Once the Federal Energy Regulatory Commission (FERC) authorizes a pipeline project, the pipeline company will immediately forcibly take private land via eminent domain and permanently destroy the property. Historically, this has happened before landowners could have their day in court, i.e., seek judicial review of FERC’s authorization of the project.
To address this problem, in June of 2020, FERC issued Order No. 871, which essentially prevents pipeline companies from beginning construction on the pipeline route for several months while FERC addresses any requests for review. While this Order was a step in the right direction, faced with ongoing litigation about this issue in the D.C. Circuit, FERC issued this Order hastily and without input from affected groups, such as landowners. Fortunately, in January 2021, FERC provided the public with time to submit comments and proposed changes to the Order (“Order 871-A”).
The Niskanen Center submitted comments on behalf of several landowners affected by pipelines—and in partnership with the New Jersey Conservation Foundation and Hopewell Township—on how Order 871-A could be improved. Namely, that FERC should do the following:
- Adopt a common-sense definition of “construction,” e.g., any activities that alter the land, disturb the ground, or cut trees, and that any such construction requires FERC to issue a Notice to Proceed. This would avoid the nightmare scenario where FERC artfully deemed any action short of placing the pipe in the trench as “preconstruction” activities (as it routinely had)—and thus not construction activities requiring a Notice to Proceed subject to Order 871 and its protections.
- Stay Section 7 Certificates, pending Commission action on the merits of any timely filed requests for rehearing. This would ensure that landowners will be kept out of the potential “endless administrative limbo,” where their property is taken and their land is permanently destroyed for projects that may never be built. Industry would have clarity on if and when to begin expending resources on condemnation hearings, and on any changes to the approved route.
- Not authorize any construction activities during the pendency of any landowner’s rehearing request.