Reformers Set Sights on Corporate Land Grabs for Energy Projects
FERC has abused the eminent domain process, Representative Raskin and environmentalists say
In 2016, Oklahoma-based energy giant 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. The acreage belonged to Megan Holleran, her mother, Catherine, and several relatives, who ran a commercial maple-syrup business on their land. The pipeline had been approved by the Federal Energy Regulatory Commission, or FERC, but lacked other vital permits, including a Section 401 water quality permit from the state of New York.
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. In February 2020, Williams announced it was abandoning the pipeline, which, in an ironic twist, had been named Constitution.
“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." He said, “FERC is an accomplice to the destruction of the Holleran’s family maple-syrup business.”
Among its many other responsibilities, FERC is charged with regulating interstate energy projects, including gas pipelines. During the past few years, protracted pipeline battles—fights over the Mountain Valley, Atlantic Coast, and Pacific Connector in Oregon, to name a few—have aimed a new light on the agency and its practices, which critics say favor pipeline companies and leave landowners nearly powerless in defending their land from condemnation. Now, landowner rights groups and lawmakers from across the country are calling for change.
The December hearing builds on an investigation Raskin’s subcommittee launched early last year looking into FERC’s treatment of landowners. An April video report outlined the subcommittee’s preliminary findings. The numbers were 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 the condemnation process and begin digging trenches and falling trees even without final approval. In some cases, the pipelines are completed and operating by the time landowners get their day in court.
“FERC is there to protect the people of the United States,” Raskin said. “But our subcommittee’s investigation has determined that rather than acting as a champion of the public interest and as a check on the seemingly limitless wealth, power, and ambition of energy companies, FERC has become a rubber stamp for the energy companies that want to build pipelines on other people’s land.”
The plight of the Holleran family and other landowners in similar situations infuse human drama into what can often be a dry bureaucratic process and, say FERC’s many critics, highlight the necessity of reforming FERC's decision-making.
“It’s hard to get animated by FERC reform until you meet the thousands of families whose lives are getting wrecked,” says Richard Averitt, whose family property in Nelson County, Virginia, was threatened by the Atlantic Coast Pipeline until the project was canceled last year. “What Raskin is doing is creating the context for people to care.”
“FERC needs a complete reform to serve the American people rather than the fossil fuel industry,” says Bill Limpert, who with his wife owned a tract of steep, forested land in Bath County, Virginia. When the Limperts faced losing over 300 trees that were “older than our country” to the Atlantic Coast Pipeline, the family appealed to FERC.
"Frequently we heard, 'our hands are tied,'" says Limpert, who worked as an environmental regulator for the State of Maryland before retiring. He calls the practice of allowing pipeline companies to hire their own surveyors and consultants an “inside job” and says the environmental review process is flawed, especially if state agencies are beholden to powerful companies like Dominion Energy. “I studied plans on erosion control for the ACP. Without [exception], they were the worst plans I ever saw for a large project.”
After four years of fighting, the Limperts sold their property, convinced they would be forced to give up an easement through eminent domain. Fortunately, the ancient trees didn’t suffer the same fate as those on the Hollerans’ Pennsylvania property. Construction crews hadn’t arrived before Duke Energy and Dominion canceled the ACP in July 2020, citing delays and mounting costs after a years-long resistance campaign by landowners, environmental organizations, and their lawyers.
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. For example, in Givens vs. Mountain Valley Pipeline, a group of Virginia landowners challenged the use of “quick take,” which allows a pipeline company to seize land through eminent domain before compensating landowners. The case went to the Supreme Court, but the court rejected the petition in October 2019. In 2017, Allegheny Defense Project, assisted by the Sierra Club’s Environmental Law Program, challenged FERC’s use of tolling orders in the Atlantic Sunrise pipeline, which was proposed to convey gas from Pennsylvania’s fracking fields to a terminal on Chesapeake Bay. The pipeline was completed in 2018, but in June 2020, anticipating a decision by the DC Circuit Court, FERC issued an order stating that a pipeline company cannot begin operation until the commission acted on any rehearing requests. (Commissioner Richard Glick issued a partial dissent, arguing the order didn’t go far enough because it didn’t prevent pipeline companies from starting the condemnation process before a landowner could challenge a certificate in court.)
