Niskanen works to make government more transparent by using open records laws such as the Freedom of Information Act (FOIA) to obtain information about the operations and activities of government entities, and to ensure that those entities are meeting their statutory and constitutional obligations. Niskanen makes public any documents it obtains through open records laws. Explore case details, records requests, litigation filings, and successfully obtained documents below.
Ensuring Landowners Have Adequate Notice of their Rights when Pipelines want to Take their Land: Niskanen Center v. Federal Energy Regulatory Authority
As part of Niskanen’s Government Transparency Project, Niskanen filed FOIA requests in pipeline cases to confirm that the Federal Energy Regulatory Commission (“FERC”) is discharging its constitutional duty to send adequate notice to landowners of their rights in FERC proceedings—wherein a pipeline seeks the government’s authorization to take their land. FERC has delegated this constitutional responsibility to the pipeline companies seeking its authorization (See 18 C.F.R. 157.21(d)), all of which have a direct financial interest in the proceedings, and have every incentive not to send affected landowners adequate notice of their rights. The only ‘proof’ that any critical information has been sent to landowners is found in ‘landowner lists’ that pipeline companies submit to FERC. The pipeline companies currently submit such landowners lists as “confidential” (meaning only FERC, and not the public, can see them). FERC does not bother to oversee what pipelines are doing in this regard, and such a failure obviously has dramatic implications for landowners. In response to a FOIA request for “any FERC policies, practices, or procedures in place to ensure that […] pipeline companies have sent notice to all affected landowners,” FERC responded that it has no such policies or practices in existence.
Prior to Niskanen’s lawsuits against FERC, there already was publicly available information that neither the pipeline companies nor FERC properly ensured that pipelines’ landowner lists were accurate, updated, or subject to any oversight. For example, in the Atlantic Coast Pipeline, the pipeline kept listing landowners’ addresses as ‘unavailable’ in filings, despite having engineering drawings of the same landowners’ homes and properties. Niskanen brought suit in hopes of shedding light and eventually changing this highly suspect process of keeping landowners in the dark.
Atlantic Coast Pipeline
Niskanen requested the landowner lists submitted by the Atlantic Coast Pipeline to FERC, which contain the names and addresses of the landowners whose property the pipeline sought to take. When FERC withheld the lists on the grounds that they contained information protected by privacy interests (despite the pipeline using it over and over again to pressure landowners into signing easement agreements via ‘land agents’), Niskanen sued and won a partial release. Niskanen has appealed the decision in an effort to obtain full disclosure of the lists, as the partial disclosure does not demonstrate whether FERC was fulfilling its obligations to landowners.
Pacific Connector Pipeline and Jordan Cove LNG Export Project
Niskanen requested the Pacific Connector Pipeline’s landowner lists submitted to FERC as proof of notice sent to landowners whose property the pipeline sought to take. When FERC withheld the lists on the grounds that they contained information protected by privacy interests, Niskanen sued and won a full release of the landowner lists.
“The released landowner lists confirmed Niskanen’s worst fears – hundreds of impacted landowners were left off the original list. The pipeline did not add these landowners to the list until it submitted an updated version on October 23, 2017, a mere three days before the deadline for landowners to file formal intervention papers with FERC in order to secure their rights.”
Fighting the Corruption of the National Coal Council: Niskanen Center v. U.S. Department of Energy
Niskanen sought records under FOIA from the Department of Energy (DOE) relating to how the National Coal Council (a Federal Advisory Committee) is funded. When DOE said it either didn’t have, or would not provide, virtually any of that information, Niskanen sued in federal district court.
Making Trade Considerations Behind Pipelines Transparent
In approving the Jordan Cove Project—an LNG fracked gas export terminal and 229-mile pipeline in southern Oregon being developed by Canadian companies, which will export 100% of the gas abroad—FERC argued that export of gas weighs in the public interest, and that “boosting” the balance of international trade should be considered a domestic public benefit. In order to provide oversight of FERC’s statutory and constitutional duties to properly conduct a public benefits analysis when approving a pipeline, Niskanen sought records from the Office of the United States Trade Representative, to better understand how United States’ trade analyses and considerations applied to the Jordan Cove Project and to export by foreign corporations in the US generally.
Protecting First Amendment Rights and Landowner Activities
As reported in The Intercept and The Guardian, law enforcement groups, including federal agencies, have engaged in monitoring, tracking, and intelligence sharing on opposition to the Jordan Cove Project, including tracking and sharing of social media and organizational activities. According to The Guardian:
Law enforcement groups, including the FBI, have been monitoring opponents of a gas infrastructure project in Oregon and circulated intelligence to an email list that included a Republican-aligned anti-environmental PR operative.
The Project has been peacefully contested for over fifteen years, by landowners (including those represented by Niskanen), Tribes, and environmental organizations. In order to gain insight to the surveillance activities and operations of the federal government with respect to gas projects, and the relationship between federal agencies, local law enforcement and government, and private companies engaged in monitoring and tracking efforts, Niskanen submitted FOIA requests to implicated federal agencies, including the FBI and Bureau of Land Management.
Niskanen’s goal is to provide the public and those most affected by gas pipelines crucial insight into how the federal government views and manages energy infrastructure projects, including its activities surrounding public opposition to those projects, and how the federal government gathers information about and prioritizes the security of those projects over the rights of those affected. Responsive documents will be used to ensure that the federal government did not infringe on peaceful citizens’ First Amendment-protected free speech, or any individual’s right to privacy.