FERC Intentionally Conceals Critical Information from States and the Public

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For example:

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

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

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

By way of further example:

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

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

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

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

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

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

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

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

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

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

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

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

FERC’s NEPA Requirements and Violations Regarding Climate Change Impacts

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

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

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

Consideration of Downstream Impacts Ignored

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

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

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

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

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

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

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

Consideration of Upstream Impacts Ignored

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

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

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

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

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

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

However, as Commissioner Glick clarified in his dissent:

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

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

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

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

Natural Gas Act Requirements Violated

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FERC Bias is Emboldened by Its Ballooning Budget and Lack of Oversight

(Download Printable copy of “People’s Dossier of FERC Abuses: Budget Issues with attachments here)

Per federal law, FERC relies on the industry it regulates for its entire budget (42 U.S. Code § 7178(a)(1). [1] This funding structure means that FERC is vulnerable to the whims and wishes of the very industry it’s charged with overseeing.  Nowhere is this more true than in the case of pipelines and related infrastructure including LNG facilities and compressors.  The lack of oversight by other branches of government or watchdog agency helps to perpetuate FERC’s biased decision making.

FERC’s Funding Structure Leads to Bias in Fact

FERC issues a volume based per-unit charge on natural gas pipelines to cover the agency’s costs. This means that the more pipelines, gas delivery, and LNG facilities FERC approves, the more fees it is able to collect for its self-inflating, FERC-created budget.

As a result of this funding structure, FERC is all but compelled to decide in favor of pipeline companies.  The record of pipeline project approvals by FERC Commissioners demonstrates a clear bias in FERC decision-making; in the last thirty years, FERC’s Commissioners have denied only one pipeline project brought before them for approval, and that denial happened relatively recently, on March 11, 2016.  Up until this time, FERC had a 100% approval rating for all natural gas pipeline projects brought before its Commissioners for a vote. Interestingly, FERC’s singular denial came just one week after a challenge was filed against FERC’s pipeline program in which its then-100% approval rate was cited as a key piece of evidence. There is not a single other federal agency that has this exceptionally high rate of approvals for applicants seeking an authorization or certification.

FERC is Insulated from Oversight

This industry-financing mechanism not only encourages the biased approval process for proposed projects, but it also provides FERC with a significant degree of insulation from the legislative branch of government. FERC is simultaneously free from the oversight of the executive branch because of the limitation of the President’s power to remove FERC Commissioners. The “for-cause” limitation on the removal of FERC’s Commissioners only allows the removal of Commissioners under a very narrow set of circumstances, i.e. “inefficiency, neglect of duty, or malfeasance.” (42 U.S. Code § 7171(b)(1)).

In fact, FERC brags about the lack of oversight it receives.  According to FERC:

“FERC’s decisions are not reviewed by the President or Congress, maintaining FERC’s independence as a regulatory agency, and providing for fair and unbiased decisions.” (Attch 1)

While FERC asserts the lack of oversight is beneficial for decisionmaking, the reality is actually quite different; FERC’s independence from the oversight of both the executive and legislative branches of government leaves FERC especially vulnerable to the undue influence of the industry that funds its budget. This is particularly true because FERC itself operates without the scrutiny of any type of regulatory oversight or regulatory board, i.e. a watchdog responsible for overseeing regulatory quality.

FERC’s Budget Outpaces Other Agencies – Including its Parent the DOE

FERC’s ability to secure funding from the regulated industry has resulted in a budget that has grown appreciably faster than its parent government agency, the Department of Energy, as well as the Federal government as a whole. In fact, over the past decade, FERC has seen its annual budget grow by more than 60-percent – rocketing from sub-$200 Million in 2004 to more than $346 Million projected for 2017. A substantial portion of this boom occurred during a recessionary period that left other independent agencies reeling from budget slashes in the hundreds of millions of dollars.

The fiscal year 2017 budget request for FERC seeks a 3% increase in base operating costs and includes a “building modernization project” for FERC offices, the cost of which has nearly doubled from $40 million dollars to $79 million dollars. (Attch 2)

FERC’s growing budget demands are sustained by the Agency’s approval of an increasing number of infrastructure projects.

