[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
PIPELINES OVER PEOPLE: HOW FERC
TRAMPLES LANDOWNER RIGHTS IN
NATURAL GAS PROJECTS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CIVIL RIGHTS AND CIVIL LIBERTIES
OF THE
COMMITTEE ON OVERSIGHT AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
DECEMBER 9, 2020
__________
Serial No. 116-128
__________
Printed for the use of the Committee on Oversight and Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on: govinfo.gov,
oversight.house.gov or
docs.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
42-595 PDF WASHINGTON : 2021
--------------------------------------------------------------------------------------
COMMITTEE ON OVERSIGHT AND REFORM
CAROLYN B. MALONEY, New York, Chairwoman
Eleanor Holmes Norton, District of James Comer, Kentucky, Ranking
Columbia Minority Member
Wm. Lacy Clay, Missouri Jim Jordan, Ohio
Stephen F. Lynch, Massachusetts Paul A. Gosar, Arizona
Jim Cooper, Tennessee Virginia Foxx, North Carolina
Gerald E. Connolly, Virginia Thomas Massie, Kentucky
Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
Jamie Raskin, Maryland Glenn Grothman, Wisconsin
Harley Rouda, California Gary Palmer, Alabama
Ro Khanna, California Michael Cloud, Texas
Kweisi Mfume, Maryland Bob Gibbs, Ohio
Debbie Wasserman Schultz, Florida Clay Higgins, Louisiana
John P. Sarbanes, Maryland Ralph Norman, South Carolina
Peter Welch, Vermont Chip Roy, Texas
Jackie Speier, California Carol D. Miller, West Virginia
Robin L. Kelly, Illinois Mark E. Green, Tennessee
Mark DeSaulnier, California Kelly Armstrong, North Dakota
Brenda L. Lawrence, Michigan W. Gregory Steube, Florida
Stacey E. Plaskett, Virgin Islands Fred Keller, Pennsylvania
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan
Katie Porter, California
David Rapallo, Staff Director
Candyce Phoenix, Subcommittee Staff Director
Amy Stratton, Clerk
Contact Number: 202-225-5051
Christopher Hixon, Minority Staff Director
------
Subcommittee on Civil Rights and Civil Liberties
Jamie Raskin, Maryland, Chairman
Wm. Lacy Clay, Missouri Chip Roy, Texas, Ranking Minority
Debbie Wasserman Schultz, Florida Member
Robin L. Kelly, Illinois Thomas Massie, Kentucky
Jimmy Gomez, California Jody B. Hice, Georgia
Alexandria Ocasio-Cortez, New York Michael Cloud, Texas
Ayanna Pressley, Massachusetts Carol D. Miller, West Virginia
Eleanor Holmes Norton, District of
Columbia
Rashida Tlaib, Michigan
C O N T E N T S
----------
Page
Hearing held on December 9, 2020................................. 1
Witnesses
David L. Morenoff, Acting General Counsel, Federal Energy
Regulatory Commission
Oral Statement................................................... 7
Terry Turpin, Director, Office of Energy Projects, Federal Energy
Regulatory Commission
Oral Statement................................................... 9
Written opening statements and statements for the witnesses are
available in the U.S. House of Representatives Document
Repository at: docs.house.gov.
Index of Documents
----------
* The Niskanen Center's statement for the record.
* Comments from William F. Limpert; submitted by Rep. Raskin.
The documents entered into the record during this hearing, and
Questions for the Record (QFR's) submitted after the hearing,
are available at: docs.house.gov.
PIPELINES OVER PEOPLE: HOW FERC TRAMPLES
LANDOWNER RIGHTS IN NATURAL GAS PROJECTS
----------
Wednesday, December 9, 2020
House of Representatives
Subcommittee on Civil Rights and Civil Liberties
Committee on Oversight and Reform
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:06 a.m.,
via Webex, Hon. Jamie Raskin (chairman of the subcommittee)
presiding.
Present: Representatives Raskin, Wasserman Schultz, Kelly,
Gomez, Norton, Tlaib, Maloney (ex officio), Roy, Massie, Cloud,
Miller, and Comer (ex officio).
Also present: Representatives Lynch, and Armstrong.
Mr. Raskin. Good morning. The committee will come to order.
Without objection, the chair is authorized to declare a recess
at any time. Without objection, Mr. Lynch, the gentleman from
Massachusetts, and Ms. Porter, the gentlelady from California,
and Mr. Armstrong, the gentleman from North Dakota, shall be
permitted to join our subcommittee and to be recognized for the
purpose of questioning witnesses. I now recognize myself for an
opening statement.
Good morning, and thank you to all of our witnesses for
being here with us virtually today, and thanks to everyone else
who is tuning in to this very important hearing. The New Deal
Congress passed the Natural Gas Act in 1938 to break up energy
monopolies and to ensure the Federal Government put the public
interest front and center in energy construction projects. As
the Supreme Court put it, the Natural Gas Act was quote
``Plainly designed to protect the consumer interest against
exploitation at the hands of private natural gas companies.''
In 1977, Congress created the Federal Energy Regulatory
Commission, FERC, to ensure robust and independent
implementation of the Natural Gas Act's regulation of energy
markets. Just a year later, Congress went a step further in
order to establish an office of public participation to give
the people a direct voice in the workings of FERC. FERC is
there to protect the people of the United States. It is there
to protect us, the people of the country.
But our subcommittee's investigation has determined that
rather than acting as a champion of the public interest, and as
a check on the limitless, or seemingly limitless wealth and
power and ambitions of energy companies, FERC has become a
rubber stamp for the energy companies that want to build
pipelines on other people's land. In every way that we have
examined so far, FERC turns out to be biased, severely, against
individual property owners, against the citizens of the
country. Here is an example:
In the last 20 years, FERC has received 1,021 applications
to build natural gas projects by energy companies. It has only
denied six of more than 1,000. That is higher than a 99.9
percent approval rate for the energy companies. Now, think
about this for a second. If you flip a coin, your chances of
winning are 50/50. If you do rock, paper, scissors, your
chances of winning are 50/50. In a casino where we know the
odds favor the house, in Blackjack, it's something like 51 to
49, for the house. In craps, which I think is your most
unfavorable bet, it's something like 60/40 for the house.
But if you are a citizen landowner going before FERC, your
chances are 1 in 1,000. If you are an energy company, you've
got more than 99 percent chance of winning. FERC has a
similarly lopsided approval rate when it comes to certificate
extensions, which pipeline companies request when their
projects go beyond the agreed upon schedule.
Over the last dozen years, FERC received 92 extension
requests, and it won 89 of 92. That's a 96.7 percent win rate
for the energy companies. On average, pipeline companies asked
for a 21-month extension on average, they got 20 months. In
other words, when pipeline companies ask FERC for something,
they get it. You can bet your bottom dollar the company almost
never loses when the house is FERC.
In contrast, over the same period, FERC did not approve a
single landowner appeal. A system where corporations win nearly
100 percent of the time, and people win nearly zero percent of
the time is not a fair, unbiased, and balanced system. It is
rigged. That is not a system of justice or administrative
process that anyone can recognize for a democratic society.
But there's more evidence of FERC's bias against
landowners. FERC never actually created the Office of Public
Participation that Congress established in 1978. That's a 40-
year record of doing the wrong thing. That same year, Congress
also ordered FERC to establish a landowner compensation program
to help people afford to defend their rights against the
pipeline companies. But FERC never set up the program. It never
gets around to helping the citizen landowners of the United
States.
The Yeoman farmers that Thomas Jefferson thought would be
the backbone of America--well, the results of this loaded deck
are obvious. Landowners suffer at the hands of the big pipeline
companies, even amazingly, when the pipeline projects never
even get built.
This year, two projects, the Constitution Pipeline, and the
Atlantic Coast Pipeline, were simply canceled. Both companies
had already secured easements to take up other people's land
through eminent domain. They tore up other people's land. They
destroyed their businesses. But the projects themselves were
canceled. And even though the projects were canceled, there is
no process in place to ensure that the damage to the property
is rectified and repaired by the companies, and that the people
actually get the use of their land back.
Now, tell me what has that got to do with the private
property rights that I thought were sacrosanct under our
Constitution? What does that have to do with due process? What
does it even have to do with the free market? It's just a
giveaway of unlimited rights to big corporations against the
people of the country.
FERC claims it has no authority in these matters leaving it
solely to landowners to try to negotiate themselves with the
pipeline companies. What a fraud that is. Pipeline companies
get FERC certificates of convenience to exercise eminent domain
power over other people's land. They need FERC's authority and
approval to cut down their trees and, to trample their property
rights. So, FERC is the necessary precondition for all of this
to take place.
Consider the Hollerans, who run a family maple syrup
business in Susquehanna County, Pennsylvania, not far from
where I live in Maryland. The Constitution Pipeline company got
an easement over the Hollerans' property through the awesome
power of eminent domain. They tore down 90 percent of the maple
syrup producing trees on the Hollerans' property, and then,
they completely abandoned the project. They deserted it. It's
over.
And to add insult to injury, the company that trampled
their property calls itself the Constitution Pipeline Company.
But to FERC, the destruction of the Hollerans' maple business
is just collateral damage. They're just roadkill for their real
job, which is facilitating whatever the pipeline companies want
to do.
FERC is an accomplice to the destruction of the Hollerans'
family maple syrup business. None of what happened to them
would have been possible without FERC and their various
regulatory fixes and approvals. Don't point the finger at state
court judges who follow in the wake of the certificates of
easement adopted by FERC.
The Hollerans are not unique. You can find stories of
family businesses being ravaged like this all over the United
States of America--from farmers in Oklahoma whose land has been
destroyed, to a 73-year-old retiree in Virginia, unable to
build a home on land his family has owned for five generations
where he was going to retire. These are Republicans, these are
Democrats, these are American citizens whose rights are being
trampled by a combination of big business and a compliant big
government working for big business. These are Americans who
have a right to their property and their rights are being
demolished. FERC just clears the way for pipeline companies to
trample the property rights of the people.
Now, make no mistake, I believe and the law envisions that
pipeline companies should sometimes win, and can provide a
public good, but there must be a real process that considers
the merits on all sides. There must be a real legal process
that takes place, not a stacked deck. The process of regulating
the construction of gas pipelines needs to be balanced and fair
for everyone. This is the way that Congress tried to design it.
It's time that FERC restores fairness and transparency and
balance to the process.
Thank you, and now I recognize my distinguished colleague,
Mr. Roy, for his opening statement.
Mr. Roy. Do you guys hear me?
Mr. Raskin. Yes, we got you, Mr. Roy.
Mr. Roy. Thanks, Chairman Raskin. Thanks for holding this
hearing. I also want to appreciate all the witnesses, the
witnesses from FERC, and for their willingness to appear before
the subcommittee to talk about FERC's role here and make sure
we're balancing our energy needs in this country and property
rights, as we all want to do. Obviously, as we know, under the
leadership of this administration, my former boss, full
disclosure, Rick Perry, for whom I worked in Texas, as the
Secretary of Energy, the United States achieved unprecedented
energy independence.
In the past 15 years alone, we've seen a transformation
across our national energy portfolio, driven heavily by
abundant natural gas.
In 2017, we became an exporter of natural gas for the first
time in 60 years. Private sector innovation led to a
combination of fracking and horizontal drilling, allowing us to
tap large lines of gas previously uneconomical to produce. In
North America, there's an estimated 4.2 quadrillion cubic feet
of recoverable natural gas reserves, enough gas to power the
United States for 175 years at current rates of consumption.
