate applications and in rate cases. The 
Commission should not establish hard and fast rules as to how a 
facility should be treated in a pipeline's rates over its entire life. 
Rather, costs should be dealt with in accordance with Commission 
policies from time to time in pipeline rate cases.
    Enron Pipelines contend that the rate treatment for capacity 
additions should continue to be determined on a case-by-case basis 
using the system benefits test.
    Louisville contends that the Commission should address the question 
of whether its pricing policies

[[Page 51313]]

for new capacity provide appropriate incentives at the same time as it 
considers auctions and negotiated rates and services and that all of 
these issues should be the subject of a new NOPR.
    PGC suggest that initial rates be based on a presumed level of 
contract commitment (e.g., 80-90%) so the pipeline bears the risks of 
uncommitted capacity but reaps a reward if it sells at undiscounted 
rates. Another option would be for the commission to put at risk only 
that portion of the proposed facilities for which the pipeline has not 
obtained firm contracts of a minimum duration. Where an existing 
pipeline constructs new facilities, PGC support the Commission's 
current policy favoring rolled-in rates if certain conditions are met.
    Williston Basin argues that fixed rates for long-term contracts 
would create a relatively risk-free contract for shippers while 
creating a total-risk contract for pipelines.
    Arkansas, IPAA, Indicated Shippers, National Fuel Gas Supply, NGSA, 
Peoples Energy, PGC, and the Williams Companies support the 
Commission's current policy with its presumption in favor of rolled-in 
pricing for new capacity only when the impact of new capacity is not 
more than a 5% increase to existing rates and results in system-wide 
benefits. AGA, Amoco, IPAA, Philadelphia Gas Works, PGC, and UGI 
recommend that the Commission more rigidly apply its pricing policy and 
more closely review claims pertaining to the 5% threshold test and/or 
system benefits. Nicor urges that pipelines should not be allowed to 
segment construction with the goal of falling below the 5% pricing 
policy threshold.
    APGA and Consolidated Edison recommend that the Commission adopt a 
presumption of incremental pricing for pipeline certificate projects. 
APGA would allow limited exceptions such as when the project would 
lower rates to existing customers or when the benefits of the project 
would fully offset the costs of the roll-in. Koch Gateway and 
Pennsylvania Consumer Advocate also recommend incremental pricing for 
new capacity.
    Arkansas and Brooklyn Union contend that pipelines should be at 
risk for the recovery of the costs of incremental facilities. Brooklyn 
Union urges the Commission to eliminate the presumption in favor of 
rolled-in pricing for new capacity and require pipelines to show the 
benefits of each new project are proportionate to the total rate 
increase sought.
    El Paso/Tennessee recommend that only fully subscribed projects 
with revenues equaling or exceeding project costs and supported by 
demonstrated market need should be eligible for rolled-in rates. El 
Paso/Tennessee believe that projects intended to compete for existing 
market should not be eligible for rolled-in rates.
    New York questions the 5% presumption for rolled-in pricing and 
argues that a move away from rolled-in pricing would create competitive 
markets for new pipeline construction.
    AlliedSignal believes pipelines should be at risk for costs 
relative to new services prior to filing a new rate case. In the new 
rate case, the burden should be on the pipeline to justify the proper 
allocation of costs.
    Amoco suggests that the pipeline and customer be allowed to enter 
into any agreement that does not violate existing regulations or 
statutory requirements, but they must explicitly apportion any risk 
between themselves.
    The Illinois Commerce Commission believes this issue needs more 
research and should not be addressed until state regulators are 
consulted further.
    Market Hub Partners and PGC contend that rolled-in rate treatment 
should not be granted for facilities solely or principally being 
constructed on the basis of affiliate precedent agreements. On the 
other hand, Millennium asserts that affiliates and non-affiliates 
should be treated alike with respect to rate design. Also, Southern 
Natural argues that the fact that an affiliate subscribed for capacity 
on new facilities cannot along preclude rolled-in pricing for those 
facilities; the Commission must leave to individual cases the issue of 
whether to price facilities on a rolled-in or incremental basis.
    Nicor argues that the Commission cannot, in a competitive 
marketplace, evaluate the enhancements claimed by the pipeline to 
determine whether new construction should be incrementally priced or 
receive rolled-in rate treatment. Instead of imposing rolled-in rate 
treatment on the entire system, the Commission should allow individual 
``old'' shippers to decide whether the supposed benefits are worth the 
costs.
    Pipeline Transportations Customer Coalition contends the existing 
regulatory process does not reflect a reasonable risk-reward balance 
between industry segments, asserting that pipeline rates are too high 
given their relatively low risk exposure.

