WASHINGTON, DC — The Federal Energy Regulatory Commission (FERC), the agency that approves pipelines and other gas and oil infrastructure projects, is the the subject of a federal lawsuit filed on …
WASHINGTON, DC — The Federal Energy Regulatory Commission (FERC), the agency that approves pipelines and other gas and oil infrastructure projects, is the the subject of a federal lawsuit filed on March 2 by the Delaware Riverkeeper Network (DRN.)
The suit alleges that FERC’s process for approving projects is “infected by structural bias, violating due process rights in violation of the Fifth Amendment of the U.S. Constitution.” DRN for some time has alleged that FERC is biased in favor of energy companies and against those who may oppose energy funding because FERC receives its entire operating budget through fees paid by companies who routinely seek permits from FERC.
DRN said in a press release that it is seeking changes to the way FERC is funded and other changes “to make it accountable and consistent with democratic governance.”
FERC has jurisdiction over Millennium Pipeline’s Eastern System Upgrade Project in the Upper Delaware Valley, which includes the expansion of a compressor station in Hancock, and a new compressor station near Eldred.
With the proliferation of gas wells in the Marcellus Shale in Pennsylvania, numerous new pipeline and upgrade projects are in the works. They are meant to carry the gas to points east toward New York City and its suburbs, as well as some that could be used to ship gas overseas in the form of liquid natural gas (LNG).
The press release from DRN specifically mentions the PennEast Pipeline that would begin in Luzerne County, PA and end in Mercer County, NJ, which has generated strong opposition. DNR writes, “As proposed, PennEast will disturb over 2,400 acres of land, convert over 400 acres of forested land to open land, cross 234 water bodies, and impact over 55 acres of wetlands. The PennEast Pipeline would have immense impact on thousands of Americans because of FERC’s approval process, which grants the power of eminent domain and bypasses all state and local regulations.
“Due process requires that an adjudicative agency be neutral in its decision-making process,” the suit argues. “Moreover, the Constitution not only mandates that adjudicative proceedings be free of actual bias—the Constitution also forbids the mere appearance of bias in adjudications. Since FERC is responsible for approving projects to generate all of its budgetary income, with the natural gas pipeline program being a substantial portion of its overall budget, FERC faces a conflict of interest, resulting in bias toward approving natural gas pipeline projects and impermissibly favoring pipeline company interests.”
In the past, FERC has approved two to four new pipelines a year in Pennsylvania. Because of the gas boom in the state, in the past four years, FERC has granted approval to 34 new pipelines in Pennsylvania. Once FERC has approved a project, the company has the authority to take the private land needed for the project by eminent domain, so while the landowner may try to negotiate the best price for the land, he or she can’t stop the process from going forward.
FERC decisions are not reviewed by Congress or the executive branch, but can only be opposed in court. Since 1986 FERC has approved every project submitted to it. FERC has not responded to inquiries from reporters about the lawsuit.