[1] See Federal User Fees: Budgetary Treatment, Status, and Emerging Management Issues, U.S. Government Accountability Office (GAO) Report to the Chairman, Committee on the Budget, House of Representatives, GAO/AIMD-98-11 (Identifying 27 agencies that rely on federal user fees for a significant portion of their budget, none of which are fully funded or nearly fully funded like FERC, are independent executive entities, presently exist, are independent executive agencies, and conduct direct adjudications that affect its finances) (December 19, 1997).

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

Overview

(Download Printable copy of “People’s Dossier of FERC Abuses: Updated 2019 – attachments coming soon)

Communities across America are being abused by the use and misuse of powers granted to the Federal Energy Regulatory Commission (FERC) pursuant to the Natural Gas Act. And so communities from across the nation are banding together to demand that Congress:

• Hold congressional hearings to investigate and learn about the many ways communities are being harmed by FERC’s implementation of the Natural Gas Act and the agency’s failure to meet the legal mandates of the National Environmental Policy Act; and
• Take swift affirmative action to reform the Natural Gas Act so as to better protect communities including eliminating the threats associated with natural gas infrastructure

With the Department of Energy Organization Act of 1977 (S.826) Congress reorganized the Department of Energy and created FERC, an independent executive agency. During Senate hearings on the bill, a rightfully skeptical Senator William V. Roth of Delaware had this to say about the critical role that an equitable energy policy plays in our society:

If there is a single area where it is necessary for the American people to believe implicitly in the fairness and honesty of Government, where there can be no doubts whatsoever, it is in the field of energy…A sweetheart relationship between those who regulate and those who are regulated will strain the credibility of the most trusting citizens.

Unfortunately, after four decades of FERC’s unaccountable and irresponsible approach to energy development, the trust of the American people has been strained beyond the breaking point.  As it currently stands, the language of the Natural Gas Act is being misused by FERC to strip people of their legal and constitutional rights; to undermine the legal authority of states and of other federal agencies; to prevent fair public participation in the pipeline review process; to ignore the mandates of the Clean Water Act and the National Environmental Policy Act; to take from residents and citizens their private property rights; to disregard the climate changing ramifications of its actions; to take from communities the protection of public parks, forests and conserved lands that they have invested heavily in protecting; to take jobs and destroy small businesses; to inflict on our communities health, safety and environmental harms … all for the benefit of the pipeline industry seeking to advance its own corporate profits and business edge over its competitors.

Regulators and elected officials are beginning to take notice. In response to FERC’s call for comments regarding its pipeline review process in 2018, the Commission received thousands of public comments critiquing its abusive and illegal practices, including a letter signed by seven state Attorneys General outlining FERC’s regular and extensive violations of federal law. Even members of the Commission have started to speak out about the agency’s violations of the law in dissenting orders.

The time has now come for Congress to investigate.

As this Dossier demonstrates, Congressional hearings are essential to inform Congress of the abuses of power and law that FERC is inflicting.  Congressional hearings will also help identify smart and meaningful reforms that can accomplish the nation’s energy goals without sacrificing people, communities, the law, or the environment.   

Congressional Hearings have been requested by over 200 organizations representing communities across the nation.  It is time for Congress to grant this request.

Subsections

• People’s Dossier of FERC Abuses: Budget Issues
• People’s Dossier of FERC Abuses: Climate Change and Drilling Impacts Ignored
• People’s Dossier of FERC Abuses: Consultant Conflicts of Interest
• People’s Dossier of FERC Abuses: Critical Information Concealed
• People’s Dossier of FERC Abuses: Deficient EIS Analysis
• People’s Dossier of FERC Abuses: Deficient Needs Analysis
• People’s Dossier of FERC Abuses: Economic Harms
• People’s Dossier of FERC Abuses: Illegal NEPA Predetermination
• People’s Dossier of FERC Abuses: Illegal Segmentation
• People’s Dossier of FERC Abuses: Lack of Public Assistance
• People’s Dossier of FERC Abuses: Public Participation Undermined
• People’s Dossier of FERC Abuses: Safety Threats Ignored
• People’s Dossier of FERC Abuses: Staff Conflicts of Interest
• People’s Dossier of FERC Abuses: Stripping People’s Rights
• People’s Dossier of FERC Abuses: Undermining Federal Authority
• People’s Dossier of FERC Abuses: Undermining State Authority
• People’s Dossier of FERC Abuses: Violations Overlooked