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. The five-member commission is a bipartisan body, with commissioners appointed by the president. Not surprisingly, things went sideways during the Trump administration. For many months, FERC only had two members, one short of a quorum; and for a while, Richard Glick was the lone Democrat serving on the commission. During his tenure, Glick 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.
Even before Joe Biden took office, changes were afoot at FERC. On December 27, an omnibus spending bill funded FERC’s long-awaited Office of Public Participation. This effort has been spearheaded by Tyson Slocum of Public Citizen, who with several other groups petitioned FERC to create the office in 2016. According to Ted Glick, the new office will give environmental justice groups a voice in FERC proceedings and ensure those who can’t afford legal representation can participate.
Also in December, President Trump finally filled the empty seats by nominating Republican Mark Christie and Allison Clements, a Democrat. Anticipating that Biden was likely to replace him as chairman, then-FERC chair James Danly called a meeting on January 19, the day before the inauguration. Environmental groups braced for the worst, certain Danly hoped to push through a host of fossil fuel projects on Trump’s last full day of office.
“That was an unusual meeting,” says Ted Glick (no relation to Richard Glick), a progressive activist who follows FERC closely. Of the 12 gas-related projects on the docket, “a few were approved, but most were withdrawn or defeated,” says Glick. On several votes, Richard Glick and Alison Clements were joined by Neil Chatterjee, a Republican who has emerged as a surprising swing vote on the commission. Two days later, a newly inaugurated Joe Biden named Richard Glick the new FERC chairman. Glick has listed environmental justice among his top priorities, and Clements is targeting how FERC certifies natural gas projects.
While the January meeting may have provided a glimpse of how FERC may operate in next four years, lasting change must be enshrined in legislation, says Ted Glick. He first encountered FERC in 2013, while fighting the expansion of the Cove Point LNG terminal on Chesapeake Bay and a gas compressor station near his home. Glick went on to co-found Beyond Extreme Energy to catalyze FERC reform, often with direct actions like sit-ins. Beyond Extreme Energy is currently focused on convincing lawmakers that FERC should be abolished and replaced with a new agency called FREC: the Federal Renewable Energy Commission. Instead of serving the fossil fuel industry and rubber stamping their projects, FREC would lead the transition from fossil fuels to renewables.
Glick was encouraged after the House Select Committee on the Climate Crisis, a subcommittee created by House Speaker Nancy Pelosi in 2019, released a 547-page blueprint for tackling climate change. The report included a section on FERC reform. Several of the suggestions—requiring FERC to respond to an application for a rehearing within 60 days, for example—aligned with Glick’s goals.
“We’ve been going to Congress for at least four years, and up until now, there’s been little movement in terms of leadership and legislative possibilities,” Glick say. “That has changed.”
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.
Virginia landowner Richard Averitt, who was invited by Raskin to tell his story, is hopeful these bills will be synthesized into a single piece of legislation that will garner bi-partisan support. The body of evidence Raskin’s subcommittee has compiled is sure be used to help persuade lawmakers.
Representative Raskin recently rocketed to national prominence as the House Manager of Donald Trump’s second impeachment trial. Raskin, a Constitutional law expert who served three terms as a Maryland state senator before successfully running for a seat in the US House, has a strong environmental record. In a 2016 interview, Raskin said his alarm over climate change was sparked after reading The End of Nature, written by an old college buddy named Bill McKibben. As Raskin no doubt understands, environmental arguments are unlikely to appeal to Republican lawmakers. Landowner rights, however, is the one issue that is likely to persuade Republicans that FERC needs to change.
“It will be interesting to see where, in the midst of all the super important things to tackle right now, where [FERC reform] lands, and whether Raskin will be able to mount enough political support for legislative reform,” Averitt says. “FERC won’t change until we change the law.”