VOICES (Victory Over InFRACKstructure, Clean Energy inStead)
Delaware Riverkeeper Network
Berks Gas Truth
RocACTION
Transition Town Media
Don't Gas the Meadowlands Coalition
Coalition Against Pilgrim Pipeline - NJ
Preserve Giles County
Occupy Bergen County
CNY Solidarity Coalition Climate Justice Committee
Climate Change Awareness and Action
Breathe Easy Susquehanna County
Stop the Algonquin Pipeline Expansion (SAPE)
Friends of Buckingham
Williams Twp. CCAP
350Brooklyn
The NH Energy Impacts on Health Study Group
Waterspirit
LAWPA (Local Authority Western PA)
Protect Northern PA
Bucks Environmental Action
Mountain Watershed Association
Delawareans for Environmental Safety
FreshWater Accountability Project
Uwchlan Township EAC
Project CoffeeHouse
Responsible Drilling Alliance (RDA)
Youngstown Drinking Water Protection Community Bill of Rights Committee
Frackfree Mahoning Valley
Guardians of Mill Creek Park
ShaleshockCNY
FrackbustersNY
Physicians for Social Responsibility Pennsylvania
Maynard HR Consulting, Inc.
Tinker Tree Play/Care
Gas Free Seneca
Bold Alliance / Pipeline Fighters Hub
Save Our Streams PA
Schuylkill Pipeline Awareness
Preserve Montgomery County VA
Pennsylvania Alliance for Clean Water and Air
Cattaraugus-Chautauqua for Clean Water
Defend Ohi:yo'
People for a Healthy Environment
Environmental Justice Taskforce of the Western NY Peace Center
Western NY Drilling Defense
Westmoreland Marcellus Citizens' Group
Clean Air Council
Food & Water Watch and Food & Water Action
Blue Ridge Environmental Defense League
Sullivan Alliance for Sustainable Development
Beaver County Marcellus Awareness Community (BCMAC)
Coalition to Protect New York
Genesis Farm for Sisters of St. Dominic
NYC Grassroots Alliance
Concerned Citizens of Cattaragus County, NY
WWALS Watershed Coalition, Inc.
Berkshire Environmental Action Team (BEAT)
Sustainable Medina County
Protect PT
OVEC-Ohio Valley Environmental Coalition
Earth Action, Inc.
NY Water Action
Grassroots Environmental Education
LEPOCO Peace Center (Lehigh-Pocono Committee of Concern)
Green Sanctuary, Climate Justice Group of the Unitarian Universalist Church of Reading
Conewango Creek Watershed Association
Sanderson Sustainable Design
Morning Glory & Bumble Bee LLC (farm)
FracTracker Alliance
Sourland Conservancy
Alliance for Sustainable Communities–Lehigh Valley
Common Ground Community Trust
Guthrie & Larason
Canton Residents for a Sustainable, Equitable Future
ECHO Action NH: #FossilFree603
KIngston Greenways Association
Sanford-Oquaga Area Concerned Citizens (S-OACC)
Preserve Monroe
Patriots From The Oil & Gas Shales
Triangle Women's International League for Peace and Freedom
River Guardian Foundation
The Alliance for sustainable communities LehighValley
Women's International League for Peace and Freedom, Earth Democracy committee
LaPlaca and Associates LLC
Milford Doers/Residents of Crumhorn Mtn
Common Interests, LLC
Protect Orange County
Save the Pine Bush
Communities for Safe and Sustainable Energy
Haw River Assembly
Residents Allied for the Future of Tioga (RAFT)
Indivisible Lambertville New Hope
Green America
Damascus Citizens for Sustainability
Concern Citizen Northampton County
Protect Our Water Heritage Rights
Preserve Salem
Wabash Road
Echo Valley Hope
Clean Water for North Carolina
Greenvest
Summers County Residents Against the Pipeline
Preserve Bent Mountain
New Progressive Alliance
Howard County Climate Action (Maryland)
Fresnans against Fracking
Cooks Creek Watershed Association, Inc.
Preserve Franklin County
Preserve Craig, Inc.
Citizens for Pennsylvania's Future
Property Rights and Pipeline Center
Tinicum Conservancy
Coalition to Reroute Nexus
Climate Hawks Vote
ARTivism Virginia
United For Clean Energy
Earthkeeper Health Resources
Sustainable Tompkins
Beyond Extreme Energy
Virginia Citizens Consumer Council
Consumers for Auto Reliability and Safety
Consumer Action
Columbia Consumer Education Council
Jewish Climate Action Network
Healthy Gulf
Marcellus Outreach Butler
Bucks County Concerned Citizens Against the Pipelines
Advocacy and Training Center
Already Devalued and Devastated Homeowners of Parsippany
Anthropocene Alliance
Williams Twp. CCAP
Delaware Township Citizens Against the Pipeline.
EnvironmentaLEE
Dogwood Alliance
Concerned Ohio River Residents
Ashfield Aliance
Living Rivers & Colorado Riverkeeper
Milwaukee Riverkeeper
FaCT-Faith Communities for a Sustainable Future
Lancaster Against Pipelines
Hopewell Township Citizens Against the PennEast Pipeline
Greenbelt Climate Action Network
Mohawk valley keeper
New Pioneers for a Sustainable Future
Plymouth Friends for Clean Water
Mount Triumph B.C. St. James
Resist the Pipeline
Averitt Investments, LLC
Raritan Riverkeeper
Safe Energy Rights Group (SEnRG)
Bus For Progress
100% Renewable Energy Alliance of Louisville
WildEarth Guardians
SAVE CARBON COUNTY
UU Congregation of Binghamton, Green Sanctuary

