Thursday, June 12, 2014

The Federal Energy Regulatory Commission (FERC) and the Regulatory Trap.

The oil and gas industry, as they work towards turning rural North America into a 'third-world' style extraction colony, is now in the process of expanding their pipeline infrastructure on an unprecedented scale.
The agency that is trusted with overseeing and permitting this infrastructure is the Federal Regulatory Commission [aka: FERC], but really their job is to issue permits and although they are obligated by law to allow 'public input' and consider public comments before making their decision to issue a permit, at the end of the day, public opinion carries no weight and has never influenced their decision, or caused them to deny a permit. - NEVER.    
Here's why. You may, or may not, be aware that FERC is NOT really a government agency, anymore than say the Federal Reserve Bank is. Just because they have the word "Federal" in their name does not mean they're the government. Where I grew up in Philadelphia, their is a soft pretzel maker called "The Federal Baking Company", and they weren't a government agency either.
The truth is, FERC is a private entity largely funded by the API and ANGA, and chaired in part by former O&G representatives, that is licensed by the US/DOE to issue permits. Their job is to see that every application meets the minimum criteria to justify FERC approval.

I learned this when I registered as an "intervener" in the Inergy/CNYOG Marc-1 pipeline project in North-East PA. The short version of this experience was as follows.

The Marc-1 pipeline is a 39 mile connecting hub between the Tennessee and the Transco pipelines. It involved the clear cutting of 650+/- acres of greenfield forest, the removal of 250,000+/- trees (many were old growth), disturbance of protected wildlife habitat, 122 sensitive HV/EQ stream crossings, and intrusion on 104 private properties.

Myself, and other concerned citizens launched a massive campaign to stop the Marc-1. We submitted 22,093 signatures opposing the project, in addition to a bi-partisan coalition of 35 PA State Representatives, 2 State Senators, and even the EPA stepped in and declared the project un-necessary since the natural gas in the region was already being moved to market via the Tennessee and the Transco.

After we effectively stalled the project for 18 months by demanding justification for the project, environmental impact statements, and concerns about eminent domain abuse, etc., The three willfully incompetent Sullivan County PA Commissioners, along with a few US congressman with no connection to Pennsylvania, asked FERC to "overlook the localized concerns" and expeditiously approve the project. 

FERC issued a pre-vetted statement thanking everyone for being involved and expressing their heartfelt thoughts and concerns, assured all property owners that eminent domain would "only be used as a last resort" and only if all negotiations between CNYOG and the landowners failed, and approved the project. All of which was done "class one" which means minimum safety standards, and no local, state, or federal oversight.

The very next day, eminent domain was filed against 89 of the private landowners, most of which never previously notified of a proposed ROW on their property, or had the chance to negotiate terms. All 89 property owners went to court - all 89 lost. 

In FERC's history, they have NEVER denied a permit for any oil and gas infrastructure project unless the operator withdrew the application.

The ONLY way to stop these pipelines is by establishing Community Bill of Rights that essentially can either "zone out" this kind of activity, or restrict it and establish safety standards and set-backs in such a way that it is no longer economically worthwhile for them to build it.

The FERC regulatory/permitting process is designed and orchestrated to render public opinion meaningless, ineffective, and destined to fail.
Here's why: The Regulatory Trap (*excerpt from the CELDF Democracy School)
1. The regulatory system guarantees that the environment will be damaged, that the system actually permits it to occur, and that the system is built to recognize certain constitutional constraints.
2. Our “engaging in the regulatory system”, while limiting some of the harms done by corporations, cannot achieve the types of change we need, and that we are colonized to believe that it actually can.
3. Our thinking is colonized not only by the law – which establishes certain constraints that deny us the goals of our activism – but that our thinking is colonized by a culture that is created by those who benefit from the way that the system operates.
4. On the issue of land application of sewage sludge, we’ve been colonized that a bad is a good, through language used to frame the issue.
5. On the issue of the corporatization of agriculture, we’ve been colonized that a bad is a good, through language used to frame the issue.
6. Both the regulatory system of law and the culture produce a system of activism that cannot stop a corporate minority from governing community majorities, and that the regulatory system of law and culture effectively drives us like cattle down to a point of activism where we cannot win the issue that we’re working on.
7. A regulatory system of law governs employer-employee relationships, and that regulatory system of law codifies the rights of the employer over the employee.
8. Regulatory systems of law were created not to protect health, safety, and welfare, but as a governmental barrier to prevent majority governance.
9. The traditional use of the regulatory system of law, and the operation of today’s regulatory agencies, are not mistakes or errors, but a logical use of the law to assert minority control over majorities.
10. Law itself has a long history of being used by a minority to govern, that it was used by William the Conqueror to create an English structure of law; and that the mere existence of Constitutions does not guarantee democratic government.
Therefore, it's important for people to understand that the "regulatory system" is designed only to regulate the rate of damage to public health and the environment, not the amount of damage. Hence the terms: "necessary sacrifice", and "unintended consequences".
That is not to say that citizens should not get involved with the FERC regulatory process. You should to get on record. You just have to also act outside the FERC process on the local municipality level to zone it out, or make it too expensive for the operator.

Myself, along with other members of the Shale Justice Coalition are now on the CELDF (Community Environmental Legal Defense Fund) PACRN (PA Community Rights Network) board working with communities along the 176 mile path of the proposed Atlantic Sunrise Pipeline Project by Williams Midstream. So far, we've got three municipalities to begin enacting community bill of rights ordinances. *Now, the industry, and most local solicitors will claim that these ordinances "will be challenged, inspire law suits, and be overturned", however, in the communities in PA, TX, LA, where Community Bill of Rights have been established, this has not happened. The reason is, the "community bill of rights" brings into question "corporate personhood", and that is NOT a can of worms the industry wants to risk opening.  
For more information visit these web sites:
The Shale Justice Coalition
Community Environmental Legal Defense Fund (CELDF)

1 comment:

  1. Please inform me which municipalities are enacting community bill of rights ordinances. I am within the 177.3 mile right of way corridor and would like greater knowledge of my rights as I enter into a right of way agreement.