Overview

The National Environmental Policy Act (NEPA) is a critical law that empowers local communities to protect themselves and their environment from dangerous, rushed, or poorly planned federal projects.

Passed with an overwhelming bipartisan majority in Congress and signed into law by President Nixon on January 1, 1971, NEPA has offered nearly 50 years of protections for people and the environment facing the impacts of major government actions. NEPA has been a vital tool for communities within our watershed for many projects, including:

• Siting Hazardous waste facilities such as Elcon
• Construction of pipelines like PennEast through private lands or public parks
• Dredging or deepening of streams or rivers for navigation

For projects like these, NEPA mandates a review process with a series of broad opportunities for members of the public to participate. This process not only promotes better environmental accountability in government decision making but also gives the public a voice in major government actions. It is meant to ensure federal agencies and the public are fully informed of the environmental, economic, and health impacts before the government decides on any projects or legislation.

For example, NEPA:

• Allows local communities and citizens to participate in issues that will impact their health and environment
• Provides information and promotes awareness to communities for protecting their public health
• Promotes government accountability and transparency
• Can prevent poorly conceived projects thus saving taxpayer money
• Requires environmental review of major federal actions and for decisions to be made on sound scientific data and facts
• Ensures the protection of public parks and natural spaces for all to continue to enjoy
• Considers the protection of endangered species who inhabit the community and natural spaces

The Delaware Riverkeeper Network has experienced the importance of NEPA with many projects first hand, including the Susquehanna to Roseland 500kV Transmission Line Right-of-Way (ROW) and Special Use Permit application to the National Park Service (NPS) for an expanded ROW by PPL and PSE&G. The Project would affect three national park units, Delaware Water Gap, Appalachian Trail and Middle Delaware Scenic and Recreational River.  The NEPA process was critically important by providing the robust, logical and predictable framework to which federal, state and local agencies, as well as the public, could fully and comprehensively evaluate alternative routes, total and cumulative impacts, including environmental, social, economic and other impacts, and mitigation opportunities. Specifically, the public had multiple opportunities to provide comment through the Scoping (Draft and Final), EIS (Draft and Final) and Record of Decision process. Over 5,000 comments were received. Also, as a result of the impacts to the Parks fully understood by the agencies and the public, a more accurate and justifiable mitigation plan, including site-specifics and timelines, was developed.  Thanks to the NEPA process, the NPS was awarded a total of $66 million in mitigation fees when only $30 million was originally offered. Those funds were utilized to expand the size of the parks through open space purchases and the creation of habitat linkages with surrounding Game Lands, and to enhance ecological restoration and public outreach.

NEPA and Pipelines

NEPA is meant to inform the communities and protect the environment they inhabit. In the fight against Federal Energy Regulatory Commission (FERC) regulated pipelines, compressors, and LNG export facilities, NEPA is one of the primary, and only, mechanisms communities can use to fully understand and vet the impacts of an infrastructure proposal. It is the public’s one avenue to learn about the full range of social and environmental impacts of a proposed pipeline before it’s approved—and to make the case that a project should not be approved by the powerful agency that is FERC. To learn more about the importance of NEPA in pipeline battles, see the webinars below.

Threats to NEPA

Lately, legislators and politicians in Washington have tried to portray NEPA as a bad law claiming that it is barrier to economic growth and time consuming process.  By doing this they hope to propose and pass legislation and policy changes that transform NEPA so that it will serve the needs of industry and developers before the people. 

In 2018, the Trump administration proposed making huge changes to NEPA as part of the President’s infrastructure plans with the goal of “streamlining approvals”.  This would be the first time NEPA guidance has been rewritten since 1978. On June 20, 2018, the White House Council on Environmental Quality (CEQ) announced an Advanced Notice of Proposed Rulemaking (ANPRM) and the Trump administration’s plans to re-examine longstanding NEPA regulations.  In January 2020, CEQ issued the proposed rules overhauling the NEPA process. DRN signed onto a letter submitted on behalf of 331 conservation, health, and justice organizations and business urging CEQ to withdraw the proposed regulations. However, a final rule was issued in July 2020.