Dear Members of the U.S. House of Representatives and U.S. Senate,

This letter is signed and submitted on behalf of the VOICES coalition (Victory Over InFRACKstructure, Clean Energy inStead), a coalition of over 250 grassroots, community and environmental organizations battling against FERC-regulated fracked gas infrastructure and the abuses of power and law inflicted on communities by the Federal Energy Regulatory Commission (FERC).  

Today, all communities under threat from FERC-regulated infrastructure know that when FERC gets an application from a pipeline or LNG company it is not a question of IF approval will be granted, it is simply a matter of WHEN approval will be granted. Even FERC Commissioner Richard Glick has admitted the rubberstamp label is justified. It is not just the biased decisionmaking that is so devastating when it comes to FERC; it is FERC’s repeated misuse of the law to advance pipeline infrastructure and LNG facilities as quickly as possible. FERC is abusing US citizens, residents, farmers, businesses, states and future generations in its misuse of the law and its authority to advance fracked gas pipelines, compressors and LNG facilities regardless.

We are once again calling on Congress to champion meaningful legislative reforms that will prevent ongoing and future abuses of power and law by FERC.  As it currently stands, the language of the Natural Gas Act (NGA) is being misused by FERC to deny people their legal and constitutional rights, to strip and undermine the legal authority of states, to undermine the authority of other federal agencies, to ignore the mandates of the Clean Water Act and the National Environmental Policy Act, to trample private property rights, to take from communities the protection of public parks, forests and conserved lands that they have invested heavily in protecting, to take jobs and destroy small businesses, and to inflict harms on our communities’ health, safety and environments, all for the benefit of a single industry and private energy companies seeking to maximize their own corporate profits and greed.  

In this letter we provide a list of critically needed reforms to the Natural Gas Act and other related federal laws.  These reforms, complimented by testimony of impacted front line communities, were presented during a Congressional briefing held May 4, 2021, you can view the briefing at: http://bit.ly/2021CongressBriefing.  In addition, we have assembled a Dossier that provides irrefutable evidence of FERC’s abuse of its power and the law (available at: bit.ly/DossierofFERCAbuse); and we share with you links to video from two People’s Hearings where people from all over the nation speak to, and offer proof of, the abuses they have experienced at the hands of FERC and their pipeline partners in crime (available at: bit.ly/2020PeoplesHearing ;and starting at video #4 in this compilation: bit.ly/2016PeoplesHearing).  The more recent hearing came four years after the first one, yet the testimony given at both hearings is strikingly similar. Nothing has changed in four years. The people can’t wait another four years.

