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People’s Dossier of FERC Abuses: Stripping People’s Rights

FERC Denies the Public their Right to Due Process Before Property Rights are Taken, and Irreparable Environmental and Community Harm is Approved

(Download printable copy of “People’s Dossier of FERC Abuses: Staff Conflicts of Interest with attachments” here)

FERC routinely uses a legal loophole (a tool called a tolling order) to deny the public the right to challenge approval of a pipeline project before it allows private companies to seize property rights via eminent domain and before FERC approves pipeline construction to begin in ways that inflict irreparable environmental and community harm.

How FERC Forces Communities Into Legal Limbo

Under federal law, a private party is not allowed to legally challenge FERC approval of a pipeline project until they have first submitted a rehearing request to FERC, and FERC has affirmatively granted or denied that request. Rather than do one or the other, FERC’s practice is to issue a “tolling order” in response to such requests, which temporarily grants the request but only “for further consideration”. As a result, the public’s ability to challenge the FERC decision is put into legal limbo until such time as FERC renders and issues its final decision regarding the rehearing request. It is common for FERC to place people in this legal limbo for up to a year or more, while allowing the pipeline company to advance its project, take property, cut through forests, and begin construction.

There does not appear to be a single instance when FERC has granted a rehearing request submitted by the public — as such, the denial is a foregone conclusion and the use of tolling orders is an obvious ploy to allow pipeline projects to advance unfettered by any legal challenge. The harms inflicted by the delay in responding to the rehearing requests cannot be undone or fully remedied later – forests cut cannot be instantly regrown; property rights, once taken, are not returned.

The New York Attorney General condemned FERC’s use of tolling orders “to extend the pendency of rehearing petitions in order to avoid judicial review of FERC orders. FERC’s use of tolling orders undermines congressional intent, infringes upon property rights of landowners, and renders judicial review meaningless.” (Attch 1) FERC Commissioner Glick has joined the impacted public (i.e the focus of this Dossier) in urging Congress to enact reforms to end this harmful practice:

This situation highlights the need for Congress to enact legislation amending the judicial review provisions of the Natural Gas Act and the Federal Power Act to account for the ability of an aggrieved party to seek redress in the courts of appeal. It is fundamentally unfair to deprive parties of an opportunity to pursue their claims in court, especially while pipeline construction is ongoing. (Attch 2)

Tennessee Gas Pipeline Company’s Northeast Upgrade Project (TGP NEUP)

In the case of Delaware Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C. Cir. 2014), FERC’s use of a tolling order prevented any sort of real remedy even where a court ruled that FERC had violated the National Environmental Policy Act in allowing the use of segmentation and failing to consider cumulative impacts in its review and approval of the pipeline project. Specifically:

  • May 29, 2012: FERC issued a Certificate of Public Convenience and Necessity for the TGP NEUP. (FERC Docket No.CP11-161) The NEUP would devastate 810 acres of land and convert 120.6 acres, including forest, into permanent pipeline right of way. The pipeline would cut through PA’s Delaware State Forest, NJ’s Highpoint State Park, the Appalachian Trail, and cross the Wild & Scenic Delaware River. Seven miles of prime farmland and dozens of creeks and wetlands all fell within the pipeline’s proposed boot print.
  • June 28, 2012: the Delaware Riverkeeper Network filed its rehearing request.
  • July 9, 2012: FERC issued its tolling order. (Attch 11)
  • January 11, 2013: nearly 7 months after the original rehearing request was filed, FERC finally denied the rehearing request.
  • Delaware Riverkeeper Network filed its legal challenge within 2 weeks.

The seven months of legal limbo meant that by the time the Delaware Riverkeeper Network secured the court ruling that FERC had in fact violated federal law in their review and approval of the TGP NEUP pipeline, the project was fully constructed and in operation.

