Thursday, March 02, 2006

Broadwater's Attorneys Are Telling FERC Not to Give Out LNG Details

Is the federal government allowing Broadwater’s attorneys (LeBouef, Lamb, Greene & MacRae LLP) to decide who should have a chance to review the all-but-secret details of Broadwater’s proposal to put a LNG facility in the middle of Long Island Sound? From what Bryan Brown tells me, it seems like that might be the case. And if so, Bryan apparently won't be getting the information.

Readers who are following the Broadwater issue remember the flap over keeping details of the proposal secret. Federal rules say that for security reasons, FERC and Broadwater (a partnership of Shell and TransCanada) shall not release certain information about safety and security to the public; individuals can apply to FERC to see that information, but they have to promise not to discuss it publicly. Lots of people, including Connecticut AG Richard Blumenthal, think that means there’s no way we’ll ever know if the plant is safe.

One of those who have applied to FERC is Bryan Brown, a Long Islander who follows the Broadwater issue very closely.

The last time we heard from Bryan, he said he had applied for the Critical Energy Infrastructure Information (CEII) information back in September but hadn’t heard anything, so he re-faxed his request (there's background info here and here). Late yesterday he sent me an e-mail with an update. Among the most interesting things is that when FERC gets a request for information, it forwards the request to Broadwater’s attorneys and asks them what they think.

And in Bryan’s case, LeBouef, Lamb (Beef & Lamb) told FERC that he shouldn’t be allowed access to the information. Here’s what Bryan told me in a recent e-mail:

I want to bring you up to date on my personal efforts to gain access to Broadwater CEII.

Here's the chronology:

1. I submitted my original request for CEII on 9/28/05 via a fax that followed the instructions provided by FERC exactly.

2. By mid-January, I hadn't heard anything, so I re-faxed my request.

3. On 1/17, I received a phone call from FERC explaining that there was a backlog and my request from September would be processed soon.

4. Early February, FERC copied me on a letter that they sent to LeBouef, Lamb, Greene & MacRae LLP (Broadwater's counsel) saying that I was seeking CEII and that LeBouef Lamb needed to respond if they felt that I shouldn't be allowed access.

5. Within days, I received a non-disclosure form (a copy of which is attached) from FERC that I was instructed to sign and return (which I did).

6. At the same time, I was copied on a letter from LeBouef Lamb to FERC in effect making the case why I should be denied access.

7. I spoke with FERC today and was advised that they continue to work on my request and that their forwarding of the non-disclosure agreement was pro forma.

Based on my experience, I concur with AG Blumenthal's comments that the process doesn't make any sense. The policy is unclear and I'm scratching my head as to what vetting process I've undergone (I certainly wasn't contacted by anyone from the government; on the other hand, I don't think I have a file at the FBI). It appears that the onus is on me to make the case and that Broadwater (via its counsel) gets to decide.

Then there is the backlog. My original request was made during the pre-filing process but still within days of Broadwater's submission of Resource Report 13. I have already missed the opportunity to comment during the pre-filing phase and who knows if/when I'll
get an opportunity to submit a post-filing comment.

One good thing I learned is that (as per the non-disclosure agreement) I can discuss the CEII with other folks who have been granted access. FERC will tell me if another recipient has been granted access (I'm guessing that I'd have to make a specific query,
rather than be provided with a list of individuals who have been granted access).

As much as I feel that this information should be available to the public, I have some reservations.

Although I haven't read RR 13, I can tell you the approximate distance between the inner and outer hull plates of the FSRU. Not only that, I can tell you how fast a ship displacing 5000 tons needs to travel to penetrate the inner and outer hulls and cause a
breach. How do I know this? From reading the information submitted by Broadwater to the FERC docket that IS available to the public. That, to me, is an eye-opener.

I guess the proof of Beef & Lamb’s (and hence Broadwater’s) influence will be whether FERC gives Bryan the information he wants, or whether Beef & Lamb can delay the applications enough so that people get it too late to comment on it.


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