FERC’s Public Process Is Carefully Crafted to Frustrate Public Input and Deny Full and Fair Opportunity to Participate

(Download Printable copy of “People’s Dossier of FERC Abuses: Public Participation Undermined” with attachments here)

The National Environmental Policy Act (NEPA) requires that federal agencies take environmental considerations into account in their decision-making “to the fullest extent possible.” 42 U.S.C. § 4332.   In addition, NEPA “guarantees that the relevant information [concerning environmental impacts] will be made available to the larger audience,” including the public, “that may also play a role in the decision-making process and the implementation of the decision.” Robertson, 490 U.S. at 349. As NEPA’s implementing regulations explicitly provide, “public scrutiny [is] essential to implementing NEPA.” 40 C.F.R. § 1500.1(b). The opportunity for public participation guaranteed by NEPA ensures that agencies will not take final action until after their analysis of the environmental impacts of their proposed actions has been subject to public scrutiny. See N. Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011)

And yet, FERC’s public meeting process is notorious for the many ways it disenfranchises the public and creates barriers to public participation. FERC …
●    frequently holds hearings at locations far from the impacted communities,
●    fails to respond in a timely manner to requests for confidential information needed to inform public comment,
●    ends public hearings prematurely, before all in attendance have been given the opportunity to speak
●    fails to provide adequate notice of hearing venues and/or changes, and
●    targets comment periods for major holidays, e.g. comment period over thanksgiving, new year’s or that end on labor day.   

FERC routinely denies the public access to vital information regarding pipeline projects prior to comment deadlines

Recently, FERC refused to provide Critical Energy Infrastructure Information (“CEII”) to an environmental organization until after the scoping period for the proposed Project had closed, despite the organization’s timely filing of the request for information and its repeated efforts to secure the documents requested.

FERC undermines the entire purpose of public participation and fair notice by allowing for significant project alterations after public comment periods have ended

It is not uncommon for FERC to allow a proposed pipeline route to change or to offer new viable alternatives after the filing of a formal FERC application, and after relevant comment periods have ended, but without giving the public a full and fair opportunity to comment.

New Hampshire residents struggled to understand the impacts of the Northeast Energy Direct Project (FERC Docket No. PF14-22) as the pipeline route was repeatedly changed during the project’s scoping period. Members of the community attempted to identify and alert new landowners on ever-changing maps when Kinder Morgan and FERC failed to do so. (Attch 3) As a result, the public was unable to meaningfully comment on a pipeline’s route, and impacted landowners were left unaware that a pipeline was slated to cross their property until the application process was well under way and public comment opportunities had passed. (Attch 20)

FERC creates unnecessary technological barriers to participation

When residents participate in FERC’s “public process” via written comment or intervention, they are often stymied by FERC’s website which is, at best, convoluted, and often, non functioning at critical times. (Attch 27, Attch 25, Attch 28)  FERC could remedy this barrier by participating in The eRulemaking Program and utilizing the far more accessible commenting and notification platform available through Regulations.gov, which was created to “increase public access to federal regulatory materials,” “increase public participation and their understanding of the federal rulemaking process,” and “improve federal agencies’ efficiency and effectiveness in rulemaking development.” FERC is a Non-Participating Agency in the program, despite regular complaints regarding their e-Filing system.

FERC’s lack of notice for and poor timing of public comment periods and public hearings creates barriers to participation

It is common practice for FERC to provide short notice of upcoming hearings and to offer limited windows within which to comment on significant project proposals.  

➔    FERC provided a mere 3 weeks public notice for scoping hearings regarding the Atlantic Coast Pipeline — FERC announced on February 27 that it would hold a scoping meeting on March 18 to receive public testimony.  Given the high interest and significant volume of information that needed to be compiled, reviewed, and addressed, 3 weeks was highly deficient.
➔    FERC provided only 24 days before holding public hearings on a 1,174 page EIS document for the PennEast Pipeline project.  In total only 45 days was given for those who wanted to submit written comment.  Neither the 24 days for verbal comment nor the 45 days for written comment was enough for such a long and detailed proposal.  

FERC is known to give even less notice when there is a change in the location of a public meeting.

➔    Notice of a change of hearing venue for the PennEast pipeline project’s August 16th and 17th Draft EIS hearings were postmarked August 11 and in fact did not arrive in mailboxes until on or about August 16, 2016, the same day as the hearing. (Attch 26) The delayed notification of the change denied many concerned members of the public the opportunity and ability to attend the hearings at the new locations.  (Note, the notice itself was dated August 5, but the postmark was August 11, indicating the agency waited a full 6 days before actually getting the notice into the postal system for delivery).

FERC’s public meetings are designed to discourage participation and opposition through unnecessary time restrictions and inconvenient timing and locations

FERC public meetings are often held at a limited set of locations along a proposed pipeline route, making it difficult for many impacted community members to travel the long distances necessary to participate, particularly those that have some sort of physical limitation or significant family obligations.

➔    Residents in Buckingham County, VA were not given the benefit of a public meeting or subsequent “listening session” in their community to discuss the Atlantic Coast Pipeline (FERC Docket No. CP15-554) despite the fact that the county would be the site of a large compressor station, the only one in the state, and the proposed pipeline would cut through the entire length of the 584-square mile county. (Attch 21)

• Residents had been told that there would be a FERC hearing in their county on the pipeline, as well as additional hearings specific to the compressor station. Instead, the public meeting was held in another county, 45 minutes to an hour’s drive away. This drastically limited Buckingham residents, many of whom are elderly and do not normally drive on a winter’s evening, from attending and expressing their concerns over the project.
• Local public officials requested that FERC hold a meeting in the county, as did Senators Kaine and Warner on their behalf. Senator Kaine summarized in his letter to FERC, “the opportunity [to comment] was not sufficiently given.” (Attch 24) FERC did not respond to any of the requests.
• Residents who were able attend the meeting later found that their comments were not transcribed accurately and were so riddled with mistakes that their testimonies seemed nonsensical on the record. (Attch 4, Attch 5)

➔    Millennium held “open house” forums on the Eastern System Upgrade project (FERC Docket No. PF16-3) at inconvenient times and locations that were inaccessible for impacted community members, among other problems. The public meeting that was intended to focus on the proposed Highland compressor station was held 30 miles north of the proposed site, at a time that many indicated was inconvenient for the daily realities of those affected. (Attch 29)

FERC public meetings include strict time limits for testimony and turn testifiers away once arbitrary time limits are met:

➔    FERC public hearings traditionally allow only 2 to 3 minutes of time per person for testimony.  This time limit is enforced even when the number present is so few that there is clearly the ability to provide more time without reaching the scheduled end time for the hearing.

• For example, at PennEast project hearings, a three minute time limit was imposed for the stated purpose of ensuring that everyone had the opportunity to testify, despite the fact that the number of individuals signed up to testify did not warrant the time constraint. FERC’s unnecessary time restriction was evident when all individuals had provided testimony by 8:30 pm and the scheduled close of the public hearing was 10 pm.

➔    For meetings where there is significant turnout, when the scheduled end time of the meeting is reached, people are turned away without ever getting a chance to testify — regardless of how long or far they travelled, or how long they waited to speak. Providing an opportunity for written comment does not serve the same function as an opportunity to verbally testify for the benefit of FERC and two to three minutes is simply not enough.

FERC separates and intimidates commenters at public hearings

FERC recently began implementing a new hearing format designed to take the “public” out of the concept of public hearings and deny the ability of attendees to hear the testimony offered by others in attendance; commenters are escorted individually to rooms to state their testimony, in private, to a FERC-hired stenographer out of earshot of others in attendance. The press is prohibited from hearing comments given (even if testifiers request that press be allowed to hear their testimony) and are also prohibited from taking photos and/or video for their news reporting.  The public is also told that they are prohibited from taking photos of the public meeting.  

FERC turns a blind eye when the public process is abused by the industry and expresses clear bias in the public process

➔    For example, 347 letters were filed on the docket for the NEXUS pipeline– supposedly on behalf of individuals by a group called the “Consumer Energy Alliance”. When FERC was informed that these letters of support were false; had been filed “on behalf of” people who had been dead for nearly 20 years, people with dementia whose and family said they could never have written such a letter, and others who stated they never filed such a letter, FERC’s response was simply that it is not the Agency’s job to investigate such issues and that they do not have the resources or a relevant protocol to investigate. One FERC staffer told concerned residents that “people who believe their signature was improperly used could file a letter in the docket to refute it, otherwise it would stay.” Even when provided with evidence of these misrepresentations on the record, FERC failed to take appropriate action. (Attch 10, Attch 1, Attch 2)

➔    At public scoping meetings for the Mountain Valley Pipeline in Elliston, Virginia on May 5, 2015, commenters complained that FERC Project Manager Paul Friedman “conducted the Elliston meeting in a highly unprofessional, partisan manner, allowing the few supporters of the MVP to exceed the three minute speaking limit, while strictly limiting opponents and ordering the stenographer to erase opponents comments that ran over or he ruled out of order.” (Attch 8)

Often, unexplained shenanigans occur at public meetings that further impede the ability of impacted landowners and community members to testify:

➔    For example, Virginia residents were not given a fair opportunity to voice their concerns over the Atlantic Coast Pipeline at FERC scoping meetings because members of the public arrived at the meetings’ announced start time only to find that all speaking slots were claimed hours prior.

