BEFORE THE UNITED STATES
FEDERAL ENERGY REGULATORY COMMISSION
Trans-Pecos Pipeline, LLC

)

Docket No. CP15-500

MOTION TO INTERVENE OF THE BIG BEND CONSERVATION ALLIANCE
(BBCA), PROTEST AND COMMENTS IN OPPOSITION TO THE
APPLICATION OF TRANS-PECOS PIPELINE LLC FOR NATURAL GAS ACT
SECTION 3 AUTHORIZATION AND PRESIDENTIAL PERMIT TO
CONSTRUCT CROSS-BORDER FACILITIES
On May 28, 2015, Trans-Pecos Pipeline, LLC filed an application for Section 3
authorization under the Natural Gas Act and a presidential permit to construct,
operate and maintain natural gas pipeline facilities for export and/or import of
natural gas between the between the United States and the Republic of Mexico
(“Mexico”) at a point on the International Boundary between the United States near
the City of Presidio, in Presidio County, Texas, and Mexico in the vicinity of the
City of Manuel Ojinaga, State of Chihuahua (“Cross-Border Facilities”).1 The crossborder facilities -- 1093 feet of 42-inch pipeline that will be installed by horizontal
directional drill (HDD) under the Rio Grande River – will irreparably damage more
than 8 acres (Application at 7) demarked as Palustrine forested wetlands by the
USFWS National Wetlands Inventory (Environmental Report at 9) and containing a
minor aquifer (Environmental Report at 10), migratory bird and endangered
species habitat (Environmental Report at 15-17) and archeologically and culturally
significant resources.
Of course, these are just the impacts that Trans-Pecos admits. Because even
as Trans-Pecos attempts to portray the cross-border facility as a discrete, stand1

Trans-Pecos Pipeline, LLC Section 3/Presidential Permit Certificate

 alone project, it is actually a small piece of a larger, unified 143-mile pipeline system
that would originate at a natural gas hub near Coyanosa, in Pecos County, Texas to
accept gas deliveries bound for export to the border - while plowing through more
than 2167-acres2 of the Big Bend region of Texas, home to some of the most pristine,
environmentally sensitive parts of Texas, as well as culturally and archeologically
significant sites and privately-owned ranch and grazing areas.3 Moreover, to add
insult to injury, the resulting destruction is entirely unnecessary: the project will
have a short shelf life since Mexico intends to import U.S. gas through the crossborder facility only long enough to bridge the gap until it can exploit its own
resources. Further, Energy Transfer Partners, Trans-Pecos’ parent has also
proposed the Comanche Trail Project in Docket No. CP15-503, and other pipelines
such as the Los Ramones and Roadrunner will further diminish the need for the
Trans-Pecos Project.
In light of the significant threat that the Trans-Pecos project poses to the Big
Bend region, the Big Bend Conservation Alliance moves to intervene in the abovecaptioned proceeding and files this protest and comments in opposition to the
Trans-Pecos cross-border project.
I.

CONTACT INFORMATION

Notice and communications in this proceeding should be addressed to the
following:
2

Acreage calculation based on pipeline easement 125-feet wide multiplied
by the 143 miles length of the pipeline (755,040’ x 125’) amounts to 2,167 acres.
3

The extent of the pipeline’s impacts to cultural resources is yet unknown
because information on these resources was filed as “privileged” and are not in the
public docket. BBCA has already filed a FOIA request to obtain these materials, and
reserves the right to comment further when additional cultural resources materials
are disclosed.
2

 Carolyn Elefant
LAW OFFICES OF
CAROLYN ELEFANT PLLC
2200 Pennsylvania Ave. N.W.
Fourth Floor E.
Washington D.C. 20036
202-297-6100
Carolyn@carolynelefant.com

II.
A.

David Keller
Big Bend Conservation Alliance
P. O. Box 1721
Alpine, Texas 79831
bigbendconservation@gmail.com

STATEMENT OF INTEREST FOR MOTION TO INTERVENE

Description of BBCA
The Big Bend Conservation Alliance (BBCA) is a Texas non-profit

corporation headquartered in Alpine, Texas. Founded in July of 2014, the BBCA’s
mission is to preserve and protect the natural and cultural resources of the Big Bend
region of Texas (specifically Brewster, Jeff Davis, and Presidio Counties including
the adjacent portion of the Rio Grande) as well as the rights of those living in the
Big Bend area.
The BBCA serves its members through education, public advocacy, and
participation in legislative, executive, and judicial processes of local, state, and
federal government. To this end, the BBCA seeks to preserve and protect the
democratic and due-process rights guaranteed under the laws of the State of Texas
and the United States of America, which are necessary and useful in preserving and
protecting the environment, cultural resources, citizens' rights, and public health
and welfare.
B.

Interest of BBCA and Its Members in the Proceeding
BBCA’s forty plus members represent a varied cross-section. Some reside in

the in communities such as Presidio, Alpine, Jeff Davis, Hudspeth, and Brewster
counties where the cross-border facilities and 143-mile feeder pipeline will be
3

 located, while others own property such as ranches, farms or small businesses that
serve the area’s bourgeoning tourist population. Other members do not live
directly along the pipeline route, but avail themselves of recreational activities such
as nature photography, bird-watching, astronomy, camping and hiking at area park
and preserve systems at the Federal and State level, including Big Bend National
Park, the Fort Davis National Historical Site, the Big Bend Ranch State Park, and the
Davis Mountains State Park. Still other members – archeology scholars and
hobbyists or “heritage tourists” – are drawn by the Big Bend region’s rich
prehistoric and historic cultural resources, which are nationally acclaimed.4
BBCA opposes the proposed pipeline. The pipeline will harm BBCA and its
members by irreparably damaging the Big Bend region. Installation of the bordercrossing facilities will destroy seven acres of wetlands that may never be restored,
while drilling or chemical leakage may damage or contaminate the Rio Grande
Aquifer, used by residents, in a region where water is particularly scarce.
Meanwhile, construction of the 143-mile pipeline will sully scenic vistas enjoyed by
BBCA’s members – and native vegetation removed from the 125 foot swath
(construction corridor) may never fully recover due to easement restrictions on
above-ground plants and facilities. Destruction of the pristine wildlife habitat,
cultural resources, and open space will deprive BBCA members of enjoyment of
these resources and reduce tourism in the region, which in turn depresses the
regional economy and may cause financial loss for BBCA members whose
livelihood depends on tourism. Finally, the pipeline will reduce property values of
BBCA members across whose property the pipeline would pass as well as BBCA
4

