Overview

February 5, 2020: Delaware Riverkeeper Maya van Rossum testified on at a Congressional hearing titled “Modernizing the Natural Gas Act to Ensure it Works for Everyone”, held by the Subcommittee on Energy of the Committee on Energy and Commerce. The Delaware Riverkeeper Network has been documenting the abuses of the Federal Energy Regulatory Commission (FERC) in a comprehensive Dossier and, with the VOICES (Victory Over InFRACKstructure, Clean Energy inStead) coalition, has been calling on Congress to hold investigative hearings into FERC and pass needed reforms to the Natural Gas Act for over four years. van Rossum called for reforms to the Natural Gas Act, written over 80 years ago, which has been used to proliferate natural gas pipelines and enable FERC’s abuses. Among these abuses are FERC’s use of tolling orders that place people in legal limbo, unable to meaningfully challenge a pipeline decision in court; its failure to consider climate change impacts when approving projects; approval of construction before states and other agencies have given needed approvals; and failure to demonstrate project need.

Maya’s testimony drew strong responses from the Congress members in the room. Many asked pointed questions intended to underscore the messages of her testimony, including Chairman Frank Pallone (NJ). Representative Nanette Barragan (CA) tweeted video clip of Maya’s testimony and echoed her concerns. Fossil fuel advocate Representative David McKinley (WV) confronted Maya, calling her “a threat to this economic development in West Virginia and maybe the country, for that matter,” because she is “so adamantly opposed to fracking.” He referenced EPA statements from 2011 and said “fracking’s been around 1860, 1840” in defense of the devastating extraction practice. Maya was joined in the room by members of VOICES who traveled from various states to stand in support and solidarity, holding up scarves reading “#FERCAbuses Communities & Environment”. DRN and VOICES continue urge Congress to enact need NGA reforms to remedy FERC’s abuses.

Watch the full hearing.

See Maya’s Testimony.

As shale gas extraction continues the infrastructure to advance and serve it is proliferating into communities throughout our watershed and beyond. Communities are eager for information, strategies, and collaborations they can use to help defeat the pipeline, compressor, LNG facility, process plant, cracker plant that threatens their community.  We hope the below resources and actions are helpful.

And if you would like the Delaware Riverkeeper Network to come and talk to your community about how to challenge a pipeline, compressor or other infrastructure project email keepermaya@delawareriverkeeper.org.  

In addition to the links provided be sure to take a look at the expert reports, policy documents and maps provided on the list below.

Get an overview of the impacts of pipelines for communities and the environment by reviewing the Delaware Riverkeeper Network Pipeline White Paper. 

The irreparable harms pipelines inflict on wetlands is an important regulatory battleground.  Learn more about those harms so you can be better informed for the debate. Wetlands report.  

Learn more about how Pipelines inflict more harm than they have to. We don’t want any of these pipelines cutting through our watershed and communities, but if the battle is lost, there is a way they can be constructed that makes them far less harmful. Learn more about the construction practices associated with Pipelines.  Pipeline ROW report.

Gas drilling and pipelines are a major concern for bat populations, already being devastated by other threats and harms.  Click the link to see a copy of the Delaware Riverkeeper Network commissioned report.  Bat report.

Proliferation of pipelines is intimately connected to the shale gas extraction invasion taking place in communities across PA and beyond. Learn more.

Some background on pipelines and their safety record across the country in this video.

The Delaware Riverkeeper’s presentation of the first pipeline petition to the DRBC on September 12, 2012 on video here.

How compressors associated with pipelines have impacted lives in this video.

Wetlands harms imposed by an Upper Delaware River pipeline and the callous disregard of the company and the agencies in this video.

More pipeline harms in this video.

To see what happened at a March 6, 2013 DRBC meeting where citizens demanded action on pipelines see this video.
Delaware Riverkeeper Network presents Pipeline Lessons video series:  To help residents understand the damage caused by natural gas pipelines and provide guidance on the science, law and strategies Delaware Riverkeeper Network presents the Pipeline Lessons video series.