II. Certificate Policy Goals and Objectives

    The comments present a variety of perspectives and no clear 
consensus on a path the Commission should follow. Nevertheless, the 
staring point for the Commission's reassessment of its certificate 
policy is to define the goals and objectives to be achieved. An 
effective certificate policy should further the goals and objectives of 
the Commission's natural gas regulatory policies. In particular, it 
should be designed to foster competitive markets, protect captive 
customers and avoid unnecessary environmental and community impacts 
while serving increasing demands for natural gas. It should also 
provide appropriate incentives for the optimal level of construction 
and efficient customer choices.
    Commission policy should give the applicant an incentive to file a 
complete application that can be processed expeditiously and to develop 
a record that supports the need for the proposed project and the public 
benefits to be obtained. Commission certificate policy should also 
provide an incentive for applicants to structure their projects to 
avoid, or minimize, the potential adverse impacts that could result 
from construction of the project.
    The Commission intends the certificate policy introduced in this 
order to provide an analytical framework for deciding, consistent with 
the goals and objectives stated above, when a proposed project is 
required by the public convenience and necessity. In some respects this 
policy is not a significant change from the kind of analysis employed 
currently in certificate cases. By stating more explicitly the 
Commission's analytical framework, the Commission can provide 
applicants and other participants in certificate proceedings a better 
understanding of how the Commission makes its decisions. By encouraging 
applicants to devote more effort before filing to minimize the adverse 
effects of a project, the policy given them the ability to expedite the 
decisional process by working out contentious issues in advance. Thus, 
this policy will provide more certainty about the Commission's 
analytical process and provide participants in certificate proceedings 
with a framework for shaping the record that is needed by the 
Commission to expedite its decisional process.

III. Evaluation of Current Policy

A. Current Policy

    Section 1(b) of the Natural Gas Act (NGA) gives the Commission 
jurisdiction over the transportation of natural gas in interstate 
commerce and the natural gas companies providing

[[Page 51314]]

that transportation.\5\ Section 7(c) of the NGA provides that no 
natural gas company shall transport natural gas or construct any 
facilities for such transportation without a certificate of public 
convenience and necessity issued by the Commission.\6\
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    \5\ 15 USC 717.
    \6\ 15 USC 717h.
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    In reaching a final determination on whether a project will be in 
the public convenience and necessity, the Commission performs a 
flexible balancing process during which it weights the factors 
presented in a particular application. Among the factors that the 
Commission considers in the balancing process are the proposal's market 
support, economic, operational, and competitive benefits, and 
environmental impact.
    Under the Commission's current certificate policy, an applicant for 
a certificate of public convenience and necessity to construct a new 
pipeline project must show market support through contractual 
commitments for at least 25 percent of the capacity for the application 
to be processed by the Commission. An applicant showing 10-year firm 
commitments for all of its capacity, and/or that revenues will exceed 
costs is eligible to receive a traditional certificate of public 
convenience and necessity.
    An applicant unable to show the required level of commitment may 
still receive a certificate but it will be subject to a condition 
putting the applicant ``at risk.'' In other words, if the project 
revenues fail to recover the costs, the pipeline rather than its 
customers will be responsible for the unrecovered costs, the pipeline 
rather than its customers will be responsible for the unrecovered 
costs. Alternatively a project sponsor can apply for a certificate 
under subpart E of part 157 of the Commission's regulations for an 
optional certificate.\7\ An optional certificate may be granted to an 
applicant without any market showing at all; however, in practice 
optional certificate applicants usually make some form of market 
showing. The rates for service provided through facilities constructed 
pursuant to an optional certificate must be designed to impose the 
economic risk of the project entirely on the applicant.
---------------------------------------------------------------------------

    \7\ 18 CFR Part 157, Subpart E.
---------------------------------------------------------------------------

    The Commission also has certificated projects that would serve no 
new market, but would provide some demonstrated system-benefit. 
Examples include projects intended to provide improved system 
reliability, access to new supplies, or more economic operations.
    Generally, under the current policy, the Commission does not deny 
an application because of the possible economic impact of a proposed 
project on existing pipelines serving the same market or on the 
existing pipelines' customers. In addition, the Commission gives equal 
weight to contracts between an applicant and its affiliates and an 
applicant and unrelated third parties and does not look behind the 
contracts to determine whether the customer commitments represent 
genuine growth in market demand.\8\
---------------------------------------------------------------------------

    \8\ See, e.g., Transcontinental Gas Pipe Line Corp., 82 FERC 
para. 61,084 at 61,316 (1998).
---------------------------------------------------------------------------

    Under section 7(h) of the NGA, a pipeline with a Commission-issued 
certificate has the right to exercise eminent domain to acquire the 
land necessary to construct and operate its proposed new pipeline when 
it cannot reach a voluntary agreement with the landowner.\9\ In recent 
years, this has resulted in landowners becoming increasingly active 
before the Commission. Landowners and communities often object both to 
the taking of land and to the reduction of their land's value due to a 
pipeline's right-of-way running through the property. As part of its 
environmental review of pipeline projects, the Commission's 
environmental staff works to take these landowners' concerns into 
account, and to mitigate adverse impacts where possible and feasible.
---------------------------------------------------------------------------

    \9\ 15 USC 717f(h).
---------------------------------------------------------------------------

    Under the pricing policy for new facilities in Docket No. PL94-4-
000,\10\ the Commission determines, in the certificate proceeding 
authorizing the facilities' construction, the appropriate pricing for 
the facilities. Generally, the Commission applies a presumption in 
favor of rolled-in rates (rolling-in the expansion costs with the 
existing facilities' costs) when the cost impact of the new facilities 
would result in a rate impact on existing customers of five percent or 
less, and some system benefits would occur. Existing customers 
generally bear these rate increases without being allowed to adjust 
their volumes.
---------------------------------------------------------------------------

    \10\ See Pricing Policy for New and Existing Facilities 
Constructed by Interstate Natural Gas Pipelines, 71 FERC para. 
61,241 (1995).
---------------------------------------------------------------------------

    When a pipeline proposes to charge a cost-based incremental rate 
(establishing separate costs-of-service and separate rates for the 
existing and expansion facilities) higher than its existing generally 
applicable rates, the Commission usually approves the proposal. 
However, the Commission generally will not accept a proposed 
incremental rate that is lower than the pipeline's existing generally 
applicable Part 284 rate.