See BBCA Appendix, Exhibit 1 (collection of affidavits of BBCA members
describing impacts of proposed pipeline).
4

 members who own adjacent lands by diminishing the gazing, hunting, and ecotourism potential of these lands as well as threatening the safety of BBCA members
who live in close proximity to the pipeline.
Because of the myriad of adverse impacts that the proposed pipeline will
cause for BBCA and its members, they are directly aggrieved and as such,
intervention is justified under 18 C.F.R. § 214(b)(2)(ii). In addition, as a non-profit
organization that seeks to protect the Big Bend region and informs and educates
others on use of governmental processes to protect environmental and cultural
resources, BBCA’s intervention serves the public interest within the meaning of 18
C.F.R. § 214(b)(2)(iii). Accordingly, BBCA is entitled to intervene in this proceeding.
III.
A.

PROTEST AND COMMENTS

Overview of Project and Applicant
The Presidio Crossing Project, approximately 1,093 feet of 42-inch pipeline

installed by horizontal directional drill that will traverse under the Rio Grande to
the middle of the riverbed and end at the International Boundary with Mexico
(Application at 5), is a small section of pipeline connecting the proposed 143 miles
of 42-inch pipeline commencing at the hub on the pipeline grid located in Pecos
County, Texas (Application at 4) and 907 feet of 42-inch pipeline from the HDD exit
point at the Mexican border to an interconnect with the pipeline grid in Mexico
(Application at 7). The Presidio Crossing Project will have a design capacity of
approximately 1.3 billion cubic feet per day (“Bcf/day”) with a maximum
allowable operating pressure of 1,440 pounds per square inch gauge and will have
a cost of $3.6 million (Application at 7). This project will require approximately 7.1
acres of temporary workspace and a 50-foot wide permanent easement consisting
of approximately 1.3 acres in Presidio County Texas (Application at 7).
5

 The applicant for the Presidio Crossing Project is Trans-Pecos Pipeline, LLC,
is owned and operated by Energy Transfer Mexicana, LLC; a subsidiary of Energy
Transfer Partners, L.P. (Application at 3). The project is in response to a Request for
Proposals (“RFP”) submitted by the Comisión Federal de Electricidad (“CFE”), the
company that provides the public service of transmission and distribution of
electricity, for and on behalf of the Mexican State (BBCA Appendix, Exhibit 3, RFP
at 1). The request for proposals solicited proposals from bidders for the design,
development, construction and operation of a new natural gas transmission
pipeline of at least 42-inches from the CFE Waha Header to the Mexico/United
States border at Presidio County, Texas (RFP at 1). The RFP requires the winning
bidder to be responsible for the FERC Presidential Permit and the 143-mile pipeline
(RFP at 2).
Because the cross-border facilities will deliver power into Mexico, TransPecos contends that the proposed project is comprised only of the 1093 feet of crossborder facilities, its application described only those impacts related to this shorter
piece. Even so, the impacts are substantial, as discussed below.
B.

Impacts of Cross-Border Facilities
BBCA has submitted six reports from experts in different disciplines that

either criticize the applicant’s Environmental Reports or opine on the pipeline’s
impacts to sensitive and unique resources. These reports are attached as BBCA
Appendix, Exhibit 2 – and are referenced in the critique of the applicant’s
Environmental Report, below.
1.

The Methodologies Used for the Environmental Reports Grossly
Under Estimate Impacts.

6

 Most of the reports in the application underestimate the scope of the impacts
because the methodologies employed for determining baseline conditions were
inaccurate. A review of the environmental report shows that some of the surveys –
endangered species, migratory birds – took place over a day and (not
surprisingly), no species were observed. Likewise, the report notes that some of
the visits – such as wetland review or surveys- were done in arid conditions with
no water in the river. Because the studies do not reflect non-drought conditions
when other species might be present, they seriously underestimate the project’s
impacts both on the cross-border facility and the length of the 143-mile pipeline.
Michael Eason, a Texas Flora Biological Consultant with extensive expertise
in plant conservation projects in Texas, likewise criticized the careless nature of the
surveys included in the Environmental Report. Eason observes:
...I can confidently state this area is much more diverse than the
summary of the species [noted at p. 19 of the Environmental Report).
Furthermore, given the spelling mistakes, complete lack of using the
standard format of either underlining or italicizing binomials and lack
of any species within the Poaceae or Euphorbiacae familities, which are
both quite common along this stretch of the river, I highly doubt the
person who performed this survey has any knowledge of the flora of
the Chihuahuan Desert or spent enough time on site to properly survey
the location.
BBCA Appendix, BBCAE2-0009.
To correct these deficiencies, Eason recommends that a thorough botanical
survey be performed in a “boots on the ground fashion” rather than relying simply
on data. As Eason emphasizes, “Only a property environmental survey will
determine the absence or presence of sensitive species found in the region.
Furthermore, if proper restoration is to follow construction, a baseline of which
species and vegetation are in the region is needed. Id.

7

 Given that Trans-Pecos’ reports departs from accepted practices and
overlooks many serious project impacts, Commission cannot rely on any of the
cursory studies from the applicant’s Environmental Report. Instead, the
Commission must conduct its own independent analysis of the project’s impacts or
direct the applicant to retain an independent third party, approved by the
intervenors, to conduct a boots on the ground survey.
Gremminger and Associates, based out of southeast Texas, uses its own
personnel for these studies who likely have no prior experience in the Chihuahuan
Desert, and possibly not even in arid western lands, where plant and animal
occurrence, density, behavior, etc. is very different from the humid areas further
east.
2.