Among the experts interviewed: 

• Accufacts Incorporated President Rich Kuprewicz discussing pipeline safety issues and the route selection process.
• Michelle Adams, a civil engineer with Meliora Associates is featured discussing the weaker regulatory standards shale gas operations face compared to other land developments.
• Delaware Riverkeeper Maya van Rossum talks about how citizens can organize and strategies to fight proposed pipelines.
• Environmental scientist Wilma Subra examines the environmental health effects associated with shale gas extraction and pipelines.
• Delaware Riverkeeper Network staff attorney Aaron Stemplewicz discusses the legal actions property owners can take whose land is targeted for pipeline installations.
• Leslie Sauer, ecological restoration expert, looks at the construction impacts of pipelines.

    You can watch the Pipeline Lessons series on the Delaware Riverkeeper Network’s YouTube Channel 

Overview

The Delaware River Basin Commission (DRBC) is obligated to review and approve any pipeline projects that pass through the boundaries of the Delaware River Watershed. To date it has chosen not to exercise that jurisdiction.  And so DRBC has received a formal Petition from the Delaware Riverkeeper Network to secure the exercise of their jurisdiction. 

Pipelines are a serious and significant source of damage for our rivers, streams, wetlands, forests and communities. Pipelines clear, cross, cut and/or otherwise damage what ever is in their path. Exceptional value streams, productive wetlands, mature forests, and peaceful communities have all suffered when they lie in the path of a pipeline. Pipelines also require loud and polluting compressor stations that add insult to injury for the communities where they are placed. The proliferation of pipelines is in order to serve the proliferation of drilling and fracking pressing forth across our states and region. Even communities where fracking and drilling is prohibited or not yet happening, find themselves the unwilling targets of the pipeline companies. 

 The DRBC could provide a critical and irreplaceable level of review and protection if they would exercise their authority. At least a dozen pipelines or pipeline expansions are being proposed for the Delaware River Watershed. Pipelines that are known to be considered for construction will cross counties throughout the Basin including Chester County, Pike County, and Monroe County, PA; Sussex County, NJ; Delaware County and Broome County, NY; a number of counties leading up to and into Philadelphia yet to be specifically identified. Additional communities will be targeted with additional proposals anticipated. 

Overview

In 2013, the New Jersey Pinelands Commission issued a draft Memorandum of Agreement (“MOA”) between the New Jersey Board of Public Utilities (“BPU”) and the New Jersey Pinelands Commission (“Pinelands Commission”) that would have authorized the construction of a 22-mile, 24-inch, high-pressure natural gas pipeline through 15 miles of the Pinelands Forest Management Area. This pipeline proposed by South Jersey Gas would have transported fracked natural gas to the B.L. England Plant in Cape May County. DRN members submitted letters and emails urging the Pinelands Commission to deny this harmful project. In 2017, the pipeline was approved by the Pinelands Commission despite massive public protest and the fact that it violated the Pinelands Comprehensive Management Plan (CMP). The CMP only permits infrastructure like gas pipelines in the Forest Management Area if it is “intended to primarily serve the needs of the Pinelands” – that is, only if needed for the towns and villages within the Pinelands (N.J.A.C. 7:50-5.23). This project did not meet that criteria. By 2019, improvements to the electric grid and changing industry economics meant that a gas-powered plant in Cape May County was no longer going to be profitable. The B.L. England owner filed papers with the court conceding it did not intend to build the power plant. The Attorney General followed up with papers saying there is now no basis for approving the SJG pipeline and the project was defeated.

Despite this victory, the Pinelands are still at risk from natural gas pipelines. In 2018, construction started on the 30-mile New Jersey Natural Gas Southern Reliability Link (SRL) pipeline that would carry natural gas through Burlington, Monmouth and Ocean counties, including portions of the Delaware River Watershed. This project runs through the sensitive preservation area of the Pinelands, but was approved because it traverses the Joint Base McGuire-Dix-Lakehurst (JB MDL) military base. On June 19, 2020, HDD activity caused a release of drilling fluid into a stream and a nearby resident’s home. The slab of the affected home cracked due to hydrostatic pressure, mud flooded the home, and the building inspector condemned the building, advising the resident to leave immediately. The drilling sludge also discharged into a local stream, necessitating a cleanup. Investigations revealed multiple other incidents of HDD inadvertent returns. This led to NJDEP suspending the permit for the project and ordering construction to cease. Unfortunately, NJDEP then reinstated the permit in November 2020 after accepting NJNG’s explanation of the spills and a modified plan to move forward. As a result, this project continues to threaten the Pinelands and water quality.

