Thursday, April 7, 2016

FERC & Pipelines Above the Law and Above the People

The Federal Energy Regulatory Commission (FERC) is given extraordinary power to destroy lives and avoid many of the environmental regulations that apply to every other industry when it gives approval for construction of interstate pipelines used to transport fracked shale gas.   Once FERC gives its approval to a fracked gas pipeline it  anoints the pipeline company with the power of eminent domain, allowing the pipeline industry to take, at will, private property, public parks, preserved forests and preserved lands.

Despite all this power, FERC still wants and takes more. 

On January 22, 2013, Delaware Riverkeeper Network (an environmental organization representing communities) filed a legal action in the United States Court of Appeals for the District of Columbia challenging FERC’s approval of the Tennessee Gas Pipeline company’s Northeast Upgrade Pipeline Project. On June 6, 2014, much to the surprise of most, the Court issued an opinion and order finding that FERC had violated federal law (the National Environmental Policy Act) by segmenting its environmental review of the Northeast Upgrade Project from three other connected and interdependent Pipeline projects and by failing to provide a meaningful analysis of the cumulative impacts of these projects.  (Delaware Riverkeeper Network, et al. v. Federal Energy Regulatory FERC,753 F.3d 1304, 1307 (D.C. Cir. 2014)) 

Because of the violation of law, the Court sent the case back to FERC so it could further consider the project and properly respond to the court’s ruling. 

Despite the Court’s clear and direct order issued well over a year ago, FERC has determined itself above the law and is blatantly ignoring the court’s order: FERC has not posted any activity on the public record related to the Court’s Order, FERC has not issued any public statements relating to the remand, FERC has not provided any public notice of any kind identifying any steps by which FERC is carrying out the Court’s Order and FERC has refused to answer any of the questions asked by the Delaware Riverkeeper Network as to the status of their compliance with the court order.

This is not the only example of FERC ignoring the intent and letter of the law in order to harm people and benefit the pipeline companies. 

Under the Natural Gas Act, people are only able to legally challenge an approval FERC has given to a pipeline project after they have submitted a rehearing request to FERC, asking it to reconsider its decision, and FERC has denied that request.  Seems simple right? 

E Company applies for FERC approval,
E people fight it and inevitably lose,
E FERC approves the project,
E people submit a rehearing request,
E FERC inevitably denies that request, and
E the people are entitled to challenge the decision in court. 

But this is not how it works in the world FERC has created.

FERC has identified a loophole in the law that allows its decisions to go unchallenged until it’s too late for a successful legal challenge.

When people or organizations, like the Delaware Riverkeeper Network, have submitted rehearing requests in order to secure the FERC denial they need to challenge an approved pipeline in court, FERC’s common practice is to issue something called a tolling order.  A tolling order means that FERC doesn’t have to grant or deny the rehearing request, FERC can simply sit on the peoples’ request while at the same time FERC continues to make decisions that allow the pipeline at issue to proceed to construction.   And that is exactly what FERC does – pipeline after pipeline people are filing requests for rehearing as part of the effort to legally challenge a pipeline threatening their homes, environment and communities while FERC sits and waits to issue its response until it is virtually impossible to bring a challenge that can stop the pipeline project. 

Pipelines inflict significant harms on the communities they cut: they take public and private lands,   and art, history and healthy environments all must fall when a pipelines wants to cut through.
they reduce the market value and marketability of homes, they force communities to live next to the hazards of a dangerous pipeline while taking from them the full use and enjoyment of their homes, they contribute to climate instability with their polluting emissions, they destroy and degrade critical habitats such as forests, streams and wetlands, they create water pollution and air pollution, they increase stormwater runoff and deprive our streams and drinking water aquifers of recharge, they increase erosion, diminish recreation and ecotourism, they harm farming and businesses of all kinds,

All of this for a fracked gas energy source that experts on all sides of the issue say will peak by the year 2020 and be in serious decline by the year 2040. 

No agency can be allowed to operate above the law and with such callous disregard for the people the way FERC is operating.  Given what is at stake – the healthy lives of people living today, and the future lives of the generations to come – it is time for Congress and the Courts to act to bring FERC in line.

If you want to help us find a Congressional Champion so we can secure an Independent Investigation into the Abuse of Process and Law by the  Federal Energy Regulatory Commission (FERC) please sign on:

     If you are an individual that wants to join the call, please sign our petition and pass it on at:
     If you are the leader of an organization concerned about the abuse of power at FERC you can sign on to our organizational sign on letter at:

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