B. Drawbacks of the Current Policy

1. Reliance on Contracts To Demonstrate Demand
    Currently, the Commission uses the percentage of capacity under 
long-germ contracts as the only measure of the demand for a proposed 
project. Many of the commenters have argued that this is too narrow a 
test. The reliance solely on long-term contracts to demonstrate demand 
does not rest for all the public benefits that can be achieved by a 
proposed project. The public benefits may include such factors as the 
environmental advantages of gas over other fuels, lower fuel costs, 
access to new supply sources or the connection of new supply to the 
interstate grid, the elimination of pipeline facility constraints, 
better service from access to competitive transportation options, and 
the need for an adequate pipeline infrastructure. The amount of 
capacity under contract is not a good indicator for all these benefits.
    The amount of capacity under contract also is not a sufficient 
indicator by itself of the need for a project, because the industry has 
been moving to a practice of relying on short-term contracts, and 
pipeline capacity is often managed by an entity that is not the actual 
purchaser of the gas. Using contracts as the primary indicator of 
market support for the proposed pipeline project also raises additional 
issues when the contracts are held by pipeline affiliates. Thus, the 
test relying on the percent of capacity contracted does not reflect the 
reality of the natural gas industry's structure and presents difficult 
issues.
    In addition, the current policy's preference for contracts with 10-
year terms biases customer choices toward longer term contracts. Of 
course, there are other elements of the Commission's policies that also 
have this effect. However, eliminating a specific requirement for a 
contract of a particular length is more consistent with the 
Commission's regulatory objective to provide appropriate incentives for 
efficient customer choices and the optimal level of construction, 
without biasing those choices through regulatory policies.
    Finally, by relying almost exclusively on contract standards to 
establish the market need for a new project, the current policy makes 
it difficult to articulate to landowners and

[[Page 51315]]

community interests why their land must be used for a new pipeline 
project.
    All of these concerns raise difficult questions of establishing the 
public need for the project.
2. The Pricing of New Facilities
    As the industry becomes more competitive the Commission needs to 
adapt its policies to ensure that they provide the correct regulatory 
incentives to achieve the Commission's policy goals and objectives. All 
of the Commission's natural gas policy goals and objectives are 
affected by its pricing policy, but directly affected are the goals of 
fostering competitive markets, protecting captive customers, and 
providing incentives for the optimal level of construction and 
efficient customer choice. The current pricing policy focuses primarily 
on the interests of the expanding pipeline and its existing and new 
shippers, giving little weight to the interests of competing pipelines 
or their captive customers. As a result, it no longer fits well with an 
industry that is increasingly characterized by competition between 
pipelines.
    The current pricing policy sends the wrong price signals, as some 
commenters have argued, by masking the real cost of the expansions. 
This can result in overbuilding of capacity and subsidization of an 
incumbent pipeline in its competition with potential new entrants for 
expanding markets. The pricing policy's bias for rolled-in pricing also 
is inconsistent with a policy that encourages competition while seeking 
to provide incentives for the optimal level of construction and 
customer choice. This is because rolled-in pricing often results in 
projects that are subsidized by existing ratepayers. Under this policy 
the true costs of the project are not seen by the market or the new 
customers, leading to inefficient investment and contracting decisions. 
This in turn can exacerbate adverse environmental impacts, distort 
competition between pipelines for new customers, and financially 
penalize existing customers of expanding pipelines and of pipelines 
affected by the expansion.
    Under existing policy, shippers' rates may change for a number of 
reasons. These include rolling-in of an expansion's costs, changes in 
the discounts given other customers, or changes in the contract 
quantities flowing on the system. As a customer's rates change in a 
rate case, it is generally unable to change its volumes, even though it 
may be paying more for capacity. This results in shippers bearing 
substantial risks of rate changes which they may be ill equipped to 
bear.

III. The New Policy

A. Summary of the Policy

    As a result of the Commission's reassessment of its current policy, 
the Commission has decided to announce the criteria, set forth below, 
that it will use in deciding whether to authorize the construction of 
major new pipeline facilities. This section summarizes the analytical 
steps the Commission will use under this policy to balance the public 
benefits against the potential adverse consequences of an application 
for new pipeline construction. Each of these steps is described in 
greater detail in the later sections of this policy statement.
    Once a certificate application is filed, the threshold question 
applicable to existing pipelines is whether the project can proceed 
without subsidies from their existing customers. As discussed below, 
this will usually mean that the project would be incrementally priced, 
if built by an existing pipeline, but there are cases where rolled in 
pricing would prevent subsidization of the project by the existing 
customers.\11\
---------------------------------------------------------------------------

    \11\ This policy does not apply to construction authorized under 
18 CFR Part 157, Subparts E and F.
---------------------------------------------------------------------------