On December 2, We The People  held hearings to investigate the abuses of power and law being inflicted by FERC in communities across America

The People’s Hearing was held at the National Press Club in Washington, DC on December 2, 2016. 63 representatives from 15 states and the District of Columbia came to testify to the abuses of power and law inflicted by the Federal Energy Regulatory Commission. Over 150 people were in attendance of the hearing including reporters and congressional staff members.

We thank the legislators who sent representatives to join us:

• Congressman Frank Pallone (Democrat from NJ, Ranking member on the House Committee on Energy and Commerce),
• Congressman Morgan Griffith (Republican from Virginia),
• Senator Maria Cantwell (Democrat from Washington, Ranking member on the Senate Committee on Energy and Natural Resources)
• Senator Bob Casey (Democrat from Pennsylvania).

List of all who testified grouped into their respective panels, their battle or organization, and which states they represent.

Click here to read the Delaware Riverkeeper’s blog post about the day.

Click here for a video of highlights from the day.

Click here for video of the introduction by Maya van Rossum, the Delaware Riverkeeper.

  

FERC Fails to Hold Pipeline Companies Accountable for Violations of Environmental Protection Laws

(Download printable copy of “People’s Dossier of FERC Abuses: Violations Overlooked with attachments” here)

FERC consistently overlooks violations of law and/or degradation of the environment during pipeline construction

Research by the Delaware Riverkeeper Network shows that FERC has only ever issued one civil penalty (1) for violations related to construction activity of a pipeline project, despite the fact that the applicable water protection laws and regulations are routinely violated during pipeline construction. In addition, when violations are identified, FERC does not issue stop work orders or mandate the company remedy the environmental harm and come into compliance with the law prior to continuing construction; instead, the pipeline company is allowed to simply continue with construction on the rest of the line.

It is not that FERC is not aware of the multitude of violations that take place during pipeline construction, it is that FERC fails to act upon, and often fails to event investigate, credible complaints of violation reported by local and state regulatory employees, as well as individuals, who often accompany their reports with photographic evidence.

FERC’s inadequate response to violations not only results in continuing damage from the violations that take place, but there is no incentive for pipeline companies to ensure violations are avoided, or that the company self-identify, remedy, and remediate violations and damage as soon as a violation occurs.

• A typical example of FERC’s inexplicable reluctance to issue civil penalties for violations of environmental protection laws involves the construction of Tennessee Gas Pipeline Company’s (“Tennessee”) 300 Line Upgrade Project (FERC Docket No. CP09-444). By the end of the project, among other violations, FERC had recorded:
• 43 instances of silt laden water entering resources/depositing sediment off of the pipeline right-of-way,
• 15 instances of failures to properly install erosion controls or use best management practices to adequately protect resources,
• 9 instances of failures to properly install/maintain erosion controls resulting in impacts to resources,
• 6 instances of erosion/disturbance resulting from stormwater discharges off of the right- of-way, and
• at least 2 instances of in-stream work conducted in violation of fishery restrictions.

FERC not only failed to issue any civil penalties relating to the multitude of recorded violations, FERC did not even issue a stop-work order that would require TGP to remedy the violations and environmental harm before allowing the pipeline company to proceed with ongoing construction activities. FERC did nothing to rectify the violations or the harms caused thereby, and in effect condoned and incentivized this behavior by the company.

FERC’s failure to enforce against environmental violations is routine

Examples of significant violations reported to, and ignored by FERC include items such as the following:

On June 25, 2013, Delaware Riverkeeper Network reported a pipeline company crew with two blue water hoses … bypassing wetland protection measures …, and discharging sediment-laden water directly into the wetland outside of the ROW footprint. Delaware Riverkeeper Network representatives approached (with pipeline security following) to videotape the violations and found the high-pressure hoses discharging sediment-laden water were flowing directly into the wetland, contrary to required best management practices (BMP). A contractor was then observed franticly trying to cut holes and insert hoses into the BMP device …. as required….  To Delaware Riverkeeper Network’s knowledge, despite reports and evidence being given to FERC, no action was taken by FERC on this flagrant violation.

In addition to the obvious concerns this raises about a government agency’s failures to appropriately act in the face of illegal activity it is responsible for overseeing, states often rely on FERC to ensure environmental compliance and count on FERC regulatory mandates to ensure protection of water resources and the environment – in both instances this reliance is misplaced.

