by guest blogger Maya K. van Rossum, the Delaware Riverkeeper
The Federal Energy Regulatory Commission (FERC) has been “captured” by the very industries it is supposed to regulate—particularly pipeline companies. It’s an agency that has become so entangled with industry that it’s now violating the constitutional rights of communities and families across the nation.
Sound unfairly harsh? Well, remember that the United States Constitution requires that federal government agencies like FERC be neutral in the decisions they make. In fact, James Madison’s sacred document declares that they must be free not just from actual bias, but even from the mere appearance of bias. FERC fails both tests. Here’s why: Alone among independent executive agencies of government with this level of adjudicatory authority, FERC receives full funding from the companies it regulates. That’s like having a basketball referee be paid his salary by one of the teams in the game. No wonder FERC keeps giving slam-dunks to pipeline companies.
- FERC regularly uses a legal loophole that prevents individuals and environmental and community-protection organizations from being able to challenge pipeline projects before the agency allows them to go into construction;
- FERC approves pipeline projects, even allowing them to begin construction, before the states have determined whether they will grant Clean Water Act approvals entrusted into their authority—this despite the law that the state determination must come first;
- FERC allows pipelines to begin construction before federal wetland permits have been granted, thereby undermining their ability to protect natural resources and communities; and
- When pipeline companies are caught violating environmental and community protection laws, without exception, FERC fails to issue penalties as a deterrent to future violations or issue stop-work orders to ensure pollution concerns are addressed before construction is allowed to continue.
And the list goes on.
On March 2nd, in response to this lengthy track record of partiality, the Delaware Riverkeeper Network filed a lawsuit to challenge FERC’s violation of the U.S. Constitution’s Fifth Amendment, which guarantees due process before the U.S. government can take a life, liberty, or property interest.
Until the lawsuit was filed, FERC’s commissioners’ approval rating for pipeline projects presented to them for review was an incredible 100 percent. A week after the filing—for the first time since it became self-funding—FERC denied a pipeline project. It would seem the obvious violations of law, policy, and constitutional rights so clearly laid out for public display in our lawsuit sparked embarrassment and action by FERC.
Does this mean we can expect a change at FERC? Unfortunately, no. The action doesn’t change the underlying problems with the commission’s unconstitutional funding structure. It simply offers cover for FERC to claim it is not a rubber stamp for the industry it oversees. But a stamp made of 99 percent rubber is still a rubber stamp.
FERC’s seal of approval grants pipelines the power of “eminent domain,” which is the legal authority to confiscate private property. FERC can force people to live next to pipelines and compressor stations, which pollute the air, causing harm to human health and millions in property damage. Pipelines are granted authority to cut through public parks and preserved forests, undermining the hundreds of millions in taxpayer dollars and private donations committed to save these precious lands for present and future generations. Pipelines are authorized that cut through farmlands and businesses of all kind, even though the lines undermine—and in some cases destroy—the economic success and viability of the business operations of the land owners.
The Delaware Riverkeeper Network’s legal challenge is paralleled by an effort of nearly 250 organizations asking Congress to empower the Government Accountability Office to conduct an independent investigation into FERC. No champion in Congress has yet come to the fore. That’s disappointing because many members have spoken out against the pipelines barreling through the FERC process and cutting through hundreds of properties, parks, and businesses across our nation.
But we are hopeful that a brave soul will emerge in Congress. After all, while FERC has fracked-gas dollars on its side, we have the Constitution and the American landscape on ours. And they are priceless.
If you want to help us find our congressional champion so that we can secure an independent investigation into the abuse of process and law by the Federal Energy Regulatory Commission (FERC), please sign on:
- If you are an individual that wants to join the call, please sign our petition and pass it on at: ly/DRN-PetitionToReviewFERC
- If you are the leader of an organization concerned about the abuse of power at FERC you can sign on to our organizational sign on letter at: ly/SignOnGAOReview
FERC is a biased agency that doesn’t just favor the pipeline companies over the public, but actively works to help advance pipelines, including by stripping the public of our legal rights to challenge projects in the courts.
A Government Accountability Office Review of FERC could help to shine the light of day on the FERC’s abuses and help all of the communities and environments being devastated by the construction and operation of fracked gas pipelines and LNG export facilities.
Maya K. van Rossum is the Delaware Riverkeeper, and has led the Delaware Riverkeeper Network (DRN) since 1994. The DRN is a regional nonprofit advocacy organization that monitors the river and all of its tributaries for threats and challenges, and advocates, educates, and litigates for protection, restoration, and change.