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Lawyers say FERC hinders appeals on pipeline projects

Twenty-four protesters were arrested for blocking a public passageway outside the Washington D.C. headquarters of the Federal Energy Regulatory Commission in July, 2014.

Marie Cusick / StateImpact Pennsylvania

Protesters were arrested for blocking a public passageway outside the Washington D.C. headquarters of the Federal Energy Regulatory Commission in July, 2014.

Environmental lawyers say they may have to craft new legal strategies to effectively challenge interstate pipeline construction decisions by the Federal Energy Regulatory Commission. Activists continue to accuse FERC of acting as a rubber stamp when it comes to approving pipeline projects. They argue the agency does not do an adequate environmental review that includes regional and indirect impacts associated with natural gas production, and the cumulative effect of thousands of miles of new pipelines. FERC denies this, repeatedly saying their environmental reviews are rigorous and any impacts from natural gas production are not the result of pipeline construction.

Either way, some environmental attorneys say the deck is stacked against them when challenging FERC’s decisions. Although the federal Natural Gas Act requires the agency to issue a decision on appeals within 30 days, FERC can extend the deadline indefinitely by issuing what is called a “tolling order.”  In some recent cases, FERC issued its decision after the pipes were already in the ground with the gas flowing.

“[Tolling] orders are officially an “order granting rehearing for further consideration,” said Ryan Talbott, an attorney with the Allegheny Defense Project, “it’s totally Orwellian.”

Talbott’s organization has challenged FERC’s decisions on a number of natural gas infrastructure projects, including the Cove Point LNG export facility and the Columbia Gas Transmission’s Eastside Expansion project.

In the Cove Point LNG case, FERC rejected environmental appeals before construction was completed. Construction has continued while another environmental law firm, Earthjustice, has appealed the decision to the federal appeals court in D.C., which is still pending.

Workers prepare to lay a natural gas pipeline in Susquehanna County, Pa.

Kim Paynter / WHYY/Newsworks.org

Workers prepare to lay a natural gas pipeline in Susquehanna County, Pa.

But that hasn’t been the case with several pipeline projects. FERC approved Columbia’s pipeline upgrade in December, 2014. Construction soon got underway, and included two compressor stations and two sections of pipe in Chester County, Pa., and Gloucester County, NJ.

Talbott filed a request for rehearing on January 20, 2015, essentially an appeal to FERC’s decision. Meanwhile, construction on the pipeline was allowed to go forward. The Clean Air Council also appealed based on a number of environmental issues with pipeline construction, air quality surrounding new compressor stations, and the impact of increased natural gas production. The Clean Air Council also filed a stay on construction.

Hearing nothing from FERC after several months while pipeline construction went forward, the Clean Air Council sought relief from the federal court in Philadelphia. It has yet to hear from that court.

On October 2, Columbia Gas Transmission announced the expansion was completed and online. A week and a half later, FERC issued its order denying the appeals by both the Allegheny Defense Project and Clean Air Council, as well as the stay of construction sought by the Clean Air Council.

In the decision FERC explained why the agency does not consider gas production relevant to an environmental review.

“As we have previously concluded in natural gas infrastructure proceedings, the environmental effects resulting from natural gas production are generally neither caused by a proposed pipeline (or other natural gas infrastructure) project nor are they reasonably foreseeable consequences of our approval of an infrastructure project, as contemplated by the CEQ regulations.29 A causal relationship sufficient to warrant Commission analysis of the non-pipeline activity as an indirect impact would only exist if the proposed pipeline would transport new production from a specified production area and that production would not occur in the absence of the proposed pipeline.”

That denial was not a surprise to either party. But it is essentially a ticket for the appellant, in this case the Allegheny Defense Project or the Clean Air Council, to take their case up to the federal appeals courts. Talbott says it’s too late.

“When the pipe is in the ground, is the court going to order a pipe to be ripped up out of the ground?” asked Talbott. “No. Their strategy is to [allow pipeline construction] nonstop to facilitate fracking. There’s no downside as far as they’re concerned.”

Talbott says FERC is abusing its power and this is in effect a denial of due process.

“The point of due process is to provide a fair hearing before a deprivation occurs, not after,” wrote Talbott in an email.  ”If FERC is still “reviewing the record” during rehearing, it should not be allowing construction that impacts landowners and the environment to occur.  What possible legal or factual basis does FERC have for emphasizing the applicant’s “need” to start construction over the requirements of due process?”

But FERC says it often needs more than 30 days to assess an appeal, especially those that are very complex. And it says tolling orders are not based on the merits of the case, but insures the Commission has enough time to address the issues brought up in the appeal. FERC spokeswoman Tamara Young-Allen says decisions made after a project is completed do not deny due process.