Between 2008 and 2018, fracked natural gas added 17 times more
energy to the United States than all solar panels and wind
turbines combined.
And were the example this hearing room--or the hearing room
that we would be operating in were we not doing this
virtually--is kept warm in the middle of December by the
natural gas powered Capitol Power Plant down the street.
Unfortunately, that's not the case across America. According to
the EIA, 25 million United States households say they have gone
without food or medicine to pay for energy bills; 12 million
say they have kept their home at unsafe temperatures.
Abundant, affordable, natural gas is key to driving down
those energy poverty statistics. The United States cannot only
benefit from this resource domestically, but we can export fuel
across the world to developed nations--developing nations and
allies who do not want to depend on Russia, China, or Iran for
their energy needs.
The strategic development of energy resources require
infrastructure for public use. And that brings us to our
subject earlier today--our subject matter today. I would note
that when we're talking about the availability of natural gas,
what that has meant, we're driving down CO2 levels around the
world and in the United States. If we continue to export clean-
burning natural gas, we drive down CO2 levels.
That's just a matter of fact. And we don't want to turn
this over to China. We don't want to let India and other
countries continue to be putting massive amounts of CO2 in the
air, when we can export clean burning natural gas to drive
those numbers down. We return our levels of CO2 down to 1990
levels. So, we got to understand what we're talking about here.
Look, the United States cannot only benefit from this
resource domestically, as I said, we can export it. The
strategic development of energy resources requires
infrastructure. Pipelines are critical to ensure that everyone
has access to natural gas in a safe and efficient manner.
I have experience dealing with eminent domain concerns in
my district in the Texas hill country. The 430-mile Permian
Highway Pipeline was approved before my first term in Congress.
This was an intrastate pipeline, so it did not involve the FERC
certification process. But I understand some of the very real
concerns landowners have when approached with this situation. I
have had numerous meetings with homeowners, landowners, who are
very concerned about pipelines going in their backyard, how the
process unfolded.
I made sure that the Texas legislature and statewide
elected officials that deal with these issues, the Railroad
Commission in Texas, are aware of my concerns about ensuring
that property owners have due process and have the ability to
have a say before pipelines are put on their property, or put
near their homes.
We need to improve that process at the state level and
surely look at it and review it at the Federal level as well.
I've asked state legislators to review the processes in place
within the state to protect private property rights.
It's important to note that FERC is an independent
regulatory agency. And, you know, FERC has continued to improve
its processes and procedures to ensure the landowners' rights
are protected, while simultaneously approving central pipeline
projects that will help Americans access affordable natural
gas. The Natural Gas Act was amended in `47 to provide eminent
domain authority to interstate natural gas pipelines with FERC-
approved certificates of public convenience and necessity. The
authority to use Federal eminent domain for pipeline projects
is one that is only used by pipeline companies as a last
resort, typically.
A survey by the Interstate Natural Gas Association of
America concluded that from 2008 to 2018, only 1.67 percent of
individual tracts needed to construct the survey projects were
acquired after a judicial determination of just compensation
and an eminent domain proceeding.
On June 9, FERC issued Order No. 871, which revises
regulations to provide that it will not issue notices to
proceed with construction of facilities authorized under the
NGA until the Commission acts on any rehearing requests related
to FERC's authorization of the facility. This ensures that a
pipeline will not begin construction, and a landowner's
property will not be disturbed unless and until FERC has
addressed the rehearing request.
This action highlights that FERC is striving to protect
landowners' rights, and I am confident we will learn more about
additional measures today.
But I do suspect that there's a little bit of ulterior
motives surrounding natural gas pipelines, and what I am
talking about in this committee, motivated not necessarily just
by private property rights, and I believe the Chairman and I
share a very strong agreement in protecting property rights
throughout this process, and wanting to make sure that
individual landowner property rights are respected and improve
this process. One-hundred percent want to figure that out.
But I also know that there's a lot of energy on--for my
colleagues on the left to try to kill pipelines. That's just
the truth. We know that. We see it. We see it politically. We
see it all the time. There's a specific desire to do that.
Democrats are not shy in their support of carbon taxes,
fracking bans, leftist schemes, like the Green New Deal that
would destroy millions of jobs, and force Americans into energy
poverty.
My colleagues in this committee have repeatedly attacked
efforts to build robust and competitive energy infrastructure.
This April, with all due respect, Chairman Raskin and 29
Democrats led a letter to FERC calling for a moratorium on the
approval and construction of new natural gas pipeline projects,
and liquefied natural gas export facilities.
My colleagues, I think, we need to work together to make
sure that we're ensuring to protect private property rights,
but in no way should we be standing in front of the ability for
the United States to be a leader in producing natural gas
domestically, and to be able to export liquefied natural gas
around the world, driving down CO2, increasing our energy
independence, and making us a stronger and better country.
So, with that, I'll turn that back over to the Chairman.
Mr. Raskin. Mr. Roy, thank you very much.
I now recognize the Chairwoman of the full committee, Mrs.
Maloney, for her opening statement.
Mrs. Maloney. Thank you so much, Chairman Raskin. Good
morning. First, I would like to thank the Chairman for
convening this hearing, and I'd like to thank all of the
panelists that are here. And I commend the Chairman for all his
work his subcommittee has done on this important issue, on this
hearing, ``Pipelines over People: How FERC Tramples Landowner
Rights in Natural Gas Projects.''
There is a growing consensus among landowner advocates and
communities, courts, and even some FERC commissioners, that
FERC's process is not fair. In 2017, the Center for Public
Integrity and State Impact Pennsylvania undertook a
comprehensive investigation into FERC. The investigation
involved more than 100 interviews and reviews of FERC records
for almost 500 pipelines. They found that, quote, ``At every
turn, the agency's process favors pipeline companies,'' end
quote. The subcommittee's investigation supports this finding.
As Chairman Raskin mentioned, the investigation revealed
that FERC has a near-100 percent approval rate for pipelines.
At the same time, however, FERC denied every single landowner
appeal over the last 12 years.
The FERC process could also be quite confusing for
landowners, even governments, who have never dealt with this
kind of matter before. FERC Commissioner Richard Glick has
called on the Commission to quote, ``Redouble its efforts to
accommodate landowners as they try to navigate the sometimes
Byzantine set of rules and regulations that can make up a FERC
proceeding,'' end quote.
This issue presents an excellent opportunity for
bipartisanship. Bill Gow, a landowner in Douglas County,
Oregon, in the pathway of the Jordan Cove Project, describing
his opposition to the big pipeline companies and the FERC
process said, and I quote, ``I have been a Republican for 45
years. I'm as conservative as they come. The Republican Party
was built on private property rights. This is one of our core
issues,'' end quote.
He called on the Republicans to stand up for the little
guy, for the folks in rural and urban counties who may not have
the resources to fight big pipelines.
Well we are answering that call today. And I hope my
colleagues on both sides of the aisle will join Chairman Raskin
in his fight to restore balance and fairness to the FERC
pipeline process. I understand the Chairman is working on
legislation to restore that balance. I offer my assistance and
endorsement for these efforts. I find it particularly appalling
that they are able to take a person's property from them, while
there is an appeal pending.
Even before the appeal is even heard and a decision made,
they are taking people's property. This is unfair and unjust. I
am so proud of the Chairman for working on a solution should
FERC not, through their own administrative process, make it
fair, that by legislation, we make it fair to the American
people.
I yield back, and I thank the Chairman for his dedication
and hard work on this subject. Thank you.
Mr. Raskin. Chairwoman Maloney, thank you for your very
eloquent and thoughtful remarks, and counter-posing corporate
power against the individual rights of the people. And when
we've got to choose, are we going to stand up for the rights of
the people or for the power of big corporations?
I am now happy to recognize the ranking member of the full
committee, Mr. Comer--oh, wait, forgive me. Ah, Mr. Comer is
not coming. OK.
In that event, I would like to introduce our witnesses
today. We are very grateful to them for coming and for sharing
their expertise. Our first witness today is David L. Morenoff,
who is the acting general counsel of FERC, the Federal Energy
Regulatory Commission. Then we will hear from Terry Turpin, who
is the director of the Office of Energy Projects at FERC. The
witnesses will be unmuted so we can swear them in.
Gentleman, please raise your hands, your right hands, if
you would.
OK. Do you swear or affirm that the testimony you are about
to give is the truth, the whole truth, and nothing but the
truth, so help you God?
Thank you. Let the record show that both witnesses answered
in the affirmative. Without objection, your written statements
have been made part of the record.
Mr. Raskin. With that, Mr. Morenoff, you are now recognized
for five minutes for your testimony.
STATEMENT OF DAVID L. MORENOFF, ACTING GENERAL COUNSEL, FEDERAL
ENERGY REGULATORY COMMISSION
Mr. Morenoff. Chairman Raskin, Ranking Member Roy, and
members of the subcommittee, my name is David Morenoff. I am
the Acting General Counsel of the Federal Energy Regulatory
Commission. I joined the Commission's staff in 2006, and I am
honored to have served in senior roles in the Office of the
General Counsel since 2010.
I appreciate the opportunity to appear before you today.
The views I express are my own and are not necessarily those of
the Commission or any individual commissioner.
The Commission takes seriously the responsibility assigned
to it by Congress under the Natural Gas Act for determining
whether a proposed natural gas pipeline or storage facility is
in the public interest.
Fulfilling those responsibilities, the Commission accounts
for and balances many factors, including the potential impact
of that infrastructure on landowners. The Commission also has
taken recent steps to ensure that affected landowners who wish
to do so may seek relief in court in a timely manner.
Under the Natural Gas Act a prospective developer of
natural gas infrastructure must obtain a certificate of public
convenience and necessity from the Commission. The Commission's
regulations provide for public notice and the opportunity to
intervene in certificate proceedings, for commenting on or
protesting an application, and for participation in the
environmental review process.
In considering a certificate application, the Commission
bases its decisions on an extensive written record that
reflects information from the prospective developer, other
parties to the proceeding, commenters, and an environmental
analysis prepared by the Commission staff pursuant to the
National Environmental Policy Act.
When the Commission grants a certificate of public
convenience and necessity, the Natural Gas Act allows the
certificate holder to initiate eminent domain proceedings.
Thus, the Natural Gas Act assigns eminent domain authority
solely to certificate holders. It confers no such authority
upon the Commission, nor does the Commission have a role in the
acquisition of property rights through private contracts
resulting from easement negotiations between a prospective
developer and a landowner.
Any legal disputes involving the timing and nature of those
property rights, as well as compensation that the landowner may
receive, must be resolved by an appropriate Federal or state
court. Parties to a Commission proceeding have the right to
seek rehearing of a Commission order, and they must do so
before appealing to an appropriate Federal court.
The Natural Gas Act provides that if the Commission does
not act on a rehearing request within 30 days, then the request
may be deemed denied. Prior to the summer and consistent with
longstanding court precedent, the Commission routinely acted on
rehearing requests initially by issuing what was known as a
tolling order. Tolling orders granted rehearing for the limited
purpose of providing more time for the Commission to consider
the merits of the hearing requests. This summer, however, the
U.S. Court of Appeals for the D.C. Circuit held that tolling
orders do not permit rehearing requests from being deemed
denied after 30 days. The next day, the Commission began
implementing changes to its rehearing practices. Most
importantly, the Commission no longer issues tolling orders.
Instead, where the Commission is not acting on the merits of a
rehearing request by the 30-day deadline, the Commission
generally now issues a notice acknowledging that because the
30-day deadline has passed, the hearing may be deemed denied.