Transco Southeast Leidy — 15 month tolling order

While issuing a tolling order to leave communities in Pennsylvania in legal limbo for 15 months for the Transco Southeast Leidy pipeline project (FERC Docket No. CP 13-551), FERC issued over 20 Notices to Proceed that allowed the project to advance through various stages of construction and operation. Specifically:

  • Transco filed an application with FERC on September 30, 2013 to construct and operate the Leidy Southeast Pipeline, and received its Certificate of Public Convenience and Necessity from FERC on December 18, 2014.
  • The Delaware Riverkeeper Network submitted a rehearing request to FERC on January 16, 2015.
  • Already, on January 30, 2015 – prior to the deadline for the submission of rehearing requests – FERC issued Transco its first Notice to Proceed with the project.
  • On February 4, 2015 Transco requested that FERC approve its request for a Notice to Proceed with additional construction activity. FERC again granted Transco’s request on February 5, 2015.
  • On February 18, 2015 FERC issued its “tolling order,” granting DRN’s rehearing request for the purposes of “further consideration,” thereby putting the organization and its membership into a legal limbo that prevented them from taking any further legal action to challenge the pipeline’s approval.
  • On March 9, 2015, FERC again authorized Transco to begin tree felling and other construction activities, allowing the company to permanently destroy more than 140 forested acres adjacent to valuable streams and wetland resources. All of this occurred before the public had any chance for court review.
  • In total, FERC issued twenty Notices to Proceed for the project, including allowing certain portions of the project to begin operation, before it finally denied the Delaware Riverkeeper Network’s rehearing request on March 3, 2016 – 15 months later – thereby freeing the organization to file its legal challenge to the project.

Delaware Riverkeeper Network filed a legal challenge to the project on March 9; however, much of the irreparable harm to the environment that the Delaware Riverkeeper Network and its members had sought to avoid had already occurred.  By the time the Delaware Riverkeeper Network was allowed to proceed with its challenge, FERC had allowed the pipeline company to cut trees along 21 miles of right of way on 209 acres of land, and inflicted irreparable harm to at least 8 ½ acres of pristine forested wetlands. (Attch 3)

Constitution Pipeline

In the case of the Constitution Pipeline (FERC Docket CP 13-499), FERC tolled the rehearing request for nearly a year. In this case:

  • On December 2, 2014, FERC issued Certification for the Project.
  • On January 2, 2015, concerned communities filed their Rehearing Request.
  • January 27, 2015, FERC issued its tolling order leaving communities without a legal remedy as the project proceeded with eminent domain and elements of construction.
  • It wasn’t until one year later, January 28, 2016, when FERC finally denied the rehearing request, that concerned communities got the opportunity to challenge FERC’s approval of the Constitution Pipeline.

During the one year communities were in legal limbo, the project continued to advance towards construction:

  • By December of 2014, the Constitution Pipeline Company had filed 125 Complaints in Condemnation in the Northern District of New York alone, seeking to take private property rights away from landowners in its path. (Attch 5)
  • By the end of 2015 homeowners who had refused access to their property had their property rights overridden through forced condemnation, and the Constitution Pipeline Company secured access to the properties to finish surveying work and to tag trees for clearing.
  • On January 29, 2016, FERC approved tree cutting on 25 miles of the Pennsylvania portion of the pipeline, despite lacking multiple state and federal approvals, including New York Clean Water Act Certification. (Attch 6789)

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). (1) In total Constitution chopped down over 500 ash and sugar maple trees on the Holleran property alone, devastating their scenic beauty and their maple syrup operation. (2)

Ultimately New York would deny Clean Water Act Certification, stopping the project in its tracks.  As a result, property rights were taken, businesses harmed, forests cut, and the environment irreparably harmed for a pipeline that is unlikely to ever be built.  Property owners who were forced to spend their hard earned money to try to protect their property and property rights, are now forced to expend resources on legal actions in order to try to secure return of the property rights that were taken by eminent domain as a direct result of the actions and decisions of FERC.

The Holleran family has had pipeline construction stalled on their property for two years, with no compensation for the taking of their maple trees nor for the harm forced upon them of hosting a construction site on their land. (2) Where is the justice?