The final regulation could result in drastic changes to how we see NEPA enacted by legislative agencies.  This includes agencies avoiding a full review of proposed projects, not accounting for cumulative impacts of projects, less opportunity for public involvement and input on projects, roll back on climate change considerations, and less protections for environmental justice and rust belt communities who are fighting an uphill battle to preserve the environment around them and avoid further citing of facilities in their area. Further it will help agencies such as FERC approve of projects faster with little consideration as to their future impacts.

The final rule is currently being challenged in several federal lawsuits.

Overview

May 26, 2015 the Delaware Riverkeeper Network received notification that a SLAPP suit was being filed against it by a real estate developer and a group of landowners who have all leased their land for gas drilling. The developer’s lawsuit was filed in retaliation for the plaintiffs’ opposition to a pro-drilling ordinance that allows drilling, fracking and associated infrastructure in over 90% of Middlesex Township, including in residential communities, agricultural districts, and within a mile of the Mars Area schools, which range from elementary to high school.   The SLAPP suit seeks damages of over $245,000 from the Delaware Riverkeeper Network, Clean Air Council  and the 5 residents. 

The challenge to the ordinance in question was filed on October 10, 2014, by the Delaware Riverkeeper Network, tThe five Middlesex Township residents, and Clean Air Council. We filed a lawsuit challenged the zoning amendment for removing core protections to residential neighborhoods from dangerous industrial activities; for violating the environmental rights amendment of the PA Constitution; and for failing to protect public health, safety, and welfare by allowing shale gas extraction, drilling, and gas infrastructure to occur so close to where children, families and residents  live, learn, work, and play.

The developer and landowners who brought the SLAPP suit (in a legal action titled:  Dewey Homes and Investment Properties, LLC, et al. v. Delaware Riverkeeper Network, et al.) are seeking personal gain, but to get it, they expect their neighbors and their community to sacrifice their quality of life and the health of the environment. What’s worse, this lawsuit, if successful, also has the potential to limit free speech about the harms associated with fracking and shale gas development.

This lawsuit is a tactic called a SLAPP suit. SLAPP stands for “strategic lawsuit against public participation.” Those suing the Delaware Riverkeeper Network, the Clean Air Council, and the Middlesex Township residents are seeking to silence our opposition. This lawsuit is an attempt to shut us up, to get us drop our challenge, to make us go away. Moreover, SLAPP suits are often brought by special interests with the intention of draining the limited financial resources of those they sue.

Sign this Letter of Support  

We invite you to sign this letter of support for our Safe and Healthy Delaware River petition  to the Delaware River Basin Commission (DRBC). This petition will secure increased protections for those that enjoy swimming and recreating on the  Philadelphia and Camden reach of the Delaware River in ways that bring them into direct contact with the water.

Overview

All sections of the Delaware River are enjoyed in ways that bring people, including children, into direct contact with the water. While most sections of the River enjoy designations and regulations that protect primary contact recreation (things like swimming and kayaking), the stretch from the mouth of the Pompeston Creek down to the Commodore Barry Bridge (in short, the Philadelphia-Camden reach of the River), does not. By signing this letter of support for  our Safe & Healthy Delaware River petition, you can help us convince the Delaware River Basin Commission, as well as the states of Pennsylvania and New Jersey that our urban River and its users are entitled to just as much protection, now and into the future, as the rest of the River. The map below shows stretch of the Delaware River in question:

Today, people enjoy our beautiful river in many ways that bring them into direct contact with the water, what is known as primary contact recreation, such as kayaking, swimming  and tubing. The regulations currently upheld by the Delaware River Basin Commission (DRBC), Pennsylvania and New Jersey fail to recognize that these primary contact recreation uses take place frequently on the Delaware River along Philadelphia and Camden. As a result, the current water quality standards cannot be relied upon to sufficiently protect the health and safety of individuals, children and families who enjoy primary contact recreation activities on this stretch of the Delaware River.