FERC’s compliance reports for the TGP 300 line and the Columbia 1278 line rarely listed non- compliance concerns, despite the fact that there had been dozens of documented instances of noncompliance, including photo and/or video proof, by either County Conservation District employees or the public. FERC’s failure to enforce its own laws and regulations is particularly concerning given that violations of environmental laws and permitting are routine for the pipeline industry. For example:

• The Pike County (PA) Conservation District issued 21 notices of violation (NOV) from July 26, 2011 to June 21, 2013 for the Tennessee Gas 300 Line Upgrade.  Of these 21 NOVs, 14 violations were for failure to maintain effective erosion and sediment controls (E&SCs); 14 violations were for presenting a potential for pollution to waters of the Commonwealth; 14 violations were for discharging sediment or other pollutants into waters; 17 violations were for failure to implement effective E&SC BMPs; 2 violations were for failure to provide temporary stabilization to earth disturbance; 2 violations were for failure to provide permanent stabilization to earth disturbance; and 21 violations of the Clean Streams Law. Altogether, there were a total of 84 violations. (Attch 1)
• From June 17, 2011 to April 27, 2012 there were 15 NOVs issued for the Columbia Line 1278 K pipeline. Of these 15 NOVs, there were 9 violations for failure to maintain effective E&SCs; 15 violations for presenting a potential for pollution to waters of the Commonwealth; 9 violations for discharging sediment or other pollutants into waters; 3 violations for failure to implement effective E&SCs; 9 violations for failure to provide temporary stabilization to earth disturbance; 6 violations for failure to comply with permit conditions; 7 violations for failure to implement effective post-construction stormwater management; and 15 violations of the Clean Streams Law. Altogether, there were a total of 73 violations. (Attch 1)

(1)    The one civil penalty levied for violations of law during pipeline construction was in 2019 for violation of wetlands protections by Algonquin Gas Transmission, LLC during construction of the Algonquin Incremental Market (AIM) pipeline project. See Algonquin Gas Transmission, LLC, Docket No. IN19-2-000, Order Approving Stipulation and Consent Agreement, 166 FERC ¶ 61,012 PDF (January 7, 2019)

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

  

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

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

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.”   (1 ) and
  • Section 401 “requires States to provide a water quality certification before a federal license or permit can be issued…”(2 )

In addition, this legal authority preserved by the terms of the Clean Water Act, is specifically referenced and preserved in the federal Natural Gas Act.

Despite the clear legal mandate that State Section 401 Certification should precede federal approvals, FERC, with court acquiescence, circumvents the requirement by issuing conditional Certificates — including language that the FERC Certificate is conditional on a company securing state CWA 401 Certification.  While this “conditional” language is used to rationalize FERC’s advance approvals, FERC’s failure to fully enforce the condition undermines the truthfulness of the rationalization.  In fact, FERC does not fully enforce the conditional mandate before allowing pipeline companies to exercise the power of eminent domain, to engage in preliminary construction activities such as tree felling, or to undertake full construction on some segments of the project prior to securing CWA 401 Certifications from all impacted states.  In fact, FERC often wastes no time in authorizing the use of eminent domain and irreparable aspects of construction such as tree clearing, once the FERC Certificate has been issued, but prior to state CWA 401 Certification from all affected states, (Attch 1) sometimes issuing them just hours after receiving a request. (Attch 3)

As a result, FERC undermines the rights of states to prevent pipeline construction activities that will result in violation of state water quality standards by using their CWA 401 Certification authority to reject a project outright or to mandate modifications regarding the route, construction practices and/or mitigation obligations. More recently, FERC has overtly stripped a state of its CWA 401 Certification authority by rejecting the state’s denial of such a certification.

By way of explicit examples and the resulting harms:

Northern Access 2016 Project (FERC Docket No. CP15-115):

In early 2016, National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (collectively National Fuel) submitted  401 Water Quality Certification application materials to NYSDEC, seeking the state’s approval under the CWA to construct and operate the Northern Access 2016 Project, which would carry fracked gas from Pennsylvania to Canada via New York.  National Fuel supplemented the application multiple times. 