“Due process is provided and is not precluded by the fact that a project has been constructed,” wrote Young-Allen in an email.  ”FERC issues an order, then, if challenged, issues, after thoroughly reviewing the record, an Order on Rehearing.  If an Order on Rehearing or a court decision requires a change to what the company has already done, the company must make the change.”

Young-Allen says even if that change means ripping up an installed pipeline, that’s what a company would have to do should FERC reverse its decision. But environmental lawyers say that’s unlikely.

Augusta Wilson is a staff attorney with the Clean Air Council, which sought a stay of construction with FERC on the Columbia Gas Transmission project in April. FERC’s rejection of that request came 12 days after the new pipeline started transporting natural gas.

“It leaves people who want to appeal pipeline projects with limited remedies,” said Wilson. “In almost every instance, when [FERC] gets the request, instead of issuing a substantive response within 30 days, they issue a tolling order. So they think about it indefinitely.”

Wilson says despite the rejection and the completed project, she’s still considering whether or not to take the issue up to the federal court, which could provide some relief.

“It’s possible there could be some mitigation put in place,” said Wilson. “There are certain aspects of FERC’s decision where we could argue there needs to be stronger environmental protections put in place.”

In August, Wilson had sought the intervention of the 3rd circuit court of appeals to push FERC to make a decision on the Eastside Expansion case. That court has not yet responded to the Council’s request. But she says the larger issue of FERC using tolling orders to delay decisions on appeals should be brought before the federal courts.

“We anticipate we will encounter this situation again,” said Wilson. “Given the fact that the projects continue to be built and by the time FERC takes action, they are already operating. That is essentially a rejection [of the appeal].”

But several federal appeals courts have ruled that tolling orders, which FERC uses to delay decisions on appeals, are constitutional and do not deny due process.

“There’s at least four circuit courts that have said what FERC is doing is fine,” said Carolyn Elefant, an attorney who represents landowners, municipalities and other groups impacted by pipelines. “The agency can take a long time to make a decision. Then the parties will ask for a stay [of construction]. And FERC always says no, there’s no irreparable harm. Basically what the court says is that if you can fix the problem through money it’s not irreparable harm.”

Elefant says as long as there is some kind of remedy, then there is no denial of due process.

“Even if it’s not a due process violation, it is ridiculous and it is unfair,” said Elefant. “There should be some kind of limit on how much time FERC takes to resolve these cases.”

Pipeline construction in Susquehanna county, Pa.

Susan Phillips / StateImpact Pennsylvania

Pipeline construction in Susquehanna county, Pa.

But she says that could only happen if Congress changes the Natural Gas Act, or FERC decides to speed up the process on its own. Elefant says in her experience FERC has been taking longer responding to appeals. And the agency does have the incentive to take a long time making sure their decisions will stand up to scrutiny by the federal courts.

“It’s hard for me to say this is intentional,” said Elefant. “I don’t think FERC is racing to put [these cases] up on the top of the pile.”

But a case challenged by the Delaware Riverkeeper did prevail in federal court last year, even after the project was built. It’s unclear what remedy, if any, FERC will pursue, but the D.C. circuit court found FERC violated the National Environmental Policy Act by not looking at the cumulative impacts of several sections of new pipeline.

“In the past, groups never had the resources and [landowners] weren’t getting involved as much,” said Elefant. “Now, environmental groups are much better organized, landowners are much more organized. And FERC wants to save their order. They want to bolster it.”

Talbott, from the Allegheny Defense Project, thinks something more sinister is at work. He says FERC is a captured agency, putting forth an agenda to get as many pipelines in the ground no matter what the cumulative impacts are to a region. And he links this to President Obama’s effort to cut carbon emissions from power plants.

“It’s all part of the Clean Power Plan that the EPA approved,” said Talbott. “Part of that involves a huge transition away from coal to natural gas. And if we’re doing that we are committing ourselves to fracking for decades. And we should have an honest conversation about that. FERC does not want to address the impacts. FERC ignores the broader cumulative effect of what happens all over the place.”

Comments

  • Ozzy Ezell

    Every time, the Greentard Tom Steyer fires up his private jet he should file a an environmental impact statement for the direct and indirect environmental costs.

    • stumptowngreen

      I didn’t realize flying a private jet was a federal action.

      • Ozzy Ezell

        Yes, it is ask the FFA. But Al Bore, Mike Doomberg and Tom Steyer should answer for the billions of pound of CO2 they spew in the air flying around the country warning of Globull Warming.

        • stumptowngreen

          So the FAA analyzes the environmental impacts of each privately flown aircraft before takeoff?

          • Ozzy Ezell

            They should, because the green Nazis want FERC to go outside the agencies’ statutory authority to take CO2 into account. Turnabout to rich flying Eco-loons is only fair play. Make them spend millions on silly ans stupid carbon footprint analysis, as they wish every one else to do.