Substantive Issues

The proposed pipeline raises numerous environmental and safety concerns
that are not adequately addressed in the Application or the environmental reports.
These include:
Wetlands The Environmental Report briefly mentions the fact that USFWS
National Wetlands Inventory (NWI) found the entirety of the Projects temporary
workspace, permanent easement, and 867 feet of access occur in a Palustrine
forested wetland (Environmental Report at 9). The means of access to the
temporary workspace alone will affect 0.17 acres of emergent wetland. Id. The
short field assessment done on May 6, 2105, during a period of low water, found
the soil to be non-hydrophytic and Trans-Pecos based the entire environmental
impact analysis of the surrounding wetlands on that inadequate survey. Id. TransPecos plans to use laminated or equipment mats to lie over the wetland areas
8

 before construction as the only protective measure for this delicate, important
wetland ecosystem (Environmental Report at 10). A full EIS analysis is required to
determine the entire environmental impact the temporary workspace, permanent
easement, and 867 feet of access way will have on this wetland. In addition, there
are certainly other wetlands along the 143-mile pipeline that must be delineated
and the impacts studied; a full EIS is required for such an extensive analysis as
well.
Cultural Resources At the outset, it bears noting that David Keller of BBCA
and an expert on archeological and cultural resources, was unable to fully assess
the Environmental Report on cultural resources since it was filed as privileged or
remains in draft form. (See Letter at BBCAEX2-005) Accordingly, BBCA reserves
the right to supplement these comments when this information is produced.
Even lacking this information, it is apparent that the proposed project will
threaten cultural resources. As Keller describes, the use of HDD at the 7 acre tract
that will be used for the cross-border facility will destroy any buried archeological
deposits within or adjacent to the bore hole – indeed, anything in its path. Id. at
BBCAEX2-006. The cross-border facilities would also occupy lands include within
the LaJunta Historic Cultural District, and studies are needed to assess the vast
array of impacts that might result. Id.
Still, more pressing are the cumulative impacts of the entire project –
specifically, the 143-mile length of the rest of the proposed pipeline. This portion of
the pipeline crosses through a wide range of eco-zones, with a high archeological
site density. Few of these resources have been studied, explains Keller, and if they
are not, they could be lost to science forever. For that reason, Keller argues “in the
strongest language possible that:
9

 “FERC should require a proper boots on the ground archeological
assessment of the entire pipeline route. This would minimally involve a
100 percent intensive pedestrian survey of the 125 foot wide
construction corridor the entire 143-mile length of the pipeline route.
Where there is a likelihood of buried deposits, shovel testing should be
conducted. In areas where there is a high likelihood of deeply buried
archeological deposits, deeper testing should take place, including
backhoe trenches at regular intervals to a depth concurrent with the
depth of disturbance of the pipeline construction (approximately seven
feet).
Keller Letter, BBCAEX2-007.
Endangered Species and Plants As note previously, the surveys conducted
by Trans-Pecos to identify endangered species are utterly inadequate – either of
too short a duration or during a period of low water when the species are not
present. More seriously, the Environmental Report fails to address the potential
impacts of the cross-border facility on the kinsoternon hirtipes species of aquatic
turtle which occur in Presidio County – the only known location for these turtles in
the United States. Professor Jennifer Smith, who has studies this species expressed
concern that contamination from pipeline could terminate this rare population of
turtles. BBCA Appendix, BBCAEX2-0014. Thus, a full EIS is required to assess
these impacts.
Nor did the Applicant’s Environmental Report adequately address the
habitat for 24 rare plants listed in the Texas Natural Diversity Database of the
Texas Parks and Wildlife Department. According to Retired Botanist Jackie Poole,
the cross-border facility site should have been surveyed for these species. See
BBCA Appendix at BBCAEX2-0012. In addition, the 143-mile segment of the
pipeline will impact many more federally listed plants, as well as many rare plant
species. Id. Unless an EIS is prepared and the entire pipeline is surveyed, many of
these plants will be harmed by the proposed pipeline.
10

 Impacts to Aquifer The Environmental Report fails to discuss the substantial
threat posed by the cross-border facility to area aquifers. As described in the
Environmental Report, the proposed route will cross over the following aquifers as
delineated by the Texas Water Development Board: Pecos Valley, Dockum, Rustler,
Edwards-Trinity, Igneous and West Texas Bolsons. It also is very near to the
Capitan reef complex and the spring complex at Balmorhea. The Dockum, Rustler
and Edwards-Trinity in the northern part of the area are the mostly likely of these
to exhibit karst development.
As Dr. Kevin Urbanczyk, a professor of physical and earth sciences at Sul
Ross University discusses in his report (BBCA Appendix, Exh. 2 at EX20022-23,
these aquifers are critical to water supply. in particular, the Rustler is described to
have karst development (TWDB GAM) and is thought to be the chief source of flow
at Diamond Y spring (Boghici). The Edwards-Trinity aquifer is part of the Edwards
Plateau landform that “is capped with a thick layer of Cretaceous limestone,
forming one of the largest contiguous karst regions in the United States” (TWDB
GAM, 2009 and Kastning, 1984)
Urbanczyk’s report continues:
The proposed pipeline route is over inferred groundwater flow
paths toward Diamond Y springs (Sharp). Farther to the south, the
proposed route travels mostly over rocks of the Trans Pecos
Magmatic Province (TPMP). The TPMP is the eroded remnants of
an extensive volcanic event that occurred between 48 and 17
million years ago. The topography of this area is varied due to the
differences in resistance to erosion of the multiple different rock
types associated with the TPMP. The proposed route is in the
vicinity of numerous landslide deposits, for example near Last
Chance Mesa (northeast of Alpine). The landslide deposits are
relatively recent deposits that indicate unstable bedrock (from
the TPMP) and could possibly have been triggered by seismic
activity.