• On January 20, 2017, the NYSDEC and National Fuel entered into a written agreement that for the purposes of CWA decisionmaking, both parties agreed that the date of application submission would be deemed to be April 8, 2016, “[t]hereby extending the date the NYSDEC has to make a final determination on the application until April 7, 2017”. (Attch 16)
• On January 25, 2017 NYSDEC published noticed that the application was finally deemed complete. (3)
• On February 3, 2017, FERC issued Certificates of Public Convenience and Necessity to National Fuel. (4)
• On April 7, 2017, within one year from the agreed upon date for application submission, NYSDEC denied National Fuel’s application for 401 Certification and for stream and wetlands disturbance permits after finding that “the Application fails to demonstrate compliance with New York State water quality standards” and “fails to avoid or adequately mitigate adverse impacts to water quality and associated resources.” (Attch 17)

National Fuel and Empire appealed the NYSDEC denial of the 401 Certification.  But inexplicably, while the court case was ongoing, FERC in August of 2018 overturned NYSDEC’s denial, falsely asserting that the state had not met the one year time frame established for review and either approval or denial, totally ignoring the legally arrived at agreement between the state and National Fuel.  August 14, 2018, the state urged FERC to reconsider its overturning of the state denial by file a rehearing request. Thereafter, in February 2019 the Second Circuit vacated the state 401 Certification denial, stating that “Although this is a close case, the denial letter here insufficiently explains any rational connection between facts found and choices made,” and remanded the NYSDEC “to more clearly articulate its basis for the denial.” (5) The court did not rule upon the one year issue.  

Instead of providing the state with the opportunity to respond to the Court’s request that NY state better explain how the pipeline would violate state environmental standards, on April 2, 2019 FERC issued an order denying the state rehearing. (6) NYSDEC responded that it “vehemently disagrees with FERC’s decision” and that they are “reviewing FERC’s misguided decision,” and “will continue to vigorously defend our decision and our authority to protect New York State’s water quality resources.” (7)

The portrait painted by this case is that at every turn FERC sought to override the state’s authority, even to the point of misrepresenting the truth in order to deny the state of NY its rightful legal authority pursuant to the federal Clean Water Act.

Sabal Trail (FERC Docket No. CP15-17):

FERC issued a Certificate of Public Convenience and Necessity for Sabal Trail in February 2016, before CWA 401 Certifications were issued by Alabama and Georgia, and before an Army Corps section 404 permit was 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 7) 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 approvals that the project 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 rights of the states, it is likely that the legal victory, and the obligation to comply with federal law prior to final decisionmaking, would have had an affect on the outcome of whether, how, when, and/or where this pipeline was constructed.  

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 a CWA 401 Certification has been issued or denied by the state of New Jersey, before Pennsylvania has issued Chapter 105 Water Obstruction and Encroachment or Chapter 102 Erosion & Sediment Control permits that are a necessary condition for the legal viability of the PA 401 Certification, before the Delaware River Basin Commission has issued a docket for the project, and before section 404 permits have been issued. Immediately following FERC’s certificate approval, PennEast filed nearly 200 eminent domain cases in PA and NJ, and has been granted access to survey in both states. The state of New Jersey has appealed all eminent domain decisions that impact preserved state lands, which is close to 100 properties, and the U.S. Court of Appeals for the Third Circuit has issued a stay on construction for those properties until the case is resolved.  Private eminent domain challenges are still outstanding.  The PennEast project is a major greenfields project currently under consideration by multiple regulatory agencies, Congressional action immediately on the issue of state’s rights could have huge repercussions for the outcome of this project.

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, the 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 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. (Attch 5) Without CWA 401 Certification from New York State, 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 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 CWA Section 401 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 residents and the New York Attorney General’s Office made FERC aware of these activities, FERC did little to stop Constitution’s illegal acts, resulting in the permanent loss of vast amounts of trees and devastating impacts to water quality. (Attch 6, 11)

The Constitution Pipeline Company challenged NY’s CWA 401 Certification denial, but lost the case in the Second Circuit in 2017. The company’s petition to appeal the decision was then rejected by the Supreme Court in May of 2018. Despite this clear confirmation of the state’s power, FERC asked the court to remand the Constitution case to the agency so it could reconsider its decision to uphold the State denial of 401 Certification – it seems clear that FERC is seeking another bite at the apple and a new opportunity to consider stripping NY of its CWA legal authority and rights by waiving the state’s denial of CWA 401 to the Constitution Pipeline.  This action came after a separate unrelated case in the hydro-electric context yielded a court determination that when applications are withdrawn and then resubmitted the one year clock for state decisionmaking does not necessarily restart.  In reaction to that unrelated case, FERC requested that the U.S. Court of Appeals for the D.C. Circuit to remand the case to FERC in order to allow it to reconsider whether NY waived its right to approve or deny the CWA 401 certification because the determination came within a year after an application re-submission rather than the original, flawed and deficient submission which was twice withdrawn and re-submitted by the applicant because of the many state-identified failings.