Reflect Modern Times, Needs, Goals and the Threat of Climate Catastrophe by Updating FERC’s Mission.

Critical Natural Gas Act Reform #1:  
->The Natural Gas Act should be reformed to redirect FERC’s mission to ensure a clear focus on advancing energy service that serves the public interest, including that of future generations, by mandating a priority focus on:

• protecting the health and safety of people
• environmental protection, including climate crisis
• protecting people’s rights, states’ rights and property rights
• advancing clean and renewable energy alternatives
• retiring existing fossil fuel infrastructure versus its current practice of prioritizing the interests of private industry

FERC’s Mission guides how it interprets and applies the law and carries out its work on a day to day basis.  Congress needs to redirect FERC’s mission from one focused on industry goals to one focused on public protection, needs and benefits.  FERC’s demonstrated bias toward the natural gas infrastructure industry is so ingrained reform will be difficult and must begin with a transformational shift in FERC’s guiding mission as articulated in the Natural Gas Act.  

Expressly & clearly define "Public Convenience and Necessity” to require priority protection for our environment, environmental justice, health, safety and climate, and to require demonstration of an objectively verifiable domestic need in Section 7 of the Natural Gas Act.

Critical Natural Gas Act Reform #2:  
->The Natural Gas Act must clearly define the term Public Convenience and Necessity to:

• Require clear and identified protections and benefits for:
o Environmental protection
o Climate protection
o Environmental justice consideration and protections
o Public health and safety

• Ensure the public convenience and necessity of future generations is considered and protected.
• Require a demonstration of a domestic need for the energy source proposed that is objectively verifiable.
• Require full and complete information to support FERC decisionmaking (i.e., prohibit certification if application materials, surveys, and reviews are demonstrated/determined to be incomplete.)

Currently the definition of Public Convenience and Necessity has been left to the courts and FERC, and as a result there is both a concerning, ever-changing, and politically-driven definition that has evolved through court cases, dockets and rulemaking and has been used by the political party in power to undermine state’s rights, property rights, environmental justice, and climate and environmental protection.  It is time for Congress to offer clarity and guidance and to ensure that public health and safety, environmental justice and protection are given proper standing and protection in FERC Certificate decisionmaking.

Fully respect and protect states’ rights and authorities when issuing Clean Water Act Section 401 Certifications.
 
Critical Natural Gas Act Reform #3:  
->The Natural Gas Act needs to protect States’ rights and authorities promised under the Clean Water Act by, at a minimum:

• Clarifying that State 401 Clean Water Act Certifications have primacy to FERC Certification & clearly prohibit FERC from granting a Certificate of Public Convenience and Necessity until all state Clean Water Act Certifications have been issued or specifically, formally and intentionally waived.
 
o If the mandate that 401 Certifications must be secured prior to FERC Certification is not enacted, then make clear that FERC cannot approve any element of eminent domain or construction until all state reviews/permit processes have been finalized and approvals/permits granted, including but not limited to 401 Certification.

• Clarifying that any time limit on state 401 certification begins on the date a state has determined that filed applications are complete and in compliance with state law; i.e. remove the FERC and court determination that the clock starts when the application is filed, regardless of how deficient submitted application materials are.
 
• Making clear that state authority is only waived when the state renders an affirmative decision that they are waiving their authority; if a 401 Certification review deadline is not met then the presumed determination should be denial of the Certification, not waiver of the authority.

• Clarifying that there is no time limit on the state review and approval process regarding FERC regulated infrastructure, including in the context of Clean Water Act 401 Certifications; i.e. the current 1 year time limitation needs to be explicitly removed or lengthened to ensure states can fully do their work.  

