Eminent domain for energy projects could be on its way out.

From Sierra. Reformers Set Sights on Corporate Land Grabs for Energy Projects. February 22, 2021. 

Williams Companies Inc. used the power of eminent domain to obtain an easement for a gas pipeline it wanted to build across private property in Susquehanna County, Pennsylvania. Even though it didn’t have all of its paperwork in order, Williams Companies’ construction crews proceeded to cut down 90 percent of the family’s maple-syrup-producing trees, some of them over 200 years old. The damage done to the maple-syrup operation was a complete waste as Williams later announced it was abandoning the pipeline. “To FERC, the destruction of the Holleran’s maple business is just collateral damage for their real job, which is facilitating whatever the pipeline companies want to do,” said Representative Jamie Raskin, a Democrat from Maryland, during a December 2020 virtual House hearing titled “Pipelines Over People: How FERC Tramples Landowner Rights in Natural Gas Projects.”

Among its many other responsibilities, FERC is charged with regulating interstate energy projects, including gas pipelines. During the past few years, protracted pipeline battles such as the fights over the Mountain Valley, and Atlantic Coast Pipelines, to name a few—have aimed a new light on the agency and its practices. Now, landowner rights groups and lawmakers from across the country are calling for change.

Raskin’s December hearing builds on an investigation his subcommittee launched early last year looking into FERC’s treatment of landowners. The numbers from the subcommittee’s report are damning: In the past 20 years, FERC has granted 1,021 certificates but rejected just six—an approval rate over 99 percent. In that same period, FERC did not grant a single appeal from a landowner. The report also called out FERC’s routine use of “tolling orders,” which effectively block a landowner from appealing a project by delaying the agency’s response, sometimes for months. Meanwhile, pipeline companies can initiate work even without final approval.

Groups opposing the ACP and other pipelines have challenged FERC’s practices and called for changes to the Natural Gas Act to level the playing field for landowners. Now the House Subcommittee on Civil Rights and Civil Liberties, which Raskin chairs, is working in parallel to a host of other efforts to reform FERC.

Lawmakers on both coasts have introduced bills aimed at leveling the playing field for landowners. Virginia Senators Mark Warner and Tim Kaine, both Democrats, have introduced the Pipeline Fairness, Transparency, and Responsible Development Act of 2020. Oregon’s two Democratic Senators, Ron Wyden and Jeff Merkley, have each proposed legislation to reform FERC’s processes. All three bills have been referred to the Committee on Commerce, Science, and Transportation.

Glick, the new chair of FERC under the Biden administration, has regularly dissented from decisions that pushed forward pipeline and liquefied natural gas (LNG) terminal projects, often citing his colleagues’ failure to consider the full climate impacts of projects and advocating for landowner rights.

Changes were afoot at FERC even before Joe Biden took office. On December 27, an omnibus spending bill funded FERC’s long-awaited Office of Public Participation. The new office will give environmental justice groups a voice in FERC proceedings and ensure those who can’t afford legal representation can participate.