Talking Points to Consider for Your Comment — we will be adding new points regularly, consider checking back each week for new comments you can make:

Feel free to use the language below as a guide or verbatim. New talking points will be added regularly so please check back weekly so you can offer a fresh set of comments to FERC. The more responsive comments they receive from us, the better!

FERC must end the practice of issuing Conditional Certificates and thereby allowing pipeline companies to use eminent domain in order to gain survey access to targeted properties in order to provide outstanding information needed to perfect and finalize their FERC Certificate.

NGA Section 7(h) grants eminent domain authority in order to pursue construction and operation of pipeline infrastructure projects, not in order to gather information to gather information and data necessary for project approval. Eminent Domain authority is not authorized for, nor should it be granted in order for, a pipeline company to invade the sanctity of people’s properties so the company can gather data it needs to secure finalized government approval of its project.  

FERC Must Reverse Its Decision to Limit Out of Time Interventions.

The time allowed for in time motions to intervene is often short — in some cases a matter of just 2 weeks.  A mere few weeks is not enough time for even engaged communities concerned about a project to realize they are in the unique moment when they need to intervene to preserve their legal rights. Given the level of unremediable impact inflicted by these infrastructure projects, communities Individuals, organizations and communities whose interests, properties and/or environments are going to be impacted should be treated with respect and leniency when it comes to intervention.

I urge FERC to please add hearings to ensure a full and fair opportunity for all to be heard. 

To ensure that FERC identifies a full spectrum of truly meaningful fixes to its pipeline review and approval process, and to ensure everyone has a full and fair opportunity to be heard, FERC’s Commissioners need to hear directly from the communities impacted by pipeline infrastructure and the FERC process.  I urge you to schedule a minimum of 6 hearings in affected communities across the nation. Testimony should be open to all who are interested and impacted including community members, impacted landowners, environmental advocates, and their representative organizations.

FERC’s Pipeline Review Process needs to mandate that the public interest, including property rights and the environment, be given priority over the goal of the pipeline companies for profit. 

This means giving highest priority in FERC consideration of proposed pipelines, compressors, storage facilities and LNG exports, to honoring peoples’ property rights, preventing economic harm, preventing the release of climate changing emissions that will result directly or indirectly from approval of a project, and preventing environmental degradation.

FERC should mandate a legitimate demonstration of and end use “need” for a proposed pipeline/infrastructure project before FERC will consider it for approval.

A company’s claim of “need” for their pipeline project should not be deemed justified if supported/demonstrated by contracts from the pipeline company itself, or any of its subsidiaries or business counterparts or affiliates. This assertion of need must be objectively verified by experts who are not tainted by an industry conflict of interest. 
        A claim of “need” for a project should not be deemed justified if the geographic region to be served already has gas service from other pipelines that would merely be replaced/displaced by gas delivery from the proposed project.
        Such illegitimate “need” demonstrations must be prohibited, and cannot be used to fulfill the “public use” requirements needed to support project approval and eminent domain authority. 

All applications for pipeline/infrastructure projects must include a demonstration that the energy goals to be achieved cannot be fulfilled by renewable energy options, or by existing or proposed energy sources and infrastructure (e.g. the gas is already being supplied by a pre-existing pipeline supply network).

FERC must respect the authority of other state and federal agencies by instituting a regulatory prohibition on:

(a) issuance of a FERC Certificate approving a project or

(b) FERC approvals for projects to proceed with any element of construction or eminent domain authority, until such time as all state, federal and regional (e.g. from River Basin Commissions) reviews have been finalized and any and all necessary approvals, permits, certificates and/or dockets have been granted. 