    The next step is determine whether the applicant has made efforts 
to eliminate or minimize any adverse effects the project might have on 
the existing customers of the pipeline proposing the project, existing 
pipelines in the market and their captive customers, or landowners and 
communities affected by the route of the new pipeline. These three 
interests are discussed in more detail below. This is not intended to 
be a decisional step in the process for the Commission. Rather, this is 
a point where the Commission will review the efforts made by the 
applicant and could assist the applicant in finding ways to mitigate 
the effects, but the choice of how to structure the project at this 
stage is left to the applicant's discretion.
    If the proposed project will not have any adverse effect on the 
existing customers of the expanding pipeline, existing pipelines in 
market and their captive customers, or the economic interests of 
landowners and communities affected by the route of the new pipeline, 
then no balancing of benefits against adverse effects would be 
necessary. The Commission would proceed, as it does under current 
practice, to a preliminary determination or a final order depending on 
the time required to complete and environmental assessment (EA) or 
environmental impact statement (EIS) (whichever is required in the 
case).
    If residual adverse effects on the three interests are identified, 
after efforts have been made to minimize them, then the Commission will 
proceed to evaluate the project by balancing the evidence of public 
benefits to be achieved against the residual adverse effects. This is 
essentially an economic test. Only when the benefits outweigh the 
adverse effects on economic interests will the Commission then proceed 
to complete the environmental analysis where other interests are 
considered. It is possible at this stage for the Commission to identify 
conditions that it could impose on the certificate that would further 
minimize or eliminate adverse impacts and take those into account in 
balancing the benefits against the adverse effects. If the result of 
the balancing is a conclusion that the public benefits outweigh the 
adverse effects then the next steps would be the same as for a project 
that had no adverse effects. That is, if the EA or EIS would take more 
than approximately 180 days then a preliminary determination could be 
issued, followed by the EA or EIS and the final order. If the EA would 
take less time, then it would be combined with the final order.

B. The Threshold Requirement--No Financial Subsidies

    The threshold requirement in establishing the public convenience 
and necessity for existing pipelines proposing an expansion project is 
that the pipeline must be prepared to financially support the project 
without relying on subsidization from its existing customers.\12\ This 
does not mean that the project sponsor has to bear all the financial 
risk of the project; the risk can be shared with the new customers in 
preconstruction contracts, but it cannot be shifted to existing 
customers. For new pipeline companies, without existing customers, this 
requirement will have no application.
---------------------------------------------------------------------------

    \12\ Projects designed to improve existing service for existing 
customers, by replacing existing capacity, improving reliability or 
providing flexibility, are for the benefit of existing customers. 
Increasing the rates of the existing customers to pay for these 
improvements is not a subsidy. Under current policy these kinds of 
projects are permitted to be rolled in and are not covered by the 
presumption of the current pricing policy. Great Lakes Gas 
Transmission Limited Partnership, 80 FERC para.61,105 (1997) 
(Pricing policy statement not applicable to facilities constructed 
solely for flexibility and system reliability).
---------------------------------------------------------------------------

    The requirement that the project be able to stand on its own 
financially without subsidies changes the current pricing policy which 
has a presumption

[[Page 51316]]

in favor of rolled-in pricing. Eliminating the subsidization usually 
inherent in rolled-in rates recognizes that a policy of incrementally 
pricing facilities sends the proper price signals to the market. With a 
policy of incremental pricing, the market will then decide whether a 
project is financially viable. The commenters were divided on whether 
the Commission should change its current pricing policy. A number of 
commenters, however, urged the Commission to allow the market to decide 
which projects should be built, and this requirement is a way of 
accomplishing that result.
    The requirement helps to address all of the interests that could be 
adversely affected. Existing customers of the expanding pipeline should 
not have to subsidize a project that does not serve them. Landowners 
should not be subject to eminent domain for projects that are not 
financially viable and therefore may not be viable in the marketplace. 
Existing pipelines should not have to compete against new entrants into 
their markets whose projects receive a financial subsidy (via rolled-in 
rates), and neither pipeline's captive customers should have to 
shoulder the costs of unused capacity that results from competing 
projects that are not financially viable. This is the only condition 
that uniformly serves to avoid adverse effects on all the relevant 
interests and therefore should be a test for all proposed expansion 
projects by existing pipelines. It will be the predicate for the rest 
of the evaluation of a new project by an existing pipeline.
    A requirement that the new project must be financially viable 
without subsidies does not eliminate the possibility that in some 
instances the project costs should be rolled into the rates of existing 
customers. In most instances incremental pricing will avoid subsidies 
for the new project, but the situation may be different in cases of 
inexpensive expansibility that is made possible because of earlier, 
costly construction. In that instance, because the existing customers 
bear the cost of the earlier, more costly construction in their rates, 
incremental pricing could result in the new customers receiving a 
subsidy from the existing customers because the new customers would not 
face the full cost of the construction that makes their new service 
possible. The issue of the rate treatment for such cheap expansibility 
is one that always should be resolved in advance, before the 
construction of the pipeline.
    Another instance where a form of rolling in would be appropriate is 
where a pipeline has vintages of capacity and thus charges shippers 
different prices for the same service under incremental pricing, and 
some customers have the right of first refusal (ROFR) to renew their 
expiring contracts. Those customers could be allowed to exercise a ROFR 
at their original contract rate except when the incremental capacity is 
fully subscribed and there are competing bids for the existing 
customer's capacity. In that case, the existing customer could be 
required to match the highest competing bid up to a maximum rate which 
could be either an incremental rate or a ``rolled-up rate'' in which 
costs for expansions are accumulated to yield an average expansion 
rate. Although the focus of this policy statement is the analysis for 
deciding whether new capacity should be constructed, it is important 
for the Commission to articulate the direction of its policy on pricing 
existing capacity where a pipeline has engaged in expansions. This will 
enable existing and potential new shippers to make appropriate 
decisions pre-construction to protect their interests either in the 
certificate proceeding or in their contracts with the pipeline.
    This policy leaves the pipeline responsible for the costs of new 
capacity that is not fully utilized and obviates the need for ``at 
risk'' condition because it accomplishes the same purpose. Under this 
policy the pipeline bears the risk for any new capacity that is under-
utilized, unless, as recommended by a number of commenters, it 
contracts with the new customers to share the risk by specifying what 
will happen to rates and volumes under specific circumstances. If the 
pipeline finds that new shippers are unwilling to share this risk, this 
may indicate to the pipeline that others do not share its vision of 
future demand. Similarly, the risks of construction cost over-runs 
should not be the responsibility of the pipeline's existing customers 
but should be apportioned between the pipeline and the new customers in 
their service contracts. Thus, in pipeline contracts for service on 
newly constructed facilities, pipelines should not rely on standard 
``Memphis clauses'', but should reach agreement with new shippers 
concerning who will bear the risks of underutilization of capacity and 
cost overruns and the rate treatment for ``cheap expansibility.'' \13\
---------------------------------------------------------------------------

