People’s Dossier of FERC Abuses: Critical Information Concealed

FERC Intentionally Conceals Critical Information from States and the Public

(Download Printable copy of “People’s Dossier of FERC Abuses: Consultant Conflicts of Interest with attachments here)

FERC has intentionally, both individually and jointly with pipeline companies, withheld critical information and facts from state lawmakers and the public so as to inappropriately drive the outcome of pipeline infrastructure decisionmaking.

In their review of the Tennessee Gas Pipeline Company, LLC’s (“Tennessee”) Orion Project (“Orion”) (FERC Docket CP16-4), FERC concealed information from the Pennsylvania Department of Environmental Protection (“PADEP”) regarding a project Alternative that would have greatly reduced the project footprint and its impact on water resources, and therefore could have had a substantial influence on the State’s Clean Water Act (“CWA”) Section 401 Certification determination, as well as the public’s understanding and opinion.  

The Delaware Riverkeeper Network was involved in two legal challenges to the Orion project, allowing the organization to secure documents through litigation that were not otherwise available to the public or the state through public information requests. (Attch 1) Were it not for this litigation, evidence of FERC concealing critical information would never have come to light. The fact that this information was only made available as the result of litigation and was not otherwise available through federal Freedom of Information Act requests demonstrates the critical need for a formal Congressional investigation – without which there is no way to know how frequently this collusion to hide information and mislead State decisionmaking and public perception is actually occurring.

Facts demonstrating that FERC withheld analyses of viable, technically feasible, and environmentally preferable alternatives from the state and the public:

• On or about July 10, 2016, FERC generated a Draft Environmental Assessment (Draft EA) for Tennessee’s Orion Project.
• In the Draft EA, FERC identified and evaluated alternatives to the Orion Pipeline proposal.
• As a result, the Draft EA included a detailed analysis regarding an Alternative which eliminated the need for the 12 miles of pipeline looping being proposed and which would eliminate all waterbody impacts. (Attch 2)
• The Draft EA included a detailed description of the Alternative and concluded that this Alternative “meets the purpose and need” of the Orion Project, and “is technically feasible.”
• The Draft EA also concluded that the Alternative “would eliminate the need for 12.9 miles of new pipeline construction, which would eliminate 30 waterbody crossings, 13 road crossings, and impacts on wetlands and other land use impacts along the pipeline route.”
• The Draft EA included a table showing the different impacts resulting from the Alternative in comparison to the proposed looping pipeline project. The analysis showed that while the Alternative had its own set of impacts which required full and thoughtful consideration, the proposed looping project would harmfully impact 30 waterbodies, would have significant wetland impacts, as well as result in 222.6 more acres of total disturbed land, over 100 more acres of impact to agricultural lands, would traverse 2,100 feet of steep slopes, and would necessitate the long-term deforestation of between 9 and 19 more acres of upland forests.  

Therefore, not only did the Draft EA conclude that the Alternative was technically feasible and would meet the purpose and need of the Orion Project, but it also concluded that the Alternative’s environmental impacts would be significantly smaller, thereby making it the environmentally preferred option. However, without reason or any explanation, FERC scrubbed this entire analysis of the Alternative from the final Environmental Assessment that was eventually released to the public, and to the State of Pennsylvania. (Attch 3)

The public and state agencies were never made aware of the analysis scrubbed from the Draft EA.

As such, both the public and state were never provided, by FERC, critical information regarding the scope and breadth of potential alternatives to the proposed Orion Pipeline Project, including the less environmentally harmful Alternative.

FERC’s decision to hide this information from the state and the public was particularly egregious because, under the 401 Certification, the central issues that PADEP was required to analyze were:

1. whether the project was “water dependent,” and
2. whether there were any practicable alternatives that would not impact aquatic resources.

Had PADEP been provided access to the draft Environmental Assessment and/or the analysis and conclusions regarding the Alternative, it is likely they would have been legally bound to choose the Alternative as opposed to the pipeline looping Project.

In the case of Orion, it is clear that FERC:

• deliberately and intentionally excluded an analysis of a viable, technically feasible, and environmentally preferable Alternative, which involved substantive issues that materially implicated Pennsylvania’s legal permitting obligations for the Orion Project, without providing any reason or explanation, and
• through this action, may have intentionally sought to inappropriately influence permitting decisions in order to secure the outcome sought by the pipeline company, as opposed to the outcome that was best for the environment or the state.