The Sabal Trail Project

The Sabal Trail Project (FERC Docket CP15-17-001) is part of a broader pipeline network known as the Southeast Market Pipelines Project, crossing through Alabama and Georgia to Florida. Sabal Trail was challenged in Sierra Club v. FERC, 867, F.3d 1357, 1373 (D.C. Cir. 2017), in which the court ultimately ruled that FERC had violated the National Environmental Policy Act in its failure to analyze greenhouse gas (GHG) emissions resulting from the Project. However, FERC’s use of a tolling order prevented any sort of timely remedy, with much of the pipeline in service before the decision was made. Specifically:

  • On February 2, 2016, FERC granted a Certificate of Public Convenience and Necessity to construct and operate the Sabal Trail Project.
  • On March 3, 2016, Sierra Club and other environmental petitioners filed a timely request for rehearing, rescission of the certificates, and a stay. Petitioners argued, among other things, that FERC had failed to estimate the downstream GHG emissions from the gas that would be transported by the project and had failed to consider the effects that those emissions will have on climate change, as required by NEPA.
  • On March 29, 2016, FERC issued its tolling order and on March 30, FERC denied the request for a stay. (Attch 17)
  • While the tolling order was in place and FERC was still considering Sierra Club’s rehearing request, FERC authorized the construction of the projects in August and early September 2016.
  • On September 7, 2016, FERC denied the rehearing request, finding that the FEIS sufficiently assessed GHG emissions.
  • In September 2016, Sierra Club, among other parties, appealed FERC’s Decision to the U.S. Court of Appeals for the District of Columbia Circuit.
  • In June and July 2017, while the court case was pending, Commission staff authorized the pipelines to commence service on completed facilities.
  • On August 22, 2017, the D.C. Circuit Court sided with the Sierra Club and other environmental groups, concluding that FERC had inadequately analyzed the impacts of GHG emissions that may result from the pipeline in violation of NEPA. See Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (No. 16-1329).

The six months of legal limbo meant that by the time the Sierra Club and other environmental petitioners secured the court ruling that FERC had in fact violated federal law in their review and approval of the project by failing to adequately consider climate impacts, the pipeline project at issue was fully constructed and in operation. The court decision vacated FERC’s previous approval of the Project and mandated that FERC either quantify and consider the Project’s downstream carbon emissions, or explain in more detail why it failed to do so. Had FERC followed the direction of the court, a full and fair analysis of the climate change impacts of the project could have very well changed the outcome of the Project. (3)

New Market Project

Recently, FERC tolled the New Market project (FERC Docket No. CP14-497) for 24 months. In this case:

  • On April 28, 2016, FERC issued Dominion Transmission, Inc. (Dominion) a certificate of public convenience and necessity for the New Market Project.
  • On May 31 2016 Otsego 2000, Inc. filed a timely request for rehearing.
  • On June 27, 2016, FERC issued a tolling order. (Attch 18)
  • In March of 2017, while petitioners were held in legal limbo, FERC gave Dominion permission to begin construction in upstate New York; the Project was placed in-service November 21, 2017.
  • On May 18, 2018, FERC issued an order denying rehearing.

On July 16, 2018, after two years in legal limbo, Otsego 2000 challenged FERC’s May 18 order—which rejected their complaints and set new policy for the Commission’s consideration of greenhouse gas emissions from proposed projects—in the U.S. Court of Appeals for the District of Columbia Circuit. Attorneys General of New York, Maryland, New Jersey, Oregon, Washington, Massachusetts, and the District of Columbia filed amicus briefs in the case, arguing that FERC should have considered upstream and downstream greenhouse gas emissions. While the project has been constructed in-service for over a year, the case is still pending in federal court.  FERC’s tolling order clearly prevented timely legal challenge – and so even if the challengers are victorious in court, it will have no affect on construction or operation of this pipeline.

Mountain Valley Pipeline

While petitioners were held in legal limbo for 6 months, FERC authorized Mountain Valley Pipeline (MVP) Project (FERC Docket No. CP16-10) to proceed with construction and tree felling. Shortly after rehearing requests were finally denied and much of the construction was complete, a series of court decisions called into question the legitimacy of several of the Project’s state and federal approvals. FERC temporarily halted construction activity—before determining that the tree clearing already completed necessitated continued construction to “mitigate further environmental impacts” (4)—a decision that could have been avoided had FERC not allowed the company to proceed with construction prematurely. Major questions about the project’s viability remain. In this case:

  • On October 13, 2017, the Commission issued an order authorizing Mountain Valley Pipeline, LLC (Mountain Valley) to construct and operate its proposed MVP in West Virginia and Virginia. Commissioner LaFleur dissented from the certificate order, questioning whether the Project is in the public’s interest given the lack of demonstrated need for the Project and the considerable environmental impact it would have. (5)
  • Several legal challenges against other Project permits, including the CWA Section 401 and 404 permits, were already ongoing at the time, (6) and the issuance of the FERC certificate prompted additional legal action. Two weeks after the Certificate Order issued, MVP initiated condemnation actions in three federal district courts against nearly 300 property owners. (7)
  • On November 13, 2017 petitioners, including Appalachian Voices and the Sierra Club, filed a timely request for rehearing of the order.
  • On December 13 2017, FERC issued a tolling order. (8)
  • Meanwhile, FERC authorized the pipeline company to proceed with construction—issuing notices to proceed with construction of facilities associated with the Project on January 22 and 29, and February 8, 9, 12, 13, 14, 15, and 16, 2018.
  • On June 15, 2018, FERC rejected, dismissed, or denied all pending requests for rehearing. (9)
  • On July 27, 2018, the United States Court of Appeals for the Fourth Circuit issued an order vacating decisions by the Department of Interior’s Bureau of Land Management and the Department of Agriculture’s Forest Service authorizing the construction of the MVP Project across federal lands.
  • In response, on August 3, FERC issued a Stop Work Order halting construction activity along all portions of the MVP Project, acknowledging that it “has not obtained the rights-of-way and temporary use permits from the federal government needed for the Project to cross federally owned lands.” (10)
  • August 29, 2018, FERC lifted the Stop Work Order in all Project areas except for federal lands, stating that “protection of the environment along the Project’s right-of-way across non-federal land is best served by completing construction and restoration activities as quickly as possible.” Because MVP had already cleared, graded, and installed temporary erosion control devices within “sixty-five percent of the right-of-way between Mileposts 77 and 303”, FERC argued that “maintaining the status quo” would likely pose threats to plant and wildlife habitat and adjacent waterbodies as long-term employment of temporary erosion control measures would subject significant portions of the route to erosion and soil movement” and that requiring “restoration of the entire right-of-way to pre-construction conditions would require significant additional construction activity” resulting in “further environmental impacts.” (4)
  • In December 2018, the Virginia DEQ and Attorney General filed a lawsuit against MVP, documenting more than 300 violations between June 2018 and November 2018. The case is still pending. (11)
  • On October 2, 2018 federal court vacated the Army Corps of Engineer’s Nationwide 12 permit, finding that the Corps did not have the authority to approve stream crossing methods that were in violation of West Virginia Law. (12)

MVP continues to face serious legal challenges to its state and federal approvals and the future of the Project is very much in question.  Had FERC not strategically used tolling to allow eminent domain and construction to prematurely advance, the environmental harms and violations of law already demonstrated could have been avoided.

Atlantic Coast Pipeline

In the case of the Atlantic Coast Pipeline (ACP) Project (FERC Docket No. CP15-554), a new pipeline system consisting of approximately 600 miles of pipeline and other facilities running from West Virginia through eastern portions of Virginia and North Carolina, petitioners were held in legal limbo for 8 months while the pipeline company exercised eminent domain and FERC authorized notices to proceed with tree felling and construction.

  • On October 13, 2017 FERC issued a certificate of public convenience and necessity for the ACP. Several parties filed timely requests for rehearing and motions to stay the Certificate Order.
  • On December 11, 2017, FERC issued a tolling order of the requests for rehearing. (13)
  • On January 19, February 12 and 16, 2018, while petitioners were held in legal limbo, FERC granted the company the first of many notices to proceed with construction of facilities associated with the Project.
  • February 28, 2018, a Virginia court granted Atlantic Coast “immediate access” for tree-felling on 16 properties in Buckingham, Bath, Augusta and Highland counties.
  • March 16 2018, the Virginia Department of Environmental Quality (VA DEQ) issued a violation notice for tree felling that occurred within wetland buffer zones and stream crossings that were supposed to be protected. The violation notice covered 15 separate incidents. (14)
  • On August 10, 2018, FERC issued an order denying rehearing requests.