Valley Lateral Project, Millennium Pipeline Company (FERC Docket CP16-17):

In a recent and aggressive stripping of states’ rights, FERC rejected New York’s denial of a CWA 401 Certification for Millennium’s Valley Lateral Pipeline project.  Rather than honor New York’s decision to deny the CWA 401 Certification, FERC rendered a determination that the state had waived its authority and therefore the denial was null and void.

FERC stripped the state of its legal rights by asserting that the applicable one year time period provided for CWA 401 decisionmaking began when Millennium first submitted its application to the state, rejecting the state’s reasonable legal position that the clock only began ticking when the state issued a determination that the application was complete and complied with the state mandates regarding application information. (Attch 12)

At each stage of the legal battle between state and federal powers that ensued, FERC aggressively sought to subvert the states’ rights—by unilaterally determining that NY, despite its ongoing vigilance with regards to the project, had waived its 401 Certification authority (Attch 13)—and to ensure its desired outcome, regardless of the legal outcome—by tolling the state’s request for rehearing while pushing ahead with construction. FERC quickly granted the pipeline company authorization to begin construction before the state had the opportunity to make its case in court—thereby ensuring that even if the state was victorious in its legal position before the court, the decision would come too late to stop the pipeline’s construction.

During the public comment period related to the 401 Certification proposal, NYSDEC received over 6,000 responses which informed the state’s ultimate decision.  FERC’s efforts to undermine the state’s rejection of 401 Certification has the very real and practical effect of also undermining the right of community’s to comment and be heard in the 401 Certification process.  FERC’s waiver of New York’s Section 401 authority not only undermines the State’s rights, but it has also taken from the people of New York their voice in this process.

Additionally, NY has chosen to ban shale gas fracking within the state and, as the NY Attorney General later commented, FERC “fails to appropriately consider state policies, such as state choices regarding our energy resource portfolios” (Attch 18) when approving pipelines.

Ultimately, on March 12, 2018, the Second Circuit determined that the clock on the CWA 401 review process begins when a state receives an application, regardless of its completeness, and that NY did, inadvertently, waive its CWA authority in this case. However, while this unchartered territory in CWA implementation was pending before the court, FERC, through its actions, made clear that it was siding with the pipeline company in seeking to undermine the rights of states to receive complete and accurate information so that it could engage in full and fair decisionmaking regarding CWA 401 Certification.  And FERC, through its actions, also made clear that it intended to do everything within its power to allow Millennium to usurp New York State’s right and responsibility to protect water quality, and to proceed with construction as quickly as possible so that even if the state was victorious in the courts, it wouldn’t matter as the project would already be fully or significantly constructed.  

In the end, with FERC leading the charge, the State of NY lost its legal ability to protect the natural resources, water quality standards, and residents of its state.  This case helps to demonstrate why Congressional reforms that restore, honor and protect states’ rights pursuant to Section 401 of the CWA are so essential.

Connecticut Expansion Project (FERC Docket No. CP14-529): On March 11, 2016, FERC issued a Certificate to the Tennessee Gas Pipeline company for the Connecticut Expansion Project before the state of Massachusetts issued or waived its CWA 401 Certification. (Attch 8)

Leidy Southeast project (FERC Docket No. 16-416):

On December 18, 2014, FERC issued a Certificate to Transco Pipeline Company for its Leidy Southeast project before the state of Pennsylvania issued or waived CWA 401 Certification. (Attch 10)

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 CWA 401 Certifications were issued or waived by Virginia, North Carolina, or West Virginia; and before an Army Corps section 404 permit had been issued. The company has begun to take private properties through eminent domain and FERC has continued to issue partial notices to proceed with tree felling for separate segments of the project without having received or maintained all approvals.

