Warner & Kaine Reintroduce Bill to Make FERC Pipeline Permitting Process More Transparent and Fair

WASHINGTON, D.C. (Sep. 15, 2022) — Today, U.S. Senators Mark R. Warner and Tim Kaine reintroduced the Pipeline Fairness, Transparency, and Responsible Development Act, legislation to strengthen the public’s ability to evaluate the impacts of and provide input on natural gas pipelines being considered by the Federal Energy Regulatory Commission (FERC).

“Communities and landowners who would be impacted by an energy project deserve to have their concerns heard—especially if a green light from FERC means their land would be taken away,” said the senators. “Our bill would improve the way FERC gathers public input to make sure the public can weigh in on decisions that would literally run through their backyards.”

Congress has given FERC the authority to evaluate the benefits and drawbacks to energy infrastructure proposals. The senators’ legislation would make it easier for the public to offer FERC input and would clarify the circumstances under which eminent domain may be used. The bill would also require public comment meetings to be held in every locality through which a pipeline would pass at every stage of the review process, in order to minimize situations where individuals are forced to commute long distances with very little time to comment.

Additionally, the legislation would strengthen local landowners’ rights by improving the process by which landowners are notified of a pipeline application and bolstering their ability to ensure any concerns about their property are given fair consideration.

Specifically, the legislation would:

• Improve the process by which landowners are notified of a potential pipeline project affecting their property;

• • Require that FERC review companies’ notices to landowners to ensure these notices meet FERC criteria;

• Require that FERC or applicants for a FERC Certificate of Public Convenience and Necessity (e.g., companies with pipeline proposals) provide clear and complete instructions to all affected landowners on how to request an appeal or “rehearing” through FERC. The notice must make it clear to landowners that they must appeal to FERC in a timely manner for a rehearing to preserve certain rights to seek judicial review;
• Prevent pipeline projects from exercising eminent domain or commencing construction until:

• • the project has received all requisite permits, certifications, or other permissions required under federal law;
  • FERC has issued rulings on all timely landowner rehearings.
  • except on land that is already owned by the pipeline company or land that is in an existing utility right-of-way;

• State that it is the policy of the United States that eminent domain be limited to situations in which the taking of property for natural gas pipelines is for public, not private, use. This language is modeled after a 2006 Executive Order by President George W. Bush clarifying the scope of federal eminent domain authority;
• Help ensure fair appraisals and offers of compensation for affected property owners by giving landowners the opportunity to accompany appraisers during the inspection of property in order to provide more oversight over the appraisal process, which must be completed prior to an offer of compensation for that property. That offer of compensation must be of fair market value or better;
• Require a single programmatic environmental impact statement (EIS) if two gas pipelines are proposed within one year and 100 miles of one another, and provide that if there is more information that comes out after a draft EIS than is in a draft EIS, FERC must do a supplemental EIS, with another public comment period;
• Mandate public comment meetings in every locality through which a pipeline passes, at every stage in the process (draft EIS, final EIS, and supplemental EIS) so members of the public do not have to drive long distances to meetings where they are only able to speak for just a few minutes;
• Specify that eminent domain takings of land under conservation easement be given fair compensation not just for the land value but for the lost conservation value of the land;
• Ensure that plans to mitigate unavoidable impacts are subject to public comment so the public can verify that the mitigation is fair and proportionate;
• Require cumulative analysis of the project’s visual impacts on National Scenic Trails (including the Appalachian Trail) for multiple pipelines that cross the same trail within 100 miles, in order to prohibit any downgrading of National Scenic Trail scenic integrity requirements in current law if the project represents a net degradation to the trail;
• Codify the end of “tolling orders,” a longstanding practice that allowed FERC to place landowner rehearing requests in limbo while pipeline constructions were allowed to continue, and strengthen landowners’ ability to proceed to court should FERC not rule on grievances in a timely manner. The “tolling orders” practice was recently struck down by the U.S. Court of Appeals for the D.C. Circuit;
• Codify that FERC must consider landowners’ rehearings within 30 days.

“The Appalachian Trail Conservancy applauds Senators Kaine and Warner for their efforts to protect our National Scenic Trails,” said Sandra Marra, President and CEO of the Appalachian Trail Conservancy. “The Pipeline Fairness Act requires regulators like FERC to examine the large and lasting impacts proposed developments could have on our irreplaceable public lands. We look forward to continuing our work with the Senators and other elected officials on behalf of all National Scenic Trails, ensuring that they continue to benefit millions of visitors, thousands of volunteers, and hundreds of trailside communities.”

“Originally passed in 1938, the Natural Gas Act is long overdue for a rebalancing of landowner interests with those of natural gas development,” said David Bookbinder, Chief Counsel of the Niskanen Center. “By strengthening landowner rights and requiring more transparency in FERC’s approval process, Senators Kaine and Warner’s bill will is a major step forward in preventing the capricious loss of private property.”

 Full text of the legislation is available here.

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CONTACT: Katie Stuntz, 202-355-3761 or Janine Kritschgau, 202-365-2176 (Kaine); or Valeria Rivadeneira, 202-228-6884 (Warner)