Our Petition

Our petition calls upon DRBC and the states of New Jersey and Pennsylvania to recognize primary contact recreation as a designated use for this section of the Delaware River in order to conform with the mandates of the Clean Water Act as well as to modify the water quality standards to better protect the health and safety of those who participate in activities on the river that involve direct contact with the water.

It is important for those of us who enjoy the River today, and those whowill enjoy the River for generations to come, to know that the DRBC and other agencies have put in place regulatory protections that will ensure the healthy water quality necessary to fully support ongoing recreational uses of the river, including those that put us in direct contact with the water.

If you would like to sign on in support of locking in the environmental successes we have achieved to date, and helping to make more progress that will make our Delaware River even safer for those who enjoy the water in our urban reaches, please sign this letter of support for our Safe & Healthy Delaware Petition.

 You can read the full petition here.

In summary, the petition requests:

“…the Delaware River Basin Commission promptly upgrade the designated use of  Zone 3 and River Miles 95.0 to 81.8 of Zone 4 of the Delaware Estuary to include primary contact recreation. Zone 3 and Upper Zone 4 are currently designated only for secondary contact recreation. This designation is inconsistent with the existing uses of these portions of the Delaware River. A designation that includes primary contact recreation is needed to bring DRBC into conformance with the mandates of the Clean Water Act, thereby avoiding state, federal and/or interstate conflicts over the designated and existing uses of these Delaware River waters, and protecting those recreating on and in this portion of the Delaware River. Recognizing the existing use of primary contact recreation will ensure the DRBC and the member states prioritize putting in place, and enforcing, the standards and protections essential for those who are enjoying these reaches of the River for primary contact recreation. 

Petitioners are organizations that serve communities who live, work, and recreate in the Delaware River Watershed and have a strong interest in seeing the public’s uses of the River protected. Petitioners share a common interest in promoting the health and enjoyment of the Delaware River for the benefit of the public. Upgrading the designated use of Zone 3 and Upper Zone 4 of the Delaware Estuary to reflect the full array of their existing recreational uses, including primary contact, is necessary to protect the communities we serve and the health of the waterways our members rely on.”                                                              

Our Safe and Healthy Delaware River Petition and the supporting efforts of our Coalition of partners seeks to ensure that water quality standards governing the river provide protections to those that come into direct contact with the water during recreational activities.  According to the petition, the identified river reaches are heavily used in ways that bring people into direct contact with the water, including children. As a result, according to the environmental petitioners, the DRBC and the states should modify the existing legally designated uses to reflect the actual existing uses of the river. This action, the petitioners contend, is needed in order to ensure those recreating on the river receive the proper level of protection from pollution now and into the future.

A valued public resource

“The Delaware River is a valued public resource, it is a resource that belongs to the people.  Communities should be able to enjoy swimming, fishing, boating and utilizing the River for recreation knowing that our government officials are recognizing these uses and ensuring they are protected under the law for both present and future generations,” said Maya van Rossum, the Delaware Riverkeeper and leader of the Delaware Riverkeeper Network.  “We know that communities throughout the region are right now enjoying the River in ways that bring them into direct contact with the water.  All we are asking is for the DRBC to recognize this use and to ensure that standards are in place that are ensuring the ongoing protection of these uses.  All of the other reaches of the mainstem are protected for primary contact recreation, the urban reaches should be protected too.”

“Upgrading the water quality standards for this section of the Delaware River will not only make the river safer for the many people who recreate there now, but would represent a broader win for the health and safety of the public and the environment for generations to come,” saidJoe Minott, Executive Director of the Clean Air Council.