• Pipeline proponents had been somehow notified that the sign up sheet for speaking slots would be available an hour prior to the official hearing start time, while pipeline opponents had not been similarly made aware.
• In the end, 203 people signed up to speak and only 75 were allowed to do so. FERC declined to allow more time for public comment and declined to conduct additional public hearings. (Attch 23, Attch 24, Attch 22)

FERC does not fulfill its NEPA obligation to consider and address relevant issues raised in public comments

When members of the public, and even elected representatives, participate in the public process, either in-person or in writing, their concerns and valid legal arguments fall on FERC’s deaf ears.

➔    For example, 22,093 people and 37 elected state officials informed FERC of their opposition to the Marc-1 Pipeline in Northeast Pennsylvania; the EPA even questioned the need for yet another pipeline in the area, yet FERC rubberstamped the project and hastily granted eminent domain authority to the pipeline company.

➔    Residents impacted by the Spectra AIM pipeline (FERC Docket No. CP14-96) watched helplessly as the pipeline company and FERC ignored the questions and objections or community members and elected officials at every level of government in the four impacted States (NY, CT, RI, and MA), including Senators and members of Congress, the New York Governor and four New York state agencies, during the scoping period and through the Draft and Final Environmental Impact Statements. (Attch 11, Attch 12)

This behavior is not regionally-limited. FERC has acted similarly when approving two fiercely contested pipelines in Texas; Trans-Pecos and Comanche Trail, and in countless other situations across the nation.

Key-Log Economics has undergone a thorough analysis of all comments submitted to the FERC docket during key comment periods for the Atlantic Coast Pipeline, the PennEast Pipeline, and for Millennium’s Eastern System Upgrade (ESU) project. Across the board, these analyses have found that the vast majority of comments submitted to FERC express negative opinions and serious concerns about the proposed pipelines. More so, these concerns are greatest among people who would be directly affected by the proposed pipelines. Under NEPA, FERC must consider and address relevant concerns raised in public comments. These comments are important to the process as they “provide direct and clear information about the issues of concern to the people living in communities through which the pipeline would pass as well as to people who, as visitors, downstream water users, business owners, and others, use and enjoy the affected landscape. The comment letters help FERC understand the nature and extent of the effects of the proposed pipeline.” (Attch 13)  However, FERC regularly fails to meet its legal obligation to consider the full range of environmental effects raised on the record in their final EIS or EA. (Attch 16, Attch 17, Attch 18)

FERC misleads and discourages landowners from participating in the public process

FERC has gone so far as to actively mislead and discourage landowners who stand to lose their property to eminent domain from participating in the public process.
 
➔    William F. Limpert, who, along with his wife, stands to have his retirement property cut in half by the Atlantic Coast Pipeline (ACP) (FERC Docket no. CP15-554), was discouraged from participating as an intervenor by FERC staff when he inquired about the process. He was told, falsely, that “being an intervenor is very difficult because [he] would have to send letters to hundreds of other intervenors.” The FERC employee made the process sound so daunting and time consuming that the Limperts decided not to intervene at the time. The ACP would cut a 3,000 foot by 125 foot path cut through the virgin forest on their property within several hundred feet of their home, taking down hundreds of old growth trees. (Attch 15)

FERC’s disregard for public concern is reckless, illegal, and appears intentional
Members of the public have reported overhearing FERC employees disparage the public process and, when they thought they were not being overheard, laughing at the notion that the public believed that their input could have any impact on the pre-determined outcome of approval of a pipeline by FERC.

The public is denied any opportunity to testify before the FERC Commissioners directly before they render the final decision on a pipeline infrastructure project – and if they attempt to speak at a FERC Commissioners meeting they are forcibly removed or arrested. (Attch 11, Attch 14) And so people who are losing their lives, livelihoods, properties, protected lands and healthy environments are never even given the opportunity to be heard by the very decisionmakers who are making the decision to inflict the harm.
The steps taken by FERC to deny people their right to be heard and to participate in the public review process are particularly egregious in light of the fact that these proposed projects take their private property rights, irreparably damage natural resources and lands communities have worked hard to preserve and restore, take jobs and harm small businesses, impede farmers from being able to most successfully grow their crops, and put communities in a literal blast zone that could take their lives. This clearly frustrates provisions of the National Environmental Policy Act, the Clean Water Act, and the Natural Gas Act.

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

  

FERC Minimizes Assistance to the Public While Providing Robust Access and Assistance to the Pipeline Industry

(Download a printable copy of “People’s Dossier of FERC Abuses: Lack of Public Assistance” with Attachments)

While not legally required to do so, it is notable that FERC has never made any effort to fund a Congressionally authorized Office of Public Participation to help the public navigate the difficult, complex, and highly technical pipeline review and approval process that so dramatically impacts and harms their lives, communities, and the environment. In contrast to this refusal by the agency to assist the Public, FERC regularly holds educational seminars and events with industry allowing for easy access to FERC commissioners and staff.   

Congress established an Office of Public Participation (“Office”) at FERC as part of the 1978 Public Utility Regulatory Policies Act. (16 U.S.C. § 825q–1).  In creating this Office, Congress recognized that effectively participating in FERC proceedings is especially challenging for individuals, homeowners associations, non-profit organizations, local government bodies, and consumer protection organizations because the highly technical nature of FERC dockets requires significant specialization and costly resources often unavailable to non-industry related parties. Among the Office’s responsibilities would be to help “coordinate assistance to the public” on Commission dockets, and the Office may “provide compensation for reasonable attorney’s fees, expert witness fees, and other costs of intervening” for the public. (16 U.S.C. § 825q-1(b) (1-2)). FERC has never created this Office.

The pipeline industry enjoys vast advantages and virtually open access in navigating FERC’s review and approval process in comparison to the public—not only are they able to communicate regularly with FERC staff regarding their projects from as early as the pre-filing stages, they enjoy the benefits of the employee revolving door and regular trainings offered by FERC for their benefit. FERC’s online calendar details various industry seminars, such as the one held March 7, 2017, described as a “three day interactive seminar [that] will include how to successfully navigate the FERC environmental review process and to prepare an Environmental Report, a brief introduction to pipeline construction for industry newcomers, a discussion of pre-construction preparation considerations, and a review of baseline mitigation measures for pipeline construction and restoration.” (Attch 1)  In addition, the industry has far greater resources in order to engage with FERC and to use the process to their full power and advantage.

Not only does FERC fail to educate the general public regarding the pipeline permitting process, the Agency completely ignores the public’s requests for help. For example, citizens interested in participating in the Mountain Valley Pipeline process (FERC Docket No. PF15-3) repeatedly, and formally, sought help on issues ranging from the Agency’s definition of “public interest” to how the Agency resolves conflicting expert reports. Despite multiple requests for assistance, none was given. (Attch 2)

Despite the clear need for the Office of Public Participation, FERC has never requested nor allocated any funds for this Office, even though fully funding the office would constitute less than 2 percent of FERC’s budget. As such, this Office exists only in theory; individuals, families, communities, and organizations faced with the significant impacts of a pipeline project and faced with the high complexity and cost of properly reviewing and/or challenging a project when the need arises have never received the appropriate, needed or congressionally envisioned assistance from FERC.

FERC’s failure to fund the Office of Public Participation reflects FERC’s lack of institutional interest in cultivating a balanced, fair, and impartial review and approval process for natural gas pipeline projects.

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

  

FERC Engages in Segmentation in Order to Prevent Full Consideration of Environmental and Community Impacts

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

FERC routinely and illegally narrows its environmental review of pipeline projects by allowing for the practice of segmentation.

On January 22, 2013, Delaware Riverkeeper Network, NJ Sierra Club, and New Jersey Highlands Coalition filed a legal action challenging FERC’s May 2012 approval of the Tennessee Gas Pipeline Company’s Northeast Upgrade Project (NEUP). Delaware Riverkeeper Network et al. successfully argued that FERC’s approval was illegal because the Agency segmented its environmental review when it ignored three other connected and interdependent pipeline projects that were simultaneously before FERC. A map clearly demonstrates that the 300 Line Project, the Northeast Supply Diversification Project, the MPP Project, and the NEUP were merely separate parts of the same pipeline and, therefore, FERC was legally obligated to consider all of these projects together when reviewing the NEUP for environmental impacts. (Attch 1) On June 6, 2014, the United States Court of Appeals for the District of Columbia issued an opinion and order finding that FERC’s segmentation violated NEPA and that FERC had failed to consider the cumulative impacts of these projects. (Attach 2) (Attch 3)

Despite this ruling, FERC continues to rely upon segmentation as a matter of common practice in its pipeline reviews.  For example:

SouthEast Leidy – Atlantic Sunrise pipelines:

Just six months after the Court’s ruling, FERC engaged in the same unlawfully segmented NEPA process for Transcontinental Pipeline Company’s Leidy Southeast Upgrade Project (FERC Docket No. CP13-551), the Northeast Supply Diversification Project (FERC Docket No. CP11-30), and the Atlantic Sunrise Project (FERC Docket No. CP15-138)— all parts of the same pipeline that were illegally segmented for FERC review. The Combined Transco Leidy Line Project Map clearly demonstrates the connection between the projects. (Attch 4)

Orion Pipeline:

On February 2, 2017, FERC approved the Tennessee Gas Company’s proposed Orion Pipeline project — another segmented project designed to further upgrade the 300 Line project — known as 300-3 —  that was the subject of the Delaware Riverkeeper Network, et al. case. Tennessee has improperly segmented its 300-3 pipeline into pieces for review: the Orion Project, the Triad Expansion project, and the Susquehanna West project.