Therefore, a party may proceed to seek judicial review of the
underlying Commission order.
The Commission also has made other changes over the past
year to expedite consideration of landowners' hearing requests.
For example, in February of this year, Chairman Chatterjee
announced the creation of a new rehearings section within the
Office of the General Counsel, as well as a group within that
section focused on landowners' hearing requests to help ensure
that rehearing requests are considered as quickly as possible.
Thank you again for the opportunity to appear before you
today. I look forward to answering any questions that you may
have.
Mr. Raskin. Mr. Morenoff, thank you very much for your
testimony.
Mr. Turpin, you are now recognized for your five minutes.
STATEMENT OF TERRY TURPIN, DIRECTOR, OFFICE OF ENERGY PROJECTS,
FEDERAL ENERGY REGULATORY COMMISSION
Mr. Turpin. Thank you, Chairman Raskin, Ranking Member Roy,
and members of the subcommittee. My name is Terry Turpin, and I
am Director of the Office of Energy Projects at the Commission.
I am an engineer by training and came to work at the Commission
in 1998. Over the last two decades, I have worked as staff
preparing technical analyses to advise the Commission and to
implementing compliance programs during construction of
approved projects. During the last five years, I have served as
first deputy director, and then director of the Office of
Energy Projects.
I appreciate the opportunity to appear before you today.
The views that I express are my own and are not necessarily
those of the Commission or of any individual commissioner.
As my colleague David mentioned, the Commission's
consideration of a certificate application includes the
environmental analyses prepared by the Office of Energy
Projects. This is done to meet the National Environmental
Policy Act. Just as in determining whether a proposal is in the
public interest, the Commission takes seriously its
responsibilities for environmental impacts, including the
potential impact of that infrastructure on landowners.
The environmental review is carried out through a process
that encourages collaboration, and provides input from
agencies, landowners, and other interested stakeholders. There
are several distinct phases in the Commission's process.
First, before a project sponsor has filed an application
with the Commission, the Commission's staff will begin to
engage with stakeholders affected by the projects, including
landowners, with the goal of identifying issues that the
project developer should consider addressing in the design of
this intended project. The intent of this pre-filing period is
to identify and enable resolution of as many issues as possible
while the project is still in a conception stage, rather than
waiting until after an application to do so. Through this
process, project developers generally make many route
adjustments in response to concerns raised by landowners,
government officials, or other stakeholders.
Once a project developer has filed an application,
Commission staff prepares an environmental review document,
often issued for public comment, analyzing impacts of the
developer's proposal, and identifying potential mitigation that
can further be used to reduce impacts.
If a project is found to be in the public interest and
approved by the Commission, this potential mitigation is
included in the Commission's order as conditions that must be
met by the project. Staff of the Office of Energy Projects
works to ensure compliance with these conditions throughout
both construction and restoration efforts.
Throughout project construction, FERC staff monitor the
developer's progress and compliance through review of
construction status reports and through infield inspections.
For large, complex projects, staff uses compliance monitors
stationed throughout the project construction areas to conduct
daily fuel inspections, issue noncompliance notices, and direct
corrective actions that the developer must take.
At any time throughout the construction and restoration
process, landowners can notify the Commission if they believe
their property was not properly restored, by contacting the
Commission's landowner helpline, or by making a filing in the
relevant Commission docket.
Staff from either of the Office of Energy Projects or the
Commission's Dispute Resolution Service, will then followup
with the landowner. If there are additional restoration
activities the landowner believes are needed, staff will
contact the landowner and the pipeline developer for
information necessary to assess the issue. Staff or compliance
monitors also perform inspection of the landowner's property
where restoration concerns have been raised. Based on this
information, staff determines if any further remediation by the
project developer is required and directs the company to
undertake it.
While staff oversight is most intense during construction,
it continues after the project goes into service, for as long
as it takes for the developer to complete restoration.
Restoration is considered successful if the right-of-way
surface condition is similar to adjacent, undisturbed lands, if
construction debris has been removed, if revegetation is
successful, and if proper drainage has been restored.
Thank you, again, for the opportunity to appear before you
today. I would be happy to answer any questions that you may
have.
Mr. Raskin. Mr. Turpin, thank you very much for appearing
today. I will now recognize myself for five minutes for my own
questioning.
I want to start with you, Mr. Morenoff, I assume you're not
bragging about the new policy on tolling orders adopted by
FERC, because that was done, prompted by the D.C. Circuit
Court's ruling which cited the work of our subcommittee
investigating FERC. I just wanted to make sure that that was
not something you were really--should at least try to take full
credit for, for FERC.
Mr. Morenoff. Mr. Chairman, thank you. I agree that the
D.C. Circuit issued its decision, and I think that FERC
appropriately responded immediately to implement that decision.
Mr. Raskin. Well, would you agree with my assessment that
the odds are overwhelmingly on the side of the energy companies
at every step in the process?
Mr. Morenoff. Chairman Raskin, I think that that is an
overstatement of the situation. I think that the Commission
takes very seriously all of the comments from every party that
is placed into the written record, and I am proud of the
Commission's work in that respect.
Mr. Raskin. Well, Mr. Turpin, let me ask you, would you
rather be a pipeline company coming before FERC, or a landowner
who is trying to stop a pipeline from being built on his land?
Mr. Turpin. I think both parties have equal opportunity to
address the Commission and raise their issues. So, I would be
either.
Mr. Raskin. Why do the pipeline companies win more than 99
percent of the time?
Mr. Turpin. The process that the Commission uses to review
the projects generally results that only viable projects reach
up to the--their changed throughout the process. So that more
or less, only viable projects really ever get to consideration
by the Commission.
Mr. Raskin. OK. The Atlantic Coast Pipeline, or ACP, had a
planned route that would have stretched across Virginia, West
Virginia, and North Carolina. And Donovan McLaurin, is 73 years
old, he owns a plot of land in North Carolina, where he was
planning to retire and build a small house. It's been in his
family for five generations. It was right in the path of where
the ACP wanted to build its pipeline. The company tried to
convince him to sell his easement, but he said no. He said,
``This is America. I don't want to sell.''
Well, ACP took him to court and he--and the company got the
easement from some conservative judges. You know, President
Trump, of course, calls himself the king of eminent domain. So,
we're seeing this massive abuse of eminent domain power across
the country. But they took his property. So, he was supposed to
get paid for the forcible taking, but he never got paid. They
never gave any money.
This year, the project taking his property was canceled
after ACP failed to do whatever it needed to do under state
law. That cancellation has left a huge mess behind for Mr.
McLaurin and lots of other people in the same situation. ACP
got easements from 2,000 property owners, including 80 people
who have lost their property rights through eminent domain
actions based on the FERC certificate.
Now, Mr. Morenoff--in other words, ACP has--unless ACP
agrees to forfeit its easement, it continues to own access to
those 2,000 parcels of land in perpetuity. Isn't that correct?
Am I understanding that right?
Mr. Morenoff. Mr. Chairman, my understanding is that the
property rights would be determined by the terms, either of the
eminent domain proceeding in the court or by the individual
contract negotiated on a private basis. So, the terms may
differ depending on its terms.
Mr. Raskin. OK. And there's nothing that FERC does that
conditions the receipt of an easement on the return of the
property in the event that the project never goes forward, is
there? Is there anything that you do to make sure property
owners get their property back if their property is taken but
the project doesn't go forward?
Mr. Morenoff. Mr. Chairman, traditionally, the Commission
has viewed eminent domain and those private negotiations to be
properly addressed, either in court or in those negotiations.
Mr. Raskin. But you wash your hands of that. FERC basically
washes its hand of that process. They say, well, that's at that
point between the property owner and the company. Would you
agree that an easement by--a pipeline easement generally
reduces the value of somebody's property and makes it much
harder to sell? Would you agree to that? Like take Mr. Roy's
constituents in Texas, if they didn't want to sell but their
land is taken by eminent domain, would you agree that it's much
harder for them to sell their property to someone else?
Mr. Morenoff. Mr. Chairman, that may be the case. I think
it is built into the statute that that process is part of this
consideration.
Mr. Raskin. In fact, Mr. McLaurin had already agreed to
sell part of his homestead to other buyers, and then the sales
went south at the point at which the eminent domain power was
exercised by the company. A U.S. district court was absolutely
incredulous at what ACP had done. He said, and I'll quote just
part of it here, ``Here they are aggressively taking the bit in
their teeth and running through several states, grabbing up
land, and throwing money. And on a Sunday afternoon they
decide, well, maybe we don't need all this anymore. Let's just
fold up our tent.''
Meantime, FERC has said that it, quote, ``has no authority
or involvement with respect to ensuring that landowners can end
these easements on their land for pipelines that will never be
built.'' So, there's a perpetual indefinite easement taken on
their land for projects that will not be built.
Now, it seems to me there are things that FERC could do if
it were concerned with actually treating landowners fairly in
this process. And we understand that the pipeline companies are
going to win 99 percent of the time. But couldn't you impose a
prohibition at FERC--and I understand that you're just staff,
and that you're speaking for yourself--but couldn't FERC
include a provision in a pipeline certificate that requires it
to return land back to the landowner if the pipeline gets
canceled or the company changes its mind? Couldn't you put that
in the certificate?
Mr. Morenoff. Mr. Chairman, traditionally, the Commission
has viewed eminent domain on property rights as beyond its
authority. That said, I do not have a case to cite that would
say the Commission could not use its conditioning authority in
that respect. I think that's an open question.
Mr. Raskin. There's nothing in the law that stops you from
doing that. And if you were interested in preserving the rights
of people, like Mr. McLaurin, you would say that if a company
turns tail and does a U-turn, that the land should go back and
they should have to restore it. Could FERC refuse to approve
future certificate applications from the same company unless
they return and restore land in abandoned projects?
Mr. Morenoff. Mr. Chairman, my answer would be similar. I
think there is an open question as to the breadth of the
possible conditions that the condition could impose. I do think
that those conditions of authority is not boundless, and that
is a type of condition has not been tested to date.
Mr. Raskin. OK. After protests, I am aware that FERC has
requested a plan from ACP about what it will do with hundreds
of acres of land that were damaged in preconstruction activity.
So, good for FERC for doing that. And I'm happy to learn about
this. But I am not aware of any action, similar action taken
for the Constitution Pipeline Project, which was also canceled
this year. Do you think FERC will do the same thing with
respect to the Constitution Pipeline Project?
Mr. Turpin. Well, the Commission has overseen the
restoration to the Commission's standards of the right-of-way
that was engaged for the pipe--for the Constitution Pipeline.
So, the Commission has done that look. That restoration--those
activities ended last month with the restoration to the
standards that the Commission had put forward.
Mr. Raskin. OK. So, you do have the power, in other words,
to compel the restoration of land to the status before it was
taken for a project that never materialized?
Mr. Turpin. No, no, sir. We have the authority--my
understanding is we have the authority to direct the companies
to restore the land to the standard the Commission had issued
in its order.
Mr. Raskin. But that standard could be a status quo answer,
could it not?
Mr. Turpin. I--that is outside of my expertise. I would----
Mr. Raskin. I am now going over to the--I am now going to
yield to the ranking member for five minutes. And we'll give
him a comparable overage. Thank you both for appearing today
and for your candid answers. Mr. Roy?
Mr. Roy. I appreciate that, Mr. Chairman, and your
indulgence for any comparable time. Although, these are
important issues, so I don't mind that you went over any more
than a few of our folks go over.
