Category Archives: FERC

Pandemic Impacts Agencies and Courts Dealing with Pipeline Issue

From Allegheny-Blue Ridge Alliance ABRA Update #268, March 19, 2020:

The COVID-19 pandemic is having a decisive impact on the activities of regulatory agencies and courts who have jurisdiction over pipeline issues. Within the last few days, the following has occurred:

  • The DC Circuit Court of Appeals indefinitely suspended in-person oral arguments. The Court was scheduled to hear on March 31 for a major case challenging the tolling order policy of the Federal Energy Regulatory Commission (FERC’s policy of delaying the consideration of appeals of its decisions). The Court will decide on a case-by-case basis whether to hear cases by teleconference, postpone arguments or decide cases based on briefs alone.
  • The Federal Energy Regulatory Commission has cancelled its scheduled March 19 meeting and FERC staff began working from home, effective March 16. FERC offices are closed to outside visitors. The next scheduled Commission meeting is April 16. It is uncertain at this time whether that meeting will occur.
  • The Virginia Department of Environmental Quality announced this week it is suspending routine field activities, including inspections and monitoring, for the next two weeks, though it will continue to “investigate significant pipeline concerns” during that period.
  • The Virginia State Air Pollution Control Board will not hold a Spring meeting. The Board had not yet scheduled the meeting. Whenever the Board next meets a primary agenda item will likely be what to do about the air permit for the Buckingham compressor station for the Atlantic Coast Pipeline, which was vacated in January by the Fourth Circuit Court of Appeals

Senate Confirms Danly as FERC Commissioner

On October 2, 2019, The Washington Post reported that Trump had broken with tradition by tapping only a Republican for a vacancy as a Commissioner on the Federal Energy Regulatory Commission (FERC). “President Trump finally chose a new Republican commissioner for a key panel of federal energy regulators. But he did so without naming a Democrat to go with him, setting off a potential battle with Senate Democrats over the future of renewable energy and gas pipeline projects across the country. …. [T]he White House announced the president intends to nominate James Danly to be a commissioner on the Federal Energy Regulatory Commission. Danly, a Republican, currently serves as the panel’s general counsel and would fill a vacancy left by the death in January of former FERC chairman Kevin J. McIntyre. If confirmed by the Senate, Danly would serve until 2023. But Trump’s White House broke with decades-old tradition by not nominating a Democrat along with Danly, provoking the ire of Senate Democrats who charge Trump with potentially tilting the balance of the normally bipartisan commission.”

Now, on March 4, 2020, Utility Dive reports that “The Senate Energy and Natural Resources Committee voted 12-8 to confirm James Danly to FERC, giving the now-four person commission a 3-1 Republican majority. Commissioner Bernard McNamee announced in January he would not be seeking a second term on commission, meaning a new spot could be open as soon as June. …. Manchin [Sen. Joe Manchin, D-W.Va.], who serves as ENR Ranking Member, voted in favor of the nomination, but said he would not do so if the situation arose again. ‘I made a commitment to Danly before because I thought he was well-qualified,’ he told Sen. Angus King, I-Maine, who expressed his frustrations immediately after the vote. ‘But I will make this commitment to you. If we do not get a pairing when McNamee comes off … I’ll make my statement known: If we don’t get a pairing we’re not voting.'”

Investigation Launched into Energy Company Use of Eminent Domain

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.

Commissioner McNamee to leave FERC

In a statement issued on January 23, 2019, Federal Energy Regulatory Commission member Bernard McNamee announced that he would not seek reappointment as Commissioner at the end of his term on June 30, 2020.

A former partner in the Richmond law firm of McGuireWoods, McNamee was appointed to FERC in December 2018 to fill the remainder of the term of Commissioner Ron Powelson, who resigned to become CEO of the National Association of Water Companies. While authorized for five commissioners, FERC currently has only three, the minimum number required for a quorum. If no replacement is confirmed before McNamee’s departure, FERC would have no quorum to enable it to act, although McNamee has said he would stay on after his term ends if his departure would leave FERC with no quorum. The Trump Administration has not yet appointed replacements for former commissioners Kevin McIntrye, who died in January 2019, and Cheryl LaFleur, whose term ended last summer.

SELC Asks FERC to Formally Halt ACP

Following the 4th District Court’s January 7, 2020 ruling vacating the Clean Air Act permit for the Buckingham compressor station issued by the Virginia State Air Pollution Control Board, the Southern Environmental Law Center wrote on January 14, 2020, to the Federal Energy Regulatory Commission asking that they formally “issue an order halting all construction of the ACP.”

The letter says, “Allowing continued construction would violate the condition of the Commission’s certificate of public convenience and necessity requiring that Atlantic Coast Pipeline, LLC (“Atlantic”) obtain all applicable authorizations required under federal law before commencing construction. The Commission cannot merely rely on Atlantic’s temporary work stoppage to address this issue. It should issue a stop-work order. ”

Noting that the certificate order mandates that the ACP must have all required authorizations before it can “receive written authorization” to start construction, the SELC letter states, ” At this time, the ACP is a largely unpermitted pipeline—it is missing eight required authorizations.”  The letter lists the missing eight authorizations.

Read the full letter here.