• Application for the proposed Susquehanna West project was submitted on April 2, 2015 (FERC Docket No. CP15-148). Anticipated in-service date; November 1, 2017.
• Application for the Triad Expansion project was submitted on June 19, 2015 (FERC Docket No. CP15-520).  Anticipated in-service date; November 1, 2017.
• Application for the Orion project was submitted October 9, 2015 (FERC Docket No. CP16-4). Anticipated in-service date; June 1, 2018.

The three 300-3 line Tennessee projects were all proposed within roughly six months of each other. Tennessee Gas’s Orion, Triad, and Susquehanna West Map demonstrates the interconnected nature of the three projects — they are all clearly part of the same pipeline system — each upgrading a different section of the pre-existing 300 pipeline. (Attch 5)

National Fuel’s Northern Access 2016:

FERC also engaged in illegal segmentation when considering the National Fuel’s Northern Access 2016 project (FERC Docket No. CP15-115), the latest of National Fuel’s pipeline projects in the Northeast. The figure on p.10 of Allegheny Defense Project’s Northern Access Comment shows the segmentation of the in-service and proposed pipelines, and hints at further expansion and segmentation with stranded gathering lines. (Attch 6)

For a discussion of the significance of the Delaware Riverkeeper Network et. al. v. FERC case, see the article by Michael R. Pincus of the American Bar Association. (Attch 7)

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

  

FERC Illegally Predetermines the Level of Its NEPA Reviews

(Download printable copy of “People’s Dossier of FERC Abuses: Illegal NEPA Predetermination with attachments” here)

The National Environmental Policy Act (NEPA) dictates that FERC evaluate the environmental impact of a proposed action by first preparing an Environmental Assessment (EA). If significant impacts are found during the preparation of the EA, FERC must then prepare a more comprehensive Environmental Impact Statement (EIS). If, as a result of the EA, it is determined that there will be no significant impact, then FERC issues a Finding of No Significant Impact (FONSI) and the Agency is deemed to have fulfilled its NEPA environmental review obligations.

Rather than enter into the EA process in good faith and with an open mind as to the outcome, an outcome that is informed by the information and data received from the public, agencies, and experts during the EA review process, FERC instead “eyeballs” a project applicant’s initial request and predetermines whether it will only undertake an EA and forego the more comprehensive EIS. Contrary to the mandates of NEPA, the EA is not used by FERC as the vehicle for determining the appropriate level of review.  Instead, FERC routinely pre-determines the environmental review process it will use based on its own judgment.

For example, in response to concerns raised by Senator Elizabeth Warren regarding the Atlantic Bridge Project (FERC Docket No. CP16-9), FERC issued a response stating that “The Commission staff will issue an environmental assessment (EA) to meet our responsibilities under the National Environmental Policy Act.” (Attch 1) In other words, FERC clearly stated, prior to its review, that the issuance of an EA would fully meet NEPA requirements.

This kind of advance determination is routine. Notably, and by way of further evidence of this assertion, FERC has never issued an Environmental Assessment that found possible significant impacts, or even unknown impacts, which would then require a full Environmental Impact Statement.  

Such truncated environmental review procedures save the industry both time and money, and denies the public an unbiased review of project impacts as required by NEPA.  

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

  

FERC Routinely Ignores the Economic Costs of Pipeline and Compressor Infrastructure Projects

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

FERC’s section 7 duty to consider the public interest is broader than promoting a plentiful supply of cheap gas. (See Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 649 (D.C. Cir. 2010)). Rather, FERC must ensure “the [public] benefits of the proposal outweigh the adverse effects on other economic interests.” AES Ocean Express, LLC, 103 F.E.R.C. ¶ 61,030 at ¶ 19.

Despite this clear mandate, FERC routinely ignores documented economic harms anticipated from proposed pipelines, while accepting at face value company claims of benefit. As Dr. Spencer Phillips, Ph.D. articulates, FERC’s policy that guides its review of pipeline economics “is completely inadequate for evaluating the costs and benefits of proposed pipelines.” (Attch 1)

• First, FERC’s stated policy is for the applicant to provide information that supports FERC’s approval. By asking only for information supporting a foregone conclusion, FERC fails to subject pipeline applications to a full, rigorous, or economically adequate examination of the proposals.
   
• Second, FERC relies almost exclusively on cost and benefit information supplied by applicants and their consultants, who have – and act upon – their self-interest by presenting inflated estimates of benefits and greatly discounted estimates of costs. As most recently demonstrated by the Atlantic Coast Pipeline (Attch 2) (FERC Docket No. CP15- 554), Mountain Valley Pipeline (Attch 3) (FERC Docket No. CP16-13), PennEast Pipeline (Attch 4) (FERC Docket No. CP15-558), Millennium Eastern System Upgrade Project (Attch 5) (FERC Docket No. CP16-486), Atlantic Sunrise pipeline (Attch 7) (FERC Docket No. CP15-138), and Adelphia Gateway Project (FERC Docket Nos. CP18-46) (Attch 9) FERC’s NEPA review relies almost entirely on the information provided by the applicant and as a result, provides no serious consideration of the costs of pipeline construction, operation and maintenance.

Property Value Costs and Lost Tax Revenues Are Significant and Ignored

Some of the important costs that pipeline applicants and FERC fail to consider include:

• Reductions in private property values along the length of pipelines and extending outward through the right-of-way, the “high consequence area,” and the evacuation zone. These reductions in property value translate into a reduction in the property taxes collected by local governments. These property value reductions can be significant:
•  construction and operation of the Penneast Pipeline, for example, would result in a loss of property value of $159.7 to $177.3 million resulting in a $2.7 to $3.0 million loss in property tax revenue annually (Attch 4);
•  construction and operation of the Mountain Valley Pipeline would result in losses of $42.2 to $53.3 million in property value (resulting in losses ranging from $243,500 to $308,400 tax revenue annually). (Attch 3)
• Reductions in property value are not limited to pipelines; compressor stations were responsible for a 25-50% reduction of property assessments for homes in Hancock, NY. (Attch 6)

Credible, independent research shows that pipelines do in fact have significant negative effects on property values. See “Claims That Pipelines Do Not Harm Property Value Are Invalid” beginning on page 20 of Key-Log Economics’ report on the Millennium Eastern System Upgrade project. (Attch 5) And yet, FERC routinely cites fundamentally flawed, industry-sponsored studies that claim there is no such property value effect, ignoring the independent data and real world experiences to the contrary.

Environmental, Business, Farming, and Other Economic Costs are Far Reaching, Staggering, and Ignored
Additional costs resulting from pipeline construction, operation, and maintenance that are ignored by FERC include:

• Loss of water purification, water storage, air quality benefits, flood protection, aesthetic quality and wildlife habitat, are among the costs that are ignored. These benefits are lost, minimized and/or significantly reduced when land uses/land covers like forests, wetlands, natural meadows, and natural open space that produce these benefits at a high rate are converted to pipeline associated industrial operations and/or shrub/scrub that produce far less, and frequently no, natural benefits.
   
• Economic harms such as reduced crop production for farmers, adverse impacts to businesses along or near the pipeline right of way, and adverse impacts to ecotourism and related businesses and jobs.Forgone economic development opportunity from recreationists, tourists, retirees, entrepreneurs, and workers who will choose safer, more environmentally healthy, and more aesthetically pleasing locations the ones associated with construction and operation of the proposed pipeline/compressor.
   
• Social Cost of Carbon resulting from upstream and downstream greenhouse gas emissions that are facilitated by additional natural gas transmission
  
  These costs can be significant and staggering: (1)

FERC Accepts Exaggerated Pipeline Benefits as the Basis for Decisionmaking

Pipeline companies seeking FERC approval typically claim that construction of their project will result in positive economic impacts, job creation, increases in personal income, and lower end-user energy costs for natural gas and/or for electricity generated in gas-fired power plants that will spur further economic development. However, independent expert analyses submitted to FERC consistently find these claims to be exaggerated or entirely false.

For example, in a thorough, retrospective, statistical analysis of the experience of the region affected by the Marcellus Shale-based boom in natural gas availability and natural gas pipeline construction since 2000, Key-Log Economics found that, despite claims that increased pipeline capacity drives down electricity prices, electricity prices have instead increased during the Marcellus Shale boom: (Attch 8)

From 2001 through 2015—a period encompassing the beginning of the Marcellus Shale gas boom—the total natural gas transmission capacity available in the Marcellus region increased from 20,195 million cubic feet per day (Mmcfd) in 2001 to 1,098,894 Mmcfd. That is an increase of more than 5,300%. If the contentions that increased pipeline capacity drives down electricity prices were true, we would expect to see dramatically lower electricity prices during this same period. What we observe, however, is the opposite: total electricity prices (including residential, commercial, and industrial customers for utilities), have increased from an average of 69.62$/MWh in 2001 to 98.80$/MWh in 2015 (in inflation-adjusted 2017$)—a 42% increase. For residential customers, the price increase was 36%, from 86.65$/MWh in 2001 to 118.12 $/MWh in 2015 (in 2017 $). During the same time period, however, the average price of natural gas to end users (i.e. “distribution price”) did fall from $9.04/Mcf to $4.80/Mcf (in 2017$).

Despite clear evidence dispelling pipeline companies’ claims of economic benefits, FERC accepts their claims at face value as the basis for its public interest determination.

FERC Refuses to Consider the Social Cost of Carbon in Its Pipeline Analysis

FERC fails to use readily available tools to quantify the public costs of the projects it reviews in order to ensure “projects that have residual adverse effects would be approved only where the public benefits to be achieved from the project can be found to outweigh the adverse effects” (88 FERC 61,227, p. 23). Among the most significant and calculable residual adverse effects resulting from fracked gas infrastructure projects are the incremental economic impacts of incremental greenhouse gas (GHG) emissions.

