No Talking Out of Turn — Profiling Pre-filing Projects

Originally published for customers April 8, 2026.

What’s the issue?

Two related questions often arise in natural gas infrastructure development: when to use FERC’s pre-filing process, and how the Commission’s ex parte rules operate and constrain engagement once a proceeding becomes contested.

Why does it matter?

Pre-filing allows open coordination with FERC and stakeholders before ex parte limits attach, shaping permitting strategy, timelines, litigation exposure, and how projects are structured.

What’s our view?

Pre-filing can create valuable early alignment, in part by avoiding ex parte constraints, but it does not guarantee faster outcomes. Its value depends on project complexity and execution.

Two related questions often arise in natural gas infrastructure development: when to use FERC’s pre-filing process, and how the Commission’s ex parte rules operate and constrain engagement once a proceeding becomes contested. Pre-filing allows open coordination with FERC and stakeholders before ex parte limits attach, shaping permitting strategy, timelines, litigation exposure, and how projects are structured. Pre-filing can create valuable early alignment, in part by avoiding ex parte constraints, but it does not guarantee faster outcomes. Its value depends on project complexity and execution.

Say It Now Or Say It on the Record

To understand when pre-filing is useful, you have to understand FERC’s ex parte rules because one of pre-filing’s primary advantages is that those rules do not apply. The Commission’s ex parte rules limit communication once a proceeding becomes contested, and pre-filing creates a window to work things through before that shift.

At a high level, ex parte rules come out of basic fairness in the Administrative Procedure Act (APA) and the Due Process Clause in the Constitution. In a courtroom, these concepts make obvious sense: one side should not get to make their case in the judge’s chambers while the other side waits outside. It gets a bit trickier as applied to FERC because it’s a “quasi-judicial” agency, but applying this framework to projects and enforcement cases makes it easier to understand. Across those two scenarios, FERC has three archetypes: collaborator, prosecutor, and judge.

For projects, before an application is filed, there is no formal “case” so FERC is not yet acting as a “judge,” so there is no formal defined “record” that both sides must be able to see and rebut. During this stage (including pre-filing), developers can engage directly with Commission staff as a collaborator to work issues through, the idea being that a more complete formal application will result. In enforcement proceedings, during the investigation phase, FERC is acting as a prosecutor and enjoys unrestrained access to Commission staff in furtherance of investigative strategy.

Then come the triggers. Once a certificate application is filed, FERC moves into its quasi-judicial role, judging whether or not to grant or deny an application. If the proceeding becomes contested, that triggers ex parte restrictions, and from that point forward, all communications must be on the record via more cumbersome formal data requests, responses, and rebuttals. Similarly, once an investigation transforms into an enforcement proceeding when an order to show cause is issued, the ex parte rules require separation of enforcement and decisional staff.

Talking Shop — Profiling Prefiling Projects

As a general rule, pre-filing tends to happen more frequently in larger or more complex projects. It is required for LNG export terminals precisely because the scale, coordination, and scrutiny involved leave little room to improvise after filing. As shown below, in 2022 and 2023 all prefilings were for LNG terminals.

A total of 17 projects have been pre-filed since 2020. Most are for LNG and larger pipeline projects (50+ miles). Five of the pipeline projects fall below that threshold, including one compression-only project, as shown below:

These smaller projects often share characteristics that may have increased the need for early stakeholder engagement, such as siting in regions like the Northeast where other projects have faced significant opposition:

• Delta Lateral Project: needed to cross state and federal land to expand the Kern River Gas Transmission system, supplying the Intermountain Power Project in Utah with 140,000 Dth/d.
• Morgantown Connector Project (withdrawn): aimed to serve a power plant in West Virginia by adding 220,000 Dth/d to Eastern Gas Transmission and Storage.
• Virginia Reliability Project: A 100,000 Dth/d expansion of Columbia Gas Transmission in Virginia.
• Commonwealth Energy Connector Project: A 105,000 Dth/d expansion of Transcontinental Gas Pipeline in Virginia.
• Algonquin Reliable Affordable Resilient Enhancement (AGT Enhancement): A 75,000 Dth/d expansion of Algonquin Gas Transmission in Massachusetts and Rhode Island.

Hashing It Out — But Did It Change Anything?

The obvious question is whether pre-filing actually saves time. That is harder to answer than it sounds. Pre-filing can make projects look slower because the numbers (pre-filing duration, time from filing to certificate, and total timeline) only show what happened, not what was avoided. But you don’t get to see the version of the project where pre-filing didn’t happen — the data requests that never get issued, how long they would have taken to draft and respond to, or the arguments that never show up in litigation because they were worked through early. By the time a project reaches the record, much of the important conversation is already over.

A separate question comes up from time to time: whether ex parte rules for contested proceedings are even required. Some have argued that FERC’s approach goes beyond what is strictly required under the APA, which governs ex parte communications in formal rulemakings and trial-type adjudication proceedings, not the informal proceedings that make up most of FERC’s work.

Even if that is right, removing those constraints that have been memorialized in FERC regulations and Orders would not be simple. Courts may also still require similar protections as a matter of fairness, and agencies tend to avoid the appearance of off-the-record influence.

If you would like to discuss how FERC procedures like pre-filing, ex parte rules, and certificate review shape project timelines and risk, please contact us.