11

 Southwest of Alpine the route continues over TPMP related rocks
until it crosses into the Presidio bolson near the Chinati mountains.
The Presidio bolson is a “bolson” or valley that is filled with
sediment (Groat). The valley is bounded on the north and the
south by faults of relatively recent geologic age (<~20 million
years).
BBCA Appendix at Ex20022.
Seismicity The West Texas region is vulnerable to seismic activity, according
to Professor Urbancyz:
West Texas has a dynamic geologic history that is recorded in the
various rock types that are in the proposed pipeline vicinity. Of
particular interest is the most recent of the events that involves
“extension” or “stretching” of the earth’s crust in the west Texas
region. This extension is related either to the “Basin and Range”
event or to the “Rio Grande Rift” event. One or the other (or both)
have resulted in the development of faulted valleys (see Presido
bolson discussion above) since about 20 million years ago. The recent
seismic activity experience in west Texas most likely indicates the
continued effects of this type of geologic activity. An earthquake
with the magnitude of 5.6 occurred in 1995 with an epicenter between
Alpine and Marathon. Prior to that, an earthquake occurred near
Valentine (~40 miles west of the proposed route) in 1931 with a
magnitude of 5.8.
This seismic activity poses a threat of rupture or instability to the
pipeline. Yet, Trans-Pecos’ application makes no mention of seismic activity
as a potential impact. At the very least, the Commission must prepare an EIS
to study seismic activity in the area and impacts to the proposed pipeline.

Operator Safety Record and Cross-Border Concerns Energy Transfer
Partners, the parent company of Trans-Pecos, has had multiple pipeline accidents
in Texas and other areas of the United States within the past five years. One 42inch pipeline similar to the project proposed in this application and owned and
operated by Energy Transfer Partners in Cuero, Texas ruptured on June 15, 2015
12

 causing a massive fire that melted nearly a half-mile of roadway.5 In Missouri,
November 28, 2013 another Energy Transfer pipeline, a 30-inch natural gas line 75
miles east of Kansas City, exploded, setting fire to barns, farm outbuildings,
equipment and hay bales.6 A 30-inch natural gas line owned by Florida Gas
Transmission Co., a subsidiary of Energy Transfer Partners, exploded on June 18,
2013, causing 55 people to be evacuated from their homes and melted the siding
off of one of those residents mobile home.7 A compressor station northwest of
North Zulch, Texas on January 17, 2013 burst into flames due to a malfunction of
the compressor station at that Energy Transfer site. Fernando Castro.8 Another
explosion occurred in Texas on July 28, 2010 by an Energy Transfer 36-inch
pipeline that created a 70 by 80 foot crater in the ground due to unexplained
causes.9 Fortunately no one was seriously injured in any of these incidents but

See Sergio  Chapa,  Pipeline  explosion  in  Cuero  has  residents  rattled,  clean  up  
underway,  (June  17,  2015,  12:38  PM),  online  at  
http://www.bizjournals.com/sanantonio/blog/eagle-­‐‑ford-­‐‑shale-­‐‑
insight/2015/06/pipeline-­‐‑explosion-­‐‑in-­‐‑cuero-­‐‑has-­‐‑residents-­‐‑rattled.html.  
5

6

See Paul Ausick, Second Natural Gas Pipeline Explodes; That’s Two in
Two Weeks, (November 29, 2013, 10:22 AM), online at
http://247wallst.com/energy-business/2013/11/29/second-natural-gas-pipelineexplodes-thats-two-in-two-weeks/
See Mark  Schleifstein,  et  al,  Gas  line  explodes  in  Washington  Parish,  (June  18,  
2013,  8:27  PM),  online  at  
http://www.nola.com/traffic/index.ssf/2013/06/gasline_expolsion  _reported_in.html.  
7

See Fernando Castro, Fire  at  facility  quickly  doused,  (January  23,  2013,  9:08  
AM),  online  at  http://www.madisonvillemeteor.com/news/article_  bb02293e-­‐‑656e-­‐‑
11e2-­‐‑b466-­‐‑0019bb2963f4.html.  
8

See Joel  Williams,  Natural  gas  pipeline  explosion  rocks  FM  949  community,  
(August  5,  2010,  12:00  AM),  online  at  
9

13

 many of them occurred in lines similar to the proposed Trans-Pecos line and arose
from unexplained causes.
These safety concerns are exacerbated by the cross-border nature of the
pipeline. Trans-Pecos’ application did not provide any information on how the
pipeline will guard against security threats that originate on the Mexico-side of the
project. At the very least, the Commission must examine how these matters will
be addressed as the proceeding moves forward, and allow the parties an
opportunity to comment further.
C.

There Is No Need for the Proposed Project
The Commission holds that the Certifcate Policy Statement's underlying

principles are applicable in our determination of the public interest for projects
under NGA section 3.10 One of the factors that the Commission considers under the
Certificate Policy is whether a need exists for the project. The applicant carries the
burden of proof on demonstration of need.
Here, Trans-Pecos failed to show a need for the project. There are currently
two other applications that have been filed at FERC within a month of the TransPecos application that also plan to supply CFE, the Mexican Federal Electricity
Commission. Roadrunner Gas Transmission, LLC proposed a 30-inch pipeline
project filed on April 9, 2015 planning a 900-foot line that will import and/or export
natural gas from San Elizario in El Paso County, Texas to Mexico near the City of
http://www.sealynews.com/news/article_a34ea00f-­‐‑e53d-­‐‑5551-­‐‑b2ac-­‐‑
c371adbf1948.html.  
Bradwood  Landing  LLC,  126  FERC  ¶61,035  (2009)  (applying  Policy  
Statement  principles  to  evaluation  of  LNG  facility  under  NGA  Section  3).  See
Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (1999),
order on clarification, 90 FERC ¶61,128, order on clarification, 92 FERC ¶ 61,094
(2000) (Certificate Policy Statement).
10

14

 San Isidro. Comanche Trail is a 42” pipeline that will also transport natural gas
from San Elizario in El Paso Country, Texas to Mexico near the City of San Isidro.
Comanche is also a subsidiary of Energy Transfer Partners, L.P. and filed the
application for the Comanche Trail on May 29, 2015, a day after the Trans-Pecos
application was filed.
CFE contracted Roadrunner, Trans-Pecos, and Comanche and is the
pipelines’ gas customer. The intended end users of the three pipelines include four
new combined cycle electrical power plants due to be constructed between 2018
and 2028. All four will likely never run at maximum all day, therefore, they would
produce significantly less than 91 gigawatt-hours per day (gWh/d) of electricity. At
a constant flow, the pipelines would deliver enough gas to generate 130 gWh/d.
The combined capacity of the Trans-Pecos and Comanche Trail pipelines
exceeds the demand by the proposed generation systems by a factor of 1.4X, and all
three pipelines deliver more gas, by a factor of 1.9X than required for generation.
Any two of the pipelines could deliver more than sufficient fuel to operate the
future power plants. Because natural gas is a network-transported commodity, it
can be argued that the Trans-Pecos is not necessary, based on the combination of
Roadrunner and Comanche Trail.11

D.