          • stumptowngreen

            Way to elevate the conversation.

    • Sheila Bushkin-Bedient MD, MPH

      This video is accurate, powerful and even more frightening than even I had previously thought. The existing, known harms brought upon our citizens by the enormous magnitude of expansion of natural gas infrastructure (pipelines, compressor stations, metering stations, regulating stations and pigging facilities) proves the immediate dangers to human life and the environment . Even more frightening are the many longterm, irreversible (chronic) health effects, caused by exposure to infrastructure failures (erosion of equipment, leaks, explosions, and blowdowns. These health effects include, but are not limited to, neurotoxicity, adverse reproductive health in men and women (infertility, miscarriages, stillborns, low birth weight and prematurity), cardiotoxicity, respiratory conditions (COPD, asthma), cancers,stress symptoms including anxiety, depression, poor concentration at work and at school, learning disabilities, ADHD, and possibly autism, Additionally , exposure to toxins released from infrastructure facilities, threatens the health and productivity of livestock, poultry and fish in agricultural properties and waterways, thus threatening the quality of our food supply. I am certain that Governor Cuomo and his Public Health Commissioner, Dr. Zucker, do not want this type of adverse assault on the quality of life in the beautiful State of New York, to be the irreversible legacy of the Cuomo Administration.
      Governor Cuomo, please impose a ban on any further expansion of natural gas infrastructure in New York State.

  • Weep TheGreed

    While we can point out hypocrisy, the gas industry it using imminent domain to take land from citizens, poison the air with compressor stations and force families to live in “incineration zones” where kids grow up with a fear that at any time an accident can cause them to be incinerated. It doesn’t matter if you are on the Right or Left, this is a clear infringement of civil liberties. You can argue that fracking is needed (which is absurd) but at the very least, citizens should not have to be displaced or threatened with incineration for it to go forward. https://youtu.be/73kdjIbqS7A

    • http://flippetyfloppety.blogspot.com/ karen orlando

      This for example is just a wee fraction of what citizens involved in the FERC process are learning.

      I heard a great many things during the certificate process and some of the prefile process on the rockaway pipeline project. Too much of it was just made up by activists who were routinely in the news and who continue to be featured in the news. The amount of misinformation was staggering and it included everything from the projects location being altered, stakeholders concerns being altered or information from them buried, direction of gas flow reversed and it culminated in a conspiracy theory that continues to promoted to this very day. None of this was helpful in any way to actual local stakeholders involved in the ferc docket and some misinformation actually endangered them as they wrongly heard that smelling natural gas would be business as usual and normal instead of learning that
      this should not be a sign of normal operation and they ought to get on the phone to report that smell immediately.

      Stop pretending that the people commenting on your site aren’t dominating conversations about these projects sometimes to the detriment of other people and also the truth.

  • bill

    Seems like FERC works under the same rules as the Delaware River Basin Commission. Appeals? schmeals.

  • http://flippetyfloppety.blogspot.com/ karen orlando

    Susan your own publication along with other has published what is essentially a conspiracy theory about the Port Ambrose LNG import project produced in fact by some of the very same activists protesting FERC and environmental organizations and leaders that you use as sources. Some of these groups are in dockets and were in the rockaway pipeline docket actually getting in the way of real stakeholders in the FERC process itself which they are saying they have a problem with as your current article seems to state. Not just your news organization but plenty of others it seems are unable or unwilling to really investigate what is happening with pipelines and theFERC certificate process independent of activist groups. The Clean Air Council is in fact working with a group called the Sane Energy project which is responsible for total misinformation on a ferc docket and in fact the Clean Air Council has also promoted misinformation about the Rockaway pipeline project and its history on their own social media site. Multiple groups you use as sources are providing completely upside down and false information on the Port Ambrose LNG import project which is not with FERC but with a different federal agency right now and not just you but many reporters are unwilling to investigate this. Whether the FERC rehearing process needs to be changed or not I am talking about these organized groups getting in the way of citizens ability to just participate in the actual process as it currently exists itself.

    • stumptowngreen

      So you agree that the FERC rehearing process is a problem?

      • http://flippetyfloppety.blogspot.com/ karen orlando

        To get to a “rehearing” you have to first move through the whole process and have a decision made that you would like to then challenge presumably because you think FERC has made the wrong decision with their rubber stamp. The “rubber stamping” itself may involve a prefile period with public input on scoping and then the 7c filing, nepa etc and there may be route changes and alterations along the way. Is the big problem the “rehearing”? Let’s assume some natural gas pipelines will be built from this day moving forward. Is FERCs rehearing process something the public might put at the top of the list as a concern?

        • stumptowngreen

          “Let’s assume some natural gas pipelines will be built from this day moving forward. Is FERCs rehearing process something the public might put at the top of the list as a concern?”