By the time FERC denied petitioners’ rehearing requests, the pipeline company had already taken private property through eminent domain and begun extensive work tree clearing, ground moving, trenching, and laying pipe in North Carolina and West Virginia. In West Virginia alone, ACP construction activity during the tolling order consisted of 30 miles of right-of-way clearing and excavation, extensive trenching, and deployment of over 30,000 feet of pipe in the construction corridor. (15)

Due to a series of legal decisions vacating critical permits for the project—including U.S. Fish and Wildlife Service (FWS) Incidental Take Statement, which authorized the ACP project to take certain species protected by the Endangered Species Act; an Army Corp’s Nationwide Permit 12; a National Park Service (NPS) right-of-way permit; and a Special Use Permit for national forest land from the US Forest Service (USFS) required to allow ACP to cross the Appalachian Trail and national forests—it is possible that the pipeline will never be built and that the harms inflicted on the public through eminent domain and construction have been completely unnecessary. Additionally, challenges to FERC’s certificate brought after the tolling order was lifted are still pending, and also may prevent the project from being built. (16)

Algonquin Pipeline Expansion – Algonquin Incremental Market (AIM)

In response to a rehearing request submitted by Stop the Algonquin Pipeline Expansion (SAPE) for the AIM project (FERC Docket No. CP14-96), FERC issued a tolling order on May 1, 2015. As a result, SAPE was left without access to a legal remedy until FERC issued its Order Denying Rehearing on January 28, 2016.  The Spectra AIM pipeline was largely constructed in the 11 months that SAPE was placed in legal limbo by FERC’s tolling order.

While FERC was “considering” the rehearing request, it allowed the pipeline company to seize private property and destroy homes, roads, and parklands.  (Attch 4)

Atlantic Sunrise

FERC tolled rehearing requests in the case of the Transco’s Atlantic Sunrise Pipeline (Docket No. CP15-138) for 9 months, allowing eminent domain and other significant construction activity to take place during tolling. (Attch 15) Legal challenges to the project are still pending before the courts.

Orion Pipeline Project

The Tennessee Gas Pipeline Company, L.L.C (TGP), a subsidiary of Kinder Morgan Inc., filed an application with FERC for its proposed Orion Project on October 9, 2015 (FERC Docket No. CP16-4). In February 2017, DRN submitted a rehearing request, on the grounds that FERC was required to consider the cumulative effects of Orion and two other Tennessee projects because they are connected and clearly part of the same expansion project. On March 13, 2017, FERC issued a tolling order in response. On February 27, 2018, one year after the request was submitted, FERC denied DRN’s Rehearing Request.

NEXUS Project

In an August 25, 2017 order, FERC granted NEXUS Gas Transmission, LLC (NEXUS) a certificate to construct and operate the NEXUS Project (FERC Docket No. CP16-22) in Ohio and Michigan. Multiple timely requests for rehearing were filed, challenging most aspects of the FERC’s review of the NEXUS Project, including the need for the project and the use of eminent domain. On July 25, 2018, FERC issued an order denying all rehearing requests, excluding a request from the pipeline company. (17) During the 10 months that communities were held in legal limbo, NEXUS had exercised eminent domain and nearly completed construction of the pipeline.

Connecticut Expansion Project

On March 11, 2016, FERC issued a certificate of public convenience and necessity authorizing Tennessee Gas Pipeline Company, L.L.C.’s request for construction and operation of he Connecticut Expansion Project. Petitioners filed timely requests for rehearing of the Order, which FERC tolled until August 25, 2017. (18) FERC’s tolling order delayed a rehearing decision regarding the Project for over sixteen months, during which time it authorized tree clearing and construction for the project, including through a two-mile stretch of conservation land protected under the Massachusetts Constitution in Otis State Forest.

PennEast Pipeline Project

FERC continues its use of tolling of tolling orders unabated. The PennEast Pipeline (FERC Docket No. CP15-558) was tolled for 6 months, and prompted the filing of rehearing requests on the tolling orders issued which then themselves became the subject of tolling orders that had to be challenged with rehearing requests, demonstrating the never-end cycle of rehearing and tolling that this tolling order strategy inspires.

