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People's Dossier of FERC Abuses: Undermining State Authority

(Download Printable copy of People's Dossier of FERC Abuses: Undermining State Authority here)

FERC Improperly Strips States of Their Legal Authority in the Certification Process

The Clean Water Act (CWA) prohibits FERC from issuing a Certificate of Public Convenience and Necessity prior to receiving a Clean Water Act Section 401 Certification from states impacted by a proposed project.

  • Section 401 of the CWA states: “no [federal] license or permit shall be granted until the certification required by this section has been granted or waived.” 33 U.S.C. § 1341(a)(1).
  • Several courts, including the Supreme Court, have elaborated on the CWA’s authority, stating:
    • “without [Section 401] certification, FERC lacks authority to issue a license.”   (City of Tacoma v. FERC, 460 F.3d 53, 68 (D.C. Cir. 2006) and
    • Section 401 “requires States to provide a water quality certification before a federal license or permit can be issued...”(PUD No. 1 of Jefferson Cnty. v. Wash. Dept. of Ecology, 511 U.S. 700, 707 (1994) (emphasis added))

Despite this clear legal mandate, FERC routinely issues FERC Certificates for pipeline projects prior to state decisionmaking on CWA 401 Certification. FERC then compounds the harms inflicted by this illegal act by authorizing the use of eminent domain and construction activity (including earth moving and tree clearing) once the FERC Certificate has been issued, but prior to state CWA 401 Certification. (Attch 1, Attch 2) FERC wastes no time in granting these approvals, sometimes issuing them just hours after receiving a request. (Attch 3)

This is a blatant and knowing violation of the law by FERC. It is a violation that deprives states of their right and ability to prevent pipeline construction activities which will result in violation of state water quality standards by rejecting a project outright or mandating modifications regarding the route, construction practices, and/or mitigation obligations.

This issue plays out indiscriminately in project after project, when FERC and the pipeline companies feel the state is acting too slowly in issuing its CWA 401 Certification.

Constitution Pipeline (FERC Docket CP13-499): 

On December 2, 2014, FERC granted a Certificate to the Constitution Pipeline despite the fact that New York State had not issued a CWA 401 Certification. Thereafter, FERC granted the company the power of eminent domain, a power that the company began to exercise that same month with the filing of 125 complaints in condemnation against NY and PA landowners. FERC then expressly permitted the Constitution Pipeline to begin elements of construction. For example, On January 8, 2016, Constitution pipeline submitted a request to proceed which was quickly granted by FERC. (Attch 4)

Amongst other actions, FERC authorized the Constitution Pipeline company to seize and cut eighty percent of the trees in a forest in New Milford Township, Pennsylvania. On March 1, 2016, the Constitution Pipeline company began to cut the forest that has belonged to the Holleran family since the 1950s -- they live on the property, enjoy its natural beauty, and operated a growing maple syrup business (North Harford Maple).

On April 22, 2016, New York denied CWA 401 Certification for the pipeline, and as a result, the project is permanently stalled. (Attch 5) If NY never grants the CWA 401 Certification, the project cannot be built and the devastation inflicted on the Hollerans and other Pennsylvania environments, communities, and homeowners was for naught. The associated exercise of eminent domain on New York residents could also have been avoided. Even if New York’s approval were to be granted at some future time, the Hollerans and other Pennsylvanians had to prematurely suffer the environmental, economic, and personal loss inflicted.

Despite New York’s denials of Constitution’s January 14 and February 25, 2016 requests to clear cut and start earth moving activities, and despite Constitution’s lack of a New York Water Quality Certification, the company started illegally clearing trees in New York. (Attch 6) Constitution went ahead with these activities in 2015 and 2016 in multiple towns and counties in New York, and when concerned citizens and the New York Attorney General’s Office made FERC aware of these activities, FERC did nothing to stop Constitution’s illegal acts, resulting in the permanent loss of vast amounts of trees and devastating impacts to water quality. (Attch 6, Attch 11)

Other examples:

  • FERC issued a Certificate for Sabal Trail (FERC Docket No. CP15-17)in February 2016, before CWA 401 Certifications were issued by Alabama and Georgia. FERC began approving construction in summer 2016, including through private lands for which no court date had yet been set to settle eminent domain claims. (Attch 7)
  • On March 11, 2016, FERC issued a Certificate to the Tennessee Gas Pipeline company for the Connecticut Expansion Project (FERC Docket No. CP14-529) before the state of Massachusetts issued or waived its CWA 401 Certification. (Attch 8, Attch 9)
  • On December 18, 2014, FERC issued a Certificate to Transco Pipeline Company for its Leidy Southeast Project (FERC Docket No. 16-416) before the state of Pennsylvania issued or waived CWA 401 Certification. (Attch 10)


Complete People's Dossier: FERC's Abuses of Power and Law 
available at  http://bit.ly/DossierofFERCAbuse

Supporting Documents