    \13\ ``Memphis clause'' refers to an agreement that the pipeline 
may change the rate during the term of the contract by making rate 
filings under NGA section 4.
---------------------------------------------------------------------------

    In sum, if an applicant can show that the project is financially 
viable without subsidies, then it will have established the first 
indicator of public benefit. Companies willing to invest in a project, 
without financial subsidies, will have shown an important indicator of 
market-based need for a project. Incremental pricing will also lead to 
the correct price signals for the new project and provide the 
appropriate incentive for the optimal level of construction. This can 
unnecessary adverse impacts on landowners or existing pipelines and 
their captive customers. Therefore, this will be the threshold 
requirement for establishing that a project will satisfy the public 
convenience and necessity standard.

C. Factors To Be Balanced in Assessing the Public Convenience and 
Necessity

    Ideally, an applicant will structure its proposed project to avoid 
adverse economic, competitive, environmental, or other effects on the 
relevant interests from the construction of the new projects, and the 
Commission would be able to approve such projects promptly. Of course, 
elimination of all adverse effects will not be possible in every 
instance. When it is not possible, the Commission's policy objective is 
to encourage the applicant to minimize the adverse impact on each of 
the relevant interests. After the applicant efforts to minimize the 
adverse effects, construction projects that would have residual adverse 
effects would be approved only where the public benefits to be achieved 
from the project can be found to outweigh the adverse effects. Rather 
than relying only on one test for need, for Commission will consider 
all relevant factors reflecting on the need for the project. These 
might include, but would not be limited to, precedent agreements, 
demand projections, potential cost savings to consumers, or a 
comparison of projected demand with the amount of capacity currently 
serving the market. The objective would be for the applicant to make a 
sufficient showing for the public benefits of its proposed project to 
outweigh any residual adverse effects discussed below.
1. Consideration of Adverse Effects on Potentially Affected Interests
    In deciding whether a proposal is required by the public 
convenience and necessity, the Commission will consider the effects of 
the project on all the affected interests; this means more than the 
interests of the applicant, the potential new customers and the general 
societal interests.
    Depending on the type of project, there are three major interests 
that may be adversely affected the approval of major certificate 
projects, and that must be considered by the Commission.

[[Page 51317]]

There are: the interest of the applicant's existing customers, the 
interests of competing existing pipelines and their captive customers, 
and the interests of landowners and surrounding communities. There are 
other interests that may need to be separately considered in a 
certificate proceeding, such as environmental interests.
    Of course, not every project will have an impact on each interest 
identified. Some projects will be proposed by new pipeline companies to 
serve new markets, so that there will be no adverse effects on the 
interests of existing customers; other projects may be constructed so 
that there may be no adverse effect on landowner interests.
    a. Interests of existing customers of the pipeline applicants. The 
interests of the existing customers of the expanding pipeline may be 
adversely affected if the expansion results in their rates being 
increased or if the expansion causes a degradation in service.
    b. Interests of existing pipelines that already serve the market 
and their captive customers. Pipelines that already serve the market 
into which the new capacity would be built are affected by the 
potential loss of market share and the possibility that they may be 
left with unsubscribed capacity investment. The Commission need not 
protect pipeline competitors from the effects of competition, but it 
does have an obligation to ensure fair competition. Recognizing the 
impact of a new project on existing pipelines serving the market is not 
synonymous with protecting incumbent pipelines from the risk of loss of 
market share to a new entrant, but rather, is a recognition that the 
impact on the incumbent pipeline is an interest to be taken into 
account in deciding whether to certificate a new project. The interests 
of the existing pipeline's captive customers are slightly different 
from the interests of the pipeline. The interests of the captive 
customers of the existing pipelines are affected because, under the 
Commission's current rate model, they can be asked to pay for the 
unsubscribed capacity in their rates.
    c. Interests of landowners and the surrounding communities. 
Landowners whose land would be condemned for the new pipeline right-of-
way, under eminent domain rights conveyed by the Commission's 
certificate, have an interest as does the community surrounding the 
right-of-way. The interest of these groups is to avoid unnecessary 
construction, and any adverse effects on their property associated with 
a permanent right-of-way. In some cases, the interests of the 
surrounding community may be represented by state or local agencies. 
Traditionally, the interests of the landowners and the surrounding 
community have been considered synonymous with the environmental 
impacts of a project; however, these interests can be distinct. 
Landowner property rights issues are different in character from other 
environmental issues considered under the National Environmental Policy 
Act of 1969 (NEPA).\14\
---------------------------------------------------------------------------