  • On January 19, 2018, the Commission issued an order under section 7(c) of the Natural Gas Act authorizing PennEast Pipeline Company, LLC (PennEast).
  • The Delaware Riverkeeper Network filed a rehearing request on January 24, 2018 with others, including the state of New Jersey following suit.
  • On February 22, 2018, FERC issued a tolling order. (Attch 19)
  • On March 16, 2018, the Delaware Riverkeeper Network sought rehearing of the February 22 tolling order.
  • On April 13, 2018, FERC issued a second order tolling the rehearing request for the February tolling order
  • On May 8, 2018, Delaware Riverkeeper Network sought rehearing of the April Tolling Order.
  • On May 30, FERC denied the Delaware Riverkeeper Networks request for rehearing of the April tolling order, but the original February 22 tolling order requesting rehearing on the FERC Certificate remained in place.
  • August 13, 2018 FERC denied the Certificate rehearing requests submitted by the Delaware Riverkeeper Network, the state of New Jersey and others.
  • The case was immediately challenged in court with challenges by multiple parties pending.

As FERC Commissioner Glick points out, the tolling of this project is especially concerning given the unusual level of uncertainty and fundamental concerns regarding the project. Two of the five Commissioners issued concurrences to the Certificate Order in order to highlight serious concerns they had.  In addition, one Commissioner dissented. Immediately following FERC’s certificate approval, PennEast filed nearly 200 eminent domain cases in PA and NJ and has been granted access to survey and construct in both states.

As Commissioner Glick explains:

“…It is nonetheless critical that the Commission respond to rehearing requests as quickly as possible, especially where—as here—parties have raised serious questions regarding the Commission’s conclusion that a new natural gas pipeline facilities needed and in the public interest.

Until the Commission issues its ultimate order on rehearing, the NGA precludes parties from challenging the Commission’s decision in federal court. However, the pipeline developer has the right to pursue eminent domain and, in many cases, to begin construction on the new pipeline facility while the Commission addresses the rehearing requests. As a result, landowners, communities, and the environment may suffer needless and avoidable harm while the parties await their opportunity to challenge the Commission’s certificate decision in court.

This proceeding, in particular, illustrates the need for prompt action on rehearing requests. As I explained in my dissent from the underlying order, I disagree with the Commission’s finding that the PennEast Project is needed and in the public interest. I believe that the Commission’s reliance on affiliate precedent agreements is, without more, insufficient to demonstrate that a new natural gas pipeline is needed. I also have serious concerns regarding the Commission’s practice of issuing conditional certificates—which, notwithstanding their name, vest the pipeline developer with full eminent domain authority—in cases where the record does not contain adequate evidence to conclude definitively that the pipeline is in the public interest.

In short, when the Commission issues a tolling order, it is critical that the Commission issue a subsequent order addressing the merits of the rehearing request as expeditiously as reasonably possible in order to both protect the public from unnecessary harm and permit the parties to timely seek their day in court.” (emphasis added and citations removed) (Attch 19)

Legal Limbo is a Strategy

Delaware Riverkeeper Network is unaware of any non-industry aggrieved party who has actually been granted a request for rehearing in the history of FERC’s existence. As a result, the denial of the rehearing request is a foregone conclusion. The only rationale for FERC to delay issuing its denial response is to allow the pipeline project to advance through eminent domain and construction without being impeded by successful legal challenges. The only other possible justification for tolling may be to grant FERC more time to attempt to justify its Certificate decisions after-the-fact, thereby increasing its chances of defeating a later legal action by the public.  Other that these two options of benefit to the pipeline companies and FERC, there is no good reason for tolling orders.

FERC Indiscriminately and Inconsistently Interprets Legislative Language to Support Pipeline Approval

The New York Attorney General’s office has noted that while FERC is generous with itself in interpreting the timeline mandates on rehearing requests, it gives no such leniency to the States – this obvious difference in how FERC applies the law to itself and others is noteworth.  Here is how the NY Attorney General describes it:  (Attch 1)