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 CWA 401 Certification approval in either state. West Virginia Department of Environmental Protection (WVDEP) had previously approved a 401 Certification for the Project on March 23, 2017, but on September 13, 2017, WVDEP filed a motion to vacate their previous approval, stating that “the information used to issue the Section 401 Certification needs to be further evaluated and possibly enhanced.” The MVP had also not yet obtained an Army Corps section 404 permit. Just two weeks after the FERC Certificate Order issued, and prior to receiving state 401 certifications, MVP initiated condemnation actions in three federal district courts against nearly 300 property owners. (8) While Virginia did grant a CWA 401 certification in December 2017, the Virginia DEQ and Attorney General filed a lawsuit against MVP in December 2018, after documenting more than 300 violations between June 2018 and November 2018 – a demonstration that even when there has been final state action pipeline companies can inflict significant environmental harm, making it all the more important for FERC to respect the CWA authority of states prior to FERC action.

(1)    City of Tacoma v. FERC, 460 F.3d 53, 68 (D.C. Cir. 2006).
(2)    PUD No. 1 of Jefferson Cnty. v. Wash. Dept. of Ecology, 511 U.S. 700, 707 (1994) (emphasis added).
(3)    New York State Department of Environmental Conservation’s Notice of Complete Application and Notice of Legislative Public Hearings, January 25, 2017, retrieved from: https://www.dec.ny.gov/enb/20170125_not9.html
(4)    FERC Order Granting Abandonment and Issuing Certificates, Northern Access 2016 Project, (FERC Docket No. CP15-115), August 3, 2018.
(5)    See National Fuel Gas Supply Corporation v. N.Y. State Department of Environmental Conservation,
No. 17-1164-cv (2d Cir. 2019).
(6)    FERC Order Denying Rehearing, Northern Access 2016 Project, FERC Docket No. CP15-115, April 2, 2019
(7)    As reported by Keith Goldberg, FERC Won’t Reconsider NY Pipeline Authority Ruling, Law360, April 3, 2019, retrieved from: https://www.law360.com/articles/1146011/ferc-won-t-reconsider-ny-pipeline-authority-ruling?copied=1
(8)    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, — F. Supp. 3d —, No. 1:17CV211, 2018 WL 701297 (N.D.W. Va. 2018) and MVP v. Mc Million et. al, CA 2:17-04214 (S.D. W. Va. 2017).

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

  

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.

  

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 6, 7, 8, 9)

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:

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.

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.

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 https://www.northharfordmaple.com/.
(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.

  

Conflicts of Interest Color, Undermine, and Invalidate FERC Pipeline Decisionmaking

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

There Exists an Employee Revolving Door Between FERC and the Fracking Industry

The revolving door between FERC employees and industry includes agency staff up to the Commissioner level. This revolving door shapes how FERC employees view issues generally, affects the overall mindset of the agency, and creates bias. In 2014, according to press reports there were over forty instances of FERC employees, including its Commissioners, seeking multiple opportunities with grid operators, law firms and utilities that the agency regulates. (Attch 6)

Current FERC employees are able to begin negotiations with the industry for employment while still on the FERC payroll. This clearly enhances the incentive to engage in favorable agency decision-making biased towards the industry and against the public as employees try to advance their chances of securing a more lucrative and powerful position. Examples of conflict arising from this scenario include:

• Former FERC Commissioner Philip Moeller left his post at FERC to work in Washington D.C. as the Senior Vice President of Edison Electric Institute, one of the top lobbying firms for electric utilities, (Attch 7) and as the Non-Executive Director of Liquefied Natural Gas Limited. (Attch 8)
• Larry Gasteiger, former chief of staff at FERC, left the agency to work as the chief of federal regulatory policy at Public Service Enterprise Group, a major New Jersey utility company. (Attch 5)
• Pat Wood, a former FERC Chairman, became chairman of the board at Dynegy, a natural gas and coal power generating firm. (Attch 15)
• Michael Yuffee, a former attorney-advisor in FERC’s Office of Administrative Law Judges, left the Agency for the law firm representing developers of the Dakota Access oil pipeline, Norton Rose Fulbright LLP. (Attch 4)
• Mason Emnett, deputy director of FERC’s Office of Energy Policy and Innovation, “left the agency after almost eight years … to take a position as a senior attorney for NextEra Energy Inc.” (Attch 6)

The increased access resulting from the revolving door benefits the industry within the halls of FERC – the only question is what form, and to what degree, this bias manifests itself.

