People's Dossier of FERC Abuses: Undermining Federal Authority
FERC undermines the regulatory authority of sister federal agencies by granting permission for pipeline construction activity prior to the issuance of all required federal permits.
While FERC suggests it will not advance pipeline projects to construction prior to the issuance of all required permits, in reality FERC routinely approves pipeline construction regardless of whether or not all required permits have been secured.
In other portions of this dossier, we have discussed how FERC undermines state Clean Water Act authority by issuing Certificates of Public Convenience and Necessity prior to receiving state Section 401 Certificates. FERC similarly undermines the authority of other federal agencies by issuing premature approvals.
In its Certificates issued to natural gas infrastructure companies, FERC routinely includes the provision:
Prior to receiving written authorization from the Director of OEP [Office of Energy Projects] to commence construction of any project facilities, [pipeline company] shall file with the Secretary documentation that it has received all applicable authorizations required under federal law or evidence of waiver thereof. (Attch 1)
While this provision gives the impression that a project will not commence until such time as it has fully secured agency review and approvals, has complied with all applicable laws, and has received all necessary permits, that is not in fact the case. Projects are routinely allowed to commence, with significant environmental impacts, prior to receiving all necessary approvals.
For example, the Tennessee Gas Pipeline Northeast Upgrade Project (FERC Docket No. CP11-161), which cut through significant areas of mature forest and forested wetlands on both public and private lands, was allowed to initiate tree felling prior to receiving Clean Water Act permits, including US Army Corps of Engineers Section 404 wetlands permits. The tree cutting significantly impacted water quality and was among the major causes of environmental harm and community impacts resulting from pipeline construction.
Another example of FERC prematurely issuing Certificates and allowing projects to proceed without required federal permits includes:
● FERC issued a Certificate for Sabal Trail (FERC Docket No. CP15-17) in February 2016, before an Army Corps section 404 permit was issued. FERC began approving construction in summer 2016, including through private lands for which no court date had yet been set to settle eminent domain claims. (Attch 2)
FERC permission to proceed with tree felling enables pipeline companies to argue that they have already made major investments in the construction of a project and the agencies reviewing the approvals are now compelled to issue permits regardless of potential agency concerns. And so premature approval and initiation of construction becomes an incentive for other agencies to truncate their reviews, as stopping a project that has already started and the remediation of harm already inflicted are both highly unlikely.
Complete People's Dossier: FERC's Abuses of Power and Law
available at http://bit.ly/DossierofFERCAbuse