 “Congress gave FERC 30 days to “act” on a rehearing request, or the request would be “deemed to have been denied.” 15 U.S.C. § 717r(a). This Congressional language clearly requires that FERC either grant or deny a rehearing request with 30 days, so that judicial review of the underlying order can proceed in a timely way. Yet FERC regularly uses tolling orders to unilaterally delay judicial review by months, without applicant or party consultation, allowing natural gas infrastructure to be substantially completed before a Court can even review the FERC order authorizing such construction.”
“In the context of the Clean Water Act, FERC has concluded that similar language imposes a hard limit on a state’s consideration of an application. Specifically, Clean Water Act § 401(a) requires a State to “act” on an application for a certification with “a reasonable period of time (which shall not exceed one year)” or the certification requirements are deemed waived. 33 U.S.C. § 1341(a)(1). FERC has described this waiver language of section 401(a)(1) as “unambiguous.” Order Denying Rehearings and Motions to Stay, 161 FERC ¶ 61,186, at ¶38, Docket No. CP16-17-003, Millennium Pipeline Co., LLC (Nov. 15, 2017). Moreover, FERC has stated that “the length of the section 401 waiver period is one year” and “that the deadlines prescribed by federal law . . . are binding,” Order on Petition for Declaratory Order, 162 FERC ¶61,014, at ¶ 20, Docket No. CP18-5-000, Constitution Pipeline Co., LLC (Jan. 11, 2018). And yet when interpreting the Natural Gas Act’s similar mandate to “act” on a rehearing request within 30 days, FERC condones its own indefinite delay of judicial review, and harm from that delay, through the use of tolling orders.”

(1)    See
(2)    See Motion to Dissolve Injunction and Set Jury Trial for Determination of Compensation, Constitution Pipeline v. A Permanent Easement for 1.84 Acres, Civil Action no. 3:14-2458 and Stripping People’s Rights Attachment 16, Jon Hurdle, A company cut trees for a pipeline that hasn’t been approved. The landowners just filed for compensation, State Impact, July 12, 2018.
(3)    See Statement of FERC Commissioner Richard Glick, Order on Remand Reinstating Certificate and Abandonment Authorization, Docket Nos. CP14-554-002, CP15-16-003, and CP15-17-002, March 14, 2018.
(4)    See Partial Authorization to Resume Construction, Mountain Valley Pipeline, Docket No. CP16-10, August 29, 2018.
(5)    See Statement of FERC Commissioner Cheryl LaFleur, Dissent on Order Issuing Certificates and Granting Abandonment Authority, Docket Nos. CP15-554 and CP16-10, October 13, 2017.
(6)    See Ken Ward, Mountain Valley Pipeline approval faces new federal court challenge, Charleston Gazette-Mail, December 8, 2017.
(7)    See Mountain Valley Pipeline v. An Easement to Construct, Operate and Maintain An Easement, Case No. 7:17-cv-00492 (W.D. Va. 2017);  Mountain Valley Pipeline, LLC, v. Simmons, 307 F.Supp.3d 506 (N.D.W. Va. 2018); and MVP v. Mc Million et al., Case No. 2:17-04214 (S.D. W. Va. 2017).
(8)    See FERC Order Granting Rehearings for Further Consideration, Mountain Valley Pipeline, Docket No. CP16-10 and CP16-13, December 13, 2017.
(9)    See FERC Order on Rehearing, Mountain Valley Pipeline, Docket No. CP16-10 and CP16-13, June 15, 2018.
(10)    See Notification of Stop Work Order, Mountain Valley Pipeline, Docket No. CP16-10, August 3, 2018.
(11)    See Press Release, Attorney General Herring and DEQ File Lawsuit over Repeated Environmental Violations During Construction of Mountain Valley Pipeline, Commonwealth of Virginia Office of the Attorney General, December 7, 2018.
(12)    See Juan Carlos Rodriguez, 4th Circ. Nixes Army Corps Permit for $3.5B Pipeline, Law360, October 2, 2018.
(13)    See Order for Rehearing, Atlantic Coast Pipeline, Docket No. CP15-554-003, December 11, 2017.
(14)    See Commonwealth of Virginia Department of Environmental Quality Notice of Violation, Atlantic Coast Pipeline, Docket No. CP15-554-003, March 16, 2018.
(15)    See Atlantic Coast Pipeline: Timeline of Defiance, Dominion Pipeline Monitoring Coalition, August 31, 2018.
(16)    See Atlantic Coast Pipeline- Risk Upon Risk, Oil Change International, March 2019.
(17)    See Order on Rehearing, Docket Nos. CP16-22-001; CP16-23-001; CP1624-001; and CP16-102-001, July 25, 2018.
(18)    See Order on Rehearing, Tennessee Gas Pipeline, Docket No. CP14-529-001, August 25, 2017.

Complete People’s Dossier: FERC’s Abuses of Power and Law 
available here.