    \14\ 42 U.S.C. Sec. 4321 et seq.
---------------------------------------------------------------------------

2. Indicators of Public Benefit
    To demonstrate that its proposal is in the public convenience and 
necessity, an applicant must show public benefits that would be 
achieved by the project that are proportional to the project's adverse 
impacts. The objective is for the applicant to create a record that 
will enable the Commission to find that the benefits to be achieved by 
the project will outweigh the potential adverse effects, after efforts 
have been made by the applicant to mitigate these adverse effects. The 
types of public benefits that might be shown are quite diverse but 
could include meeting unserved demand, eliminating bottlenecks, access 
to new supplies, lower costs to consumers, providing new interconnects 
that improve the interstate grid, providing competitive alternatives, 
increasing electric reliability, or advancing clean air objectives. Any 
relevant evidence could be presented to support any public benefit the 
applicant may identify. This is a change from the current policy which 
relies primarily on one test to establish the need for the project.
    The amount of evidence necessary to establish the need for a 
proposed project will depend on the potential adverse effects of the 
proposed project on the relevant interests. Thus, projects to serve new 
demand might be approved on a lesser showing of need and public 
benefits than those to serve markets already served by another 
pipeline. However, the evidence necessary to establish the need for the 
project will usually include a market study. There is no reason for an 
applicant to do a new market study of its own in every instance. An 
applicant could rely on generally available studies by EIA or GRI, for 
example, showing projections of market growth. If one of the benefits 
of a proposed project would be to lower gas or electric rates for 
consumers, then the applicant's market study would need to explain the 
basis for that projection. Vague assertions of public benefits will not 
be sufficient.
    Although the Commission traditionally has required an applicant to 
present contracts to demonstrate need, that policy, as discussed above, 
no longer reflects the reality of the natural gas industry's structure, 
nor does it appear to minimize the adverse impacts on any of the 
relevant interests. Therefore, although contracts or precedent 
agreements always will be important evidence of demand for a project, 
the Commission will no longer require an applicant to present contracts 
for any specific percentage of the new capacity. Of course, if an 
applicant has entered into contracts or precedent agreements for the 
capacity, it will be expected to file the agreements in support of the 
project, and they would constitute significant evidence of demand for 
the project.
    Eliminating a specific contract requirement reduces the 
significance of whether the contracts are with affiliated or 
unaffiliated shippers, which was the subject of a number of comments. A 
project that has precedent agreements with multiple new customers may 
present a greater indication of need than a project with only a 
precedent agreement with an affiliate. The new focus, however, will be 
on the impact of the project on the relevant interests balanced against 
the benefits to be gained from the project. As long as the project is 
built without subsidies from the existing ratepayers, the fact that it 
would be used by affiliated shippers is unlikely to create a rate 
impact on existing ratepayers. With respect to the impact on the other 
relevant interests, a project built on speculation (whether or not it 
will be used by affiliated shippers) will usually require more 
justification than a project built for a specific new market when 
balanced against the impact on the affected interests.
3. Assessing Public Benefits and Adverse Effects
    The more interests adversely affected or the more adverse impact a 
project would have on a particular interest, the greater the showing of 
public benefits from the project required to balance the adverse 
impact.The objective is for the applicant to develop whatever record is 
necessary, and for the commission to impose whatever conditions are 
necessary, for the Commission to be able to find that the benefits to 
the public from the project outweigh the adverse impact on the relevant 
interests.
    It is difficult to construct helpful bright line standards or tests 
for this area. Bright line tests are unlikely to be flexible enough to 
resolve specific cases and to allow the Commission to take into account 
the different interests that

[[Page 51318]]