The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in Sierra Club, et al. v FERC, 867 F.3d 1357, (D.C. Cir., Aug. 22, 2017), found that FERC is required to consider and quantify the downstream greenhouse gas (“GHG”) emissions from the combustion of the natural gas transported by a project as part of their National Environmental Policy Act review. In light of the recent D.C. Circuit’s decision, FERC must:

• quantify pipeline projects’ emissions combined with past, present, and reasonably foreseeable future gas projects in the region;
• and adopt appropriate mitigation measures in recognition of the past, present, reasonably foreseeable future gas projects in the region to reduce the severity of cumulative impacts from the project.

The social cost of carbon (SCC), “a measure, in dollars, of the long-term damage done by a ton of carbon dioxide (CO2) emissions in a given year,” (2) is an available and appropriate tool that would allow FERC to measure economic impacts of climate change that would result from proposed pipelines as required by NEPA and the NGA.

Despite the fact that a federal court recently upheld the legitimacy of using the social cost of carbon as a viable statistic in climate change regulations, (3) and that the CEQ had recommended its use in its final guidance for federal agencies to consider climate change when evaluating proposed Federal actions, (4) the Commission continues to contend that it “‘has not identified a suitable method’ for determining the impact from the Projects’ contribution to climate change and, absent such a method, it simply ‘cannot make a finding whether a particular quantity of [GHG] emissions poses a significant impact on the environment and how that impact would contribute to climate change.’” (5)

However, as Commissioners Glick and LaFleur have pointed out in response to multiple recent certificate order decisions, FERC is incorrect in its claims that there is “no widely accepted standard to ascribe significance to a given rate or volume of GHG emissions” (6) and that “it cannot ‘determine how a project’s contribution to GHG emissions would translate into physical effects on the environment.’” (7) As Commissioner Glick explains (8):

“That is precisely what the Social Cost of Carbon provides. It translates the long-term damage done by a ton of carbon dioxide into a monetary value, thereby providing a meaningful and informative approach for satisfying an agency’s obligation to consider how its actions contribute to the harm caused by climate change.” (9)

“the Commission has the tools needed to evaluate the Projects’ impacts on climate change.  It simply refuses to use them.” (10)

The SCC for pipeline projects, conservatively estimated, can run into tens of billions of dollars over their designed lifetime of a pipeline. Key-Log Economics recently calculated that the additional 325 million cubic feet of natural gas capacity per day created by the Adelphia Gateway Project translates to 6.3 million metric tons of CO2 equivalent in GHG in each year of operation. Using a range of conservative discount rates, the SCC of the project over 30 years of operation ranges from $300 million to $40 billion. (Attch 9)

Key-Log Economics has also calculated staggering SCC estimates resulting from pipeline projects each year:

• The PennEast Pipeline would result in SCC costs of $301.8-2.3 billion annually (Attch 4)
• The Atlantic Sunrise Pipeline would result in a SCC of $466.5 million to $3.6 billion each year (Attch 7)
• The Millennium Eastern System Upgrade would impose $51.8 – 343.5 million in SCC annually (Attch 5)

Despite the clear mandates from NEPA, the Natural Gas Act, and the Courts, FERC continues to illegally narrow its consideration of the adverse societal impacts of pipelines, compressors and related infrastructure in its decisionmaking.

FERC Lacks the Economic Expertise to Remedy Its Economic Failings

It is also important to note that FERC’s reliance on pipeline applicants to provide information about the need for, as well as the benefits and costs of, their proposals is exacerbated by FERC’s lack of capacity to review and filter the economic information they receive, let alone to conduct analyses of its own. The Office of Energy Projects (OEP), whose “mission…is to foster economic and environmental benefits for the nation through the approval and oversight of hydroelectric and natural gas pipeline energy projects that are in the public interest” (11) has no economists among its staff. The Office of Energy Policy and Innovation, which otherwise collaborates with other FERC offices to evaluate industry proposals, does not support OEP by providing any economic review and analysis of pipeline certification projects.

It does not seem plausible that an agency responsible for evaluating the economic merits of energy project proposals could do so without benefit of qualified economic expertise. Indeed, as we have noted above and as is detailed in the attachments listed below, FERC has not provided adequate review of the economic costs and benefits of pipelines. The predictable result will be too much pipeline capacity, too many environmental and other external costs, and a loss of economic vitality for American people and communities.

(1)    See table from Economic Harms Attachment 8, Key-Log Economics, LLC, Economic Issues related to FERC Policy Regarding Certification of Interstate Natural Gas Pipelines and FERC Docket No. PL18-1, Economic Costs of the Atlantic Coast Pipeline, July 23, 2018.

(2)    EPA Fact Sheet, Social Cost of Carbon, December 2016, retrieved from: https://www.epa.gov/sites/production/files/2016-12/documents/social_cost_of_carbon_fact_sheet.pdf

(3)    Susanne Brooks, Environmental Defense Fund, In Win for Environment, Court Recognizes Social Cost of Carbon, August 29, 2016.

(4)    Final Guidance on Greenhouse Gases and Climate Change, Council on Environmental Quality, August 2016.

(5)    Statement of Commissioner Richard Glick on Texas Eastern Transmission, LP, FERC Docket No. CP18-10, July 19, 2018.

(6)    Id. P 27.  Florida Southeast Connection, LLC, 162 FERC ¶ 61,233, at 2, 5–8 (2018) (Glick, Comm’r, dissenting).

(7)    Statement of Commissioner Cheryl A. LaFleur on Texas Eastern’s Texas Industrial Market Expansion Project, FERC Docket No. CP18-10, July 19, 2018 referencing Texas Eastern Certificate Order at P 33.

(8)    Statement of Commissioner Richard Glick on Northwest Pipeline, LLC, FERC Docket Nos. CP17-441-000, CP17-441-001, July 19, 2018. See also Texas Eastern Transmission, LP, July 19, 2018, Docket No.: CP18-10-000; partial dissent on on Columbia Gas Transmission, L.L.C., July 19, 2018, Docket No.: CP17-80-000; July 19, 2018, Docket No.: CP17-80-000; partial dissent of the Northwest Pipeline certificate order.

(9)    Id. at 5 (Glick, Comm’r, dissenting) (citing cases that discuss the Social Cost of Carbon when evaluating whether an agency complied with its obligation under NEPA to evaluate the climate change impacts of its decisions).

(10)    Statement of Commissioner Richard Glick on Mountain Valley Pipeline, LLC , FERC Docket Nos. CP16-10-000 and CP16-13-000, June 15, 2018.

(11)    FERC, Office of Energy Projects, Updated March 20, 2017, available at  https://www.ferc.gov/about/offices/oep.asp

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

  

FERC’s Failure to Mandate Genuine Demonstration of NeedResults In Pipeline Overbuild

(Download printable copy of “People’s Dossier of FERC Abuses: Deficient Needs Analysis with attachments” here)

FERC approval of a pipeline requires a demonstration of need. (Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (1999), clarified, 90 FERC ¶ 61,128, further certified, 92 FERC ¶ 61,094 (2000)). And yet, FERC routinely ignores evidence that there is no genuine public need for a proposed pipeline project.  Further, instead of requiring a demonstration of genuine need, FERC allows pipeline companies to assert increased profits, competitive advantage, and self-manufactured claims of need to fulfill the public necessity mandate.

Rather than engage in objective and independent review of the claims of need, “FERC has increasingly relied on information supplied by pipeline operators in making decisions to grant approvals….”  (Attch 1) The failure to objectively consider claims of “need” results in poorly informed and often inappropriate decision making.

FERC’s failure to ensure “need” for a pipeline will result in overbuild

Industry experts themselves have recognized that there is no need for additional pipeline capacity. For example:

→ Industry expert Rusty Braziel, speaking to attendees at the 21st Annual LDC Gas Forums Northeast conference regarding capacity in the Northeast, said:

“an evaluation of price and production scenarios through 2021 suggests the industry is planning too many pipelines to relieve the region’s current capacity constraints…What we’re really seeing is the tail end of a bubble, and what’s actually happened is that bubble attracted billions of dollars’ worth of infrastructure investment that now has to be worked off” (Attch 2)

→ And Elle G. Atme, Vice President, Marketing and Midstream operations for independent producer Range Resources has said: 

“We believe that the Appalachian Basin’s takeaway capacity will be largely overbuilt by the 2016-2017 time frame.” (Attch 3)

When credible and expert evidence is provided that the asserted “need” for a new gas project is false, FERC routinely and without explanation ignores that evidence instead embracing pipeline company assertions

In the following cases, expert analyses have directly contradicted company assertions of “need.” And yet, in each instance, the information was largely ignored by FERC as it continued, instead, relying on the assertions of the pipeline companies: 

NorthEast Direct Pipeline (FERC Docket No. CP 16-21): A 2015 study conducted by Analysis Group at the request of the Massachusetts Attorney General that was placed on the FERC docket for the Northeast Energy Direct pipeline, found that new interstate natural gas pipeline capacity is not needed in New England through the year 2030. (Attch 4, Attch 5)