Several documents demonstrate the ease with which former FERC Commissioners, former attorneys, the former Director of Pipeline Certificates, and other former employees arrange meetings with and otherwise access current FERC Commissioners and employees. For example, Former Commissioner Suedeen Kelly frequently and colloquially communicates with current FERC Commissioners on behalf of her client, Spectra Energy (Attch 13), and former Deputy Director of the Office of Energy Projects and former Director of Pipeline Certificates Berne Mosley does the same regarding the Atlantic Coast Pipeline Project. (Attch 12)

Self-Interest Compounds Concerns Regarding FERC’s Decision Making Process

FERC employees, including Commissioners, are known to decide on projects that serve their own financial self-interest.  

For example, as reported by Desmog Blog;

During former Commissioner Philip Moeller’s nearly ten-year tenure with FERC, “Moeller’s wife was employed as a lawyer and lobbyist for the Washington, DC-based firm Pillsbury, Winthrop, Shaw & Pittman LLP…the Commission’s counsel repeatedly authorized Moeller to rule on matters concerning companies represented by his wife or others at Pillsbury Winthrop” (emphasis added). While Philip Moeller had secured a waiver from a FERC Ethics Official, the inappropriate bias and self-dealing cannot be said to have been remedied by those steps. One such example of how this benefit played out is as follows: In 2010, Ms. Moeller began lobbying for a company that held agreements to drill for natural gas in Pennsylvania’s Marcellus Shale. Soon thereafter, her husband and the Commission approved a number of new natural gas projects in the Northeast that would carry fracked gas from the Marcellus Shale, such as Spectra’s Texas Eastern Appalachia to Market project and New Jersey-New York Expansion project. (Attch 14)

Other examples of self-dealing by FERC officials include:

The hiring of former FERC Outreach Manager of the Office of Energy Projects, Douglas Sipe, by an engineering firm with a $1.8 million stake in the Spectra Energy Pipeline Project. Mr. Sipe served as the Environmental Project Manager for the project while at FERC. (Attch 2)

Maggie Suter, a FERC official tasked with reviewing the Cove Point and Atlantic Bridge projects, is married to Phil Suter, a paid consultant for a related project, Access Northeast.When Mrs. Suter told her supervisors at FERC of the potential conflict, she was allowed to remain in her role of reviewing the two projects. (Attch 13)

It is clear from these examples that FERC and its employees are not acting as unbiased professionals during the fracking infrastructure approval process, but instead are making licensing and approval decisions based on existing industry relationships and their own personal and/or financial self-interests.

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

  

FERC Ignores Critical, Even Catastrophic, Safety Concerns

(Download printable copy of “People’s Dossier of FERC Abuses: Safety Threats Ignored” with attachments here)

FERC routinely overlooks critical safety issues. For example, FERC has approved construction of the Algonquin Incremental Market (AIM) pipeline (FERC Docket CP14-96) adjacent to the Indian Point nuclear facility on the Hudson River, bringing the total number of neighboring pipelines to three. Nuclear safety experts have warned FERC that a rupture in the AIM pipeline at Indian Point could result in a radioactive release greater than that at Fukushima, rendering the region and likely New York City uninhabitable. FERC has approved the project despite its knowledge of the unique national security risk that the pipelines sited at the Indian Point nuclear facility pose to the 20 million people within the 50-mile impact radius of the plant.

According to Richard Kuprewicz, pipeline safety expert, the mitigation measures proposed (such as burying the pipe two feet deeper and adding concrete slabs above the pipe) are unlikely to offer protection. In addition, a former chief consultant for the Indian Point power plant put the probability of a nuclear failure at Indian Point due to a pipeline incident in the range of 1 in 1,000 to 1 in 10,000 per year–a very dangerous level that not only shocks the public conscience, but is not in keeping with regulatory goals according to expert testimony (Attch 1, Attch 2, Attch 3)

FERC also fails to adequately consider the safety record of pipeline companies in its reviews.  For example, in considering the Pacific Connector Gas Pipeline (FERC Docket CP13-492) being proposed by the Williams Company, FERC did not give due consideration to the massive gas leak and explosion at its liquid natural gas facility in Washington state.  Workers were injured and hundreds were forced to evacuate their homes when 599,340 gallons of liquid natural gas leaked or exploded. (Attch 4)

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