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People’s Dossier of FERC Abuses: Undermining Federal Authority

FERC undermines the regulatory authority of sister federal agencies by granting permission for pipeline construction activity prior to the issuance of all required federal permits.

(Download Printable copy of “People’s Dossier of FERC Abuses: Undermining Federal Authority” with attachments here)

While FERC suggests it will not advance pipeline projects to construction prior to the issuance of all required permits, in reality FERC routinely approves pipeline construction regardless of whether or not all required permits have been secured.

In other portions of this dossier, we have discussed how FERC undermines state Clean Water Act authority by issuing Certificates of Public Convenience and Necessity prior to receiving state Section 401 Certificates. FERC similarly undermines the authority of other federal agencies by issuing premature approvals.

In its Certificates issued to natural gas infrastructure companies, FERC routinely includes the provision:

Prior to receiving written authorization from the Director of OEP [Office of Energy Projects] to commence construction of any project facilities, [pipeline company] shall file with the Secretary documentation that it has received all applicable authorizations required under federal law or evidence of waiver thereof. (Attch 1)

While this provision gives the impression that a project will not commence until such time as it has fully secured all applicable agency review and approvals, has complied with all applicable laws, and has received all necessary permits and Clean Water Act Certifications, that is not in fact the case. Projects are routinely allowed to commence, with significant environmental impacts, prior to receiving all necessary approvals.

Tennessee Gas Pipeline Northeast Upgrade Project (FERC Docket No. CP11- 161):

The Tennessee Gas Pipeline Northeast Upgrade Project, which cut through significant areas of mature forest and forested wetlands on both public and private lands, was allowed to initiate tree felling prior to receiving Clean Water Act permits, including US Army Corps of Engineers Section 404 wetlands permits. The tree cutting significantly impacted water quality and was among the major causes of environmental harm and community impacts resulting from pipeline construction.    The project was challenged in Delaware Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C. Cir. 2014).  The court ultimately ruled that FERC had violated federal law in its approval of the project. However, given FERC’s incremental and premature approvals for the project to proceed with eminent domain and construction, by the time this legal victory was secured, FERC had already ensured the project was fully constructed and in service.

Sabal Trail (FERC Docket No. CP15-17)

FERC issued a Certificate for Sabal Trail in February 2016, before either an Army Corps CWA Section 404 permit or a Rivers and Harbors Act Section 408 permit were issued. 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 2) Sabal Trail was later challenged in Sierra Club v. FERC, 867, F.3d 1357, 1373 (D.C. Cir. 2017).  The court ultimately ruled that FERC had violated federal law in its approval of the project. However, given FERC’s incremental and premature approvals for the project to proceed with eminent domain and construction, by the time this legal victory was secured, FERC had already ensured the project was fully constructed and in service.  Had FERC honored the authority of its sister agency, it is likely that the legal victory, and the obligation to comply with federal law prior to final decisionmaking, would have had an effect on the outcome of whether, how, when, and/or where this pipeline was constructed.

Constitution Pipeline (FERC Docket CP13-499):

On December 2, 2014, FERC granted a Certificate to the Constitution Pipeline despite the fact that the US Army Corps of Engineers had not issued a Section 404 wetlands permits. 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, the Constitution pipeline submitted a request to proceed which was quickly granted by FERC. (1)

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 that was irreparably harmed by the pipeline company’s FERC approved tree cutting and other actions. (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. Without this approval, the project cannot be built and the devastation inflicted on the Hollerans and other Pennsylvania environments, communities, and homeowners—all inflicted without CWA 404 Certification—was for naught.

Atlantic Sunrise (FERC Docket No. CP15-138)

FERC issued a Certificate to Transcontinental Gas Pipeline Company, LLC (Transco) for the Atlantic Sunrise Project on February 3, 2017, before an Army Corps section 404 permit was issued. On February 22, 2017, Transco filed 13 eminent domain cases in Pennsylvania. FERC granted Transco a partial Notice to Proceed on March 24, 2017, authorizing construction activities in Maryland, Virginia, North Carolina, and South Carolina.

On March 31, the Army Corps informed Transco that they would not be able to authorize Section 10 and/or 404 authorizations for the project within 90 days of FERC’s certificate. Transco had proposed alternative pipeline alignments just that month but had not provided the Corps with a delineation of all waters and wetlands within the newly proposed alternative or with updated information on impacts of mitigation. The Army Corps was also still in the process of collecting public comments on the proposed alternative, and was awaiting a review of the project’s mitigation plans and wetland assessments from the U.S. Environmental Protection Agency. (2)

Despite the new alternative route and missing information on the project, eminent domain proceedings and construction continued at full force throughout the summer. On August 28, 2017, FERC authorized Transco to commence partial service of the project. It was not until portions of the project were nearly in service, on August 29, 2017, that the Army Corps granted Transco Section 10/404 Clean Water Act approvals.    The ramification is to prevent full and fair decisionmaking by sister agencies and to prevent the opportunity for adjustments to the route and/or construction practices that would avoid environmental harms.