Such a prohibition is essential for ensuring that projects are not allowed to proceed until all government agencies/entities have had the opportunity to fully and fairly evaluate a project and render their own independent determinations regarding necessary approvals.  This is required to avoid the current situation where pipeline companies are allowed by FERC to proceed with eminent domain and/or construction only to find that later they have been denied some key permit and are not able to proceed to completion.  This prohibition must include the issuances of conditional FERC Certificates or approvals of any kind, because conditional approvals by FERC have resulted in projects advancing prior to securing all necessary reviews, approvals, permits and/or dockets.

FERC must proactively work to remove bias and conflicts of interest from infecting its decisionaking on pipeline and infrastructure projects. 

FERC must commit to removing bias from the decision-making process, by no longer hiring consultants with demonstrated conflicts of interest (i.e., those who are representing a pipeline company seeking Commission approval), and by prohibiting Commission staff or Commissioners from working on/deciding upon any pipeline infrastructure project in which they, or a member of their family, have a direct or indirect financial stake or have worked to represent the company within the previous five years or from whom they are seeking future employment.

FERC must end the practice of using segmentation, whereby larger projects are broken up into smaller pieces for FERC review and approval, as a means to undermine environmental and community impact reviews. 

FERC’s practice of segmentation has been firmly rejected by the courts and yet the practice continues at the agency. A prohibition on the practice is clearly warranted to make clear to agency staff and Commissioners that this violation of law will no longer be tolerated.

FERC must commit to a full and fair implementation of the National Environmental Policy Act (NEPA).

Full implementation of NEPA mandates that FERC conduct a complete analysis of the costs and benefits of every aspect of a project (i.e. not just segmented pieces) including, but not limited to, fully evaluating social justice impacts; climate change impacts of pipeline construction and operation; community, environment, and climate change impacts of increased natural gas exploration, fracking, and methane emissions that will result from pipeline infrastructure operations; economic analyses that include costs, not just asserted benefits; alternatives not limited to alternate routes but that also include alternative energy sources and the no-build option; and robust health-and-safety impact analyses.  This reform must mandate that all data gaps be filled before FERC issues a Certificate approval. This reform must mandate that all demonstrated data inaccuracies, misleading information, and/or false information be fully investigated and addressed by the applicant before FERC issues a Certificate approval.

FERC must mandate that FERC staff issue final responses to rehearing requests within 30 days, or prohibit eminent domain proceeding or the start of construction until a final rehearing request response is issued,

thereby allowing legal challenge of their decisions before a project exercises eminent domain or begins any element of construction. In addition and/or by extension, FERC must end the use of tolling orders as a response to rehearing requests. Tolling orders place people in legal limbo and prevent communities from challenging a FERC pipeline approval in the courts before property rights are taken by eminent domain;  forests are cut; and irreparable harm is inflicted on communities, farmers, businesses, the environment, public open spaces and our global climate.  

Because property owners, community groups, business owners and environmental organizations are unable to challenge a FERC Certificate approving a pipeline project until after they have submitted a rehearing request to FERC and that request has been denied or granted and the rehearing process completed, FERC has developed a strategy whereby it refuses to grant or deny rehearing requests and instead issues a decision termed a “tolling order” which merely grants FERC unlimited time to consider the rehearing request. Tolling orders are commonly in effect for a year or more. Without a final decision on the rehearing request, challengers are placed in legal limbo, unable to challenge the project until FERC renders a final yay or nay on the rehearing request.

 

FERC’s Pipeline Review Process Needs Reform!

The Federal Energy Regulatory Commission (FERC) operates as a Rubber Stamp on the pipeline infrastructure projects that come before it for review, with FERC approval being a foregone conclusion once the project goes before the FERC Commissioners for their vote. 

In addition to FERC’s rubber stamp process, FERC: 

• relies on biased consultants to advance their reviews, 
• uses tactics that prevent impacted property owners and members of the community from challenging projects before they advance through eminent domain and construction, undermining the authority of states and other regulatory agencies, 
• uses truncated reviews, as well as false and misleading information to hide the true impacts of projects, 
• fails to consider the true climate changing impacts of their projects, 
• uses tactics and strategies to prevent and/or minimize public comment, and 
• uses every opportunity to advance the goals of the pipeline companies over the health, safety and needs of our people and environments. 

