(WASHINGTON, D.C.) — Congressman Jamie Raskin, the Chairman of the Subcommittee on Civil Rights and Civil Liberties, today released preliminary investigative findings showing that the natural gas pipeline approval process used by the Federal Energy Regulatory Commission (FERC) unjustly tramples on the rights of private landowners.
“The deck is totally stacked against landowners who want to defend their family’s land against takeover by private natural gas companies,” Chairman Raskin said. “It’s not a fair process. FERC habitually delays its administrative duties to respond to landowner requests so long that those landowners have no opportunity to have their voices heard. By the time they have the chance to speak up, their land has already been invaded and in some cases destroyed.”
On February 19, 2020, the Subcommittee opened an investigation into the use of eminent domain in the construction of natural gas pipelines.
The Subcommittee released a video report outlining the preliminary findings listed below and interviewing landowners Richard Averitt and Maury Johnson, who have battled FERC and pipeline companies to protect their land, and Carolyn Elefant, a lawyer and expert in FERC issues.
The Subcommittee’s investigation revealed the following key findings:
FERC Rubber-Stamps Pipeline Projects
A natural gas company seeking to build a pipeline in the U.S. must apply for a certificate of public convenience and necessity from FERC. This certificate grants the company the ability to assert eminent domain in court. FERC has a pattern of rubber-stamping these certificates. According to data submitted to the Subcommittee, in the past 20 years, FERC has granted 1,021 certificates, while rejecting only 6, a greater than 99% approval rate.
FERC Prevents Landowners from Defending Their Property from Pipeline Companies
When natural gas companies seek eminent domain to build their pipelines on private property, landowners are often effectively barred from challenging the companies in court.
A landowner must exhaust his or her administrative remedies by filing a “request for rehearing” to appeal FERC’s grant of the certificate. The Natural Gas Act requires FERC to issue a decision on the rehearing request within 30 days. However, FERC routinely issues “tolling orders” to extend the 30-day timeframe to respond.
The Subcommittee’s investigation found that in the last twelve years, FERC issued a tolling order to every single landowner who requested a rehearing. In every single case, FERC eventually denied the request. On average, 212 days—about seven months—passed between the time a landowner made a request for rehearing and when FERC ultimately denied it.
While those cases are tolled, the eminent domain cases can continue, landowners can lose their property rights, and pipeline companies can destroy their land.
FERC Favors Pipeline Companies
Though federal courts grant pipeline companies the right of eminent domain, the companies must still seek permission from FERC to begin construction on that private land. More often than not, FERC approves construction even if challenges to certificates are still pending.
Over the last twelve years, there have been 114 requests for rehearing. In 73 cases—64%—FERC authorized construction of pipelines before ruling on rehearing requests.
Click here to see the Subcommittee’s video report.