And let me reiterate my general view on this, right? We
have--differences of opinion in this body on the relative value
use of natural gas. And moving oil and gas products, there's a
lot of debate about that. And what I am trying to avoid is, I
don't want pipelines and our debates over that to be used as,
essentially, a ruse to basically jam up oil and gas. I think
there's some in this body who would want to do that.
On this straight-up issue, on the merits of it, if there is
a pipeline that's going to exist, and are property rights being
respected, I don't know that there's going to be any
disagreement between Chairman Raskin and I on that, that
question.
And so, what I want to understand from Mr. Morenoff, you,
or Mr. Turpin, explain to me quickly--because I have got five
minutes. I have already burned a minute from my intro--is--
explain to me the difference in how this process works in just
basic layman terms, and, say, an intrastate, right? In other
words, I want to understand how this works and whether FERC has
more or less power if you are trying to--if a new interstate is
rolling from Canada all the way to Mexico, and it goes to West
Texas and impacts some of my constituents or go through
Oklahoma, how does that--how is that different?
Mr. Morenoff, you got any perspective on that? Again, just
a quick comparison.
Mr. Morenoff. Thank you. I can speak to the FERC process,
not to the Texas-specific process. But when it is an interstate
natural gas pipeline, a certificate of public convenience and
necessity would be needed by the prospective developer. They
would go through the pre-filing process that Terry described,
and then file an application with an opportunity for public
participation throughout.
Mr. Roy. Well, let me ask you this, because I can pull up a
model or some sheet or something that walks me through all
that. I'm trying to understand is anybody here expert enough or
know--Mr. Turpin, do you know, is it--would you--could you
stipulate whether it's easier or harder for FERC to get a
pipeline than if we were to say, try to create a national
interstate highway from Canada to Mexico and how this compares?
Mr. Turpin. I have no ability to answer that. My entire
professional career has been on the natural gas pipeline side
with the agencies not been involved in infrastructure.
Mr. Roy. Mr. Raskin, I'd love for our staffs to have a
side-by-side comparison. I'd like to know that better. The
reason I ask is because I don't view them dramatically
differently. There are environmental impact differences, and
there are things that we could debate.
What I am trying to get to is, I don't want to see a
citizen of the United States whose got property not be able to
get the full hearing he or she needs to have for whatever the
public use is, right? Whatever that question is, a road, a
highway, a public utility, a pipeline, whatever. We are going
to have some disagreements as a policy matter about the merits
of having a pipeline. I don't want that to be the issue. I want
to know, all right, we're going to have a pipeline because
that's good for the United States. And it is a public use in my
view, and there may be some disagreements by some on that. But
I want to know that property rights are being respected.
And on the question of the valuation, on the eminent domain
and what Chairman Raskin was going down--you know, I would be
mortified if there's a--an American citizen in North Carolina
or Texas or anywhere that have property, and they weren't made
whole for whatever FERC was doing. And so, I'd like to know
more about that and those questions. What I'd do is, I'd put in
perspective what I said in my opening statement is about 1.97
percent, I think is the stat, 1.67 percent of all of the
tracts, the property actually end up in eminent domain process.
So, what that means is, right, the other 98-point whatever
percent are contractually sorted out. And so FERC comes in or--
I mean, the pipeline comes in, an agreement is reached, and
say, great, you are going to pay me X, and you can use my
property, or take my property or run it over across the corner
of my property. And to answer the question from Chairman Raskin
about valuation, because your property values go down. Well, I
would say that depends.
In my observation, some people's property gets absolutely
ruined. Like live oak trees in my central district get ruined,
or a pipeline runs right by your house. Well, that's a
valuation question. Or some people have a 500-acre tract, and
it goes over the corner of the property or their land, they got
paid well for it. There's no real diminishment in the value of
your dirt. It's going to be a property-by-property question.
What I want to do is make sure that we have gotten this
more of a speech than questions, which I didn't mean it to be.
I want to know the safeguards. And I'd like to have--and I
might submit some written questions--but I'll just ask you Mr.
Morenoff and Mr. Turpin: What are the safeguards to ensure that
property owners are getting the valuation they deserve, and the
ability to question the taking in the first place?
They should have that ability, and they should have it
protected. If somebody is sitting on their property and one day
FERC shows up, or the pipeline company shows up and says, ``I'm
taking your property for a pipeline,'' they ought to be able to
say, ``Hell, no'' unless, you know, the public is going to make
a decision that this is public use. And then we're going to go
through a hearing. And I know my valuation is going to be done.
Just like a highway, I might get mad about it, but we have
those processes.
Can you all explain what safeguards are in place for that?
And I have gone over five minutes, Chairman Raskin, so I'll
leave it at those questions.
Mr. Morenoff. Ranking Member Roy, I think there are many
protections that are built into the FERC process. There is
extensive public participation, including for affected
landowners to participate, to express their grievances. I think
the Commission, just from the past year, has built in
additional protections, including with the issuance of the
final rule that you had noted, which ensures that construction
will not begin on the pipeline while a hearing is pending at
the Commission, as well as the Commission's efforts to
accelerate action on those rehearings. I think that combination
ensures that the pipeline construction will not begin until the
affected landowner has the opportunity to go to court, if that
person wishes to do so.
As to the situation that you were referring to where
compensation has not been provided in an eminent domain
context, I share your and the chairman's concerns about that
situation. That is a question that would have been resolved in
an appropriate Federal or state court. And I would imagine that
the court would be able to enforce its decision.
Mr. Roy. But isn't it true--Chairman Raskin indulge me just
one more second--that sometimes people still get screwed. I
mean, look, I have established where my biases are on some of
this, about making sure that pipelines exist. But I do want to
make sure that--I know we say during a hearing--I just want to
know and that there it is--that the judge can make a
determination and--but what can FERC do to ensure that, look, a
pipeline was done and somebody's land was impacted and, just,
you know, are there any other additional safeguards that might
be put in place that we are at least observing to ensure that a
property owner is not left wondering why their, you know,
property they got from their parents, or they bought and worked
it, you know, made themselves got messed up, ruined, taken, or
whatever, and they didn't get the valuation they thought they
should get? Chairman Raskin, I'll stop.
Mr. Raskin. No, please take your time, Mr. Roy. I like
where you're going with that.
Mr. Roy. Well, if I start ranting about Democrats and
pipelines, you're going to cut me off. Anyway. Go ahead.
Mr. Morenoff. Ranking Member Roy, I think that the
Commission has and continues to improve our processes to ensure
that the landowner has the opportunity to be heard, has the
opportunity to have the day in court, and to ensure that the
land is put back to an appropriate condition, as Terry was
describing earlier. Specifically out of its compensation, I
don't believe that is within FERC's authority. I think that is
an issue for the Federal or state courts.
Mr. Roy. Mr. Turpin, do you have anything to add to that?
Mr. Turpin. Yes, I think the entire process--I mean, most
projects are in a 1-to, 2-to, 3-year cycle of review. And in
the prefiling process at the beginning of it, we require the
companies to reach out to all the landowners, so that
landowners can give input as to the route selection and impacts
it may have on their property. And it is a rare project, if
there ever was a project, that wasn't altered by that, by those
conversations.
And, so, I do think the landowners have an ability to
provide input. Move to the company that's developing the
project, as well as to FERC staff throughout the review. And in
many cases, if the proposed design has changed before it comes
to the Commission, that addresses the issues, and other staff
look at alternatives. And, in some cases, the Commission orders
reroutes to address issues.
But, in general, I mean, this is infrastructure that is
crossing multiple areas, multiple jurisdictions. It is almost
always on privately held land. So, moving to off-private land
is--usually isn't feasible, and that's just the nature of long
linear infrastructure.
Mr. Roy. I yield back, Mr. Chairman. I've taken too much
time.
Mr. Raskin. Thank you, Mr. Roy. I am now going to recognize
Chairwoman Maloney for her five minutes of questions.
Mrs. Maloney. Thank you, Mr. Chairman, and I thank the
panelists. On July 2, 2020, former FERC Chairman Neil
Chatterjee and Commissioner Richard Glick issued a joint
statement about the D.C. Circuit opinion in Allegheny Defense
Project v. FERC. The statement asked Congress to amend the
Natural Gas Act, nd I quote, ``Consider providing FERC with a
reasonable amount of additional time to act on rehearing
requests,'' end quote.
For the purpose of simplicity, I am going to refer to
rehearing requests as appeals. The subcommittee's investigation
this year revealed that on average, FERC took 212 days, or
about seven months, to issue a decision on landowners' appeals.
So, Mr. Turpin, how much time do you believe is reasonable
for FERC to act on appeals?
Mr. Turpin. Well, I think the statute--and it's clarified
by the court--has stated that the Commission has 30 days or
those appeals are denied, and folks can then seek appellate
review. The issues typically raised in rehearing are technical
and complex. The Commission spends a lot of time trying to sort
those issues out and provide reasoned decisions. I don't know
if Mr. Morenoff would have an additional statement to add.
Mr. Morenoff. Representative, thank you for the question.
Well, both Chairman Chatterjee and Commissioner Glick have
stated that they defer to Congress on whether and to what
extent to extend that period. I think the legislation
introduced by, I believe, Representative Malinowski, with
respect to the Natural Gas Act, and Representative Casten, with
respect to the Federal Power Act, establish what would strike a
reasonable balance between additional time for the Commission,
and continuing to ensure prompt action on rehearing.
Mrs. Maloney. And what is that time that they suggest?
Mr. Morenoff. Thank you. I believe for the Natural Gas Act,
it is approximately 60 to 90 days. And I believe for the
Federal Power Act, it is approximately 120 days, reflecting the
varied complexity that is typical as to the rehearings under
those statutes.
Mrs. Maloney. In the same July statement, FERC stated that
any legislation extending the time for appeals should ban
companies from seeking eminent domain during the FERC appeal
period. And I could not agree more. If you're in an appeal, you
shouldn't be able to go in there and grab someone's property.
So--but FERC doesn't need an act of Congress for that. I think
you should be able to do that on your own.
So, Mr. Morenoff, does FERC have authority to suspend
certificates of public necessity?
Mr. Morenoff. Yes, Representative, the Commission could
suspend--could issue a stay with respect to the order granting
a certificate.
Mrs. Maloney. So, in that case, Mr. Morenoff, does FERC
even need Congress to pass a law prohibiting eminent domain
while an appeal is pending? Why can't FERC suspend the
certificate on its own accord?
Mr. Morenoff. Representative, I think it is correct, the
Commission could, as a matter of force, issue that type of
stay. I think that is a very broad action if the Commission
were to take. And as I had noted earlier, the Commission has
traditionally viewed the eminent domain provision of the
statute as providing that authority to the certificate holder.
For that reason, I do agree with the request from Chairman
Chatterjee and Commissioner Glick that Congress taking that
action would be a cleaner way to ensure that if the
Commission--what would be the cleanest way to ensure that that
action is properly taken within statutory authority.
Mrs. Maloney. Would you agree that eminent domain could not
be granted on a suspended certificate?
Mr. Morenoff. I think that is correct.
Mrs. Maloney. And Commissioner Glick has, in fact,
suggested that FERC should suspend certificates while an appeal
is pending. And I strongly suggest that FERC adopt that
practice, or that Chairman Raskin legislate that practice. It
seems totally fair to me.
And I must admit, I'm a bit confused as to why FERC
believes it needs Congress to act on this. FERC created a
tolling order procedure out of whole cloth. Nothing in the
statute provides FERC the explicit authority to issue tolling
orders, which primarily benefit pipelines. But FERC did it
anyway. And yet, they don't seem to be willing to be as
creative or supportive when it comes to measures that could
benefit landowners. I find that troubling.