Respect for the rights of states to take leadership in the protection of their environment or the benefit of their residents is carefully recognized throughout our legal system.  Out of respect and regard for the irreplaceable role states provide in implementing the Clean Water Act, the Clean Air Act and the Coastal Zone Management Act, and out of respect for their right, duty and obligation to protect the residents and natural resources of their state, Section 717b(d) of the Natural Gas Act specifically preserves the authority of states pursuant to these three laws with regards to FERC regulated pipelines.  And yet, FERC has consistently disregarded and intentionally undermined states’ rights and authority in how it interprets and applies the Natural Gas Act, particularly in the application of section 401 of the Clean Water Act.

The Natural Gas Act should be amended to make clear that Clean Water Act 401 Certifications have primacy and must be secured from all impacted states before FERC Certificates of Public Convenience & Necessity can be granted.  If the mandate that 401 Certifications must be secured prior to FERC providing NGA Certification is not enacted/clarified within the language of the NGA, then it must be clear that FERC cannot approve any element of eminent domain or construction until all state reviews/permit processes have been finalized and approvals/permits granted, including but not limited to 401 Certification.

In addition, the Natural Gas Act needs to be amended to be clear that states are entitled to all of the time they deem necessary to engage in full 401 Certification review and decision-making.  The current pro forma 1 year provided for may simply be too much or not enough depending on the complexity and size of a proposed project.  In addition, the law needs to be clear that the timeclock for state review should only begin to toll when the state has issued an official determination that the application mateirals submitted are complete and meet all state legal requiements.  Starting the clock the day an application is filed has encouraged the submission of deficient and misleading information by pipeline companies and created confusion and distrust regarding the state review process, when it begins, when it ends, and whether it is based on adequate and accurate information.  In order to ensure a robust and fully informed process that everyone can count on, it is essential that the states be given the opportunity and obligation to render a determination of application completeness and sufficiency before the any 401 Certification time limitation begins to toll.  

Amending the Natural Gas Act to protect state Clean Water Act 401 authority is essential given the recently adopted regulatory rollbacks to Section 401 of the Clean Water Act, undermining the rights of states to fully, fairly and independently review pipelines. While the rule is being reevaluated under the current Biden administration, it has not been rescinded and there are indications that some aspects of the rule will remain in place.  It is clear that rather than leave the interpretation of state 401 Clean Water Act authority to the whimsy of the EPA and the administration in presidential power, it is important for Congress to step in and put forth clear recognitions and protections for our states.

Outlaw FERC approval for the use of eminent domain or any element of construction (including tree felling) for a FERC regulated pipeline, LNG, or related infrastructure project until such time as all state, federal and/or interstate reviews/certifications/permits/dockets have been finalized and approvals/permits/dockets granted.

Critical Natural Gas Act Reform #4:  
->The Natural Gas Act must be reformed so as to prohibit FERC from allowing companies seeking to build a FERC regulated pipeline, LNG, or related infrastructure project to proceed with:

• Eminent domain property rights takings or
• Any element of construction (including tree felling) until such time as all state, federal and/or interstate reviews/certifications/permits/dockets have been finalized and approvals/permits/dockets granted.

Currently, FERC approves pipelines and allows them to proceed through phases of construction and eminent domain regardless of whether or not they have received all necessary reviews and approvals from impacted states, other federal agencies (such as wetland permits from the US Army Corps or completed endangered species review from the U.S. Fish & Wildlife Service), and interstate regulatory agencies with authority such as the Delaware River Basin Commission.  Consequently, pipelines have proceeded with the power of eminent domain, tree felling and significant construction that inflicts irreparable harm on property, economic and environmental interests despite not having all necessary approvals and being at risk of having critical permits, certifications and/or dockets denied which will prevent the project from ever being constructed along the route and using the practices approved by FERC but rejected by others.  The law needs to make clear that FERC cannot approve a project and allow it to proceed with any element of eminent domain or construction (including tree felling) until all state and federal reviews/permit processes have been finalized and approvals/permits granted.

