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Pipelines and Private Property Rights

No Private Idaho

The Certificate Policy Statement makes clear that holdout landowners cannot veto a project that the Commission finds is required by the public convenience and necessity after balancing all relevant factors and considerations.  (FERC Jordan Cove denial)

I’ve long been baffled by the failure of NJ pipeline opponents to develop a public campaign that focuses on perhaps the most powerful tool available to kill pipelines,  the requirement to obtain a Clean Water Act Section 401 Water Quality Certificate (as we saw last month in New York State DEC’s denial of the WQC for the Constitution pipeline). [Read the NY DEC denial]

I’ve been equally confused by what is a hopeless waste of time and resources focused on various FERC processes and NEPA legal issues (all while virtually ignoring climate change).

But perhaps the most troubling strategic mistake is the elevation of private property rights and legal remedies of landowners along the pipeline route, above the far more significant public lands and natural resource impacts and focus on the kind of political pressure and regulatory tools that won in New York.

This week, we saw another example of that misguided strategy grounded in private property rights and economic interests, see:

The FERC letter cited in that NJ Spotlight story was loaded with ammo to raise the WQ Certificate issues, yet it was all ignored in favor of the private landowner issues. Why?

Notably, the motive and remedy of the “green group” in that headline is not “green”, it is enforcement of the private property right and common law of trespass.

The motives are economic, not environmental, and the locus of concern is private, not public. These motives and interests shape the strategy and tactics of the opponents.

I’ve long opposed the property rights focus for ideological and strategic reasons. As a matter of principle, appeals to the public interest always trump narrower individually and often economically motivated private property rights. Collective democratic approaches always trump private individual initiative.

Time and resources spent protecting a private landowner’s back yard not only divert attention from the public interest and more effective collective tactics, they can actually undermine the public interest and fragment political coalitions (e.g. lead to deals on pipeline route alteration, co-location, or compensation or mitigation packages).

Plus, property rights are a two edged sword – pipeline corporations have property rights too, which they frequently assert to overcome the public interest and forestall effective regulation, in political, legislative, regulatory and judicial arenas.

But you don’t need to accept my ideological views or take my strategic advice.

In an incredible irony, just this morning, in casually exploring this group’s Rethink Energy NJ campaign webpage, I randomly came across a recent federal court decision that raises these issues.

Amazingly, that US District Court decision was analyzed in a “News and Insights” piece written by the law firm currently representing a group of private landowners opposing the PennEast pipeline named HALT:

This case could insulate public utilities and pipeline operators from challenges brought by property owners harmed by eminent domain or aesthetic impacts on their property.

The HALT group’s own law firm framed the legal issue thusly:

The Legal Question: When is Economic Harm Also Environmental Harm?

Gunpowder Riverkeeper offers insight into the majority of cases that are a hybrid of environmental and economic harm. Suppose a permit of the Department of Energy authorizes a utility or pipeline to take private land through eminent domain, or to construct a tower that obstructs a landowner’s view. Individual landowners may primarily experience economic harm from the permit. But they may also experience decreased recreational or aesthetic enjoyment of the environment. Such hybrid claims have traditionally been inside NEPA’s zone-of-interests test, even under the Ninth Circuit test. That is, the landowner’s economic harm is one of multiple harms, but the landowner is permitted to have mixed motives.

Importantly, Gunpowder Riverkeeper applies a new judicial skepticism to these hybrid claims. As the dissent pointed out, the brief, affidavits, and the administrative record all contained numerous allegations of environmental injury. But the court found these purported environmental injuries did not disguise that the principal injury was to the property rights of the litigants. And that was found to be an economic, not an environmental injury.  […]

In short, Gunpowder Riverkeeper could impact litigation at multiple levels of the electric grid. In its aftermath, both landowners and utilities must be more strategic about crafting their litigation approach. Early strategic choices can determine whether a potential challenge to far-reaching federal licenses ever make it past first base to reach the merits.

The law and FERC policy have long recognized this distinction:

Landowner property rights issues are different in character from other environmental issues considered under the National Environmental Policy Act of 1969 (NEPA).14

As I’ve repeatedly suggested, it’s time to HALT a flawed private oriented campaign and RETHINK your strategy.

Your own attorneys suggest as much.

[End note – here is a summary I just gave to pipeline opponents of the reasons why I conclude that FERC is a waste of time:

The Certificate Policy Statement makes clear that holdout landowners cannot veto a project that the Commission finds is required by the public convenience and necessity after balancing all relevant factors and considerations.  (FERC Jordan Cove denial)

1. FERC is totally captured by the gas industry and has the cover and support of  the pro gas climate of Congress and the Obama Administration. The FERC bureaucracy is predominately an energy engineering culture.

2. The gas law was written by the gas industry

[That capture results in Orwellian logic like this:

Projects designed to improve existing service for existing customers, by replacing existing capacity, improving reliability or providing flexibility, are for the benefit of existing customers. Increasing the rates of the existing customers to pay for these improvements is not a subsidy. Under current policy these kinds of projects are permitted to be rolled in and are not covered by the presumption of the current pricing policy. Great Lakes Gas Transmission Limited Partnership, 80 FERC ¶ 61,105 (1997) (Pricing policy statement not applicable to facilities constructed solely for flexibility and system reliability).

3. The pro-corporate Reagan Administration Era Courts have interpreted the law in favor of the gas industry.

4. Democratic activism has zero impact on FERC or the federal courts. (Yes, I am aware of FERC denial of  Jordan Cove in Oregon, which is the exception that illustrates the rule, and which in itself has a massive loophole:

48. Our actions here are without prejudice to Jordan Cove and/or Pacific Connector submitting a new application to construct and/or operate LNG export facilities or natural gas transportation facilities should the companies show a market need for these services in the future.).

5. Two major pipelines have just been killed as a result of State Government decisions or pressure (Constitution in NY killed outright by Goc. Cuomo DEC Clean Water Act veto and Kinder  Morgan withdrew after the State Attorney General issued a very critical Report).

6. Those state government decisions were driven by huge grassroots activism and organizing.

7. Lawyers are notoriously lousy strategists and are conflicted by their need for legal fees.

8. Large legal fees instead could be use to support organizing.


A FERC litigation strategy plays to all our weaknesses and ignores all our strenthgs.


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