August 06, 2020

Warner, Kaine Introduce Bill To Make FERC Pipeline Permitting Process Fairer And More Transparent

WASHINGTON, D.C. – Today, U.S. Senators Mark R. Warner and Tim Kaine introduced legislation to strengthen the public’s ability to evaluate the impacts of natural gas pipelines being considered by the Federal Energy Regulatory Commission (FERC). This bill makes it easier for the public to offer input and clarify the circumstances under which eminent domain should and should not be used. Among other guidelines, this bill requires public comment meetings to be held in every locality through which a pipeline would pass, at every stage of the review process, in order to minimize situations where individuals are forced to commute long distances with very little time to comment. It also strengthens landowners’ rights by improving the processes in which landowners are notified of a pipeline application and bolstering their ability to intervene to ensure any concerns about their property are given fair consideration and compensation. This bill builds upon an earlier version of legislation the Senators introduced last Congress.

While Congress does not decide on the merits of individual gas pipeline projects, Congress provides the legal authority under which FERC is tasked with evaluating the benefits and drawbacks to energy infrastructure proposals.

Each of the FERC reforms outlined in this bill is directly based on input submitted by Virginia residents to Warner and Kaine during FERC’s consideration of the Mountain Valley Pipeline (MVP) and Atlantic Coast Pipeline (ACP).

“During the public comment periods for the ACP and MVP, we heard a whole series of legitimate complaints about FERC’s flawed process – from inadequacy of notice for the comment period, to public hearings that were held too infrequently and too far away from where impacted Virginians live. Simply put – FERC did not give people enough opportunity for input and did not ensure all affected landowners were given a fair deal. Based on the concerns that we heard, we’ve drafted our bill to improve the way FERC gathers public input on matters of such importance as to whether their land is taken. We have to make a commitment on something as important as this to have a better process to listen to the public and ensure communities have a real say in these decisions,” said the Senators.

“The Appalachian Trail Conservancy applauds Senator Kaine and Warner’s leadership in ensuring poorly planned energy infrastructure does not degrade the essential values of our National Scenic Trails,” said Sandra Marra, President and CEO of the Appalachian Trail Conservancy. “As stewards of the Appalachian Trail, we must examine the big picture impacts of proposed developments, and the Pipeline Fairness Act will require that same perspective and commitment from FERC. We will continue to work with the Senators to protect the values of our National Scenic Trails, which benefit millions of visitors, thousands of volunteers, and hundreds of trailside communities.”

Specifically, the legislation would:

  • Improve the process by which landowners are notified of a potential pipeline project affecting their property;
    • Require that FERC review companies’ notices to landowners  to ensure notices meet the requisite criteria;
  • Require that applicants for a FERC Certificate of Public Convenience and Necessity (e.g., companies with pipeline proposals) provide clear and complete instructions to all affected landowners on how to request an appeal or “rehearing” through FERC, including the deadline to file, no later than 60 days before the deadline to intervene. The notice must make it clear to landowners that they must appeal in a timely manner to FERC for a rehearing to preserve certain rights to seek judicial review;
  • Prevent pipeline projects from exercising eminent domain or commencing construction until:
    • the project has received all requisite permits, certifications, or other permissions from necessary federal and state agencies
    • FERC has issued rulings on all timely landowner rehearings. This process improvement comes in response to a public request by two FERC Commissioners;
  • State that it is the policy of the United States that eminent domain be limited to situations in which the taking of property for natural gas pipelines is for public, not private, use. This language is modeled after a 2006 Executive Order by President George W. Bush clarifying the scope of federal eminent domain authority;
  • Help ensure fair appraisals and offers of compensation for affected property owners by giving landowners the opportunity to accompany appraisers during the inspection of property, which must be completed prior to an offer of compensation. That offer of compensation must be of fair market value or better;
  • Require a single programmatic environmental impact statement (EIS) if two gas pipelines are proposed within one year and 100 miles of one another, and provide that if there is more information that comes out after a draft EIS than is in a draft EIS, FERC must do a supplemental EIS, with another public comment period;
  • Mandate public comment meetings in every locality through which a pipeline passes, at every stage in the process (draft EIS, final EIS, supplemental EIS) so members of the public do not have to drive long distances to meetings where they are only able to speak for just a few minutes;
  • Specify that eminent domain takings of land under conservation easement be given fair compensation not just for the land value but for the lost conservation value of the land;
  • Ensure that plans to mitigate unavoidable impacts be subject to public comment so the public can verify that the mitigation is fair and proportionate;
  • Require cumulative analysis of visual impacts on National Scenic Trails (including the Appalachian Trail) for multiple pipelines that cross the same trail within 100 miles, in order to prohibit any downgrading of National Scenic Trail scenic integrity requirements in current law if the project represents a net degradation to the trail;
  • Codify the end of “tolling orders—” a longstanding practice that allowed FERC to place landowner rehearing requests in limbo while pipeline constructions were allowed to continue — and strengthen landowners’ ability to proceed to court should FERC not rule on grievances in a timely manner. The “tolling orders” practice was recently struck down by the U.S. Court of Appeals for the D.C. Circuit;
  • Extend the deadline in which FERC must consider landowners’ rehearings from 30 days to 45 days to ensure the Commission has a reasonable amount of time to address landowner concerns.

 

###