Related news stories from the past few days:
- 5-27-20 E&E News. ‘Quick take’ wars rage in Blast Zone with no end in sight.
- 5-27-20 E&E Energywire. House Dems propose boost for landowners in FERC disputes.
Related news stories from the past few days:
If you were not able to listen to the oral arguments before the D.C. Circuit Court of Appeals on Monday, April 27, 2020, on “tolling orders,” the long-standing practice of the Federal Energy Regulatory Commission (FERC) to delay making decisions on appeals of its rulings, the audio is available here [all 3.5 hours of it!]. In a first for the court, the arguments were presented via telephone before all of the 11 active judges on the D.C. Circuit. The case, Allegheny Defense project v. FERC, had initially been decided 2-1 last August in FERC’s favor by a three-judge panel of the court, but a stinging dissent by Judge Patricia Millet led to the full court to hear the case.
According to Allegheny-Blue Ridge Alliance’s ABRA Update 274, “During the course of Monday’s session, several judges expressed skepticism about FERC’s tolling order policy, which effectively permits a project to proceed in taking property through eminent domain and completing a pipeline before affected parties, including landowners, receive a decision on their appeal of the project’s certificate and, if denied, proceed to appeal it in court. It was not clear, though, what decision the DC Circuit might make in the case. In an amicus brief filed by the Southern Environmental Law Center, Earthjustice, Natural Resources Defense Council and the Chesapeake Bay Foundation on behalf of several ABRA members and numerous affected landowners argued that FERC habitually tolls requests for rehearing in such a way that a timely judicial review is precluded. The brief goes on to note that the practice is inconsistent with the Supreme Court’s evaluation of Access-to-Justice Principles.”
See related story below, FERC Process Skewed Against Landowners.
On April 28, 2020, the Subcommittee on Civil Rights and Civil Liberties of the House Committee on Oversight and Reform released preliminary investigative findings showing that the natural gas pipeline approval process used by the Federal Energy Regulatory Commission (FERC) unjustly tramples on the rights of private landowners.
The Subcommittee released a video report outlining its preliminary findings and interviewing landowners Richard Averitt and Maury Johnson, who have battled FERC and pipeline companies to protect their land, and Carolyn Elefant, a lawyer and expert in FERC issues.
In a press release, Subcommittee Chairman Jamie Raskin said, “The deck is totally stacked against landowners who want to defend their family’s land against takeover by private natural gas companies It’s not a fair process. FERC habitually delays its administrative duties to respond to landowner requests so long that those landowners have no opportunity to have their voices heard. By the time they have the chance to speak up, their land has already been invaded and in some cases destroyed.”
The press release states, “The Subcommittee’s investigation found that in the last twelve years, FERC issued a tolling order to every single landowner who requested a rehearing. In every single case, FERC eventually denied the request. On average, 212 days—about seven months—passed between the time a landowner made a request for rehearing and when FERC ultimately denied it. While those cases are tolled, the eminent domain cases can continue, landowners can lose their property rights, and pipeline companies can destroy their land.”
“Thank you for reaching out to my office regarding the Atlantic Coast Pipeline. It is an honor to represent the people of Virginia’s Fifth Congressional District, and I appreciate the opportunity to learn your thoughts on this issue. As an avid outdoorsman, and landowner of an area within proposed pipeline construction, this issue is of top concern to me.
“The Atlantic Coast Pipeline is a natural gas pipeline intended to provide energy and heating to thousands of residents in the lower part of the 5th District all the way into North Carolina. While the pipeline would provide many benefits to the district, it would also cross hundreds of miles of private property and National Park land. Personal property must be adequately compensated under eminent domain, and only enacted when necessary. I also do not believe the concerns of private citizens have been adequately addressed during the construction process, especially concerns relating to imminent [sic] domain and quick takes. For these reasons, I do not believe the increased energy provided by this pipeline would outweigh the numerous property rights issues it would cause.
“I hope that you and other Virginians will continue to share with me on these important issues as citizen participation is vital for a transparent and functional government. Thank you for your dedication to preserving this nation’s representative institutions….”
Member of Congress
The Committee on Oversight and Reform is the main investigative committee in the U.S. House of Representatives. It has authority to investigate the subjects within the Committee’s legislative jurisdiction as well as “any matter” within the jurisdiction of the other standing House Committees.
In a press release on February 19, 2020, the Oversight Committee’s Subcommittee on Civil Rights and Civil Liberties the announced the launch of an investigation into use of eminent domain by energy companies. The press release says:
Rep. Jamie Raskin, the Chairman of the Subcommittee on Civil Rights and Civil Liberties, sent a letter to the Federal Energy Regulatory Commission (FERC) about the use of eminent domain in the construction of natural gas pipelines. FERC routinely grants pipeline companies a “certificate of public convenience and necessity,” allowing them to take possession of private land under the right of eminent domain.
“The Due Process Clause of the Fifth Amendment states: ‘No person shall be deprived of life, liberty, or property, without due process of law,’” wrote Chairman Raskin. “The Subcommittee is concerned that FERC’s process for handling challenges to pipeline construction, and its allowance of some construction-related activity before all state requirements have been met, denies individual landowners a meaningful opportunity to be heard before irrevocable harm is done to their property.”
“I fully support Chairman Raskin’s investigation into the FERC allowing private energy companies to assert eminent domain,” said Committee on Oversight and Reform Chairwoman Carolyn B. Maloney. “FERC may be prioritizing the desires of energy companies over the constitutional rights of hard-working Americans, potentially causing irreparable harm to their private property.”
FERC often grants certificates before companies receive permits from other federal and state agencies that are necessary for pipeline construction. Federal courts routinely grant preliminary injunctions that give companies immediate possession to rights-of-way across private land, long before construction begins.
“Though construction cannot begin until companies receive all their permits, FERC authorizes these companies to start preparing the rights-of-way through non-mechanized tree felling and other preparatory activities,” continued Chairman Raskin. “One particularly egregious example of this was the destruction of half of the 200 year-old trees that made up a maple syrup farm in New Milford Township in March 2016 for the Constitution pipeline, which still has yet to be built.”
Landowners are effectively barred from challenging these injunctions, because they must first exhaust their administrative remedies by appealing to FERC. Even though a resolution to the appeal within 30 days is mandated, FERC reportedly reflexively grants “tolling orders” to extend the appeal review time by months. While landowners await FERC’s review, FERC has issued orders authorizing pipeline construction to begin.
The letter requested documents and information related to this investigation by March 3, 2020.
Click here to read the letter sent to FERC Chair Neil Chatterjee.
A year ago Sebastian Mlynarski and two others from NY came and interviewed property rights activists and Atlantic Coast Pipeline opponents — Richard Averitt, the Limberts and Union Hill residents among others — about the injustice to landowners on the route of the proposed Atlantic Coast Pipeline.
Click here for the 6 minute video, This Land Is My Land, directed by Sebastian Mlynarski and Rachel Fleit, who hope to produce a feature-length documentary.