Mountain Valley (FERC Docket No. CP16-13) and Atlantic Coast Pipelines (FERC Docket No. CP15-554): According to a 2016 study conducted by Synapse Energy considering the need for the Mountain Valley and Atlantic Coast pipelines that are purported to deliver natural gas from West Virginia to Virginia and the Carolinas: “The region’s anticipated natural gas supply on existing and upgraded infrastructure is sufficient to meet maximum natural gas demand from 2017 through 2030. Additional interstate natural gas pipelines, like the Atlantic Coast Pipeline and the Mountain Valley Pipeline, are not needed to keep the lights on, homes and businesses heated, and industrial facilities in production.” (Attch 6) In a separate analysis, Synapse found that Dominion overestimated the Atlantic Coast Pipeline’s economic benefits in reports to FERC and failed to account for any of the environmental and societal costs that the pipeline would impose on local communities. (Attch 15)

Constitution Pipeline (FERC Docket No. CP13-499):  In the case of the Constitution Pipeline, one detailed report on the record concluded that New York City’s existing infrastructure is “large, dynamic, and more than adequate” to support the City’s needs. The report also provided evidence that the Constitution Pipeline does not, in fact, seek to supply the City with natural gas, but instead seeks to export the natural gas. (Attch 7)

PennEast Pipeline (FERC Docket No. CP15-558):  The asserted public “need” advanced by the PennEast pipeline company for the PennEast Pipeline Project and accepted by FERC included assertions that the proposed pipeline is necessary to serve New Jersey and eastern Pennsylvania communities and some unstated number of “surrounding states.”  However, numerous expert reports on the PennEast docket demonstrate there is in fact no such “need” for the gas that PennEast would transport, and that if the pipeline were to be built there would be an increased gas surplus in both NJ and PA:

• “The proposed PennEast Pipeline would deliver an additional 1 Bcf/d of natural gas to New Jersey potentially creating a 53% supply surplus above the current level of consumption.”  “…Pennsylvania has no unfulfilled demand…” (Attch 8, Attch 9)
• “Local gas distribution companies in the Eastern Pennsylvania and New Jersey market have more than enough firm capacity to meet the needs of customers during peak winter periods. Our analysis shows there is currently 49.9% more capacity than needed to meet even the harsh winter experienced in 2013.” (Attch 10)

Sabal Trail Pipeline (FERC Docket No. CP14-554):  FERC refused to revisit the alleged “need” for the Sabal Trail pipeline through Alabama, Georgia, and Florida, despite admissions by Florida Power and Light (FPL) that the region’s needs had dramatically changed. In 2016, FPL’s Ten Year Plan stated firmly that “FPL does not project a significant long-term additional resource need until the years 2024 and 2025” and, at the same time, acknowledged that growing investments in efficiency and solar power will stave off and reduce Florida’s need for increased natural gas deliveries. Given the predictions that shale gas will peak by 2020, seriously declining thereafter, that FPL’s predictions for its energy needs changed significantly between its 2013 and 2016 energy plans, and the significant advancements in efficiency and clean energy options, FERC’s refusal to reconsider the question of need for the Sabal Trail pipeline is yet another example of irresponsible consideration of “need.” (Attch 11)

Atlantic Sunrise Pipeline (FERC Docket No. CP15-138)

In the case of the Atlantic Sunrise Pipeline, FERC took Transco’s word over the word of a Pennsylvania electric utility. FERC’s approval of Transco’s Atlantic Sunrise Pipeline directly negatively affected the public and the electric grid; Transco’s use of a public utility’s right-of-way would condemn the right-of-way, rendering it unusable for the utility’s transmission infrastructure. FERC issued a Certificate to Atlantic Sunrise despite the fact that its interference with the utility’s right-of-way would negatively affect the electric grid’s reliability and resiliency, forcing the utility to intervene before FERC. This approval demonstrates FERC’s skewed definition of public need, which favors natural gas infrastructure over the security of the electric grid. (Attch 16)

Pipeline Claims of Higher Profits or Competitive Advantage are Inappropriately Adopted by FERC as Demonstrating Need

FERC routinely allows self-serving claims that a proposed project will help the pipeline company increase corporate profits, give them a competitive edge, or otherwise advance company goals to stand in lieu of a genuine demonstration of need.

Among the assertions of “need” advanced by the PennEast Pipeline Company and endorsed by FERC, are to “provide low cost natural gas produced from the Marcellus Shale region;” to provide “enhanced competition among natural gas suppliers and pipeline transportation providers;” and to allow “supply flexibility,” “diversity,” better pricing, etc.

By any reasonable definition, none of these are public “needs.” These are very clearly private goals and gains that are sought for the benefit of private industry and should not justify the power of eminent domain and avoidance of state and local regulations in the construction, operation and maintenance of the pipeline.

Self-Dealing is Inappropriately Accepted By FERC as Proof of Need

FERC routinely, and inappropriately, allows companies to put forth themselves as the customers in “need” of a proposed pipeline project and do so using unverifiable data and information.  

The PennEast Pipeline Company asserts that the need for its pipeline is demonstrated by contracts for most of the proposed pipeline’s capacity.  FERC accepts this “need” demonstration at face value.  But, as described by the New Jersey Division of Rate Counsel’s comments on the PennEast Docket these contracts do not in fact demonstrate need:

“PennEast bases its claim of need on “precedent agreements with seven foundation shippers and twelve total shippers, which together combine for a commitment of firm capacity of 990,000 dekatherms per day (‘Dth/d’),” approximately 90% of the Project’s total capacity…In this case, approximately 610,000 Dth/d of the 990,000 Dth/d of capacity has been contracted by affiliates of the Project owners… Of the twelve shippers that have subscribed to Project capacity, five of them are affiliates of companies that collectively own PennEast… Thus, two-thirds of the demand for the pipeline exists because the Project’s stakeholders have said it is needed. This self-dealing undermines the assertion of need that the DEIS relies upon.”  (emphasis added; citations omitted). (Attch 14)

In Empire Pipeline, then-Commissioner Norman Bay acknowledged that the Agency’s reliance on precedent agreements to establish need is misplaced. Former Commissioner Bay stated that FERC should consider “whether precedent agreements are largely signed by affiliates; or whether there is any concern that anticipated markets may fail to materialize” among other considerations. (Attch 13) Despite these facts, FERC makes no investigation into the legitimacy of the claims resulting from self-dealing.

FERC Fails To Provide Independent Assessment or Review of Pipeline “Need” Claims and Thereby Perpetuates Overbuilding

As reported by the Institute for Energy Economics and Financial Analysis, pipeline companies have an incentive to overbuild, and no reason to self-moderate or limit their construction. The failure of FERC to provide any independent review or oversight over self-serving claims of “need” undermines the requirements of the law and the actual needs of the public. 

• “…current low natural gas prices in the Marcellus and Utica region are driving a race among natural gas pipeline companies …. An individual pipeline company acquires a competitive advantage if it can build a well-connected pipeline network …; thus, pipeline companies competing to see who can build out the best networks the quickest. This is likely to result in more pipelines being proposed than are actually needed to meet demand in those higher-priced markets.”
• “…[T]he regulatory environment created by FERC encourages pipeline overbuild. The high returns on equity that pipelines are authorized to earn by FERC and the fact that, in practice, pipelines tend to earn even higher returns, mean that the pipeline business is an attractive place to invest capital. And because, as discussed previously, there is no planning process for natural gas pipeline infrastructure, there is a high likelihood that more capital will be attracted into pipeline construction than is actually needed.”
• “The pipeline capacity being proposed exceeds the amount of natural gas likely to be produced from the Marcellus and Utica formations over the lifetime of the pipelines. An October 2014 analysis by Moody’s Investors Service stated that pipelines in various stages of development will transport an additional 27 billion cubic feet per day from the Marcellus and Utica region. This number dwarfs current production from the Marcellus and Utica (approximately 18 billion cubic feet per day). … pipeline capacity out of the Marcellus and Utica will exceed expected production by early 2017.”
• “The loss borne by the public, businesses, and critical irreparable natural resources when a natural gas pipeline is approved by FERC requires that the Agency sufficiently consider whether an infrastructure project is actually necessary and for the public good. Instead, FERC uses an inappropriate and counterintuitive definition of “need” which is contrary to the historic underpinnings and intent of the Natural Gas Act, and results in the overbuild of unnecessary pipelines to pad companies’ quarterly balance sheets.” (Attch 12)

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

  

FERC Consistently Approves Pipeline Projects Based on Applications and NEPA Reviews that are Demonstrably Deficient, False and Misleading

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

The National Environmental Policy Act (NEPA) (18 CFR § 380.3(b)(2)) requires an applicant to supply the information necessary to determine a project’s impact on the environment and natural resources.  Complete and accurate information is essential for informed decision making, yet FERC consistently approves projects that lack proper NEPA documentation. FERC approves applications that are filled with data gaps, misrepresentations, and inaccurate, false, or even conflicting information. Additionally, FERC approves projects based on information that has been solidly debunked, contradicted, and undermined by expert, agency, and public comment. The NEPA documents upon which FERC bases its pipeline approvals are of such poor quality that they cannot support legitimate or defensible conclusions. 

Missing Information Is A Frequent Deficiency in FERC NEPA Documents

Often, it is the lack of information in NEPA documents which is the most egregious. For example, FERC documentation for the PennEast Pipeline Project (FERC Docket CP15-558) lacks: detailed locational maps; accurate lists of wetland, waterbody, and/or aquifer crossings; restoration measures and/or impact mitigation; accurate fisheries classifications; accurate information on vegetative cover impacts; accurate and complete information on endangered or threatened species impacts; an accurate list of biological/ecological impacts; fails to consider socioeconomic conditions and the project’s impacts thereon; lacks accurate information on geologic hazards; lacks accurate information on existing air quality; etc. (Attch 1) This is the case with other proposed pipelines.