must be considered. Indeed, the current contract test has become 
problematic. However, the analytical framework described here should 
give applicants more certainty and sufficient guidance to anticipate 
how to structure their projects and develop the record to facilitate 
the Commission's decisional process.
    Under this policy, if project sponsors, proposing a new pipeline 
company, are able to acquire all, or substantially all, of the 
necessary right-of-way by negotiation prior to filing the application, 
and the proposal is to serve a new, previously unserved market, it 
would not adversely affect any of the three interests. Such a project 
would not need any additional indicators of need and may be readily 
approved if there are no environmental considerations. Under these 
circumstances landowners would not be subject to eminent domain 
proceedings, and because the pipeline was new, there would be no 
existing customers who might be called upon to subsidize the project. A 
similar result might be achieved by an existing pipeline extending into 
a new unserved market by negotiating for a right-of-way for the 
proposed expansion and following the first requirement for showing 
need, financing the project without financial subsidies. It would avoid 
adverse impacts to existing customers by pricing its new capacity 
incrementally and it is unlikely that other relevant interests would be 
adversely affected if the pipeline obtained the right-of-way by 
negotiation.
    It may not be possible to acquire all the necessary right-of-way by 
negotiation. However, the company might minimize the effect of the 
project on landowners by acquiring as much right-of-way as possible. In 
that case, the applicant may be called upon to present some evidence of 
market demand, but under this sliding scale approach the benefits 
needed to be shown would be less than in a case where no land rights 
had been previously acquired by negotiation. For example, if an 
applicant had precedent agreements with multiple parties for most of 
the new capacity, that would be strong evidence of market demand and 
potential public benefits that could outweigh the inability to 
negotiate right-of-way agreements with some landowners. Similarly, a 
project to attach major new gas supplies to the interstate grid would 
have benefits that may outweigh the lack of some right-of-way 
agreements. A showing of significant public benefit would outweigh the 
modest use of federal eminent domain authority in this example.
    In most cases it will not be possible to acquire all the necessary 
right-of-way by negotiation. Under this policy, a few holdout 
landowners cannot veto a project, as feared by some commenters, if the 
applicant provides support for the benefits of its proposal that 
justifies the issuance of a certificate and the exercise of the 
corresponding eminent domain rights. The strength of the benefit 
showing will need to be proportional to the applicant's proposed 
exercise of eminent domain procedures.
    Of course, the Commission will continue to do an independent 
environmental review of projects, even if the project does not rely on 
the use of eminent domain and the applicant structures the project to 
avoid or minimize adverse impacts on any of the identified interests. 
The Commission anticipates no change to this aspect of its certificate 
policies. However, to the extent applicants minimize the adverse 
impacts of projects in advance, this should also lessen the adverse 
environmental impacts as well, making the NEPA analysis easier. The 
balancing of interests and benefits that will precede the environmental 
analysis will largely focus on economic interests such as the property 
rights of landowners. The other interests of landowners and the 
surrounding community, such as noise reduction or esthetic concerns 
will continue to be taken into account in the environmental analysis. 
If the environmental analysis following a preliminary determination 
indicates a preferred route other than the one proposed by the 
applicant, the earlier balancing of the public benefits of the project 
against its adverse effects would be reopened to take into account the 
adverse effects on landowners who would be affected by the changed 
route.
    In another example of the proportional approach, a proposal that 
may have adverse impacts on customers of another pipeline may require 
evidence of additional benefits to consumers, such as lower rates for 
the customers to be served. The Commission might also consider how the 
proposal would affect the cost recovery of the existing pipeline, 
particularly the amount of unsubscribed capacity that would be created 
and who would bear that risk, before approving the project. This 
evaluation would be needed to ensure consideration of the interests of 
the existing pipeline and particularly its captive customers. Such 
consideration does not mean that the Commission would always favor 
existing pipelines and their captive customers. For instance, a 
proposed project may be so efficient and offer substantial benefits, 
such as significant service flexibility, so that the benefits would 
outweigh the adverse impact on existing pipelines and their captive 
customers.
    A number of commenters were concerned that the Commission might 
give too much weight to the impact on the existing pipeline and its 
captive customers and undervalue the benefits that can arise from 
competitive alternatives. The Commission's focus is not to protect 
incumbent pipelines from the risk of loss of market share to a new 
entrant, but rather to take the impact into account in balancing the 
interests. In such a case the evidence of benefits will need to be more 
specific and detailed than the generalized benefits that arise from the 
availability of competitive alternatives. The interests of the captive 
customers are slightly different from the interests of the incumbent 
pipeline. The captive customers are affected if the incumbent pipeline 
shifts to the captive customers the costs associated with its 
unsubscribed capacity. Under the Commission's current rate model 
captive customers can be asked to pay for unsubscribed capacity in 
their rates, but the Commission has indicated that it will not permit 
all costs resulting from the loss of market share to be shifted to 
captive customers.\15\ Whether and to what extent costs can be shifted 
is an issue to be resolved in the incumbent pipeline's rate case, but 
the potential impact on these captive customers is a factor to be taken 
into account in the certificate proceeding of the new entrant.
---------------------------------------------------------------------------

    \15\ El Paso Natural Gas Company, 72 FERC para. 61,083 (1995); 
Natural Gas Pipeline Company of America, 73 FERC para. 61,050 
(1995).
---------------------------------------------------------------------------

    In sum, the Commission will approve an application for a 
certificate only if the public benefits from the project outweigh any 
adverse effects. Under this policy, pipelines seeking a certificate of 
public convenience and necessity authorizing the construction of 
facilities are encouraged to submit applications designed to avoid or 
minimize adverse effects on relevant interests including effects on 
existing customers of the applicant, existing pipelines serving the 
market and their captive customers, and affected landowners and 
communities. The threshold requirement for approval, that project 
sponsors must be prepared to develop the project without relying on 
subsidization by the sponsor's existing customers, protects all of the 
relevant interests. Applicants also must submit evidence of the public 
benefits to be achieved by the proposed project such as contracts, 
precedent agreements, studies of projected demand in the

[[Page 51319]]

market to be served, or other evidence of public benefit of the 
project.

