Lawsuit claims FERC is just rubber stamp for pipelines

By Joe Mahoney Staff Writer 

Mar 7, 2016

Many local landowners who've resisted eminent domain power handed to the Constitution Pipeline company have been left angry not only with the natural gas industry but also with the federal agency that regulates interstate transmission projects.


The argument that the pipeline review process is a stacked deck favoring the gas shippers has become a familiar refrain from those who attempted to keep the gas infrastructure off their land. 

But the Federal Energy Regulatory Commission's process for reviewing and approving pipeline projects is facing a federal lawsuit that aims to establish what pipeline foes say would be a more-level playing field in how such applications are evaluated.

The lawsuit, filed by the Delaware Riverkeeper Network, argues that FERC is too intertwined with the industry it regulates to make it capable of making fair decisions, and is infected with so much structural bias that the constitutional right of due process is being violated.

The group argues that FERC is unique among federal agencies because it recovers the full cost of its operations through fees assessed on the industry it monitors.

Maya van Rossum,, the leader of Delaware Riverkeeper Network, said FERC has approved 100 percent of the pipeline projects it has considered since 1986.

"Whenever a pipeline project is proposed, unless the company itself pulls it back, FERC approval is a foregone conclusion," van Rossum told The Daily Star on Monday.

She said FERC benefits from the industry it regulates, and has evolved into a "corrupt, rogue agency" as it derives it funding from the industry it regulates.

The lawsuit was filed last week in the U.S. District Court in the District of Columbia.

Tamara Young-Allen, a FERC spokeswoman, declined to comment on the allegations made against her agency in the lawsuit, noting the matter is in litigation. Citing the same litigation, Young-Allen also declined to say if FERC has ever voted down a gas pipeline application.

While the lawsuit mentions neither the Constitution Pipeline nor the Northeast Energy Direct projects that have triggered protests from local anti-fracking groups, van Rossum said the Riverkeeper Network case, if successful, would have far-reaching consequences that would lead to greater fairness when pipelines are reviewed.

Arguments of due process violation by FERC are also at the center of litigation brought by Stop the Pipeline, a local grassroots organization seeking to derail the Constitution Pipeline, in the Second Circuit Court of Appeals.

Anne Marie Garti, an environmental lawyer from East Meredith who helped prepare the lawsuit for the Pace Environmental Litigation Clinic, said FERC "has not been letting people challenge the validity of the FERC certificate (for Constitution) while the pipeline company has been taking people's land. That is a huge due-process violation."

On Monday, the Second Circuit consolidated the lawsuit brought by Pace with one brought by Earthjustice on behalf of Catskill Mountainkeeper, which has made similar allegations about the FERC process.

The case will now be referred to as Catskill Mountainkeeper v. FERC, Garti said.

FERC, an outgrowth of the Federal Power Commission, has been existence since 1977. But as hydraulic fracturing has increased over the past decade and environmental groups have sprang up to fight the controversial practice, FERC and its decisions have become a major focus of those opponents.

In January, Delaware Riverkeeper Network petitioned the Government Accountability Office to undertake an investigation into FERC's operations. The GAO has not yet responded to the request.

Meanwhile, some 30 groups are pressing FERC to establish and fund an Office of Public Participation. The groups point out that while state utility commissions often fund advocates representing the interests of consumers, there is no such counterpart at FERC.

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