So, I urge FERC to leverage all tools at its disposal to
restore the proper balance of power between big natural gas and
big companies, and provide landowners, and if not, I hope that
the Chair and the Ranking Member act legislatively to address
this. And I yield back. And, again, I thank all the
participants and the Chairman and Ranking Member for holding
this important, really, balance of power issue for our
communities. I yield back. Thank you.
Mr. Raskin. Thank you for those very thoughtful points and
questions.
I now yield to Mr. Armstrong of North Dakota for his five
minutes of questions.
Mr. Armstrong. Thank you, Chairman Raskin. And I just--I
want to piggyback on a couple of things Congressman Roy said,
and the first being that I have had an opportunity in North
Dakota to deal with these issues, both in the private sector
and the legislative sector, since the Bakken shale problem
started occurring in 2007 and 2008. I had an opportunity to
work through the state regulatory agencies to rewrite all of
our intrastate pipeline regulations for the whole state of
North Dakota.
We set up a program at the Department of Agriculture to
actually have landowners who are dealing with easement
problems. More often than not, six months after a pipeline was
put in, we have hard winters, sometimes we have erosion issues
in the spring, and allowing landowners, farmers, and different
people to navigate those positions.
But I also think it's important to point out this isn't--
that we have seen an absolute attack on the oil and gas
industry in my two years. Whether it's this committee or
Financial Services, we have heard members talk about starving
energy companies of access to capital. We have had a vote on
the floor of the U.S. House in which almost every Democrat in
the U.S. House voted to ban the transport of liquefied natural
gas by rail.
These issues are very important in North Dakota. We're the
geographic center of North America. We produce a lot of things,
oil and natural gas, that have to get to market in other
places. And you can follow this through as it goes everywhere.
The Williams pipeline abandoned a project that after New York
had continued to [in]the cost from 600 to $1 billion. Duke and
Dominion abandoned the Atlanta Coast Pipeline after they
secured a 7-to-2 Supreme Court victory, because of a ruling in
my neighbor state on the Dakota Access Pipeline, which threw
out the longstanding Corps--nationwide permit 12 Corps of
Engineers Program.
So, to deal with these issues is--and being able to get our
products to market is incredibly important, not just for the
state of North Dakota, but for the United States energy
independence.
That being said, I have also been in numerous fights with
oil subsidiaries in my home state over private property rights.
And so, I just start with an eminent domain should be used
sparingly, if at all. If you are doing those things, there is a
constitutional right.
So, I would start with Mr. Turpin. Would it be realistic to
build this infrastructure without the use of eminent domain?
Mr. Turpin. As I said in my earlier remarks, I mean, long
linear infrastructure gets built on private land. I mean, it's
just not possible without private land. And I think Congress
recognized the weight and the seriousness of the need for
eminent domain for certain types of infrastructure when it
added it to the Natural Gas Act.
Mr. Armstrong. And, Mr. Morenoff, then I'll go to you, and
I will make it more specific. When you are dealing with a
pipeline, particularly in troubling geographic areas, if you
have 999 landowners say yes, and one says no without the use of
eminent domain, do you have a pipeline?
Mr. Morenoff. No, there may be situations where eminent
domain is necessary.
Mr. Armstrong. OK. And then, so now we're talking about
that, and we know we need to continue it--and any realistic--by
the way, this is realistic for any energy project. If some of
my friends have their way and figure out a way to stave off and
choke off all carbon fuels, oil, and natural gas, we are going
to need eminent domain to put transmission lines. I can
guarantee you that because the infrastructure--I served on the
Select Committee on the Climate Crisis, and the infrastructure
for those projects does not exist at all. And as far as I am
aware, the eminent domain procedure for transmission line in a
pipeline is not significantly different, is it?
Mr. Morenoff. No, indeed there is not comparable siting
authority for the Commission under the Federal Power Act, so
that would be addressed on the state level.
Mr. Armstrong. So, once we're dealing with these pipelines,
one of the things I think that really is important--because we
know this is going to continue, and it has to continue. Our
energy independence and our economy depend on it. So, can you--
and I ask you both this--can you discuss the steps that FERC
takes to ensure that companies actually do properly restore the
lands? Because oftentimes, one--I mean, these are contentious
situations that occur one way or the other, but once they occur
that, that is the next step in the process. So, do pipeline
companies have to provide FERC with status reports throughout
the process?
Mr. Turpin. They do. The Commission requires the companies
to have environmental inspectors that they employ to do
monitoring and to file reports. We often employ compliance
monitors to be in the field looking at restoration activities
and construction activities, with the entire goal to ensure
that the construction complies with the Commission standards
with the plan and procedures that was put out, and that
restoration is completed along those right-of-ways once the
project goes into service.
Mr. Armstrong. Does FERC have--I mean, do you have
employees that do onsite screening inspections, or for ongoing
pipeline projects?
Mr. Turpin. Yes. Yes. They Office of Energy Projects that I
work in, our staff will do field inspections. More often, we
employ contractors and compliance monitors to be in the field,
because they're there at the project for the entire duration of
the construction on that specific project. But we have them
there to monitor just those circumstances.
Mr. Armstrong. And you guys have a helpline as well, right?
Like we sent the--in North Dakota, we set it up in the A
Department. Just because we're a rural state, most of the
people we're dealing with had some knowledge base, or had some
relationship with some agriculture program in the state. But
you guys have a helpline as well?
Mr. Turpin. Yes.
Mr. Raskin. The gentleman's time has expired. But, please,
Mr. Morenoff, answer his question.
Mr. Morenoff. Yes, that's correct. We do have a landowner
helpline that is part of our Dispute Resolution service based
in our Office of the General Counsel that coordinates with
other FERC staff as appropriate as Terry was describing.
Mr. Armstrong. And then, thank you Mr. Chair--Chairman
Raskin for letting me go over a bit. I would also just say, one
game of paper, rock, scissors is actually 2 to 1 against.
Mr. Raskin. See, I thought it's like if you have two rocks,
it's a tie. But then the paper beats the rock, but the rock
beats the scissors. But, we will figure it out later. I was
trying to figure it out.
I am going to call now on Ms. Wasserman Schultz for her
five minutes of questioning.
Ms. Wasserman Schultz. I am just going to resist temptation
to--to even get in that fight, though it's difficult. Thank
you, Mr. Chairman. I'm really glad we're having this hearing
today because this is an opportunity to highlight a lesser
known harm caused by fossil fuel pipeline. We know that there
is grave harm that building fossil fuel infrastructure causes,
and it's certainly an obstacle to getting to clean energy as
soon as possible.
But today, we have been talking about FERC certificates.
And these start the pipeline approval process, but they don't
authorize construction on their own. When the pipeline company
is ready to build, it has to come back to FERC to get another
approval. FERC policy prohibits a pipeline company from
beginning construction until it has all the necessary permits
from other non-FERC Federal and state agencies. For example,
people are authorizing pipeline construction. Companies must
comply with bedrock environmental statutes to ensure that its
projects won't cause significant harm to natural resources or
other interests or to ensure that any harm produced is
mitigated. Mr. Turpin, do I have that right so far?
Mr. Turpin. Yes, ma'am.
Ms. Wasserman Schultz. OK. So, despite this, FERC has
created a loophole to allow companies to begin action on the
project under what FERC calls, quote, preconstruction activity.
And, Mr. Roy, I appreciate your comments about being
careful about eminent domain and how we use it, but
preconstruction activity is allowed even if the pipeline
doesn't have all its permits.
Our investigation revealed that over the past 20 years,
FERC has authorized preconstruction activity for 242 pipelines
that have not yet received all necessary permits. And I want to
talk about one notable case--the story of the Holleran family
in Pennsylvania. The Hollerans have owned a small maple syrup
farm that's in the path of the then proposed Constitution
Pipeline. They refused to sell access to their land, so the
pipeline company took them to court and won an easement through
eminent domain.
In January 2016, FERC allowed the company to proceed with
preconstruction activity and so-called limited tree felling.
This pipeline company cut down 550 trees [inaudible]--I'm
sorry. Can I ask for a pause, Mr. Chairman? There's someone who
is unmuted that has a lot of background noise.
Thank you.
So, if I can just be given a little latitude.
So, the company--the pipeline company cut down 550 trees on
the Hollerans' land, including 90 percent of the trees they
used for their maple syrup business, some of which were over
200 years old. This limited preconstruction activity all but
destroyed their business. By the time we launched our
investigation earlier this year, four years had passed, but the
pipeline still hadn't been built because of ongoing litigation
about state permits.
Mr. Turpin and Mr. Morenoff, do you think it was fair for
this family business to lose four years of revenue, even though
no construction was actually happening?
Mr. Turpin. I'll go first. No, that is not an outcome that
the FERC review process was ever intended to allow to have
happen. I would like to clarify, though, that the Commission
doesn't have a category of clearances for preconstruction
activities. Any activity that is undertaken needs to have the
permits for that activity, whether that's tree felling or
anything else involved with the pipeline construction.
Ms. Wasserman Schultz. But I think you'd agree--and it
sounds like you do agree--that--I mean, if the purpose of
eliminating trees on the Hollerans' property was to begin the
process of clearing the way for the pipeline to be built, when
you don't even know that the pipeline will ultimately get
built--and it, to date, has not been. In fact, it's been
canceled--then that kind of preconstruction activity, permitted
one permit at a time is premature and inextricably and
permanently damaging to this property owner and business
owner's businesses. Wouldn't you agree?
Mr. Turpin. Yes. I'm sorry, I had trouble with the mute
button. Yes, and that's why the Commission changed its
approach. Constitution was the first time, in my knowledge,
that we'd come across a circumstance where once construction
was authorized and moving forward, that the other permits
weren't gotten.
So, after that, the Commission, in looking at the notices
to proceed with construction, moved to a stance of ensuring--of
not allowing construction if a unit--if an operable unit of the
pipeline project couldn't be developed with all the permits in
hand before any construction could start. That's not to say
that every permit across the entire project is needed but ones
that--basically, it's an approach to eliminate the potential
that you have stranded construction that can never be used.
Ms. Wasserman Schultz. OK. I want to explore this a little
further with you. To add insult to injury, in February, after
years of litigation over permits, the company actually
abandoned the project completely. The termination of this
unnecessary fossil fuel project was a big win in the fight to
protect our Nation's waterways--that's not what we're debating
here right now--but at the end of the day, the Holleran family
maple syrup business was destroyed for nothing.
So, Mr. Turpin, can you expand on what is FERC doing to
make sure this never happens to anyone else?
Mr. Turpin. It's that approach of looking at--looking at
notices to proceed requests to ensure that----
Ms. Wasserman Schultz. I'm sorry. Just so that there's not
a lot of gobbledygook that people can't understand. What--how
have you changed your policies to make sure that no business
owner or property owner ever has the impact, due to FERC's
policies--approval policies, ever has to go through that again
and face the hugely damaging economic impact that the Hollerans
have faced?
Mr. Raskin. OK. And the witness can answer this question,
please.
Mr. Turpin. By ensuring that when a pipeline moves into
construction, that the full unit of the--an operable unit of
the pipeline is what's authorized.
Ms. Wasserman Schultz. I don't know how the clearing of
trees would have--I don't know how that correction would have
prevented the 550 trees being felled and ruining the Hollerans'
business. How would it have prevented that?
