Constitutional Challenge to FERC
The Federal Energy Regulatory Commission (“FERC”) has become a demonstrably biased agency that has become a partner with, rather than a regulator of, the pipeline companies it purports to oversee. In addition, FERC is misusing legal loopholes and ignoring court orders to advance gas infrastructure projects while preventing the public from exercising their rights to judicial review or fair public participation in the process. License for FERC’s abuse of power and blatant bias is provided by the agency’s funding mechanism which makes it an agency funded 100% by the industry it regulates, and is advanced by the revolving employee door that exists between FERC and its regulated community.
FERC is in need of reform.
There are two pathways to this reform being advanced by the Delaware Riverkeeper Network:
1) is getting an independent investigation into the agency by the Federal Energy Regulatory Commission
2) is a legal action brought by the Delaware Riverkeeper Network challenging FERC's decisionmaking and funding as a violation of the Fifth Amendment of the U.S. Constitution.
Examples of the many problems with FERC and how it operates include, but are not limited to:
I. The funding mechanism which results in the Federal Energy Regulatory Commission being 100% funded by the industry it regulates has resulted in blatant bias in favor of pipeline companies and against the public. For example, FERC has approved 100% of the pipeline project proposals that it has reviewed. Such an approval rate cannot be found at any other independent federal agency.
II. The revolving door between employment with FERC and the industry it regulates contributes to agency bias in the project review and certification process, the unjustifiably high approval rate of proposed projects, and the lack of oversight and enforcement for FERC approved pipeline projects.
III. FERC abuses of law that deny the public their legal rights:
a) use of “tolling orders” to allow projects to advance while denying citizens the ability to initiate an appeal in court;
b) granting permission for pipeline companies to begin construction activity prior to the company securing all necessary permits and approvals;
c) continued use of segmentation and the failure to undertake cumulative impact environmental reviews in clear violation of the National Environmental Policy Act (“NEPA”), and in disregard of a July 2014 court order and opinion from the D.C. Circuit;
d) failure to comply with the requirements of NEPA, and instead using subjective judgment to pre-determine the level of environmental review for proposed projects.
IV. Allowing the taking of public and private land via eminent domain for projects that are for private benefit as opposed to a public purpose.