Category Archives: FERC

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.

Virginia Landowners File Constitutional Case Against FERC

Two press statements on January 3, 2020, one from Protect Our Water, Heritage Rights (POWHR) and the other from Gentry Locke attorneys, announced the filing by landowners of a constitutional challenge against FERC and Mountain Valley Pipeline under the federal non-delegation doctrine.

The POWHR statement says in part, “Plaintiffs have brought a facial constitutional challenge under three counts, alleging that any and all certificates already issued under the Natural Gas Act are void. Plaintiffs are seeking a declaratory judgment from the U.S. District Court in Washington, D.C., asking the Court to declare that Congress’s overly broad delegation of legislative powers to FERC was and is facially unconstitutional; that any delegation of eminent domain power to any and all private actors, including MVP, is facially unconstitutional; that FERC has no authority to issue certificates to applicants seeking to invoke the power of eminent domain to take property; and that all such certificates already issued are void ab initio.”

The Gentry Locke statement says, “The case centers around three constitutional principles involving delegations of Congressional power: 1. A broad delegation of power is unconstitutional; 2. Delegating delegated power is unconstitutional; 3. Delegating legislative power to a private entity is unconstitutional.”

The Gentry Locke statement continues:

“The Complaint is a facial constitutional challenge, which raises three Counts.

  • Count I is about an overly broad delegation of power by Congress to FERC. When it enacted the Natural Gas Act, Congress delegated to FERC the legislative power to decide who can exercise eminent domain without providing FERC with a test to use when making its decisions. Instead, Congress told FERC to make its own test. In doing so, Congress violated the non-delegation doctrine.
  • Counts II and III both involve delegations of eminent domain power to a private entity. Count II is premised on the idea that the power went from Congress to FERC and then to the private entity. This violates the prohibition on the sub-delegation of powers.
  • Alternatively, Count III is premised on a direct delegation from Congress to the private entity. Because eminent domain power is legislative in nature, it cannot be delegated directly to a private entity. This violates the private non-delegation doctrine. The private non-delegation doctrine says that Congress cannot delegate legislative power to a private entity. (“When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with ‘legislative Powers.’ Art. I, §1.”) (Alito, J., concurring).

As a result, Plaintiffs are seeking a declaratory judgment declaring that FERC has no authority to issue certificates and that all such certificates already issued are void.”

Russell Chisolm, Co-Chair of Protect Our Water, Heritage, Rights, commented, “We are encouraged that landowners may have a real opportunity for judicial consideration of their claims challenging the constitutionality of delegating Congressional powers to separate entities. The process as it stands has allowed FERC and private corporations to use the extraordinary power of eminent domain to seize property by force from landowners—a process that has continued even in the face of a multitude of missing permits, several pending lawsuits, and the absence of true public need for the Mountain Valley Pipeline.”

See Roanoke Times coverage of the filing here.

New Report on FERC Gas Pipeline Policy

The Natural Resources Defense Council (NRDC) announces a new report by Analysis Group, authored by renowned energy expert Dr. Susan Tierney. The report, FERC’s Certification of New Interstate Natural Gas Facilities: Revising the 1999 Policy Statement for 21st Century Conditions, outlines many of the key calls for action found in the thousands of comments filed in summer 2018 with FERC regarding its gas pipeline reviews. FERC’s January 2018 decision to reconsider its 20-year-old policy guiding its pipeline reviews was a major victory, but the docket has largely been shelved since comments were filed, despite the plethora of great ideas contained therein. In conjunction with the report’s release, Dr. Tierney also authored an op-ed in Utility Dive.

The report recommends that FERC adopt and implement numerous changes, including:

  • Incorporating an “all relevant factors approach” to determine pipeline need
  • Ensuring fairness and due process for landowners
  • Conducting a robust environmental review
  • Prioritizing accuracy over speed

Averitt is Panel Member at FERC Forum

Nelson’s Richard Averitt was at the Envision Forum hosted by the University of Kentucky Center for Applied Energy Research and FERC on October 20-21, 2019. He was there along with a couple hundred energy company execs and government policy makers, and was asked to sit on a panel as the only landowner voice.