FERC NEPA Documents Routinely Rely Upon Inaccurate Information

The incorrect information supplied by pipeline companies and adopted by FERC often disregards the most basic of environmental impacts. For example:

• When field-truthing just one half of a mile of the proposed PennEast Pipeline route, the Delaware Riverkeeper Network found twelve vernal pool complexes and groundwater seeps, where the pipeline company indicated in its materials to FERC that there were only two in the same area.
• PennEast failed to delineate an intermittent stream in another section of the proposed route, despite the fact that the stream was delineated on government mapping. 
• Penneast completely left out from its assessment of project impacts any discussion of eight NJ state threatened, endangered, or special concern mussel species that potentially exist along the project route. In addition, the DEIS asserted “there are no private water supply wells or springs located within 150 feet of the pipeline construction workspace in Pennsylvania”, which was proven false by ground-truthing efforts.

(Attch 1, Attch 11)

FERC Routinely Finds No Significant Impact Even When It Has Identified Deficiencies

Data gaps are often acknowledged by FERC itself, yet the agency approves applications despite this lack of information. For example, FERC identified over thirty data gaps in PennEast’s application, the majority of which were substantial, such as the failure to identify working and abandoned mines near waterbody crossings and migratory bird conservation plans. Experts identified and notified FERC of dozens of additional data gaps. Despite these known gaps, FERC issued the DEIS, concluding that while the Project “would result in some adverse environmental impacts…impacts would be reduced to less-than-significant levels…”

Induced Drilling Impacts A Frequent Deficiency in FERC NEPA Documents

FERC’s cumulative impact analyses for pipelines frequently mischaracterize the degree of harm that will result from the project by ignoring reasonably foreseeable future actions.  Natural gas production and its subsequent impacts are among the cumulative effects that FERC must consider under NEPA when determining whether an action will have a significant impact.  A pipeline’s capacity will necessarily lead to additional consumption of natural gas, with consequences for its price, production, and use – these are direct, indirect and clearly foreseeable outcomes, yet FERC fails to consider them. For example, FERC ignored that the PennEast pipeline will likely induce the drilling of 3,000 new wells in Northeast Pennsylvania, Bradford, Susquehanna, Lycoming, and Tioga counties. (Attch 1) FERC fails to address these future actions even when the applicants themselves state that more wells will be drilled to feed the proposal pipeline project. (Attch 14) Read More in People’s Dossier: Drilling Impacts & Climate Change Ignored.

Economic Harms & Benefits Routinely Misrepresented in FERC NEPA Documents

FERC routinely fails to independently verify a pipeline company’s assertions of economic benefits, and ignores expert evidence to the contrary. FERC fails to consider the economic harms proposed projects will inflict such as reduced crop production for farmers, adverse impacts to businesses along or near the pipeline right of way, the implications for ecotourism and related businesses and jobs, etc. (Attch 2, Attch 3) Read More in People’s Dossier: Economic Harms.

Relatedly, FERC uniformly accepts industry assertions that property values are not harmed by pipeline rights of way or by location within the blast radius or evacuation zone of a pipeline, despite significant evidence to the contrary. (Attch 15) Reduced property values also reduce the property taxes that can be collected by local governments. For example:

• An analysis by Key-Log Economics determined that construction of the PennEast pipeline would result in a loss of $158.3 to $176.0 million in property value in the right of way and evacuation zone.  (Attch 3)
• For the Mountain Valley Pipeline, projected property value losses result in a loss of $42.2 to $53.3 million in property tax revenue annually (Attch 2)
• In fact, in Hancock, New York, “three homeowners have had their property assessments reduced, two by 25% and one by 50%, due to the impact of truck traffic, noise, odors, and poor air quality associated with the compressor station” that was proposed as part of the project. (Attch 4, Attch 5)

Economic losses resulting from pipelines can be dramatic, and far outweigh the claimed public benefits of the pipeline companies; for example, expert review determined that the PennEast Pipeline could result in as much as $56.6 billion in total economic harm. By comparison, the company claimed only $2.3 billion in economic benefit over a 30 year period. Similar findings have been documented for the Mountain Valley Pipeline, the Atlantic Coast Pipeline and the Millennium Eastern System Upgrade Project.  In every instance, FERC ignored detailed  reports demonstrating economic harm while accepting industry assertions describing only benefits.  Attch 13 includes four summaries of economic harm for pipeline projects including the PennEast Pipeline Project, the Mountain Valley Pipeline Project, the Millennium Eastern System Upgrade Project and the Atlantic Coast Pipeline Projectoutlining the significance of economic harms that are routinely ignored by FERC.  Attch 2, Attch 3 and Attch 12 include the full analyses for each project.

Health Harms Routinely Ignored in FERC NEPA Documents

FERC NEPA analyses consistently fail to fully assess health impacts of proposed pipelines. For example, those living near compressor stations and other natural gas facilities often suffer from asthma, nosebleeds, dizziness, weakness, and rashes. Some residents are forced to sell or abandon their homes because of these health impacts—however, FERC turns a blind eye to these well-documented issues when assessing a natural gas project.

Proximity to compressor stations inflict various harms; impacts can be severe, with at least one documented case of a family forced to abandon their $250,000 home rather than continue to suffer the health, safety, and other harms they were experiencing. (Attch 6) People and experts have urged FERC to adequately consider health impacts during NEPA review, including the establishment of baseline air quality, and FERC routinely refuses. (Attch 7, Attch 8, Attch 9)

Harms to Historic Resources Routinely Ignored in FERC NEPA Documents

Historic and cultural resources are also among the impacts routinely ignored by FERC. For example, the Atlantic Coast Pipeline was found to have no impact on cultural resources, despite the fact that its proposed route slices through the “Most Endangered Historic Place” in Virginia, as found by Preservation Virginia. (Attch 10)

The public that has been forced through the FERC process with regards to infrastructure review and approvals has, almost uniformly, the same experience — deficient EIS/EA documentation, lack of fair access to FERC or to be heard through the NEPA process, the undermining of legal rights and opportunities upon completion of the process (See e.g. Attch 16; consider the testimony available at the www.PeoplesHearing.org).

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

FERC Intentionally Conceals Critical Information from States and the Public

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FERC Routinely Uses Conflicted Consultants to Conduct Project Reviews and Make Recommendations

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

FERC routinely hires third party consultants to lead its project reviews knowing full well that these same consultants are simultaneously working as consultants for the pipeline companies seeking FERC approval for their projects.  The use of these conflicted consultants, that are operating on both sides of the FERC approval process at the same moment in time, sometimes even on directly related projects, injects an obvious source of bias and concern.

For example:

The FERC Environmental Assessment (EA) for Spectra Energy’s [now Enbridge] Atlantic Bridge project was prepared with the help of NRG [now Environmental Resource Management (ERM)], a third party contractor hired by FERC.  At the same time, Spectra had also retained NRG as a “public outreach and relations” consultant on the PennEast pipeline project, of which Spectra owns 10% interest. This means that NRG was hired by FERC to conduct an objective, unbiased review of Spectra’s Atlantic Bridge project, while at the same time receiving money from Spectra Energy to conduct the preliminary review for another of the company’s proposed pipelines (i.e. PennEast pipeline). Additionally, the two projects (PennEast and Atlantic Bridge) are physically connected, further entrenching the conflict of interest. It is no stretch of the imagination that NRG would financially benefit from Spectra’s Atlantic Bridge project if the project were approved, a project which NRG was partially tasked by FERC with “objectively” reviewing.  In fact, while NRG was conducting its “review”, Spectra hired NRG for no less than five other projects. (Attch 1)

FERC’s own handbook defines such a situation as a conflict of interest, stating a conflict of interest exists when a contractor has an ongoing relationship with an applicant. The conflicts involving NRG, Spectra, the PennEast Pipeline (FERC Docket No. CP15-558), and the Atlantic Bridge Pipeline (FERC Docket No. CP16-9) were brought to FERC’s attention by concerned community members and two U.S. Senators. Instead of conducting a new, unbiased review, FERC’s then-Chairman Norman Bay simply responded by quoting sections of FERC’s handbook on hiring third-party contractors. NRG’s review still stands intact because despite clear evidence to the contrary, FERC took NRG’s word that no conflicts existed. (Attch 2) Documents revealed after these comments were made and FERC had approved the project reveal that FERC had clear information that a contractor [NRG] hired to review Spectra Energy’s proposed Atlantic Bridge gas project did not fully disclose its work for Spectra on a related project [PennEast].” (Attch 3)

Recently, Canada’s Enbridge purchased Spectra Energy. Because ERM currently works for Enbridge on several other projects, the contractor is conflicted and required to get special approval from FERC to continue working on Atlantic Bridge, providing construction compliance monitoring in the state of New York. FERC staff acknowledged in an internal memo “that ERM currently works for Enbridge and thus has a conflict of interest.” (Attch 4) But instead of finally taking corrective action regarding the extensive conflicts of interest involved in the project, FERC ultimately ruled that the company may serve as third-party contractor to monitor Atlantic Bridge’s construction phase, “reasoning that hiring a new contractor would have ‘detrimental consequences’ for the project, which ‘would be contrary to the public interest’” and would impose further significant delays on the construction of this project” (specifically citing the construction schedule’s limited tree-clearing window), (Attch 5) and that because “ERM reported it had received less than one percent of its income from Enbridge in each of the previous three years.” (Attch 4) However, FERC does not independently verify financial reporting from third-party contractors and documents obtained by DeSmog Blog reveal that ERM’s relationship with Enbridge may in fact be more extensive. (Attch 4)

By way of further example:

Tetra Tech is a known consultant for FERC, most recently on the PennEast Pipeline project. Tetra Tech is also a member of the Marcellus Shale Coalition.  Founded in 2008, the Marcellus Shale Coalition works to advance production and distribution of gas fracked from the Marcellus and Utica Shales.  The support of the Marcellus Shale Coalition is not just well known, but is touted by the PennEast Pipeline company raising another significant conflict for FERC on the PennEast Pipeline project. (Attch 6)

In addition to Tetra Tech’s clear bias for natural gas infrastructure, FERC was aware of the company’s history of bias and misconduct and that “a federal court previously found evidence indicating that Tetra-Tech tried to influence agency policy in the course of preparing an EIS:”1

In the case involving Tetra-Tech’s preparation of an environmental impact statement for the U.S. Forest Service (“USFS”), a federal judge also found that evidence of Tetra-Tech’s bias and improper conduct raised such serious problems that it authorized the extraordinary remedy of preliminary injunction against a USFS decision to grant special use authorization to a real estate developer for certain rights-of-way across National Forest System (NFS) lands.