V. Conclusion

    At a time when the Commission is urged to authorize new pipeline 
capacity to meet an anticipated increase in the demand for natural gas, 
the Commission is also urged to act with caution to avoid unnecessary 
rights-of-way and the potential for overbuilding with the consequent 
effects on existing pipelines and their captive customers. This policy 
statement is intended to provide more certainty as to how the 
Commission will analyze certificate applications to balance these 
concerns. By encouraging applicants to devote more effort in advance of 
filing to minimize the adverse effects of a project, the policy gives 
them the ability to expedite the decisional process by working out 
contentious issues in advance. Thus, this policy will provide more 
guidance about the Commission's analytical process and provide 
participants in certificate proceedings with a framework for shaping 
the record that is needed by the Commission to expedite its decisional 
process.
    Finally, this new policy will not be applied retroactively. A major 
purpose of the policy statement is to provide certainty about the 
decisionmaking process and the impacts that would result from approval 
of the project. This includes providing participants in a certificate 
proceeding certainty as to economic impacts that will result from the 
certificate. It is important for the participants to know the economic 
consequences that can result before construction begins. After the 
economic decisions have been made it is difficult to undo those 
choices. Therefore, the new policy will not be applied retroactively to 
cases where the certificate has already issued and the investment 
decisions have been made.

    By the Commission. Chairman Hoecker and Commissioners Breathitt 
and Hebert concurred with a separate statement attached. 
Commissioner Bailey dissented with a separate statement attached.
David P. Boergers,
Secretary.

Policy Statement for Certification of New Interstate Natural Gas 
Pipeline Facilities

Docket No. PL99-3-000

[Issued September 15, 1999]
    Hoecker, Chairman; Breathitt and Hebert, Commissioners, concurring;
    Our intention is to apply this policy statement to any filings 
received by the Commission after July 29, 1998 (the issuance date of 
the Commission's Notice of Proposed Rulemaking regarding the Regulation 
of Short-term Natural Gas Transportation Services in Docket No. RM98-
10-000 and Notice of Inquiry regarding Regulation of Interstate Natural 
Gas Transportation Services in Docket No. RM98-12-000), and not before.
James J. Hoecker,
Chairman.
Linda K. Breathitt,
Commissioner.
Curt L. Hebert,
Commissioner.

Certification of New Interstate Natural Gas Facilities

[Docket No. PL99-3-000]

[Issued September 15, 1999]
    Bailey, Commissioner, dissenting.
    Respectfully, I will be dissenting from this policy statement.
    The document puts forth the majority's statement of an analytical 
framework for use in certificate proceedings. Its goal is to give 
applicants and other participants in those proceedings a better 
understanding of how the commission makes its decisions. This is always 
a good thing to do. But ultimately, I cannot sign on to this statement 
as representative of my approach to certificate policy for several 
reasons.
    First and foremost, the document purports that the policy outlined 
is not a significant departure from the kind of analysis used currently 
in certificate cases. I do not share this view. I know that it does 
depart from the way I currently look at certificate issues. For 
example, I cannot say that the sliding scale evaluation process and the 
weighing and balancing process described in the statement actually 
reflects the way I look at things. Further, the pricing changes 
announced are in fact significant departures from current practice. 
Thus, the document is as much about pricing policy change as it is 
about articulating an analytical approach to certification questions. I 
do not completely agree with the statements regarding pricing contained 
in this document.
    The announced policy will now require that new projects meet a 
pricing threshold before work can proceed on the application--that is 
they should be incrementally priced and not subsidized by existing 
customers. The intent behind this is to enhance our certainty that the 
market is determining which projects come to the Commission.
    I do not disagree with the idea that incremental pricing is 
consistent with the idea of allowing markets to decide. I also 
recognize that it can protect existing customers from subsidizing 
expansions as well as insulate existing pipelines form subsidized 
competition. However, I find the policy statement to be far too 
categorical in its approach. I am not persuaded that we should depart 
from our existing policy statement on pricing that we adopted in 1995.
    There is too little recognition here that some types of 
construction projects are not designed solely for new markets or 
customers, that existing customers can benefit from some projects, and 
that rolled-in pricing may still be appropriate. Thus, while I can 
agree with some of the articulated goals such as pricing should 
allocate risk appropriately, and that if done properly it can assist in 
avoiding construction of excess capacity, I would not adopt a threshold 
requirement that virtually precludes use of rolled-in rates.
    Finally, I am at a loss to explain the genesis of this particular 
outcome. I recognize that certificate policy issues have been 
problematic for a long time. In attempts to address these issues we 
have had conferences to explore need issues and we have requested 
comments on certificate issues in the pending gas Notice of Proposed 
Rulemaking in Docket No. RM98-10-1000 (84 FERC para. 61,087 (1998)) and 
the Notice of Inquiry in Docket No. RM98-12-000 (84 FERC para. 61,087 
(1998)). The variety of views we have received in these efforts are 
summarized in the policy statement ad it candidly recognizes the lack 
of clear direction on what path the Commission should follow. Given 
this lack of industry consensus, I question the advisability of trying 
to adopt a generic approach at this time. I would prefer to weigh 
further the relative merits of those comments before embarking on an 
attempt to articulate a certificate policy.
Vicky A. Bailey,
Commissioner.
[FR Doc. 99-24617 Filed 9-21-99; 8:45 am]
BILLING CODE 6717-01-M