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

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

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

How FERC Forces Communities Into Legal Limbo

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

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

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

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

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

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

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

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

Transco Southeast Leidy — 15 month tolling order

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

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

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

Constitution Pipeline

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

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

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

• By December of 2014, the Constitution Pipeline Company had filed 125 Complaints in Condemnation in the Northern District of New York alone, seeking to take private property rights away from landowners in its path. (Attch 5)
• By the end of 2015 homeowners who had refused access to their property had their property rights overridden through forced condemnation, and the Constitution Pipeline Company secured access to the properties to finish surveying work and to tag trees for clearing.
• On January 29, 2016, FERC approved tree cutting on 25 miles of the Pennsylvania portion of the pipeline, despite lacking multiple state and federal approvals, including New York Clean Water Act Certification. (Attch 6, 7, 8, 9)

On March 1, 2016, the Constitution Pipeline Company began to cut the forest that has belonged to the Holleran family since the 1950s—they live on the property, enjoy its natural beauty, and operated a growing maple syrup business (North Harford Maple). (1) In total Constitution chopped down over 500 ash and sugar maple trees on the Holleran property alone, devastating their scenic beauty and their maple syrup operation. (2)

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

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

The Sabal Trail Project

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

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

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

New Market Project

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

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

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

Mountain Valley Pipeline

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

Atlantic Coast Pipeline

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

Algonquin Pipeline Expansion – Algonquin Incremental Market (AIM)

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

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

Atlantic Sunrise

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

Orion Pipeline Project

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

NEXUS Project

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

Connecticut Expansion Project

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

PennEast Pipeline Project

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

Legal Limbo is a Strategy

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

FERC Indiscriminately and Inconsistently Interprets Legislative Language to Support Pipeline Approval

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

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

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

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

  

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

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

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

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

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

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

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

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

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

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

For example, as reported by Desmog Blog;

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

Other examples of self-dealing by FERC officials include:

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

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

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

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

  

FERC Ignores Critical, Even Catastrophic, Safety Concerns

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

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

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

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

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

  

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.