On April 25, 2018 FERC opened a 60 day public comment period regarding how FERC carries out its review and approval of natural gas pipeline infrastructure. (You can read the full notice here).  The Delaware Riverkeeper Network and tens of thousands commented during the comment period.  In fact, a sign on letter by a leading coalition, VOICES (Victory Over InFRACKstructure, Clean Energy inStead) secured signatures from 32,664 individuals and organizations. See below for the VOICES letter and the Delaware Riverkeeper Networks substantive 94 page comment. 

On February 24, 2021, under new leadership from Chairman Glick, FERC reopened the public commenting period on Docket PL18-1-000 and requested answers to several specific questions, some of which are focused on climate change and environmental justice. The public notice for this commenting opportunity can be found here. Comments are due April 26, 2021.

Related

Talking Points For Docket PL18-1 – FERC Pipeline Reviews

 

Update

uly 10, 2018:  The United States Court of Appeals upheld a district court decision rejecting Delaware Riverkeeper Network’s (DRN) due-process challenge to FERC’s funding mechanism and to FERC’s use of tolling orders. Given the makeup of the court, this decision was disappointing but not surprising. The Delaware Riverkeeper Network continues to work with our colleague organizations to find other ways to address the much needed reforms at FERC.

March 22, 2018: Oral arguments were held in the United States Court of Appeals for the DC Circuit. We are waiting for the Court’s decision as to whether there is merit to DRN’s claims of structural bias in FERC’s funding mechanism.

September 25, 2017: Delaware Riverkeeper Network appealed the dismissal of the case to the US Court of Appeals for the DC Circuit. The merits brief can be found here.

Background:

The Federal Energy Regulatory Commission (“FERC”) has become a demonstrably biased agency that has become a partner with, rather than a regulator of, the pipeline companies it purports to oversee.  In addition, FERC is misusing legal loopholes and ignoring court orders to advance gas infrastructure projects while preventing the public from exercising their rights to judicial review or fair public participation in the process.  License for FERC’s abuse of power and blatant bias is provided by the agency’s funding mechanism which makes it an agency funded 100% by the industry it regulates, and is advanced by the revolving employee door that exists between FERC and its regulated community. 

FERC is in need of reform.

There are two pathways to this reform being advanced by the Delaware Riverkeeper Network:

1) is getting an independent investigation into the agency by the Federal Energy Regulatory Commission

2) is a legal action brought by the Delaware Riverkeeper Network challenging FERC’s decisionmaking and funding as a violation of the Fifth Amendment of the U.S. Constitution.

Examples of the many problems with FERC and how it operates include, but are not limited to:

I.  The funding mechanism which results in the Federal Energy Regulatory Commission being 100% funded by the industry it regulates has resulted in blatant bias in favor of pipeline companies and against the public. For example, FERC has approved 100% of the pipeline project proposals that it has reviewed. Such an approval rate cannot be found at any other independent federal agency.

II.  The revolving door between employment with FERC and the industry it regulates contributes to agency bias in the project review and certification process, the unjustifiably high approval rate of proposed projects, and the lack of oversight and enforcement for FERC approved pipeline projects.

III. FERC abuses of law that deny the public their legal rights:

a) use of “tolling orders” to allow projects to advance while denying citizens the ability to initiate an appeal in court; 

b) granting permission for pipeline companies to begin construction activity prior to the company securing all necessary permits and approvals; 

c) continued use of segmentation and the failure to undertake cumulative impact environmental reviews in clear violation of the National Environmental Policy Act (“NEPA”), and in disregard of a July 2014 court order and opinion from the D.C. Circuit;

d) failure to comply with the requirements of NEPA, and instead using subjective judgment to pre-determine the level of environmental review for proposed projects.

IV. Allowing the taking of public and private land via eminent domain for projects that are for private benefit as opposed to a public purpose.

Litigation Updates:

On March 22, 2018, oral arguments were held in the United States Court of Appeals for the DC Circuit. We are waiting for the Court’s decision as to whether there is merit to DRN’s claims of structural bias in FERC’s funding mechanism.

