Thursday, April 7, 2016

Put That in Your Pipeline and Smoke It, FERC

The Federal Energy Regulatory Commission (FERC) has been captured. It has been captured by the very industries it is supposed to regulate--particularly pipeline companies.  It is an agency that has become so entangled with industry that it is violating the constitutional rights of communities and families across the nation. 
Sound unfairly harsh? Well, remember that the United States Constitution requires that federal government agencies like FERC be neutral in the decisions they make. In fact, James Madison’s sacred document declares that they must be free not just from actual bias—but from the mere appearance of bias. FERC fails both tests. Here’s why: alone among independent executive agencies of government with this level of adjudicatory authority, FERC receives full funding from the companies it regulates. That’s like having a basketball referee be paid his salary by one of the teams in the game. No wonder FERC keeps giving slam dunks to the pipeline companies.

  • ·             FERC regularly uses a legal loophole that prevents people, environmental and community protection organizations from being able to challenge pipeline projects before FERC allows them to go into construction;
  • ·             FERC approves pipeline projects, even allowing them to begin construction, before the states have determined whether they will grant Clean Water Act approvals entrusted into their authority. That’s despite that the law that the state determination must come first;
  • ·             FERC allows pipelines to begin construction before federal wetland permits have been granted, thereby undermining their ability to protect natural resources and communities; and
  • ·             When pipeline companies are caught violating environmental and community protection laws, without exception FERC fails to issue penalties as a deterrent to future violations or to issue stop work orders to ensure pollution issues are addressed before construction is allowed to continue.

And the list goes on.

In response to this lengthy track record of partiality, on March 2nd the Delaware Riverkeeper Network filed a lawsuit to challenge FERC’s violation of the fifth amendment of our US Constitution, which guarantees due process before the U.S. government can take a life, liberty or property interest. 

Until the lawsuit was filed, FERC’s Commissioners had an incredible 100 percent approval rating of pipeline projects presented to them for review. A week after the lawsuit, FERC, for the first time since it became self-funding, denied a pipeline project.  The obvious violations of law, policy and constitutional rights so clearly laid out for public display in our lawsuit seemingly sparked embarrassment and action by FERC. 

Does this mean we can expect a change at FERC?  Unfortunately not.

The action doesn’t change the underlying problems with FERC’s unconstitutional funding structure – it simply offers cover for FERC to claim it is not a rubber stamp for the industry it oversees. But a stamp made of 99 percent rubber is still a rubber stamp.

FERC’s seal of approval grants pipelines the power of ‘eminent domain,’ which is the legal authority to confiscate private property rights. FERC can force people to live next to pipelines and compressor stations which pollute the air, causing deadly harm to human health and millions in property damage. Pipelines are granted authority to cut through public parks and preserved forests, undermining the hundreds of millions in taxpayer dollars and private donations committed to save these precious lands for present and future generations.  Pipelines get the authority to cut through farm lands and businesses of all kind, even though the lines undermine, and in some cases destroy, these entrepreneurs’ economic success and viability. 

FERC has crowned itself king and the pipeline companies its queen – believing they are above the constitution, the congress, the states, and the people. 

The Delaware Riverkeeper Network’s legal challenge is paralleled by an effort of nearly 250 organizations asking Congress to empower the Government Accountability Office to conduct an independent investigation into FERC. No champion in Congress has yet come to the fore. That’s disappointing, because many of them have spoken out against the pipelines barreling through the FERC process and cutting through hundreds of properties, parks and businesses across our nation.

But we are hopeful that a brave soul in Congress will emerge. After all, while FERC has fracked-gas dollars on its side. We have the Constitution and the American landscape on ours. And they are priceless.

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

Send a letter to all of your federal senators and congressional representatives with just one click:

Sign on to our organizational letter (if you are representative of an organization being sent to congressional representatives and if you are an individual also sign our petition.

 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:

 If you are an individual that wants to join the call, please sign our petition and pass it on at:

FERC is a blatantly biased agency that doesn’t just favor the pipeline companies over the public, but actively works to help advance pipelines, including by stripping the public of our legal rights to challenge projects in the courts.

A Government Accountability Office Review of FERC could help to shine the light of day on the abuses of FERC and help all of the communities and environments being devastated by the construction and operation of fracked gas pipelines and LNG export facilities.  

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