 “The Clean Water Act requires that our waters be protected for the way that people actually use them,” said PennFuture president and CEO Jacquelyn Bonomo. “This petition presents clear evidence and support that the community actually uses the urban sections of the Delaware River for things like swimming, tubing, and jet skiing. Because these uses put people, including children, in direct contact with the water, it is imperative that the DRBC and the states protect the water quality of this section of the river for primary contact. Ensuring the safety of our communities to use these waters for primary contact recreation is the legal responsibility of the DRBC.”

“The transformation of the lower Delaware River over the last 50 years is a direct testament to the power of the Clean Water Act to clean up our waterways. Yet the Act’s original vision to protect waterways based on how the public uses them isn’t being fulfilled in the lower Delaware – and that’s why the DRBC should act to meet the vision of the Clean Water Act,” said Doug O’Malley, director of Environment New Jersey. “As water quality has improved along the Lower Delaware, the public is voting with their feet and their bodies – people are recreating in the Delaware. As our cities and river towns revive and access to the water is seen as a premium, the DRBC should protect the lower Delaware River for primary contact. The Delaware River should not be treated as a regulatory mixing zone – it is the people’s river and the DRBC should protect it for all recreational uses based on the Clean Water Act.”

The petition seeks to secure higher protections from River Mile 108, near the mouth of the Pompeston Creek, down to river mile 81.8, near the Commodore Barry Bridge – currently this reach of River is designated only for secondary contact recreation.  According to the petition, because this reach of river is heavily used in ways that bring people in direct contact with the water, the DRBC is legally obligated to recognize the primary contact uses and put in place higher standards that ensure protection of human health.  Survey results and data included in the petition demonstrate that the affected reach of the river is used for swimming, snorkeling, tubing, and jet skiing; it is also used by a wide variety of organizations such as the health and wellness organization Aqua Vida for paddleboard yoga, acro and fitness classes; and educational organizations such as Urban Promise that brings young people to the river for kayaking who, given their inexperience in paddling, do come into direct contact in the water.

“The Delaware River is an iconic part of the region’s natural heritage where visitors from throughout the Mid Atlantic and across the nation come to boat, fish, swim, hike and recreate, ” noted PennEnvironment Executive Director David Masur. “The action we’re taking today is a crucial step to ensure that we can restore and protect the Delaware River now and for future generations.”

“Our right to clean water has been denied since the industrial era. Although our water policies helped to improve some of the most egregious forms of pollution it has not gone far enough to clean up our shared resource. With the latest technology and science there is no reason why we can’t clean up the Delaware River,” said Jaclyn Rhoads, President of the Darby Creek Valley Association.

The petition explains that “secondary contact” recreation refers to activities where the probability of significant contact or water ingestion is minimal – according to federal regulation this includes things like boating and activities where people are expected to have limited contact with surface waters such as fishing from the shoreline. “Primary contact” recreation includes activities where people engage, or are likely to engage, in activities that could result in ingestion of, or immersion in, water, such as swimming and water-skiing.

“We strongly support the initiatives laid out in this petition. A stronger designation for these portions of the Delaware Estuary will ensure the water quality is optimal for recreational use. On-water organizations such as ours highly value clean water as we want our audiences to have the safest, most enjoyable river experience possible,” said Rupika Ketu, Environmental Program Coordinator for Glen Foerd on the Delaware.

The petition closes by urging: “Failure to recognize and protect the primary contact recreation uses taking place in the River today puts the health and safety of our River communities and river users at risk. The DRBC has the authority to initiate the necessary changes to accurately reflect the uses and activities that are actually taking place in the Delaware Estuary and in so doing to protect the communities that enjoy and depend upon a healthy Delaware River, including in Zones 3 and Upper Zone 4.”

Overview

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

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

Watch the full hearing.

See Maya’s Testimony.

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

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

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

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

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

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

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

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

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

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

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

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

More pipeline harms in this video.

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

Among the experts interviewed: 

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

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

Overview

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

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

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

Overview

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

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

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

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

We thank the legislators who sent representatives to join us:

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

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

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

Click here for a video of highlights from the day.