Even worse, a federal magistrate judge found that Tetra-Tech destroyed evidence relating to the claims of improper email communications concerning the EIS with the project proponent by erasing the computer hard drive of its employee. In the Colorado Wild case, the Court found the agency administrative record filed with the Court to have been “incomplete”, due to Tetra-Tech’s destruction of documents by erasing a computer hard drive.2

1 See Colorado Wild, Inc. v. U.S. Forest Serv, as paraphrased in Lower Saucon, Pennsylvania’s Request for Rehearing and Motion for Stay re PennEast Pipeline Company, LLC. ) Docket No. CP15-558-000, Before the Federal Energy Regulatory Commission.
2 See Colorado Wild, Inc. v. U.S. Forest Serv, as paraphrased in Lower Saucon, Pennsylvania’s Request for Rehearing and Motion for Stay re PennEast Pipeline Company, LLC. ) Docket No. CP15-558-000, Before the Federal Energy Regulatory Commission.

In response to Tetra Tech’s role in PennEast, FERC acknowledged the conflicts while claiming it did not constitute their disqualification, adding that this sort of bias is the norm for third-party contractors working on pipeline proposals:

“…allegations that Tetra Tech has a “financial, business, and corporate interest” in promoting natural gas infrastructure in the Marcellus Shale region do not demonstrate that
Tetra Tech has an OCI that necessitates an invalidation of the Final EIS. …Nor do we believe that Tetra Tech’s membership in, or role as a technical consultant to, a trade organization that promotes the development of natural gas supplies in the Marcellus Shale region constitutes a disqualifying OCI. It would be inappropriate to disqualify Tetra Tech from serving as a third-party contractor for belonging to a professional organization. Were this the standard for conflicts of interest, nearly all third-party contracts would likely be disqualified for conflicts of interest.”3

3 See Federal Energy Regulatory Commission’s Order on Rehearing, PennEast Pipeline Company, LLC Docket No. CP15-558-001 (Issued August 10, 2018).

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

FERC Fails to Give Due Consideration to the Climate Change and Drilling Impacts of Pipeline Projects

(Download printable copy of “People’s Dossier of FERC Abuses: Climate Change and Drilling Impacts Ignored with attachments” here)

Despite the mandate of the National Environmental Policy Act (NEPA) that federal agencies take environmental considerations into account in their decision-making “to the fullest extent possible” (42 U.S.C. § 4332; 40 C.F.R. § 1500.2; Fla. Audubon Soc. v. Bentsen, 94 F.3d 658,684 (D.C. Cir.)) and FERC’s obligation under the Natural Gas Act (NGA) to protect the public interest, FERC routinely fails to meet its obligation to consider foreseeable impacts, both direct and indirect, resulting from its pipeline approvals, including effects on climate change, water impacts, air impacts, community impacts, and the ramifications of increased drilling and fracking operations.

FERC’s NEPA Requirements and Violations Regarding Climate Change Impacts

NEPA is our “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). As such, it makes environmental protection a part of the mandate of every federal agency. See 42 U.S.C. § 4332. (1) NEPA requires that federal agencies take environmental considerations into account in their decision-making “to the fullest extent possible.” 42 U.S.C. § 4332. Federal agencies must consider environmental harms and the means of preventing them in a “detailed statement” before approving any “major federal action significantly affecting the quality of the human environment.” Id. § 4332(2)(C).  FERC must consider past, present and “reasonably foreseeable” cumulative impacts caused by its decisions and actions.

Construction and operation of fracked gas pipelines, compressors and infrastructure are a direct, indirect and foreseeable cause of increased greenhouse gas (GHG) emissions, increased drilling and fracking for gas from shale, and all the associated environmental impacts, including climate change, pollution, environmental degradation, and a variety of community and economic harms. NEPA requires FERC to consider these foreseeable direct and indirect impacts in its review of proposed natural gas infrastructure projects.

On August 1, 2016, The Council on Environmental Quality (CEQ) issued final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews. This Guidance offered direction on how FERC and other agencies could consider the climate change impacts of its decisions. While this guidance has been rolled back by the Trump administration (Attch 1) the obligation to review the climate changing impacts of agency decision-making still exists as a mandate under NEPA. (Attch 2) The rollback of the guidance does not change the NEPA obligation to consider the climate changing impacts of pipeline infrastructure approvals.  

Consideration of Downstream Impacts Ignored

The Court of Appeals for the DC Circuit in Sierra Club v. FERC, regarding the Sabal Trail Pipeline, made clear that an analysis of the downstream impacts of GHG emissions is reasonably foreseeable and required pursuant to NEPA. (2) It held that:  

 “… greenhouse-gas emissions are an indirect effect of authorizing this [pipeline] project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate. See 15 U.S.C. § 717f(e). The EIS accordingly needed to include a discussion of the “significance” of this indirect effect, see 40 C.F.R. § 1502.16(b), as well as “the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions,” see WildEarth Guardians, 738 F.3d at 309 (quoting 40 C.F.R. § 1508.7).” (3)

The obligation to consider the impacts of the downstream use of gas when approving pipeline projects, as made clear by the plain language of NEPA and the Sabal Trail decision, has been consistently circumvented by the Commission in its review and approval of pipeline projects. In a blatant refute of the Sabal Trail decision, the Commission issued the blanket determination that:

“… to avoid confusion as to the scope of our obligations under NEPA and the factors that we find should be considered under NGA section 7(c) […] the upstream production and downstream use of natural gas are not cumulative or indirect impacts of the proposed pipeline project, and consequently are outside the scope of our NEPA analysis.” (Attch 3)

However, this refusal to follow the law has come with regular dissenting opinions from both Commissioner Glick and Commissioner LaFleur, stating that:

“pipelines are driving the throughput of natural gas, connecting increased upstream resources to downstream consumption. With respect to downstream impacts, I believe it is reasonably foreseeable, in the vast majority of cases, that the gas being transported by pipelines we authorize will be burned for electric generation or residential, commercial, or industrial end uses. In those circumstances, there is a reasonably close causal relationship between the Commission’s action to authorize a pipeline project that will transport gas and the downstream GHG emissions that result from burning the transported gas. We simply cannot ignore the environmental impacts associated with those downstream emissions.” (4) (Attch 4)

In addition, the U.S. Environmental Protection Agency has explicitly commented that FERC should consider impacts from the development and production of natural gas being transported through a proposed pipeline, as well as impacts associated with the end use of the gas, particularly with regards to greenhouse gas emissions and climate change effects. (Attch 5)

Consideration of Upstream Impacts Ignored

FERC also comprehensively excludes from its NEPA review consideration of the GHG and other environmental harms that result from induced gas drilling, despite acknowledging that increased gas production will result from the pipeline construction it is reviewing and approving.

This failure to consider the impacts of induced shale gas production as well as the end uses of the fracked gas is particularly troubling given that FERC has explicitly recognized that “upstream development and production of natural gas may be a ‘reasonably foreseeable’ effect of a proposed action,” and that a new pipeline would “alleviate some of the constraints on…natural gas production”. (Attch 14)  Despite these recognitions, and others, FERC asserts that “the actual scope and extent of potential GHG emissions from upstream natural gas production is not reasonably foreseeable” and therefore no consideration pursuant to NEPA is necessary.   Through this circular logic of recognizing induced drilling but then discounting it because FERC has failed to assess the extent of the GHG emissions that will occur, FERC ignores its NEPA obligation to consider the impacts.