Mr. Raskin. The gentlelady's time is expired.
Did you want a final comment on that, Mr. Turpin?
Mr. Turpin. Sure. The situation that developed on
Constitution was one where construction and tree felling was
authorized before the project had received permits in another
state that were necessary for the project to ever flow gas. So,
that set of circumstances is prevented by approaching those
clearances for construction in such a way that even if the
companies got the permits for the specific action they want to
undertake, if they are still reliant on a separate permit in
another place to ensure that that infrastructure can ever be
used, can ever flow the gas, and they don't have that permit,
then construction isn't authorized to move forward.
Ms. Wasserman Schultz. OK. I'm not sure I understand or
that that's clear, Mr. Chairman, but I appreciate the
indulgence.
Mr. Raskin. Yes. Just to complete the point, Mr. Turpin,
are you saying the certificate would not issue in the first
place until all of the necessary permits were obtained by the
company?
Mr. Turpin. No, Representative. What I'm saying is that
once the Commission makes a public interest determination,
review for compliance, getting the other permits, initiating
construction action, is delegated down to staff. Staff reviews
the filings that the company makes. If the company doesn't have
the permits needed for a section of construction, that would--
that allows the construction to actually flow gas, to be
useable infrastructure, then we no longer issue notice to
proceed to allow it moving into construction.
Mr. Raskin. So, at that point, they're forbidden to
proceed?
Mr. Turpin. Yes. They have to have specific authorization
to proceed. And so it if that authorization is not issued, they
cannot move forward.
Ms. Wasserman Schultz. Would that have stopped the trees
from being felled, Mr. Chairman?
Mr. Raskin. Well, Mr. Turpin, we'll give you one final
comment, and then we've got to go to Mrs. Miller. It's her
turn. But, yes, would what that stopped--would that have saved
the trees in this case?
Mr. Turpin. I'm not--I'm not certain. I mean, it's
difficult for me to speculate on that.
Ms. Wasserman Schultz. It wouldn't have. It wouldn't have.
That's the point.
Thank you very much.
Mr. Raskin. Ms. Wasserman Schultz, thank you very much for
your questioning.
Mrs. Miller, it is your turn.
Mrs. Miller. Thank you, Chair Raskin and Ranking Member
Roy. And I want to thank both of our witnesses for being here
today. These conversations are very important for us to have.
You know, everybody wants their lights on and their homes
heated. The rise in usage of natural gas has led to American
energy independence and American energy dominance. Between 2005
and 2017, the United States decreased emissions by 14 percent,
a large part because of natural gas.
For over a century, my state of West Virginia has been an
energy producing state. The natural gas industry has provided
new and high-paying jobs in my state and throughout Appalachia.
This has helped, as burdensome government regulations caused
the loss of coal jobs. Natural gas continues to be vital for
our energy security, our national security, and overall
reducing of global emissions.
My colleagues across the aisle would have you believe that
solar and wind can bring our carbon emissions to zero while
easily powering our country. In places like California, where
they have unachievable renewable energy standards, natural gas
has helped keep homes, businesses, and schools powered when
renewables cannot.
According to the U.S. Energy Information Administration in
California, the most populous state in our Nation, nearly two-
thirds of the households use natural gas for home heating, and
almost half of the state's utility scaled electricity is fueled
by natural gas. How does California get this critical source of
energy, you might ask. By pipelines.
Pipelines are necessary to transport natural gas, both to
ensure American homes can keep their lights on, but also it's
necessary to trade with our allies. Many of our European allies
rely on Russian natural gas, which is not only worse for the
environment, but it is also a major national concern for
security reasons.
It is also necessary to not only be cognizant of our
citizens' property rights, but also to work with our citizens
and communities on pipeline projects. I believe that we can do
both of these things reasonably.
Mr. Turpin, how do FERC and pipeline companies engage with
landowners and communities when they are considering new
pipeline projects? How does the community engage in the
process?
Mr. Turpin. As I--thank you, Representative. As I had
mentioned earlier, it starts generally in the prefiling process
while the company is still designing its project. We require
the companies to--we provide this venue so that all
stakeholders can come to the table and give input, with the
idea being that input into the project as it is being designed
is much more effective than attempting to address issues that
come up with a route that's already got a lot of study and a
lot of factors baked into it.
So, during prefiling, we require the companies to reach out
to all the affected landowners, and they are free to file
comments also to the Commission and its staff, and we will look
at all those comments in looking at both the proposal by the
company as it develops, as well as in suggesting alternatives
throughout the project review.
Mrs. Miller. I think we all understand that we have learned
through our history the right way and wrong way to do things.
People with orange groves, you know, when we've run roads right
through their farms. We've all learned what's necessary. Can
you discuss the importance of natural gas for American energy
independence?
Mr. Turpin. That would be something that I'm not able to
discuss. My role at the Commission is really just reviewing the
proposals that come in and it's looking at the transportation
routes of that commodity, not making an assessment on the need
of that commodity.
Mrs. Miller. Have you been alive during the time when we
were dependent on other countries for our energy?
Mr. Turpin. Yes, Representative.
Mrs. Miller. So, you would understand that.
How can exports of American natural gas improve the
national security for our allies in Europe?
Mr. Morenoff. Representative, Chairman Chatterjee has
spoken many times with respect to that view, expressing his
belief that the export of natural gas can be very helpful in
the ways that you were describing.
Mrs. Miller. Thank you. And how can natural gas help reduce
carbon emissions while they are also providing key baseload
energy? Either one of you.
Mr. Morenoff. Representative, I think that is a question of
what fuel is being displaced, but there may be situations where
natural gas will lead to lower carbon emissions, relative to
the----
Mrs. Miller. OK. Thank you.
I yield back my time.
Mr. Raskin. Thank you very much, Mrs. Miller.
I now recognize Congresswoman Robin Kelly from Illinois.
Ms. Kelly. Thank you, Mr. Chair.
FERC's processes and regulations are incredibly convoluted
and difficult to understand, and landowners are often left to
their own devices to try and figure it out. This is a stark
contrast to pipeline companies who are repeat players with
high-powered attorneys who know the system inside and out.
Mr. Turpin, do you agree that there is an inherent
imbalance of power between individual landowners who know
nothing about FERC and big energy companies with corporate
attorneys?
Mr. Turpin. No, I don't. I think the Commission's processes
provide equal opportunity for anyone to make their voice heard
in the Commission's considerations.
Ms. Kelly. Right. But there's a difference between when you
have a high-powered attorney and when you're just an everyday
landowner, in my opinion.
Advocates have pointed out that there is an imbalance and
has been an imbalance for years. We have heard that the
pipeline industry has many advantages over landowners in
navigating the FERC process, including the ability to regularly
communicate with FERC staff about their projects.
In 1978, Congress passed the Public Utility Regulatory
Policy Act, or PURPA, which included a provision directing FERC
to create an Office of Public Participation. Such an office
would provide resources for folks who want to get involved in
the FERC process but don't have the means or prior knowledge to
do so.
Mr. Morenoff and Mr. Turpin, do you agree that an Office of
Public Participation would be useful to landowners?
Mr. Morenoff. Representative, I think that there are many
ways that the Commission has sought to improve the experience
at FERC. With respect to the Office of Public Participation in
particular, my understanding is that since that authorization,
Congress has never appropriated funds for that purpose, and my
understanding is, in the absence of such an appropriation, FERC
does not have the authority to provide such funds even if the
office were created.
Ms. Kelly. Mr. Turpin, were you answering?
Mr. Turpin. No, no. No, Representative.
Ms. Kelly. OK. Well, despite 40 years, as you know, has
passed since Congress called on FERC to create the Office of
Public Participation and it has not been created. And you seem
to be inferring it's because of money that it has not been
created.
Mr. Morenoff. Representative, I think the Commission could
create an additional office, and different chairmen have
created different offices through their role and the proper
assignment of staff, but I think specifically with respect to
providing the funds that you were describing, I believe that
would require a specific appropriation from Congress.
Ms. Kelly. Advocates have noted that FERC has never
requested money for such an office, so a lack of money seems
less likely. Makes you wonder about the lack of will.
PURPA also has a provision that would allow FERC to provide
for compensation to landowners for fees they may encounter,
which would significantly reduce the barriers for them to be
able to participate in the FERC process.
Richard Averitt, a Virginia landowner, who was in the
pathway of the Atlantic Coast Pipeline, spent more than
$100,000 defending his land in numerous court challenges. He
has said he has no regrets about spending that money but thinks
there should be a law that allows landowners to be compensated
for reasonable fees. He stated, and I quote, ``we're lucky we
have the resources to fight it, but the way all of this is done
is an outrageous abuse of landowners. You have everything to
lose.''
Would you agree that the average landowner attempting to
protect his or her right to their land doesn't have $100,000 to
defend themselves against a large pipeline company?
Mr. Morenoff. Representative, I suspect that's correct.
Ms. Kelly. And so if you suspect it is correct, why hasn't
FERC created the PURPA provisions allowing landowners to
request funds?
Mr. Morenoff. Representative, again, my understanding is
that FERC would not be able to provide such funds absent a
specific appropriation.
Ms. Kelly. And then, Mr. Turpin, can you please tell us
exactly what steps would need to be taken for FERC to provide
this resource to landowners, and what should FERC do, and what
should Congress do so maybe we can make some changes?
Mr. Turpin. Well, I think, as my colleague has mentioned,
it would have to be in appropriations. It would have to be
addressing FERC's provision of this compensation to the private
parties in these proceedings. We'd need to have--we would need
to have instruction from Congress on that.
Ms. Kelly. OK. Mr. Chairman, I don't see the clock, so I
don't know if I'm out of time. Oh, yes, I am. OK. Well, I
definitely, for one, would like to see something done so we can
be of more assistance to our landowners. Thank you.
Mr. Raskin. Ms. Kelly, thank you for your promptness in
your questioning.
And we will now go to Mr. Cloud of Texas.
Mr. Cloud. Thank you very much, Chairman. Appreciate the
topic. Energy is extremely important to where we are as a
Nation right now.
Of course, you know, the world's demand on energy is
growing, and so the question becomes, who's going to meet the
world's demand for energy? And I think what we've seen lately
with the amazing technological advancements with natural gas,
it's really put the United States on the forefront of being a
world leader in energy production. That has done a number of
things. It's helped with our environment. It's helped with us
being able to have strength going to the negotiating table when
it comes to trade, when it comes to national security.
Indeed, we've had three historic peace deals in the Middle
East. It's understandable that those may not have happened
without the strength that we now have in the energy sector. So,
it's important for us to understand the role that we do play in
the energy world and how much of a benefit it is.
And, Mr. Turpin, could you speak to, what's the cleanest
way to transport natural gas, that we know of?
Mr. Turpin. Again, sir, my expertise is in analyzing the
proposals for pipelines. I don't have the background for that.
Mr. Cloud. Well, I think we understand that it is
pipelines.
Could you speak to, then, the process leading up to filling
out an application with FERC? Is it fair to say that many
pipeline companies carry out prefiling activities never
formally apply? There's a lot of work that goes in even before
the application. Is that correct? Can you speak to that?
Mr. Turpin. Yes. Yes, there is. Actually, a lot of
companies, from my understanding, will begin sort of conceptual
investigations and design of projects and never even reach the
prefiling process. There are a smaller amount of companies that
start prefiling and then back out later.
It is typically no less than six months on a pipeline. More
often it is a year or more, the prefiling review. And again,
it's where the pipeline is attempting to design its project
with input from the affected stakeholders so that when it does
make a formal application to the Commission, it is attempting
to address all the issues that people have raised about the
project. So, it is a long process.