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

  

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

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

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

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

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

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

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

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

FERC’s failure to enforce against environmental violations is routine

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

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

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

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

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

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

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

  

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

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

The Clean Water Act (CWA) prohibits FERC from issuing a Certificate of Public Convenience and Necessity prior to receiving a Clean Water Act Section 401 Certification from states impacted by a proposed project.

• Section 401 of the CWA states: “no [federal] license or permit shall be granted until the certification required by this section has been granted or waived.” 33 U.S.C. § 1341(a)(1).
• Several courts, including the Supreme Court, have elaborated on the CWA’s authority, stating:
  • “without [Section 401] certification, FERC lacks authority to issue a license.”   (1 ) and
  • Section 401 “requires States to provide a water quality certification before a federal license or permit can be issued…”(2 )

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

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

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

By way of explicit examples and the resulting harms:

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

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

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

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

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

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

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

FERC issued a Certificate of Public Convenience and Necessity for Sabal Trail in February 2016, before CWA 401 Certifications were issued by Alabama and Georgia, and before an Army Corps section 404 permit was issued. FERC began approving construction in summer 2016, including through private lands for which no court date had yet been set to settle eminent domain claims. (Attch 7) Sabal Trail was later challenged in Sierra Club v. FERC, 867, F.3d 1357, 1373 (D.C. Cir. 2017).  The court ultimately ruled that FERC had violated federal law in its approval of the project. However, given FERC’s approvals that the project proceed with eminent domain and construction, by the time this legal victory was secured, FERC had already ensured the project was fully constructed and in service.  Had FERC honored the rights of the states, it is likely that the legal victory, and the obligation to comply with federal law prior to final decisionmaking, would have had an affect on the outcome of whether, how, when, and/or where this pipeline was constructed.  

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

FERC issued a Certificate of Public Convenience and Necessity for the PennEast Pipeline Project on January 19, 2018, before a CWA 401 Certification has been issued or denied by the state of New Jersey, before Pennsylvania has issued Chapter 105 Water Obstruction and Encroachment or Chapter 102 Erosion & Sediment Control permits that are a necessary condition for the legal viability of the PA 401 Certification, before the Delaware River Basin Commission has issued a docket for the project, and before section 404 permits have been issued. Immediately following FERC’s certificate approval, PennEast filed nearly 200 eminent domain cases in PA and NJ, and has been granted access to survey in both states. The state of New Jersey has appealed all eminent domain decisions that impact preserved state lands, which is close to 100 properties, and the U.S. Court of Appeals for the Third Circuit has issued a stay on construction for those properties until the case is resolved.  Private eminent domain challenges are still outstanding.  The PennEast project is a major greenfields project currently under consideration by multiple regulatory agencies, Congressional action immediately on the issue of state’s rights could have huge repercussions for the outcome of this project.

Constitution Pipeline (FERC Docket CP13-499):

On December 2, 2014, FERC granted a Certificate to the Constitution Pipeline despite the fact that New York State had not issued a CWA 401 Certification. Thereafter, FERC granted the company the power of eminent domain, a power that the company began to exercise that same month, with the filing of 125 complaints in condemnation against NY and PA landowners. FERC then expressly permitted the Constitution Pipeline to begin elements of construction. For example, on January 8, 2016, the Constitution pipeline submitted a request to proceed which was quickly granted by FERC. (Attch 4)

Amongst other actions, FERC authorized the Constitution Pipeline company to seize and cut eighty percent of the trees in a forest in New Milford Township, Pennsylvania. On March 1, 2016, the Constitution Pipeline company began to cut the forest that has belonged to the Holleran family since the 1950s — they live on the property, enjoy its natural beauty, and operated a growing maple syrup business that was irreparably harmed by the pipeline company’s FERC approved tree cutting and other actions. (North Harford Maple).

