In April 2021, the Niskanen Center submitted comments in response to the Federal Energy Regulatory Commission’s (FERC) March 2021 request on how it should establish and operate the Office of Public Participation (OPP). This highly anticipated office intends to assist and facilitate public and individual participation in FERC proceedings.
Landowners face a terrible threat in FERC proceedings: the permanent taking of their land, home, or livelihood. Despite being arguably the most impacted stakeholders in pipeline proceedings, landowners face many hurdles during the FERC process with little to no resources, legal assistance, or guidance. Niskanen’s comments highlight the glaring problems in FERC’s Section 7 natural gas pipeline proceedings that make it extremely challenging for landowners to engage in FERC’s process meaningfully, and suggest some solutions via the OPP.
The Constitution and the Natural Gas Act require that FERC provide notice to landowners when a pipeline seeks authorization to confiscate their property. Still, FERC abdicates this vital responsibility, delegating it instead to the pipeline companies–entities with the absolute least interest in ensuring that landowners receive or understand the notice. If landowners do not receive or understand the notice, they may lose their right to challenge any FERC decision in court (which is their only shot to do so).
Niskanen proposes several solutions that FERC’s OPP should adopt to ensure more fair pipeline proceedings, including solving the serious notice problem noted above. OPP must level the playing field for landowners by taking ownership and accountability over providing notice; ensure that such notice is accessible; provide continuous and effective guidance on intervention (becoming a party to the proceeding); make lists of all affected landowners public; have more community-based meetings; automatically record and file comments received; automatically make affected landowners parties; create a reliable system to confront landowners’ legitimate complaints that frequently stem from pipeline companies’ intimidation tactics; and allocate funding in the intervenors’ compensation fund explicitly for landowners, including for legal representation and hiring experts.
Presently, FERC’s pipeline proceedings elevate the interests of pipeline companies over the concerns of affected landowners. Landowners experience confusion, inaccessibility, and frustration during FERC proceedings. The OPP must be designed to make FERC proceedings more equitable for all stakeholders. Niskanen submitted these comments hoping that the OPP will take substantial strides towards making the proceedings more fair, transparent, and just.