The Commission Must Consider the Entire Project Under NEPA

11

Related to project need is also the issue of project alternatives. Trans-Pecos
has not proposed any project alternatives that might meet the claimed need for the
project. The Commission must evaluate these alternatives under NEPA. BBCA
reserves the right to propose project alternatives for consideration once additional
information about the project and the purported need is disclosed.
15

 Trans-Pecos included only the impacts of the cross-border facilities in its
application. But, the Commission must prepare an environmental impact statement
(EIS) to consider the impacts of the 143-mile non-jurisdictional intrastate pipeline as
required by (1) the Commission’s four-factor test in Algonquin Gas Trans. Co.,12
(2) NEPA’s anti-segmentation policy and (3) CEQ regulations on evaluation of
cumulative impacts,13 and (4) CEQ regulations governing preparation of an EIS.
Discussion of each topic follows.
1.

The Commission must review impacts of the 143-mile pipeline
under the Algonquin Gas Trans. Co. four factor test:

The Commission’s standard of environmental review for non-jurisdictional
facilities, when authorizing jurisdictional facilities under NGA Section 3, is set out
in Algonquin Gas Trans. Co.14 Under the Algonquin test, the Commission balances
the following four factors:
1) Whether the non-jurisdictional facility is “merely a link” in a corridortype (e.g., transportation/utility transmission) project;
2) whether aspects of the upland intrastate facility, in the immediate vicinity
of the regulated activity, affect the location and configuration of the
regulated activity;
3) the extent to which the entire project will be within FERC jurisdiction;
and
4) the extent of cumulative federal control and responsibility.
Applying the Alonguin test, the Commission must extend environmental review to
Trans-Pecos’s proposed intrastate pipeline facilities.
12

Algonquin Gas Trans. Co., 59 FERC ¶ 61,255
See Delaware Riverkeeper v. FERC, 753 F.3d 1304, 1313 (D.C.  Cir.  2014).
14
59 FERC ¶ 61,255, at *11- *12. See also, National Committee for New River
v. FERC, 373 F.3d 1324 (D.C. Cir. 2004)(citing with approval Commission’s
Algonquin test for determining scope of authority to review non-jurisdictional
facilities).
13

16

 a.

Trans-Pecos’s Proposed Intrastate Pipeline Is Not Merely a
Link in a Corridor-Type Project.

In SunShine Interstate Trans. Co.,15 the Commission applied the first Algonquin
factor in its preliminary determination to find that 144.8 miles of proposed
jurisdictional pipeline (the SITCO pipeline)—designed to connect to 569.3 miles of
proposed intrastate pipeline (the SunShine pipeline)—was “not merely a link” but
rather comprised “crucial mainline facilities.”16
Without the jurisdictional facilities, the intrastate pipeline would “not be
connected to crucial natural gas supplies or the national pipeline grid” and,
“[a]bsent approval of [the jurisdictional facilities]…[the intrastate pipeline would]
not be built.”17 These circumstances merited the Commission’s inclusion of the
intrastate pipeline in environmental review.18
In Trans-Pecos’ Environmental Report accompanying its Application, the
company noted that the 143 mile segment of 42-inch pipeline would have as its
principal business the “transportation of natural gas from a hub on the pipeline
grid…located [near] Coyanosa in Pecos County[,] proceed[ing] generally southwest
until reaching the connection to the [Project] in Presidio County, Texas.”
(Environmental Report at 6). Trans-Pecos admits that the intrastate pipeline is a
“corridor type project” but argues that the border-crossing facility “does not

15

SunShine Interstate Trans. Co., 67 FERC P.61,229 (2003) (vacated upon
SunShine’s withdrawal of application due to market changes).
16
Id.
17
Id.
18
See also Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d
1105, 1116 (9th Cir. 2000) (noting that the Court only upholds agencies’ decisions to
limit the scope of NEPA review “to [jurisdictional] activities…where the [nonfederal] and federal portions of the project could exist independently of each
other.”).
17

 comprise any kind of link” thereto because exporting and importing natural gas
with Mexico is not interstate commerce. (Environmental Report at 7).
That foreign trade is not interstate commerce does not diminish the crucial
role of the cross-border facilities to the project as a whole. Trans-Pecos’ proposal
substantially echoes SunShine Pipeline’s in that, there, the jurisdictional facility was
“designed to connect” to the intrastate pipeline. Here it is likewise true that,
without Trans-Pecos’s intrastate pipeline, there would be very little use for its
proposed border-crossing facility. The conjoined nature of these two facilities must,
as in SunShine Pipeline, result in environmental review of the intrastate pipeline.
b. Aspects of Trans-Pecos’s Upland Pipeline Directly Affect the
Location and Configuration of its Border-Crossing Facility.
In SunShine Pipeline, FERC noted that “the location and capacity of [the
intrastate] pipeline [would] directly impact the location and capacity of [the
jurisdictional] pipeline, since all of [the former]’s volumes will be transported by
[the latter].”19 This represents the flipside of the first Algonquin factor, by inquiring
about the necessity of locating a jurisdictional facility in a certain place based on the
assumed location for a nonjurisdictional facility.
In its Environmental Report, Trans-Pecos states that, to construct its bordercrossing facility, it would use “6.6 acres of the connecting intrastate pipeline
permanent easement to access the [temporary workspace].” (Environmental Report
at 1). The Environmental Report continues that the location of the border crossing
was “dictated by the interconnect location inside Mexico.” Id. at 36. If, as TransPecos stated in its Environmental Report, its intrastate pipeline is meant to
transport gas to the border crossing, then it seems only natural that the SunShine
19

67 FERC P.61,229.
18

 “location and capacity” finding would apply just as well to Trans-Pecos—not to
mention its use of the 6.6 acres of intrastate easement for constructing the
jurisdictional facility.
c.