On April 22, 2016, New York denied CWA 401 Certification for the pipeline, and as a result, the project is permanently stalled. (Attch 5) Without CWA 401 Certification from New York State, the project cannot be built and the devastation inflicted on the Hollerans and other Pennsylvania environments, communities, and homeowners was for naught. The associated exercise of eminent domain on New York residents could also have been avoided.  Even if New York approval were to be granted at some future time, the Hollerans and other Pennsylvanians had to prematurely suffer the environmental, economic and personal loss inflicted.

Despite New York’s denials of Constitution’s January 14 and February 25, 2016 requests to clear cut and start earth moving activities, and despite Constitution’s lack of a New York CWA Section 401 Certification, the company started illegally clearing trees in New York. (Attch 6) Constitution went ahead with these activities in 2015 and 2016 in multiple towns and counties in New York, and when concerned residents and the New York Attorney General’s Office made FERC aware of these activities, FERC did little to stop Constitution’s illegal acts, resulting in the permanent loss of vast amounts of trees and devastating impacts to water quality. (Attch 6, 11)

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

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

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

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

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

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

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

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

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

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

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

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

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

FERC issued a certificate of public convenience and necessity for the Atlantic Coast Pipeline (ACP) on October 13, 2017 before CWA 401 Certifications were issued or waived by Virginia, North Carolina, or West Virginia; and before an Army Corps section 404 permit had been issued. The company has begun to take private properties through eminent domain and FERC has continued to issue partial notices to proceed with tree felling for separate segments of the project without having received or maintained all approvals.

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

On October 13, 2017, the Commission issued an order authorizing Mountain Valley Pipeline, LLC to construct and operate its proposed Mountain Valley Pipeline project (MVP) in West Virginia and Virginia without CWA 401 Certification approval in either state. West Virginia Department of Environmental Protection (WVDEP) had previously approved a 401 Certification for the Project on March 23, 2017, but on September 13, 2017, WVDEP filed a motion to vacate their previous approval, stating that “the information used to issue the Section 401 Certification needs to be further evaluated and possibly enhanced.” The MVP had also not yet obtained an Army Corps section 404 permit. Just two weeks after the FERC Certificate Order issued, and prior to receiving state 401 certifications, MVP initiated condemnation actions in three federal district courts against nearly 300 property owners. (8) While Virginia did grant a CWA 401 certification in December 2017, the Virginia DEQ and Attorney General filed a lawsuit against MVP in December 2018, after documenting more than 300 violations between June 2018 and November 2018 – a demonstration that even when there has been final state action pipeline companies can inflict significant environmental harm, making it all the more important for FERC to respect the CWA authority of states prior to FERC action.

(1)    City of Tacoma v. FERC, 460 F.3d 53, 68 (D.C. Cir. 2006).
(2)    PUD No. 1 of Jefferson Cnty. v. Wash. Dept. of Ecology, 511 U.S. 700, 707 (1994) (emphasis added).
(3)    New York State Department of Environmental Conservation’s Notice of Complete Application and Notice of Legislative Public Hearings, January 25, 2017, retrieved from: https://www.dec.ny.gov/enb/20170125_not9.html
(4)    FERC Order Granting Abandonment and Issuing Certificates, Northern Access 2016 Project, (FERC Docket No. CP15-115), August 3, 2018.
(5)    See National Fuel Gas Supply Corporation v. N.Y. State Department of Environmental Conservation,
No. 17-1164-cv (2d Cir. 2019).
(6)    FERC Order Denying Rehearing, Northern Access 2016 Project, FERC Docket No. CP15-115, April 2, 2019
(7)    As reported by Keith Goldberg, FERC Won’t Reconsider NY Pipeline Authority Ruling, Law360, April 3, 2019, retrieved from: https://www.law360.com/articles/1146011/ferc-won-t-reconsider-ny-pipeline-authority-ruling?copied=1
(8)    See Mountain Valley Pipeline v. An Easement to Construct, Operate and Maintain An Easement, Case No. 7:17-cv-00492 (W.D. Va. 2017),  Mountain Valley Pipeline, LLC, v. Simmons, — F. Supp. 3d —, No. 1:17CV211, 2018 WL 701297 (N.D.W. Va. 2018) and MVP v. Mc Million et. al, CA 2:17-04214 (S.D. W. Va. 2017).

