The Federal Energy Regulatory Commission’s (FERC) “Notice to Proceed” issued for the proposed Mountain Valley fracked gas pipeline (MVP) is invalid, as it was signed by a low-level FERC staffer — in violation of the agency’s own regulations — landowners and Bold Alliance argued to the 4th Circuit Court of Appeals in a Petition for Review, and Motion for Stay to stop construction of the pipeline filed on May 11.
FERC is expected to file its response brief next Wednesday, May 23, with Bold’s reply brief then due on Friday, May 25.
The FERC Certificate authorizing the Mountain Valley Project allows either the Director of the Office of Energy Projects (OEP) or his designee to approve a pipeline’s request for a notice to proceed with construction. Under FERC’s regulations, the designee chosen by the Director must be a “comparable official,” such as a Deputy Director, or head of a FERC Regional Division. Paul Friedman, the FERC employee who signed off on more than a dozen notices to proceed, does not satisfy the definition of a comparable official as he is neither a Deputy nor branch chief.
In February 2018, Bold Alliance filed a challenge to numerous notices to proceed approved by Friedman, arguing that the notices were invalid because they had not been signed by the Director. In response, FERC soon after issued “tolling orders,” which allow FERC to delay resolution of the Bold Alliance’s challenge to the notice to proceed, while allowing MVP to begin construction on its fracked gas pipelines that threatens land and water, and landowners’ private property.
In March, Bold Alliance and other landowners’ groups in the Appalachia region asked a federal judge to invalidate the FERC Notice to Proceed for MVP, citing among other issues Friedman’s lack of authority.
“FERC’s regulations on delegation exist for a reason,” said Carolyn Elefant, the Washington D.C.-based attorney who represents the Bold Alliance. “FERC’s authority over natural gas pipelines comes directly from Congress, so when FERC delegates its authority to agency officials, it is entrusting them to carry out powers granted by Congress. For that reason, FERC’s regulations restrict delegation of authority to upper level officials who act in a supervisory capacity and can be relied upon to make decisions on FERC’s behalf.”
Elefant continued, “There are also practical reasons for requiring an official with supervisory capacity to act on notices to proceed. Once construction starts, landowners’ private property, trees, sensitive habitat and other environmental resources will be irreparably destroyed. Therefore, any decision allowing the company to start construction requires the additional levels of review and oversight that come when a Director or other supervisor signs off on a decision.”
Separately, Bold Alliance and landowners are awaiting the scheduling of oral arguments in our federal lawsuit challenging FERC’s abuse of eminent domain authority in approving fracked gas pipelines. In a recent hearing before the 4th Circuit Court of Appeals in a similar eminent domain challenge filed against FERC by landowners in the Appalachia region, judges “appeared sympathetic” to landowners’ concerns about eminent domain abuse in the FERC process.