DELAWARE RIVER WATERSHED — Maya K. van Rossum has been the Delaware Riverkeeper and head of the Delaware Riverkeeper Network (DRN) for more than 20 years. In recent years, she and her team of about 20 have been kept busy in the battle against natural gas pipelines and fracking, and have earned some precedent-setting victories along the way.

The focus of the DRN is the Delaware River watershed, but they take action in any part of the four states that are adjacent to the river, or at the federal level if the issue in question would have an impact on DNR’s ability to protect the river.

The River Reporter conducted a wide-ranging interview with van Rossum on June 3, and she talked about some of the important legal battles DRN is involved with.

A few days before the interview, a judge in Western Pennsylvania dismissed a “strategic lawsuit against public participation” (SLAPP) lawsuit against DNR and other parties. Van Rossum said that victory was preceded by another victory related to the Pennsylvania State Constitution.

She said, “The litigation we brought [against the Gov. Tom Corbett] was responsible for giving substantive force and effect to Pennsylvania’s constitutional right to a healthy environment… We were the ones that brought that argument to the table for our team of towns and our organization. Up until that lawsuit, the environmental rights amendment of Pennsylvania’s constitution was simply looked at as a pretty statement of policy, but it was never given legal force and effect. As a result of our legal challenge to the pro-drilling legislation called ACT 13, now suddenly the constitutional right to a healthy environment was legally meaningful.” DRN joined seven PA municipalities in the suit, and other local activist groups including Damascus Citizens for Sustainability participated in an amicus brief filed by Earthjustice in the proceeding.

Pennsylvania’s constitution says, “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

The Federal Energy Regulatory Commission (FERC) has been a frequent target of DRN’s legal actions, and van Rossum will tell anyone who cares to listen that until very recently, FERC had a record of approving 100% of the pipeline projects that came before the commission. The one time the commissioners rejected a project came just days after DNR filed another lawsuit.

van Rossum said, “We had demonstrated that FERC had a 100% approval rate for all the pipeline projects that went up before the commissioners. So any time a natural gas pipeline project went before the commissioners of FERC, they always, without exception, said 'yes.'

“And we were, through a lot of our research, documenting the many ways that FERC was biased towards the industry… and how they were abusing their power to overstep the state in terms of permit decision-making... how they were undermining and disenfranchising the rights of people to challenge their decisions before they allowed pipeline projects to go into construction, and how this bias was likely fueled by the fact that FERC was 100% funded by the industry that it regulates.”

She said that, when you add those observations to the fact that FERC approvals preempt all state and local laws, and that FERC has the authority to grant eminent domain authority to private industry, it’s a system that can be easily abused.

She said, “We have made a very strong case that the FERC pipeline approval process is a violation of the Fifth Amendment of the federal Constitution.”

“We brought a legal action about two months ago that makes that case, in which we brought all of this evidence, and there was a lot of press attention and FERC was unable to disprove it, and suddenly 10 days later FERC disapproved that pipeline and LNG facility, [Jordan Cove Liquid Natural Gas Export Terminal and Pacific Connector Pipeline.]

van Rossum continued, “And in fact they used as part of their rationale a discussion of the issue of segmentation, and whether they were pulling projects apart and looking at them piecemeal for purposes of decision making, which is why their decision was for the export facility and the pipeline together.

“That element of their rationalization was based on a legal victory that we had against FERC in 2014 on the issue of segmentation.

“So when you put the legal success and the legal foundation together, both of them seem to create the foundation from which the decision came. But even though they denied that project some six weeks ago, that means that FERC has denied one pipeline project in 30 years. That does nothing to change the fact they they’re a rubber stamp.”

She spent a lot of time explaining the way FERC and its commissioners operate. She said, “They engage in illegal and manipulative behavior. Illegal when it comes to the state, where FERC will grant approvals to pipeline companies, allow them to actually go to construction before states have their say over whether or not the state gives their Clean Water Act approval to a pipeline. And under the federal law it’s very clear that the state is supposed to go first; FERC is not allowed to leapfrog over the state.

“When it comes to people, FERC uses a legal loophole that puts people in a state of legal limbo, that prevents them from filing a legal challenge to a FERC approval for a pipeline and will leave them in that legal limbo—we’ve been left in that legal limbo for over a year—and during the course of that year, FERC will allow that very same pipeline project to actually go into construction. So by the time we are able to go into court and challenge their approval, it’s pretty much too late.

“If you look at our 2014 legal victory, that was regarding the Northeast Upgrade Project that went through Wayne and Pike counties, and across the river and into Sussex County, NJ. We won that major national precedent-setting victory, but by the time we won, and the court said to FERC, ‘you violated the law, you have to go back and reconsider this project as a whole,’ the project was built and in operation.

“And that was the result of that legal loophole FERC uses to prevent challenges."

Asked about what was needed to change the way FERC operates, she said, “Two things could change FERC, absolutely in the courts. We have three or four cases in the courts against FERC. Even if we win them all, it may result in incremental change at FERC, but they’re not going to result in the kind of wholesale change that is necessary. That’s only going to happen if we win our federal case saying that they’re violating the Fifth Amendment of the Constitution in how they review and approve these projects”.

She said another way to change FERC is with federal Congressional action, which seems very unlikely to happen anytime soon. In the meantime, she said, “We’re trying to get someone in the House or the Senate to champion our request, which is a request from 250 organizations from across the nation, that the government accountability office do an investigation into FERC and the pipeline approval office."

She said various members of Congress have raised important questions about FERC, but none have so far agreed to ask for this investigation.

Asked about how the Fifth Amendment fits into their lawsuit she said, “The Fifth Amendment is about having a taking without due process. Case law says there can’t be bias or the appearance of bias [in a taking.] In the case of FERC, we have demonstrated bias that is supported by this funding mechanism that has them 100% of funded by the industry.... And at the end of the process, it gives the power of eminent domain to industry. So when you weave it together—and it’s dependent on both the language of the Constitution and the language of all these court opinions that have evolved over the years—but when you have such a demonstrably biased process associated with that results in the taking of people’s property, right to public lands and the right to enjoy the environment, it’s a violation of the Fifth Amendment."