Atlantic Coast Pipelines (FERC Docket No. CP15-554):

FERC issued a certificate of public convenience and necessity for the Atlantic Coast Pipeline (ACP) on October 13, 2017 before an Army Corps section 404 permit had been issued. The company had taken private properties through eminent domain and on January 19, 2018 FERC issued its first Partial Notice to Proceed with Tree Felling. On February 9, 2018, the Army Corps issued Nationwide Permit 12 under Section 404 of the Clean Water, however, the permits have since been suspended or vacated by the Corps. (Attch 3)

Mountain Valley Pipeline (FERC Docket No. CP16-13):

On October 13, 2017, the Commission issued an order authorizing Mountain Valley Pipeline, LLC to construct and operate its proposed Mountain Valley Pipeline project (MVP) in West Virginia and Virginia without an Army Corps section 404 permit. Just two weeks after the FERC Certificate Order issued, MVP initiated condemnation actions in three federal district courts against nearly 300 property owners. (3) FERC then authorized the pipeline company to proceed with construction—issuing notices to proceed with construction of certain facilities associated with the Project on January 22 and 29, and February 8, 9, 12, 13, 14, 15, and 16, 2018. While the Army Corps did issue Mountain Valley a Nationwide Permit 12 under Section 404 of the Clean Water on January 23, 2018, the permit has since been suspended. (Attch 4)

PennEast Pipeline Project (FERC Docket No. CP15-558):

FERC issued a Certificate of Public Convenience and Necessity for the PennEast Pipeline Project on January 19, 2018, before the Delaware River Basin Commission (DRBC) has issued a docket, and before an Army Corps section 404 permit has been issued, and before New Jersey Clean Water Act 401 Certification and Clean Water Act 404 permitting (in NJ the state has 404 authority) have been granted. 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. Although PennEast has yet to request approval to proceed with tree felling—landowners have already suffered property losses for a project that is far from approved.

Further, FERC has undermined the authority of the DRBC, a cooperating agency on the PennEast Pipeline Project with jurisdiction, under federal law, over the project. On April 3, 2018, recognizing the pending threat of tree felling, the DRBC sent a letter to FERC requesting “that FERC amend its PennEast approval and condition future approvals of similar projects by prohibiting the project sponsors from felling trees within the Delaware River Basin … until such time as the DRBC issues an approval for the project or activity.” The letter states:

The DRBC is concerned that the felling of trees for such projects months or years before essential DRBC and state approvals have been issued can cause unnecessary or long-term and potentially substantial impacts to water resources, particularly in the context of very large projects involving hundreds of river, stream and wetland crossings.

DRBC also offered “to coordinate a meeting among representatives of FERC and … other resource agencies with jurisdictions overlapping DRBC’s to discuss a mutually agreeable approach to this concern.”

The Delaware Riverkeeper Network (DRN) discovered the letter through a Freedom of Information Act (FOIA) filed with the DRBC in September 2018. Upon finding that the letter had never been made available to the public through FERC’s docket for the project and that it had been ignored completely by FERC, DRN released the letter to the press. While FERC did not reply to the DRBC directly, a FERC spokesperson replied to press inquiries about the letter, claiming that it did “not adher[e] to our Rules of Practice and Procedure”, because of how it was addressed, and that “If the DRBC resends the letter in accordance with the Commission’s Rules of Practice and Procedure, their request … will be taken into consideration.”

The DRBC learned that FERC had refused to consider their request for procedural reasons through FERC’s statements to the press, and promptly resubmitted their request to FERC on September 27, 2018 (Attch 5) (noting that per their own Rules of Practice and Procedure, FERC should have notified DRBC directly that their letter was rejected). FERC has yet to respond to the DRBC request.

Partial Construction is a Strategy

FERC permission to proceed with tree felling enables pipeline companies to argue that they have already made major investments in the construction of a project and the agencies reviewing the approvals are now compelled to issue permits regardless of potential agency concerns.  And so premature approval and initiation of construction becomes an incentive for other agencies to truncate their reviews, as stopping a project that has already started and the remediation of harm already inflicted are both highly unlikely.

(1)    See FERC Partial Notice to Proceed with Tree Felling and Variance Requests, Docket No. CP13-499, January 29, 2016.
(2)    See Letter from the Army to Transcontinental Pipeline Company, Docket No. CP15-138, March 31, 2017.
(3)    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).

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