Mr. Cloud. OK. Is FERC--you touched on this before, but is
FERC the only agency that signs off on pipeline projects?
Mr. Turpin. No. Any----
Mr. Cloud. Or any project of this? Go ahead. Either of you
can answer. Go ahead.
Mr. Turpin. I wouldn't--no. The--the--FERC is often the
agency that issues one of the principal or lead permits, but a
project will have to comply with all Federal authorization.
Mr. Cloud. What are some of the other agencies?
Mr. Turpin. Oh, it depends on--you know, it's very specific
to the project and the type of resources that it crosses. It
can involve Clean Air Act permits from the EPA, Clean Water Act
permits at the state level. It involves coordination and
clearances from Fish and Wildlife Service, National Marines
Fisheries Service on species consultations, as well as
coordination with the advisory council on historic properties.
Mr. Cloud. OK. And any company wanting to build a pipeline,
even if FERC's authorization certification comes first, they
still need to be approved by all these other agencies. Is that
correct?
Mr. Turpin. That is correct.
Mr. Cloud. OK. Thank you, Chairman. I appreciate the time,
and I yield back.
Mr. Raskin. Thank you very much for your questioning, Mr.
Cloud.
We come now to Ms. Norton for her five minutes.
Ms. Norton. Thank you very much, Mr. Chairman, and I
certainly appreciate this hearing, because I think it is
important to straighten out where we really stand.
Now, nobody on this committee is against natural gas.
Natural gas is an important step to be taking now in the fight
to alleviate climate change. What we're talking about here does
not seem to me to be hugely impossible for industry to take.
But we find that FERC, the regulatory agency, falls short of
fully enforcing its obligation. That's the problem.
Instead of requiring pipelines to fully repair property
before being allowed to use the pipeline, FERC usually allows
the pipeline to go into service before restoration. So, what
that means is that the pipeline can begin profiting while
dragging its feet on repairs. So, you can see why the committee
sees a remedy here that apparently FERC has not seen.
So, I'd like to ask Mr. Turpin why FERC doesn't require
companies to complete restoration before allowing them to turn
the pipeline on. That would be a pretty simple solution here.
Wouldn't it be a minor delay to ensure timely repairs, rather
than begin profiting before the landowner is made whole?
Mr. Turpin. So, the Commission does--the Commission does
require companies to restore land. Often that--what is looked
at is the trajectory of restoration that they're on.
Restoration can take multiple years, which is why the
Commission's standard is that the right-of-way needs to be
monitored and inspected for at least two growing seasons. What
we're looking for is the restoration of vegetation, that proper
drainage is restored, and often those things can't be assured
until after one or two growing seasons.
In addition, there can be pipeline subsidence after--or
right-of-way subsidence after the pipeline is installed. So,
rather, we look for the company taking the responsible action,
recognizing that a restoration of things like vegetation can
take some time.
Ms. Norton. Yes, but you speak about the restoration being
completed within two years. Let me give you another example,
because two years is a long time to wait for restoration. I
want to give you the case of the Midship Pipeline, because
that's where we saw the kind of damage that brings on a hearing
like this.
FERC let it go into service in April of this year, but that
was after Midship promised to complete the full outstanding
repair by the end of June. Now we're more than five months
later. Those farmers are still waiting and have lost yet
another growing season due to Midship's delays. That's after
already having lost several seasons during construction.
I suspect that those repairs had to be done--if those
repairs had to be done before Midship could turn the pipeline
on, the farm would have long since been repaired. Don't you see
the quid pro quo there, Mr. Turpin?
Mr. Turpin. I think restoration activities are always
dependent upon weather and lots of circumstances. In the cases
you're talking about on Midship, there had been a substantial
amount of rain throughout parts of the construction and
restoration. And what we've seen is, the longer the restoration
gets--drags on because of inefficiencies or because of
difficulties, the more difficulties that pile up. So, that is a
situation we still continue to look at, but the bottom line is,
the--Midship will be required to restore those rights-of-ways
to the conditions that the Commission establishes. I mean,
point blank, that's it, they will be required to restore them.
Ms. Norton. Of course, they're required to restore them.
Mr. Chairman, there simply is no equivalence between
restoration and operation. Operation, it seems to me, is the
overall--has the overall advantage with FERC, and as a
committee, I believe we have got to make those two equivalent
or the landowners will continue to be penalized.
Thank you, sir. Thank you, Mr. Chairman.
Mr. Raskin. Thank you for your trenchant insight on that. I
very much appreciate it.
And I now recognize our distinguished colleague from
Michigan, Ms. Tlaib, for her five minutes of questioning.
You've got to unmute, please, Ms. Tlaib.
Ms. Tlaib. I'm so sorry. Thank you so much, Chairman, and
thank you so much for bringing this important issue to our
committee. I had no idea this was happening, and I really do
appreciate it.
In our video report earlier this year, I think, Chairman
Raskin interviewed a landowner named Richard Averitt who was
fighting to protect his land from the now canceled Atlantic
Coast Pipeline. He explained how complicated the FERC process
is for the landowners and pointed out an absurdity in the
process, which really took me aback.
If a landowner wants to challenge a pipeline that may go
through their private property, they must affirmatively file to
be an intervenor in the FERC case within 21 days. If you don't
intervene, you lose standing, completely lose any rights.
Richard, in his testimony before Chairman Raskin, he said,
quote, ``the idea that someone can take your land, and if you
don't expressly opt in, you lose your rights for all the
processes, it's outrageous.''
I agree with him completely. This is an extraordinary
burden, y'all, like, on landowners, on people, regular folks.
They're not lawyers, they're not experts, and I truly believe
that FERC's process puts this unfair burden onto our residents
and landowners.
One of these things that came up, but, you know, one of the
things that was really stunning was that FERC actually takes
literally a hands-off process or approach in educating
landowners about their rights. FERC delegates it--get this--to
the pipeline company to conduct direct outreach to landowners
and inform them of their rights. This is a huge conflict of
interest.
Landowners have said that the only notice they ever receive
consists of some sort of pamphlet that's buried in legal
documents. They often have no idea, which is completely
unfair--no idea, no notice that they must intervene to fully be
engaged and be able to protect their land.
So, Mr. Morenoff, why doesn't FERC proactively reach out to
affected landowners instead of delegating it to the pipelines?
Mr. Morenoff. Representative, we go to great lengths to
ensure that all landowners receive notice through attention to
the landowner list and the--ensuring that information is
provided. At that----
Ms. Tlaib. Mr. Morenoff, are they lying? Are they lying
when they say they're not given notice? I mean, why wouldn't
they? It's their land. So, when you say you do, you're
literally delegating it, from what I understand, giving it and
putting the burden on the companies that benefit from them
not--from the landowners not knowing.
Mr. Morenoff. Our sense is that, including through the
prefiling process that my colleague was describing, the
pipeline is in the position to have a sense best of all of the
people who will be affected along the way. FERC's regulations
then require that information to be provided.
It's also the case that it--I'm sorry.
Ms. Tlaib. Go ahead, Mr. Morenoff. I just think it's a
conflict of interest when it looks like you all are depending
on the pipelines to do it.
Mr. Morenoff. I also feel confident that in the situation
where a landowner were able to show that they had not received
notice, the Commission would allow them to intervene after that
21-day period as a matter of fairness.
Ms. Tlaib. Beyond the pamphlets and the FERC website, what
does FERC do to proactively educate landowners other than the
options in the FERC process right now?
Mr. Morenoff. To me, one of the really important
opportunities that we provide is also the landowner helpline,
which is something that is also--we try to heavily publicize,
so that people have the opportunity to have someone at FERC who
can help them to understand the process. We do understand that
many people have no reason to be familiar with FERC.
Also, the FERC website was completely overhauled this
past----
Ms. Tlaib. How many people, do you know how many people,
Mr. Morenoff, have called the hotline?
Mr. Morenoff. I believe over the past few years, it is in
the hundreds to thousands.
Ms. Tlaib. I want to go back to the issue of intervention.
It seems to me that if FERC wanted to protect landowners, it
could, by default, make all the affected landowners parties to
the case by default, literally make them part of the case--they
are directly impacted--and allow landowners to opt out of the
process. So, why not automatically go ahead and make them part
of the process? They have legal standing obviously, it's their
land.
I mean, the only good reason I can think of is FERC doesn't
really want to make a good-faith effort to make the process
smoother and easier for--you know, easier for landowners, but
really lean toward benefiting the pipeline.
So, Mr. Turpin, why is the window for the landowners'
intervention so short, 21 days?
Mr. Turpin. Well, it's not just the 21 days. There's also
opportunities to intervene after the Commission issues its
draft environmental impact statement. And either of those
periods are not prohibitive as well. Folks can petition to
become an intervenor at any time in the process as long as they
can demonstrate good cause. And the Commission has historically
viewed land ownership as good cause for being an intervenor.
Ms. Tlaib. Mr. Turpin, is it true that FERC has the
authority to set a longer intervention period?
Mr. Raskin. The gentlelady's time is up, but please answer
her question if you would.
Mr. Turpin. Yes. The--the--yes, the Commission has that
authority.
Ms. Tlaib. So, why haven't they done it?
Mr. Turpin. I think, again, it comes back to that the
Commission will always consider requests for intervention even
outside of those periods when it makes its determinations and
often grants that intervention.
Ms. Tlaib. Depending on what the pipelines want, right?
Mr. Raskin. Ms. Tlaib, I think we're going to have to leave
it at that. Thank you for your questioning very much.
And Mr. Lynch of Massachusetts is recognized for five
minutes now.
Mr. Lynch--Mr. Lynch, you've been recognized for your
questions.
Mr. Lynch. Thank you very much, Mr. Chairman. I really
appreciate your kindness in allowing me to waive in on this.
I'm not a usual member here, but I am----
Mr. Raskin. We are delighted to have you.
Mr. Lynch. Well, thank you.
So, I also sit on the T&I Subcommittee on Railroads and
Pipelines and Hazardous Material, so I do get a lot of action
around pipelines. Matter of fact, I asked for assignment to
that subcommittee on Transportation because of all the problems
I'm having with pipelines in my district. So, I really
appreciate the opportunity to participate.
I've got two major and dangerous pipelines that have been
recently permitted by FERC in my district. One is the West
Roxbury Lateral. Mr. Turpin, you might be familiar with this.
It actually runs through a live blast zone. OK? So, it's a
high-pressure natural gas line that runs through an active
blasting zone in a stone quarry that's next to a residential
neighborhood, so--you get that? They're blasting, right? So,
the people complain that their foundations are being disrupted
and damaged by the continual blasting that goes on here. And
then you come along and permit a high-pressure gas line to go
through the blast zone right next to the homes. These are
residential homes in West Roxbury.
And I got to tell you, we went to court against you. We
lost because--because everybody loses, right? And I appreciate
the due process arguments, you know, offered by the chairman.
Absolutely true, and it's stunning. It's absolutely stunning.
And then I have another pipeline that is in Weymouth,
Massachusetts, also in my district, and we're having a war
about that. We had two accidents in the last several months on
that one. There's been emergency shutdowns, and we still can't
stop it. So, we're dealing with PHMSA right now. They're
actually doing an active investigation.
But the question I have is, so in Weymouth, in Weymouth,
that is a pipeline to bring gas to Canada. Now, the pipeline
companies have relied heavily on the public purpose clause of
the Fifth Amendment, because ostensibly there's a public
purpose in providing gas to American cities and towns, you
know, to service our needs.