FERC’s Jurisdiction Over the Entire Project Is Sufficient For
Review of Intrastate Facilities.

In SunShine Pipeline, the Commission found that even though the
nonjurisdictional facilities, which were 569 miles in length would be “more
extensive” than the 144-mile jurisdictional, segment, the latter were “nonetheless
significant.”20 Still, the Commission ultimately concluded that the smaller size of
the jurisdictional segment, when compared to the non-jurisdictional segment
weighted against an assertion of jurisdiction.
Here, while the intrastate pipeline, at 143 miles, is more extensive than the
1,093-feet cross-border portion, the impacts of the cross-border pipeline are
significant nonetheless. As discussed supra, the cross-border pipeline will
irreparably damage wetlands and cultural resources, potentially contaminate an
aquifer in a region where water is a precious commodity and jeopardize the safety
of residents. Nevertheless, even if the Commission finds that the third Algonquin
factor – i.e., the proportionate significance of the jurisdictional segment to the
overall project – does not warrant “federalizing” the entire project, as in SunShine,
the Commission can still assert jurisdiction over the 143-mile non-jurisdictional
segment based on the other three Algonquin factors alone.

20

Id.
19

 d.

There Is Sufficient Federal Control Over, and Responsibility
For, the Project, to Conduct Environmental Review of
Nonjurisdictional Facilities.

In SunShine Pipeline, FERC found that the fourth Algonquin factor -- “the
extent of cumulative Federal control and responsibility” over the project -- would
be “substantial.”21 The Commission cited the applicant’s need to obtain necessary
permits and approvals from the Army Corps of Engineers, the U.S. Forest Service
(USFS), and the U.S. Bureau of Land Management (BLM) because of the
nonjurisdictional facilities’ crossing of “forested areas, rivers and streams,
wetlands, swamps, and other environmentally sensitive areas.” Id.22 Likewise,
when a project does not implicate federal lands, courts have upheld the
Commission’s decision to decline jurisdiction.23
Here, Trans-Pecos must obtain certain federal permits for the
nonjurisdictional portion of the facility, specifically, a permit from the Corps of
Engineers for the 143-mile stretch of pipeline. See Table of Required Permits,
21

67 FERC P.61,229, at 61,703

22

In Gas Co. N.M., 64 F.E.R.C. P.61,226, at 62,669 (1993), FERC found that,
“[w]hile factor 4 evidences federal control over the nonjurisdictional facilities,” the
fact that BLM was already performing an environmental analysis of the project
meant that FERC could decline to perform environmental review of
nonjurisdictional facilities. Gas Co. N.M. is distinguishable because the project was
located almost entirely on federal lands owned by BLM and given that most of the
impacts would be to BLM properties, not surprisingly, the Commission deferred
review to BLM. Here, while other federal agencies such as the Corps have
permitting authority, they will not take as expansive a review as the Commission
and therefore, the duplication of effort that concerned the Commission in Gas Co.
NM is not an issue here.
23

See e.g., National Committee for the New River, Inc. v. FERC, 373 F.3d 1323,
1334 (D.C. Cir. 2004)(affirming Commission decision to decline jurisdiction given
its determination of insufficient federal control (made on grounds of “no [federal]
financial involvement[,]” “no federal lands…at stake[,]” or any other form of
federal involvement).
20

 Environmental Report. Moreover, the Commission also retains residual regulatory
control over the rates and practices of the Trans-Pecos pipeline. Although
ordinarily, an intrastate pipeline lies beyond the scope of the Commission’s
regulatory purview, at the same time, the Commission must also ensure
nondiscriminatory treatment between a pipeline’s jurisdictional and
nonjurisdictional services.24 While the Commission limits its determination to cases
where a company “voluntarily offers” such service on the interstate portion of its
system in order to insure that the intrastate portion complies,25 the Commission’s
reciprocity policy will apply here, Trans-Pecos will host an open season for shippers
to add onto the Project’s capacity, as per the terms of the RFP. See Exh. 3.
e.

If FERC Declines to Apply Algonquin Factor By Factor to
Review Intrastate Pipelines, It Should Come to the Same
Conclusion By Following Cameron LNG’s Application of
Algonquin.

In a recent case, FERC applied the Algonquin test summarily to conclude that
it should conduct environmental review of nonjurisdictional facilities. Prior to
Cameron LNG,26 the Commission had authorized Cameron LNG to build a liquefied
natural gas (LNG) terminal under NGA Section 3, and a takeaway pipeline under
NGA Section 7, alongside nonjurisdictional transmission lines supplying the
terminal with power. In the 2007 proceeding, FERC considered an expansion to that

24

Oasis Pipeline, LP, 127 FERC P.61,263 (2009).

25

Id at ¶ 14.
Cameron LNG, 118 FERC P.61,019 (2007) (vacated due to missed
construction deadline).
26

21

 LNG terminal.27 FERC noted that the jurisdictional facilities for this project would
be built on Cameron-leased land.28
FERC then applied the Algonquin test, but did so without outlining its
reasoning factor by factor: “The Commission has applied its four-factor test” and
“determined that the proposed electric transmission line and substation…are
subject to our review, and discuss their potential environmental impact in the
EA.”29 In FERC’s Environmental Assessment, however, the Algonquin inquiry is
nearly as limited:
Cameron would require electric power to service the proposed Terminal
Expansion Project. Although not regulated by the FERC, local electric
transmission lines that supply power to the terminal are an integral component to
the operation of this facility. Therefore, we are including them in our discussion in
this EA….
Entergy, the regional power company, would design and construct this new
transmission line and substation….
[W]e do not anticipate significant impacts from the construction and
operation of the electric transmission line.30
Given that no further environmental analysis appears in the docket, nor any
other mention of the Algonquin test, this means that FERC may summarily extend
its review to nonjurisdictional facilities. We add, however, that its environmental
review should be comprehensive rather than cursory (as it was in the Cameron
LNG Environmental Assessment).