The gas industry media outlet, Natural Gas Intel, quoted some of Richard’s comments: “‘I think there’s a very serious question about whether eminent domain should ever be used to produce a for-profit export project. I think that’s inconsistent with our beliefs around property rights, but particularly when you look at how the courts have extended the right to eminent domain to include preliminary injunctions, or ‘quick take,’ that collapses on landowners to be an absolute destruction of your right to due process…. The idea that eminent domain is only used as a last resort is a false narrative from a landowner’s perspective. It is used in every pipeline case if it’s on the table. Because when you sit down at the negotiating table, one of the two parties can walk away with virtually no negative impact, and the other one loses everything they care about.’

“In addition, conditional permits issued by the Federal Energy Regulatory Commission leave landowners powerless, Averitt said. Such permits allow companies to seize land and prepare it for pipeline construction, often destroying farmland even if the project never comes to fruition, he said. ‘To enable the taking of private citizen’s land and the destruction of that land at a time when those permits are still in question is unconscionable…that’s not an appropriate due process.'”

Richard thanks fellow landowner supporters Ron Evans and Mayor Kristin McLaughlin, with special thanks to Megan Gibson and Niskanen for getting them in the room.

And we thank Richard for so ably and articulately representing landowners!

Here are YouTube links for Richards comments and to the full panel discussion:

To download all of the above, click here.

Read the full Natural Gas Intel article here.

Legal Challenge to FERC Certificate Put on Hold

From The Allegheny-Blue Ridge Alliance’s ABRA Update #248, October 10, 2019

Consideration of legal challenges to the certificate issued in December 2017 by the Federal Energy Regulatory Commission for construction of the Atlantic Coast Pipeline (ACP), which was to be argued before the DC Circuit Court of Appeals on October 16, has been deferred. The case before the Court consolidates several cases, including the challenge brought by several ABRA members asking that the FERC certificate for the ACP be invalidated. The Order deferring the argument of the case, issued by the DC Circuit late on October 4, explained that the reason for delaying the scheduled argument was the U.S. Supreme Court’s decision announced earlier that day to accept for argument United States Forest Service v. Cowpasture River Preservation Association case, in which the Fourth Circuit Court of Appeals decided that the Forest Service did not have the authority to grant the ACP the right to cross the Appalachian Scenic National Trail.

The DC Circuit will decide when to reschedule consideration of the FERC challenge after the Supreme Court hands down a decision on the Cowpasture case. No date has yet been set by the Supreme Court for the Cowpasture case to be argued, but it is believed that will occur sometime in February or March 2020, with a decision being made before the end of June. Initial briefs by parties in the Cowpasture case are to be filed with the Supreme Court by December 19.

In the meantime, construction on the ACP is still suspended as the company awaits issuance by the U.S. Fish and Wildlife Service (FWS) of a new biological opinion for the project, which is expected to occur sometime in coming weeks. The Southern Environmental Law Center submitted to FWS on October 1 an 88-page submission to the agency on how it should consider rewriting the new biological opinion, noting:

  • As the agency well knows, this is the second time its approvals for this project have been vacated. Both vacaturs followed rushed, incomplete analysis unsupported by best available science. We urge the agency to resist pressure from the pipeline companies to fast-track yet another approval for this unnecessary project and to instead heed its mandate under the Endangered Species Act (“ESA”) to protect and conserve endangered and threatened species and their habitats. That requires avoiding inflicting further harm on species where that injury may jeopardize the species, as it would here for rusty-patched bumble bee, clubshell, and Roanoke logperch.
  • In the year since the agency issued its last biological opinion and incidental take statement, facts regarding the impact of constructing this pipeline on protected species have changed. The agency must take these changes into account to issue a valid approval for this project. If the agency again seeks to expedite approvals, we are concerned these changes will be ignored. Therefore, on behalf of Defenders of Wildlife, Sierra Club, and the Virginia Wilderness Committee, we request that the agency consider the following in its re-evaluation of the pipeline.