But this gas, this gas, is now become available--because in
the last 10 years, we went from a country that had a dwindling
gas supply, but because of hydraulic fracturing and direct
drilling, now we are an exporter.
And so what I'm asking is, shouldn't there be a different
standard? Shouldn't we take a closer look, a deeper level of
scrutiny for gas companies that are creating pipelines for
profit to sell to other countries?
So, the public purpose clause should not apply, in my
opinion--in my opinion. And I just want to ask Mr. Turpin and
Mr. Morenoff if you could address that question. Because we
raised it in court, but, you know, we had no shot.
Mr. Morenoff. Representative, if it's all right, may I
answer that question first?
Mr. Lynch. Sure.
Mr. Morenoff. In April 2018, the Commission issued a Notice
of Inquiry with respect to the certificate policy statement
that has governed the Commission's review of these types of
certificates for the past 20 years. One of the questions that
was teed up there went to what constitutes need and are there
different standards that should be applied based on different
facts.
Chairman Chatterjee has stated several times publicly that
his view is those issues are of such importance that they
should be addressed by a full complement of five commissioners.
Regrettably, we've had difficulty having five commissioners
over the past few years, but with the recent approval, we will
be up to five commissioners in January, and that may provide
the opportunity to address that and other issues that were
raised in that notice of inquiry.
Mr. Lynch. OK. What I'm saying is that FERC's credibility
is at a low point right now, and--so, you know, we've got a
bunch of factors that have not been as present as they are now.
And I haven't even got to the environmental part, which is
huge, but just the public safety.
So, the people in these city towns came up with alternative
courses, alternative routes, that were safer for the residents,
and FERC would not consider those. The pipeline company knew
they were going to get their--why should they--why should they
compromise? Why should they accommodate the local community
when they know they can jam it right through the court and get
exactly what they want?
So, I'm asking you to rebalance the scales and consider the
safety of the people, you know, that you're supposed to be
protecting and that we're all supposed to be protecting.
So, I don't know if my time is up, Mr. Chairman. The only
other thing I would--is just give Mr. Turpin an opportunity to
address the same question.
Mr. Raskin. Thank you, Mr. Lynch. Your time is up, but
let's give Mr. Turpin a chance to respond.
Mr. Lynch. You're very kind. Thank you.
Mr. Turpin. Thank you. I would have the same response that
David put forward. The Commission has considered those
questions and has sought comment from the public and all kinds
of stakeholders, and I'm hopeful that they'll move forward now
that we'll be soon having a full panel.
Mr. Raskin. Thank you. Mr. Lynch----
Mr. Lynch. Thank you. Thank you, Mr. Chairman. You're
awesome. Thank you.
Mr. Raskin. Thank you for your questions.
Mr. Lynch poses a very trenchant question, I think, that
all of us would be interested in having answered by FERC, which
is, you know, it's one thing if they come and they want to take
your whole backyard for a highway in your city. It's another
thing if they want to take your backyard for a highway to get
to another country that Americans aren't even going to be
using, and should that be treated differently.
I see now finally we've been joined by Mr. Gomez. And, Mr.
Gomez, you are recognized for your five minutes of questioning.
Mr. Gomez, you're recognized if you would unmute.
Mr. Gomez. Thank you, Mr. Chairman. In the age of
coronavirus, I'm having some technical difficulties.
So, I want to just start off with the question. In our
investigation, we saw a pattern of landowners' perception of
the FERC process, one that unfairly favors pipeline companies
over individual landowners. Irene Lynch, a Virginia landowner
in the path of Atlantic Coast Pipeline, has said that, quote,
``FERC is broken and the whole process is set up so that the
industry has advantage over landowners every step of the way.''
Similarly, Andrew Hindman, a Virginia landowner in the path
of the Transcontinental Pipeline, said, quote, ``FERC
authorized a pipeline and unleashed a private company onto all
the landowners along the pipeline without offering a whole lot
of support. It's unfair to the landowners.'' FERC Commissioner
Richard Glick has consistently called for more landowner
support.
Mr. Morenoff, do you believe that as things stand now, FERC
provides equal support for landowners to stand on equal footing
with pipeline companies?
Mr. Morenoff. Representative, thank you. I think the
Commission is always looking for ways to improve their process.
We recognize that landowners have those concerns, and we
continue to make improvements to the FERC process to make it
more accessible and more easily understandable for entities
that do not have the same familiarity with FERC as would
prospective developers.
Mr. Gomez. What do you think FERC should do to provide more
support? Is there any specific recommendations?
Mr. Morenoff. Representative, some of the changes that we
have made already, and I know we continue to attend to, are
making more information more easily available. I think it's a
fair criticism that even two or three years ago, someone coming
to the FERC website trying to find information, if you didn't
know about FERC, it would be very challenging to find that
information. Now the first page of ferc.gov is [inaudible] ask
questions, as well as to provide more information about the
landowner helpline, so that the landowners have the opportunity
to talk to a real person that can help them to understand that
process. I don't have other specific ideas in mind today, but
the Commission is committed to continuing to improve that
process.
Mr. Gomez. Yes. And I appreciate that, but as far as we can
tell, FERC seems to assign much of the responsibility of
assisting landowners to the pipeline companies themselves. For
example, FERC's landowner--quote/unquote, landowner topics of
interest page, it suggests that landowners first contact the
natural gas company's point of contact, then the company's
hotline, all before reaching out to FERC's landowner helpline.
So, Mr. Morenoff, why should a landowner seeking help with
a pipeline process trust the pipeline company to have his or
her best interest at heart?
Mr. Morenoff. Representative, thank you. And my colleague
Terry may have thoughts on that as well, but because the
pipeline developer is the entity that's on the ground, we do
suggest contacting the pipeline first, because if they can
reach a solution quickly, that's going to lead to the fastest
relief. But that in no way is intended to say don't contact
FERC. FERC is always there as a resource. And if for any reason
a landowner prefers to contact FERC directly, they should do so
quickly and first.
Mr. Gomez. Thank you. Also, landowners who do call the
pipeline, as what we've been told, say they feel like they're
speaking into the void. Landowner Maury Johnson of West
Virginia stated, quote, ``most landowners, citizens, and many
other groups that I know feel that they are being ignored by
FERC to the benefit of the energy firms that FERC is supposed
to regulate. There is nothing fair about this at all.''
Mr. Morenoff, can you tell us what assistance FERC provides
landowners through its helpline?
Mr. Morenoff. Yes. There are a variety of types of
assistance that a landowner may receive. One is it's a chance
to talk to a real person about FERC, about the process, if
someone does not understand what their opportunities may be to
participate.
It's also a way that if a landowner has a specific concern
at any point in the process, that point of contact through the
landowner helpline either may be able to reach out directly to
appropriate people on the ground or through the people in
Terry's office, the Office of Energy Projects, to be able to
have that kind of conversation. So, it is both informational
and the opportunity to receive specific assistance.
Mr. Gomez. Thank you. I had more questions, but I'm running
out of time.
You know, as the primary Federal authorizing agency for
natural gas pipelines, it is, I believe, the duty of FERC to
keep these pipeline companies in check. But at the same time,
our investigation has found that 99.4 percent of pipeline
applications have been approved--essentially, it is a rubber-
stamp, right--for nearly every natural gas project, often at
the objection of landowners.
It's a deep concern, because it's not your job just to
authorize natural gas pipelines, but also to help determine if
they're in the best interest of the landowners. And it seems
that it's not--that purpose is not being followed through with
and at the detriment of landowners.
So, with that, Mr. Chairman, I yield back.
Mr. Raskin. [Inaudible.]
Mr. Morenoff. Mr. Chairman, I believe you're muted.
Mr. Raskin. OK. Thank you, Mr. Gomez.
And I don't know whether either of the witnesses wanted to
comment on the question raised by Mr. Gomez about what is the
standard that FERC uses in granting a certificate of
convenience in the first place.
Mr. Morenoff. Mr. Chairman, the Commission takes seriously
our responsibilities with respect to the public interest as
established by the Natural Gas Act, considering a wide range of
considerations, including economic and environmental, as well
as the concern of landowners, in determining whether a
certificate of public convenience and necessity is appropriate.
And I think that the types of changes to which my colleague was
referring that develop through the prefiling process, as well
as through the more formal application process, reflect the
seriousness with which the Commission takes that
responsibility.
Mr. Raskin. OK. Thank you.
Before I adjourn and make a quick closing remark, I wanted
to give Mr. Armstrong the opportunity to make any closing
remark he would like to on behalf of the minority.
Mr. Armstrong. Thank you, Chairman Raskin.
I think it's important to remember natural gas is essential
to our economy and the United States' energy independence, and
it's often produced in states like mine and needs to be
transported across the country. Pipelines are far and away the
safest, cheapest, and most efficient way to transport natural
gas.
Pipelines relieve congestion on our highways and our rail
lines and keep transportation costs down for other industries
such as agriculture.
Pipelines require many years and significant capital to be
built. They require numerous permits at the state, local, and
Federal level. Unfortunately, eminent domain is often a part of
that process. FERC uses the eminent domain, and pipelines use
it very sparingly, and it's essential for U.S. energy
independence.
And with that, I'll yield back to you, sir.
Mr. Raskin. Thank you very much, Mr. Armstrong.
I want to thank both of the witnesses for their remarks,
for appearing today, and I want to commend all my colleagues
for participating so seriously in this truly important
conversation.
I wanted to just close by making a couple of points. You
know, we are the Subcommittee on Civil Rights and Civil
Liberties, and so we are concerned with the trampling of the
property rights of our people. We are not the Environmental
Subcommittee, so we're not dealing with the question of the
overall utility of this or that form of energy system.
And so I would hope that all of our committee members--and
I know from Mr. Roy's comments, he would seem to be part of
this--that all of our committee members would be interested in
the civil rights and the civil liberties of landowners who are
in the path of these pipelines, whether you're the biggest
supporter of natural gas and fracking in the world or you're a
big opponent of it. Regardless of what you think about the
energy systems generally, you would think that people have a
right, as private property owners, to fair and balanced
consideration of all of their claims and not having their
property taken from them without due process, without fair
compensation, without the opportunity to have it restored if a
project exercising eminent domain actually ends up not going
forward.
Let me just say, finally, because it was raised--although
it was not the subject of the hearing--I think it was stated by
a couple of people that natural gas fracking is climate change
friendly or safe. That is hotly disputed, and the extraction,
the combustion, the release of both carbon dioxide, but
especially methane in the process, can make fracking as dirty
as coal, according to a lot of scientific studies and reports.
And, in fact, the fracking process leads to very intense
concentrations of methane being released, and that is an even
more diabolical substance when it comes to climate change than
carbon dioxide itself is.
But in any event, that's the subject of another hearing.
This one, I think, has been extremely productive and
illuminating in terms of figuring out what's gone wrong in the
FERC process. We look forward to FERC both acting quickly on
its own to improving the fairness and the balance and the
transparency of the process, but also us acting in Congress to
make whatever changes we can to make sure that the property
rights of tens of thousands of Americans is vindicated--are
vindicated and respected in this process. So, thank you all for
your participation.
Without objection, all members will have five legislative
days within which to submit additional written questions for
the witnesses to the chair, and we will forward them quickly to
the witnesses for their response. We thank you for your
cooperation there in returning them to us as promptly as
possible.
And the hearing is now adjourned.
[Whereupon, at 11:58 a.m., the subcommittee was adjourned.]
[all]