          Yes. The Natural Gas Act requires FERC to “grant or deny” a request for rehearing within 30 days or else the request for rehearing is deemed denied by operation of law. 15 USC 717r(a). Knowing this, FERC issues a tolling order (or, as the article points out, and “order granting rehearing for further consideration”). That is inconsistent with the statute. The Natural Gas Act says FERC can “grant or deny” rehearing, period. The tolling order is essentially an order that delays FERC’s decision on rehearing indefinitely.

          Courts have, unfortunately, upheld FERC’s use of these orders in the past, but those cases dealt mostly with economic regulation (rate proceedings), not certificate proceedings where pipeline construction impacts landowners and the environment.

          There are numerous pipeline projects moving forward right now where parties have requested rehearing, FERC issued a tolling order and authorized construction to move forward. In several of these proceedings, the projects are complete or nearing completion and FERC has still not issued a final order on rehearing. It is a major problem when an agency abuses its statutory authority to block access to the courts.

          • http://flippetyfloppety.blogspot.com/ karen orlando

            It is your opinion that yes, the “rehearing” issue is important to the public. The article features lawyers making some hyperbolic statements not impacted people. Since I participated in a FERC docket I can tell you that a rehearing was not my first concern and a major problem in fact was organized activists and environmental groups who were misinforming me and others about both the project and FERC among a great number of other things.

            That there are numerous projects moving forward with rehearing requests doesn’t necesarily mean that much in terms of importantce as the antifracking movement has stated that this is part of their antifracking strategy..to stop pipelines and rehearing requests could be seen as a tactic in that sense. FYI I heard about this issue years ago. Would it be fair to say that a rehearing or some legal challenge after certificate is a long shot or last resort strategy and not likely to result in a project being stopped? Would it be fair then to say that even if you oppose a project siting it properly and participating in scoping or NEPA review is necessary and should be taken seriously and might be something the public should know?

            If we assume projects will be built from this day forward is there anything besides “rehearing”, something earlier in the process that could be improved?

          • stumptowngreen

            I’m not saying that participating throughout the certificate proceeding isn’t important. It’s incredibly important. But when you get to the end of the proceeding, if FERC is letting construction move forward, you should be able to file a petition for review in the court of appeals. But you cannot do that presently because of the tolling order, which FERC then sits on for months at a time (and sometimes up to a year).

            In the Constitution Pipeline proceeding, FERC issued the certificate in December 2014. A couple weeks later, the pipeline company commenced eminent domain proceedings against various landowners. In January 2015, FERC issued a tolling order, thus preventing any party who sought rehearing from seeking review of the underlying certificate order in the court of appeals. So landowners who are being sued by the pipeline company (based on the issuance of FERC’s certificate order) are unable to seek review of the validity of that certificate order. The FERC process is designed to elevate the pipeline company’s interest over everyone else’s.

            I challenge you to find another agency that operates like this. What other agency has an appeals process that blocks someone from seeking judicial relief while allowing the alleged harm to go forward? The remedy here is simple. If FERC needs more time to decide issues on rehearing, fine…just stay construction activities until it makes its decision on rehearing.

          • http://flippetyfloppety.blogspot.com/ karen orlando

            I wasn’t aware that any construction even was occurring with Constitution. Isn’t that gummed up by a DEC delay anyway?

            My hunch though is that there are too many rehearings. I mean essentially you are saying that FERC can’t figure out if a project is in the public convenience and necessity or not. Unless the whole process is botched it would be rare for a decision to be overturned I would think.

            Its hard to figure out exactly what you mean when you say the process puts the pipeline company’s interest over everyone else’s. That kind of flies in the face of “public” necessity and convenience. What I think is that there are people who will be inconvenienced by projects as if they are to be built that’s how it goes. Those people may feel understandably like their interests are the least important. I mean not everyone has a pipe through their yard right? Perhaps some people’s interest may not match up with another groups interest (for example perhaps a conservation group prefers a route that goes through your property.) So I’d suggest that the activists who are in multiple dockets keep those people in mind who may be most impacted by construction and/ or operation and allow them to gain whatever knowledge they need to negotiate terms of best location, mitigation, construction etc.

          • myshingle

            You are correct – construction has not proceeded on Constitution because the DEC permit has not yet issued. However, eminent domain has gone forward for most of the properties. I also agree that in many instances, landowners and directly impacted property owners get short shrift in the process. It is always a longshot to oppose a pipeline outright and since that relief is rarely granted, landowners need to make sure that the resulting pipeline certificate mitigates damages to individual property owners.

  • stumptowngreen
  • stumptowngreen

    Classic troll

  • melgoza

    LOL!! Funny as all get out! Keep it up!!

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