People's Dossier of FERC Abuses: Stripping People's Rights
FERC Denies the Public their Right to Due Process
FERC routinely uses a legal loophole 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 pipeline construction begins. Through the use of tolling orders, FERC puts people in legal limbo and prevents them from challenging FERC pipeline approvals for an undetermined amount of time – sometimes for over a year – during which time FERC approves the exercise of eminent domain and construction by the pipeline company.
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, 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 is simply a 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.
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 1)
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.
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 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 cut through PA’s Delaware State Forest, NJ’s Highpoint State Park, the Appalachian Trail, and crossed the Wild & Scenic Delaware River.Seven miles of prime farmland and dozens of creeks and wetlands all fell within the pipeline’s bootprint.
- June 28, 2012 the Delaware Riverkeeper Network filed its rehearing request.
- July 9, 2012 FERC issued its tolling order.
- January 11, 2013, after 7 months, 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 project, the pipeline segment was fully constructed and in operation.
In the case of the Constitution Pipeline (FERC Docket No. CP 13-499), FERC tolled the rehearing request for nearly a year. In this case the FERC Certification was issued on December 2, 2014. Concerned communities filed their Rehearing Request on January 2, 2015. FERC issued its tolling order on January 27, 2015, and from that point on communities were left without a legal remedy as the project proceeded. 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 illegal 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 away from landowners in its path. (Attch 3) By the end of 2015 homeowners who had refused access to their property had their property rights overridden through condemnation, the Constitution pipeline was granted easements by force, 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 4, Attch 5, Attch 6, Attch 7) Ultimately New York would deny its Clean Water Act Certification. And so the construction and eminent domain proceedings allowed may ultimately have been for naught.
FERC’s use of tolling orders continues unabated; the Agency recently issued such an order for Transco’s Atlantic Sunrise project (FERC Docket No. CP15-138) and has not yet issued an order granting or denying the rehearing request. (Attch 13)
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 project to advance and be constructed to the benefit of the company. Another possible justification is to grant FERC more time to attempt to justify its decision after-the-fact thereby increasing its chances of defeating a later legal action by the public.
Simply by issuing more timely final orders on rehearing requests, as contemplated by the Natural Gas Act provisions on administrative remedies and judicial review, FERC would not only fulfill its due process obligations to rehearing requesters but also avoid time-consuming and unnecessary litigation that wastes both the agency’s and the courts’ resources. In many, if not most, instances it would provide an opportunity for affected parties to secure legal review of a project well before the project actually begins, negating the need for requests for injunction and fully honoring affected parties’ rights to have their grievances heard and addressed by a court before it is harmed by a pipeline project approved by FERC.
For additional examples of projects that have been tolled for months, see: Transco Leidy Line (Attch 8) and Northeast Upgrade (Attch 9). For additional examples of the harms inflicted on people via tolling orders, see: Constitution Pipeline. (Attch 11, Attch 12)
The Natural Gas Act (“NGA”), 15 U.S.C. § 717r(a), permits “any person . . . aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person . . . is a party may apply for rehearing within thirty days after the issuance of such order. . . . Unless the Commission acts upon the application for rehearing within thirty days after it is filed, such application may be deemed to have been denied.” The NGA makes a rehearing request a condition precedent for filing suit in federal court for review of a FERC order, including its Certificates of Public Convenience and Necessity that are the approval of a project. Moreover, the aggrieved party may not file suit in federal court until FERC renders its final decision on the merits of the rehearing request.
Complete People's Dossier: FERC's Abuses of Power and Law
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