27

Id at 61,085-87.

28

Id.

29

Id at 61,091.
Cameron LNG Terminal Expansion Project — Environmental Assessment,
FERC Docket No. CP06-422-000, at 16-17 (Nov. 17, 2006) (italics added).
30

22

 2.

Separate Review of the Cross-Border Facilities and the Rest of the
Pipeline Violates NEPA’s Anti-Segmentation Policy.

The CEQ regulations implementing NEPA require that an EIS include:
(1) connected actions, including those that are “interdependent parts of a larger
action and depend on the larger action for their justification;” (2) cumulative
actions, “which when viewed with other proposed actions have cumulatively
significant impacts;” and (3) similar actions, “which when viewed with other
reasonably foreseeable or proposed agency actions, have similarities that provide a
basis for evaluating their environmental consequences together.”31
The purpose for the rule against segmentation is to “prevent an agency
from dividing a project into multiple actions, each of which individually has an
insignificant environmental impact, but which collectively have a substantial
impact.”32 In other words, the anti-segmentation rule prevents applicants and
agencies from thwarting their NEPA obligations by chopping projects into smaller
components in order to avoid considering their collective impact and to “conceal
the environmental significance of the project or projects.”33
An agency “impermissibly ‘segments’ NEPA review when it divides
connected, cumulative, or similar federal actions into separate pieces under
consideration.”34 In Delaware Riverkeeper, the court found that the Commission had

31

40  C.F.R.  §  1508.25(a).  

See, e.g., Wilderness  Workshop  v.  BLM,  531  F.3d  1220,  1228  (10th  Cir.  
2008)  (emphasis  added);  Great  Basin  Mine  Watch  v.  Hankins,  456  F.3d  955,  969  (9th  
Cir.  2006).  
32

33

Hammond v. Norton, 370 F. Supp. 2d 226 (D.D.C. 2005).

34

Delaware Riverkeeper, 753 F.3d at 1313.
23

 unlawfully segmented environmental review of four separate proposals by the same
pipeline companies to upgrade different sections of the same line. In concluding that
the projects were “inextricably intertwined” as part of the same pipeline, the court
relied on facts showing a physical, functional and temporal nexus between the four
proposals – such that [t]he end result is a new pipeline that functions as a unified
whole thanks to the four interdependent upgrades.”35 The Delaware Riverkeeper court
also found that due to the physical and functional connection and interdependence
on the three other proposed pipelines that were part of the Eastern Leg of the 300
Line, the segment at issue had no independent utility.36
One reason the Northeast Project in Delaware Riverkeeper was considered to
be interdependent on the other lines was because the gas entered the system at one
end and passed through each of the other pipe sections to reach its extraction
points.37 Likewise, the Presidio Crossing Project is dependent on the 143-mile section
of the pipeline because the natural gas enters the line at the beginning of the 143miles and travels through the Presidio Crossing Project to reach its end destination
in Mexico. This project does not have its own independent purpose because it relies
on the gas that travels from the 143-mile pipeline to supply the end consumer across
the Mexican border. The Presidio Crossing merely acts as a short 1,093-foot
connector between the 143-mile pipe and the pipeline on the other side of the Rio
Grande River. The end result of the proposed pipeline in this case and the 300 Line

35

Id at 1308-09.

36

Id at 1308.

37

Id at 1309.
24

 upgrade in Delaware Riverkeeper is a new pipeline that functions as a unified whole
and therefore should be considered as such under the cumulative environmental
impacts reviewed by FERC.38
Delaware Riverkeeper emphasizes the importance of the timing of the
projects when deciding whether the FERC review must look at the combined
environmental impacts of multiple projects.39 The review of the Northeast Project
application by FERC overlapped with its review of the other proposed projects
along the 300 Line.40 Similarly, the Presidio Crossing Project and the Texas
Commission’s review of the 143-mile pipeline will overlap as well.
The geographic, temporal and functional correlation between the
Presidio Crossing Project and the 143-mile pipeline show that the Presidio Project
does not have an independent utility without the longer line. Therefore, as in
Delaware Riverkeeper, the Commission must consider the intrastate pipeline to
avoid unlawful segmentation of the project and prevent the company from
evading environmental review.
3.

Cumulative Impacts

When FERC is conducting an environmental review of a proposed project
NEPA requires consideration of actions that are connected, similar or cumulative
to the proposed action.41 Cumulative effects are defined as “the impact on the
environment which results from the incremental impact of the action when added

38

Id.

39

Id at 1318.

40

Id.
40  C.F.R.  §  1508.25.  

41

25

 to other past, present, and reasonably foreseeable future actions regardless of what
agency (Federal or non-Federal) or person undertakes such other actions.
Cumulative impacts can result from individually minor but collectively significant
actions taking place over a period of time.”42 Here, where the impacts of the crossborder facility are added to the 143-mile pipeline, there are substantial
environmental impacts as discussed in Part III.A supra.
In Delaware Riverkeeper, the court determined not only that the Commission
had improperly segmented four different project proposals, but also that it failed
to consider the cumulative impacts of each segment. As the court explained, a
meaningful assessment of cumulative impacts must identify:
(1) the area in which the effects of the proposed project will be felt; (2) the
impacts that are expected in that area from the proposed project; (3) other
actions — past, present, and proposed, and reasonably foreseeable — that
have had or are expected to have impacts in the same area; (4) the impacts
or expected impacts from these other actions; and (5) the overall impact that
can be expected if the individual impacts are allowed to accumulate."43
The court found that the Commission’s conclusory statement that the
project “is not expected to contribute to cumulative impacts” failed to satisfy the
NEPA.
The Commission’s consideration of cumulative impacts here is likewise
conclusory. The Environmental Report references cumulative impacts, but in a
cursory manner that falls far short of the analysis required by NEPA. The only
mention to cumulative impacts states that the 143-mile segment is not under the
jurisdiction of FERC and therefore an environmental review of that larger segment
is not warranted (Environmental Report at 7).
42
43