On September 25, 2017, Delaware Riverkeeper Network appealed the dismissal of the case to the US Court of Appeals for the DC Circuit. The merits brief can be found here.

On March 22, 2017, the court dismissed the case. The Court found that DRN had standing to bring the action, yet DRN was unable to show that FERC’s funding mechanism was unable demonstrate structural bias. Below find a statement from the Delaware Riverkeeper addressing the results of the case.

Statement from Maya van Rossum, the Delaware Riverkeeper, leader of the Delaware Riverkeeper Network Concerning the Dismissal of the D.C. District Court Case:

It was gratifying to have set important precedent regarding standing.  The court did explicitly find that we did have standing to bring the action.  That is an important outcome in terms of precedent and future cases.            

As to how we will proceed legally in the wake of this decision is certainly under consideration.  The decision just came out and so there is a lot to consider.

My biggest concern about this decision is that it means that at this point all branches of government have now taken a pass on checking FERC’s abuses of process and law when it comes to their pipeline review and approval process.  The congress will continue to rubber stamp their budget, the president will continue to appoint bad commissioners who will perpetuate the practices of abuse, and now the courts have denied their responsibility to oversee the abuses of power and law by FERC. Now that FERC has been given a license to continue business as usual, I anticipate that FERC’s abuses will continue to get worse.  We have already seen an expansion of the level and quality of abuse they are subjecting communities to.  Their environmental reviews are getting worse, simply embracing the bad information provided by the pipeline companies and ignoring the hard data and evidence provided by the communities.  The length of the tolling orders used to prevent people from challenging pipeline projects before FERC allows them to go to construction are getting longer and I’m sure that trend will now continue.  The leap frogging over state authority will also continue as will the increasing strategies for removing meaningful opportunities for the public to be engaged in the regulatory review process.  FERC has received another green light for its abuse of the people from each of the branches of government.  And the people have lost yet again.

What this means is that the responsibility on members of the Senate to stand up strongly and passionately against the restoration of a quorum at FERC has become even more important and consequential.

 

Overview

The Federal Energy Regulatory Commission (“FERC”) is a demonstrably biased agency that has become a partner with, rather than a regulator of, the pipeline companies it purports to oversee. FERC is misusing legal loopholes and ignoring court orders to advance gas infrastructure projects, while preventing affected and concerned communities from participating in the process. The agency is funded 100% by the industry it regulates, and a revolving employee door between FERC and its regulated community feeds the agency’s bias and abuse of power. 

It is time that the public secure an independent investigation of FERC and that necessary reforms be identified. 

We need a review of FERC by Congress in the form of Congressional Hearings, as well as investigation by the Government Accountability Office (GAO).  

Organizations from across the nation have joined forces to advance these requests of our elected officials in Congress.

To see a comprehensive listing of reforms view here.

Related

FERC Pipeline Review Comment Process — PL18-1-000

People’s Dossier: FERC’s Abuses of Power and Law

People’s Hearing on FERC Abuses of Law & Power

Constitutional Challenge to FERC

 

Overview

Delaware Riverkeeper Network & Delaware Riverkeeper et. al. v. NY State Department of Environmental Conservation: The Delaware Riverkeeper Network, The Humane Society of the United States, the Delaware Riverkeeper, and American Littoral Society filed suit in the New York Supreme Court challenging the New York State Department of Environmental Conservation’s concealment of the terms of water pollution permits issued to Concentrated Animal Feeding Operations (CAFOs). The suit asks the court to order NYSDEC to release the records publicly.

CAFOs are large scale “factory farm” facilities that raise animals for meat, eggs, and dairy. The animals, who are often so intensively confined they can barely move, produce massive amounts of manure and have degraded water quality in lakes and streams across the country. At least two intensive confinement facilities, both undergoing expansion, are located in the Delaware River Watershed on the Middle Mongaup River. One of them, Hudson Valley Foie Gras has a history of violations of its discharge permits, spilling manure and releasing bacteria and chlorine into the river. This lawsuit seeks access to permit-required documents key to assessing the environmental safety of the facility, documents that State law requires be publicly available.