The direct and indirect connection between FERC’s approval of shale gas infrastructure and climate change impacts resulting from upstream production of shale gas has been recognized by at least two FERC commissioners. Commissioner Glick recently stated:

“It is particularly important for the Commission to use its “best efforts” to identify and quantify the full scope of the environmental impacts of its pipeline certification decisions given that these pipelines are expanding the nation’s capacity to carry natural gas from the wellhead to end-use consumers. Adding capacity has the potential to “spur demand” and, for that reason, an agency conducting a NEPA review must, at the very least, examine the effects that an expansion of pipeline capacity might have on production and consumption. Indeed, if a proposed pipeline neither increases the supply of natural gas available to consumers nor decreases the price that those consumers would pay, it is hard to imagine why that pipeline would be “needed” in the first place.” (Attch 7) (citations omitted)

The only reason why FERC deems such impacts unforeseeable is because the agency itself chooses to remain purposefully blind. This kind of doublespeak – that shale gas production is reasonably foreseeable but at the same time it is not reasonably foreseeable – is used by FERC to arbitrarily limit its review of impacts. In a recent order, FERC attempted to cement this contradictory policy in order to evade its legal review obligations by falsely asserting:

“Even if a causal relationship between the proposed action here and upstream production was presumed, the scope of the impacts from any such production is too speculative and thus not reasonably foreseeable.” (Attch 3)

However, as Commissioner Glick clarified in his dissent:

“The fact that the pipeline’s exact effect on the demand for natural gas may be unknown is no reason not to consider the type of effect it is likely to have. As the United States Court of Appeals for the Eighth Circuit explained in Mid States—a case that also involved the downstream emissions from new infrastructure to transport fossil fuels—“if the nature of the effect” (i.e., increased emissions) is clear, the fact that “the extent of the effect is speculative” does not excuse an agency from considering that effect in its NEPA analysis.” (Attch 7)

In fact, the relationship between FERC approved pipeline projects and upstream production is foreseeable, direct and demonstrable, as the Delaware Riverkeeper Network has demonstrated on the PennEast pipeline docket.  For example, in the case of the PennEast Pipeline (FERC Docket CP15-558) FERC failed to consider the emissions and other harms that will result from the shale gas production necessary to fulfill the claimed “need” for the project and to carry the volumes of gas proposed. The PennEast pipeline will likely induce the drilling of 3,000 new wells in Northeast Pennsylvania, in Bradford, Susquehanna, Lycoming, and Tioga counties. (Attch 8) Given recent estimates that “during the life cycle of an average shale-gas well, 3.6 to 7.9% of the total production of the well is emitted to the atmosphere as methane” (1), this failure to consider the GHG and climate changing impacts of the induced drilling operations and end uses of the gas these pipelines deliver is significant.

It is not just climate change that induced drilling and fracking operations seriously affect.  Fracking operations are known to have severe impacts on water quality including drinking water, air quality, property values, human health, public parks, farming and land use patterns.  These impacts are known, quantifiable, and scientifically demonstrated through peer review articles. For example, the Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking (5) is a fully updated and referenced scientific resource that can be used to assess the many direct and indirect effects of pipeline-induced-fracking.

FERC’s self-inflicted ignorance on the subject does not alleviate the agency of its obligation to undertake an assessment of greenhouse gas emissions and other environmental and community impacts resulting from induced shale gas production associated with the infrastructure projects it reviews and approves.

Natural Gas Act Requirements Violated

In addition to the requirements of NEPA, the NGA requires FERC to consider the climate changing ramifications of its pipeline and infrastructure decisions. As required by the NGA, FERC must consider “all factors bearing on the public interest,” and, prior to issuing a certificate for new pipeline or compressor station construction, must find the project’s benefits outweigh its harms. Given that:

• science conclusively demonstrates that human release of greenhouse gas emissions including methane are a direct cause of climate change,  
• natural gas pipelines and compressors are directly and indirectly a source of climate changing emissions,
• climate change has serious and significant environmental, economic and safety impacts, and
• as a result of its harmful impacts on our communities and environment, climate change poses one of the most extreme existential threats facing humanity,

FERC’s consideration of the impacts resulting from the GHG of shale gas pipelines and compressors are clearly required as a result of the NGA.

The United Nations IPCC Report and the US 4th National Climate Assessment all make clear the grave consequences of climate change and reaching a 1.5 degree tipping point – the ramifications are to health, safety, our environment and our economy.  NASA has determined, through its data gathering and research, that methane is responsible for about a quarter of the human induced climate effects and that the fossil fuel industry is responsible for most of the dramatic rise in methane emissions in the past 10 years. (6) Pipelines and fracking are a big part of this equation.  FERC’s refusal to consider the GHG emissions and the climate changing impacts, as well as other environmental harms associated with approval of pipelines, compressor stations and related infrastructure, brings with it dire consequences for the public interest of our communities and nation.  

Commissioner Glick has clearly outlined FERC’s NGA mandate to consider climate change impacts resulting from its actions and decisions in recent statements:

“Climate change poses an existential threat to our security, economy, environment, and, ultimately, the health of individual citizens. Unlike many of the challenges that our society faces, we know with certainty what causes climate change: It is the result of GHG emissions, including carbon dioxide and methane, which can be released in large quantities through the production and consumption of natural gas. Congress determined under the NGA that no entity may transport natural gas interstate, or construct or expand interstate natural gas facilities, without the Commission first determining the activity is in the public interest. This requires the Commission to find, on balance, that a project’s benefits outweigh the harms, including the environmental impacts from climate change that result from authorizing additional transportation. Accordingly, it is critical that, as an agency of the federal government, the Commission comply with its statutory responsibility to document and consider how its authorization of a natural gas pipeline facility will lead to the emission of GHGs, contributing to the existential threat of climate change.” (Attch 9)

Commissioner LaFleur has also referred to this legal obligation in recent statements:
“…deciding whether a project is in the public interest requires a careful balancing of the economic need for the project and all of its environmental impacts. Climate change impacts of GHG emissions are environmental effects of a project and are part of my public interest determination.” (Attch 4) (citations omitted)

FERC’s Refusal to Consider the Social Cost of Carbon in Its Climate Change Analysis

Despite its claim to the contrary, FERC has many tools that would allow it to consider the climate changing ramifications of its pipeline decisions.  Among the most readily available is the social cost of carbon.  Despite court mandate, FERC has refused to avail itself of information and tools such as these to aid in its project reviews.

The social cost of carbon (SCC)— “a measure, in dollars, of the long-term damage done by a ton of carbon dioxide (CO2) emissions in a given year” (7)—is a tool that would allow FERC to measure economic impacts of climate change that would result from proposed pipelines as required by its NEPA and NGA mandates. Despite the fact that a federal court recently upheld the legitimacy of using the social cost of carbon as a viable statistic in climate change regulations, (8) and that the CEQ had recommended its use in its final guidance for federal agencies to consider climate change when evaluating proposed Federal actions,  (Attch 2) the Commission continues to contend that it “‘has not identified a suitable method’ for determining the impact from the Projects’ contribution to climate change and, absent such a method, it simply ‘cannot make a finding whether a particular quantity of [GHG] emissions poses a significant impact on the environment and how that impact would contribute to climate change.’” (Attch 9)

However, as Commissioners Glick and LaFleur have pointed out in response to multiple recent certificate order decisions, FERC is incorrect in its claims that there is “no widely accepted standard to ascribe significance to a given rate or volume of GHG emissions” (9) and that “it cannot ‘determine how a project’s contribution to GHG emissions would translate into physical effects on the environment.’” (Attch 10) As Commissioner Glick explains: (Attch 11)

“That is precisely what the Social Cost of Carbon provides. It translates the long-term damage done by a ton of carbon dioxide into a monetary value, thereby providing a meaningful and informative approach for satisfying an agency’s obligation to consider how its actions contribute to the harm caused by climate change.” (10)

“the Commission has the tools needed to evaluate the Projects’ impacts on climate change.  It simply refuses to use them.” (Attch 13)

Despite these clear mandates from NEPA, the Natural Gas Act, and the Courts, FERC continues to illegally narrow its consideration of climate change and the other community and environmental ramifications of its pipeline, compressor and related infrastructure decisionmaking.

(1)    See R. Howarth, D Shindell, R. Santoro, A. Ingraffea, N. Phillips, A Townsend-Small, Methane Emissions from Natural Gas Systems, Background Paper Prepared for the National Climate Assessment, Reference number 2011-0003, Feb. 25, 2012.
(2)    See Sierra Club v. FERC, 867, F.3d 1357, 1373 (D.C. Cir. 2017)(““… greenhouse-gas emissions are an indirect effect of authorizing this [pipeline] project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate. See 15 U.S.C. § 717f(e). The EIS accordingly needed to include a discussion of the “significance” of this indirect effect, see 40 C.F.R. § 1502.16(b), as well as “the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions,” see WildEarth Guardians, 738 F.3d at 309 (quoting 40 C.F.R. § 1508.7). “)
(3)    See decision rendered by the Court of Appeals for the DC Circuit on August 22, 2017 in Sierra Club v. FERC, 867, F.3d 1357, 1373 (D.C. Cir. 2017).
(4)    See Footnote Number 6 in Statement of Commissioner Cheryl LaFleur on Millennium Pipeline, FERC Docket No. CP16-486, July 24, 2018.
(5)    See Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking, Physicians for Social Responsibility, March 2018, available at: https://concernedhealthny.org/wp-content/uploads/2018/03/Fracking_Science_Compendium_5FINAL.pdf
(6)    See Nasa Led Study Solves a Methane Puzzle, NASA, January 2, 2018, available at: https://www.nasa.gov/feature/jpl/nasa-led-study-solves-a-methane-puzzle
(7)    See EPA Fact Sheet, Social Cost of Carbon, December 2016, available at: https://www.epa.gov/sites/production/files/2016-12/documents/social_cost_of_carbon_fact_sheet.pdf
(8)    See Susanne Brooks, Environmental Defense Fund, In Win for Environment, Court Recognizes Social Cost of Carbon, August 29, 2016, available at: http://blogs.edf.org/markets/2016/08/29/in-win-for-environment-court-recognizes-social-cost-of-carbon/
(9)    Id. P 27.  Florida Southeast Connection, LLC, 162 FERC ¶ 61,233, at 2, 5–8 (2018) (Glick, Comm’r, dissenting).
(10)    Id. at 5 (Glick, Comm’r, dissenting) (citing cases that discuss the Social Cost of Carbon when evaluating whether an agency complied with its obligation under NEPA to evaluate the climate change impacts of its decisions).

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