40  C.F.R.  §  1508.7.
Grand Canyon Trust v. FAA, 290 F.3d 339, 345 (D.C. Cir. 2002).
26

 A similar pipeline located in Texas, owned by NET Mexico, also involved a
short 1,400 foot segment of cross-border pipeline connected to a longer, 120 mile,
non-jurisdictional pipeline segment.44 The environmental impacts section of the
Order Issuing a Presidential Permit to NET Mexico points the reader to the
cumulative impacts section of the EA.45 The EA makes clear that the nonjurisdictional segment of the pipeline must be included in the review of cumulative
environmental impacts.
“In accordance with the NEPA and FERC policy, we considered the
cumulative impacts of the Project with other projects in the general
project area...Because the planned non-jurisdictional intrastate
facilities would be built in close proximity to the Project, there would
be cumulative impacts.”46
The EA goes on to explain how the non-jurisdictional facilities will impact
each of the different environmental considerations including construction
procedures, geology, wetlands, wildlife, vegetation, land use, and air quality.47
FERC’s environmental review of the Presidio Crossing Project must review the
cumulative effects of the 143-mile non-jurisdictional segment in order to comply
with NEPA and FERC policy as it was done in the case of NET Mexico’s crossborder pipeline.
4.

The Commission Must Prepare An EIS

44

NET Mexico Pipeline Partners, LLC, 145 FERC ¶ 61,112, P.4 (2013).

45

Id at P.23.

46

Environmental Assessment Report, FERC Docket No. CP13-482-000 (May

20, 2013).
47

Id.
27

 Given the project’s extensive impacts on the Big Bend region, as well as the
Commission’s obligation to consider the effects of both the proposed cross-border
facility and the 143-mile pipeline, the Commission must prepare an EIS. Indeed,
under the factors set forth in the CEQ regulations, the Commission has no choice
but to prepare an EIS under applicable factors.
As is already well-established, NEPA requires an EIS for major federal
actions that significantly affect the quality of the human environment. NEPA’s CEQ
regulations list ten factors for evaluating the significance and intensity of an action
for purposes of determining whether an agency must prepare an EIS. 40 C.F.R.
§1508.27 As relevant here, the list includes:
•

Unique characteristics of the geographic area such as proximity to

•

Historic or cultural resources, park lands, prime farmlands, wetlands,
wild and scenic rivers, or ecologically critical areas.

•

The degree to which the effects on the quality of the human
environment are likely to be highly controversial;

•

The degree to which the action may adversely affect districts, sites,
highways, structures, or objects listed in or eligible for listing in the
National Register of Historic Places or may cause loss or destruction
of significant scientific, cultural, or historical resources; and

•

The degree to which the action may adversely affect an endangered or
threatened species or its habitat that has been determined to be critical
under the Endangered Species Act of 1973.

The existence of just one of these factors may trigger the need for an EIS.48As
discussed below, each of these factors below are present in this case and require
closer scrutiny of environmental effects through an EIS:

48

See Ocean Advocates v. US Army Corps of Engineers, 402 F.3d 846 (9th Cir
2004), citing National Parks & Conservation Ass’n. v. Babbitt, 241 F.3d 722, 731
28

 Unique geographic characteristics: As the nineteen affidavits and expert
reports bear out, the Big Bend region is a unique location characterized by
sensitive environmental habitat, rare plants and species not found anywhere else,
and rich archeological and cultural resources. These resources – which have not
been examined in the Environmental Report submitted by the applicant - will be
irreparably harmed by the proposed pipeline.
Degree to which effects on quality of human environment are
controversial: As evidenced by the level of interest in this case, the potential
impacts of the proposed projects are highly controversial. Yet despite the project’s
potential for harm, the applicant’s studies submitted are cursory and fail to
capture the project’s true impacts. Complicating matters, there is no indication
that the proposed project is even needed given the other pipeline development
taking place in the region. Because the issues related to the proposed project’s
impacts are so complex, an EIS would allow the opportunity to gather data so that
the Commission can arrive at a well-reasoned conclusion on both need for the
project and impacts.
Impacts to Endangered Species and Loss of Culturally Significant
Resources: Several expert reports submitted by BBCA, and summarized in Part
III.A, supra document the project harm to endangered species and threat to loss of
historic resources. These impacts further justify the need for preparation of an EIS.
The proposed pipeline is a major action that will have significant impacts as
defined by 40 C.F.R. §1508.27. Applying these factors, the Commission has no

(applying 40 C.F.R. §1508.27 and finding EIS is required prior to allowing
cruise ships in Glacier Bay).
29

 Choice but to prepare an EIS to evaluate the need for, and impacts of the entire

pipeline.

30

CONCLUSION
Wherefore, in light of the foregoing, the BBCA respectfully requests that (the
Commission (1) GRANT this motion to intervene and allow BBCA to participate in
this proceeding with full rights of party status, including the right to request a
hearing, cross examine witnesses and seek rehearing and appeal; (2) prepare a full
environmental impact statement (EIS) on both the cross-border segment and
intrastate segment of the 143-mile pipeline, and direct Trans-Pecos to conduct or
submit additional studies to enable the Commission to undertake a meaningful
environmental review and (3) conduct public hearings and scoping sessions to
afford the public the right of notice and meaningful participation in the EIS process.

Respectfully submitted,

______________________________
Carolyn Elefant
LAW OFFICES OF CAROLYN ELEFANT
2200 Pennsylvania Avenue N.W.
Fourth Floor East
Washington D.C. 20037
(202) 297-6100
Carolyn@carolynelefant.com
FERC Counsel to BBCA
June 30, 2015

31

 CERTIFICATE OF SERVICE
Wherefore on this 30th day of June, I caused to be served the foregoing
Motion to Intervene electronically on all parties on the Commission’s electronic
service list in this proceeding, in accordance with Commission regulations.
/Carolyn Elefant/
__________________________________
Carolyn Elefant

32