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

  

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

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

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

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

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

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

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

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

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

Sabal Trail (FERC Docket No. CP15-17)

FERC issued a Certificate for Sabal Trail in February 2016, before either an Army Corps CWA Section 404 permit or a Rivers and Harbors Act Section 408 permit were issued. FERC began approving construction in summer 2016, including through private lands for which no court date had yet been set to settle eminent domain claims. (Attch 2) Sabal Trail was later challenged in Sierra Club v. FERC, 867, F.3d 1357, 1373 (D.C. Cir. 2017).  The court ultimately ruled that FERC had violated federal law in its approval of the project. However, given FERC’s incremental and premature approvals for the project to proceed with eminent domain and construction, by the time this legal victory was secured, FERC had already ensured the project was fully constructed and in service.  Had FERC honored the authority of its sister agency, it is likely that the legal victory, and the obligation to comply with federal law prior to final decisionmaking, would have had an effect on the outcome of whether, how, when, and/or where this pipeline was constructed.

Constitution Pipeline (FERC Docket CP13-499):

On December 2, 2014, FERC granted a Certificate to the Constitution Pipeline despite the fact that the US Army Corps of Engineers had not issued a Section 404 wetlands permits. Thereafter, FERC granted the company the power of eminent domain, a power that the company began to exercise that same month, with the filing of 125 complaints in condemnation against NY and PA landowners. FERC then expressly permitted the Constitution Pipeline to begin elements of construction. For example, on January 8, 2016, the Constitution pipeline submitted a request to proceed which was quickly granted by FERC. (1)

Amongst other actions, FERC authorized the Constitution Pipeline company to seize and cut eighty percent of the trees in a forest in New Milford Township, Pennsylvania. On March 1, 2016, the Constitution Pipeline company began to cut the forest that has belonged to the Holleran family since the 1950s — they live on the property, enjoy its natural beauty, and operated a growing maple syrup business that was irreparably harmed by the pipeline company’s FERC approved tree cutting and other actions. (North Harford Maple).

On April 22, 2016, New York denied CWA 401 Certification for the pipeline, and as a result, the project is permanently stalled. Without this approval, the project cannot be built and the devastation inflicted on the Hollerans and other Pennsylvania environments, communities, and homeowners—all inflicted without CWA 404 Certification—was for naught.

Atlantic Sunrise (FERC Docket No. CP15-138)

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

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

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

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

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

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

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

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

FERC issued a Certificate of Public Convenience and Necessity for the PennEast Pipeline Project on January 19, 2018, before the Delaware River Basin Commission (DRBC) has issued a docket, and before an Army Corps section 404 permit has been issued, and before New Jersey Clean Water Act 401 Certification and Clean Water Act 404 permitting (in NJ the state has 404 authority) have been granted. Immediately following FERC’s certificate approval, PennEast filed nearly 200 eminent domain cases in PA and NJ, and has been granted access to survey and construct in both states. Although PennEast has yet to request approval to proceed with tree felling—landowners have already suffered property losses for a project that is far from approved.

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

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

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

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

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

Partial Construction is a Strategy

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

(1)    See FERC Partial Notice to Proceed with Tree Felling and Variance Requests, Docket No. CP13-499, January 29, 2016.
(2)    See Letter from the Army to Transcontinental Pipeline Company, Docket No. CP15-138, March 31, 2017.
(3)    See Mountain Valley Pipeline v. An Easement to Construct, Operate and Maintain An Easement, Case No. 7:17-cv-00492 (W.D. Va. 2017);  Mountain Valley Pipeline, LLC, v. Simmons, 307 F.Supp.3d 506 (N.D.W. Va. 2018); and MVP v. Mc Million et al., Case No. 2:17-04214 (S.D. W. Va. 2017).

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