Require Meaningful Consideration of Climate Change in FERC Review, Decision-Making and its Certification Analysis.

Critical Natural Gas Act Reform #5:  
->The Natural Gas Act must be reformed so as to ensure Climate Change is given a priority status in guiding FERC decisionmaking over pipelines, LNG, and related natural gas infrastructure projects by, at a minimum:

• Mandating Certification review specifically includes a full accounting of the climate-changing impacts of any proposed pipeline/LNG infrastructure project under review, including a full and robust assessment and consideration of all of the climate change impacts of a proposed project including the extraction, storage, transportation and end uses of the natural gas to be carried through the infrastructure (including associated drilling and fracking operations, tree removal, associated trucking and industrial operations, and the use of the gas for energy creation) (could specifically mandate use of Social Cost of Carbon or other equally robust analyses).

• Clearly stating in procedural sections of the law or the definition of Public Convenience & Necessity that a project is not deemed to serve the public convenience and necessity if it is demonstrated/determined that emissions resulting from extraction, transport, storage and end use of the natural gas to be transported will result in a net increase in climate change emissions over current levels.

• Providing a definition for Public Convenience & Necessity that includes climate protection.

The law needs to be reformed to make clear that FERC’s “public interest” duty pursuant to the Natural Gas Act mandates consideration of the climate change impacts of pipeline infrastructure including climate change effects of shale gas extraction, storage, transmission and end use, and that FERC Certification cannot be granted to projects that will result in a net increase in climate changing emissions over current levels.  

Congress needs to act in the law to ensure the climate change reviews and decisionmaking are statutorily required so they remain clear, applicable and inviolate regardless of the whims or politics of future administrations.  Currently, Court decisions specifically mandating consideration of climate change in FERC’s natural gas infrastructure reviews are routinely ignored by the agency.  And while the current FERC administration is beginning to support climate change considerations, this action can be reversed by any future administration based on politics.  

Mandate a genuine demonstration of domestic need for the gas to be transported in order to secure Public Convenience and Necessity Certification.

Critical Natural Gas Act Reform #6:  
->In order to secure FERC Certification for a proposed pipeline, LNG or related natural gas infrastructure project, the Natural Gas Act must be reformed to require, at a minimum:

• proof of domestic need for the gas to be transport that is based on legitimate and independently verified demonstrations;
• the “needs” claim be based on users unaffiliated with the project sponsors themselves; &
• demonstration that the energy need asserted by project proponents cannot be fulfilled by renewable energy options

The current demonstration of need put forth by companies is too often backed by self-serving documentation; energy goals of other countries who are not bearing the burden of harm and degradation a pipeline and associated gas extraction inflict; or company goals of increased profits or other business goals.   Given that it is the people of the U.S. who are bearing the burden of the gas extraction, construction, operation and maintenance burdens associated with FERC regulated pipeliens, infrastructure and LNG facilities, it is essential that the needs demonstration be truly independent, verifiable and based on the needs of the U.S. public rather than foreign nations.  

Forbid the Use of “Tolling Orders” that allow projects to proceed with eminent domain and construction while legal challenges are left in legal limbo for many months and/or years.

Critical Natural Gas Act Reform #7:
->The Natural Gas Act must be reformed to either:

1) Prohibit the use of “tolling orders” outright by mandating that FERC must issue a substantive and final decision on rehearing requests within the 30 day time limit included in the law and if they fail to do so the rehearing request is deemed denied.  
or
2)  If tolling orders are not prohibited then the other most legally equitable mechanism for addressing the problem is to prohibit projects from advancing in any way, shape or form, including eminent domain and/or any element of construction (including tree felling), if there is an outstanding rehearing request/tolling order.

Under federal law, a private party is not allowed to legally challenge FERC approval of a pipeline project until they have first submitted a rehearing request to FERC, and FERC has affirmatively granted or denied that request. Rather than do one or the other, FERC’s practice is to issue a “tolling order” in response to such requests, which temporarily grants the request but only “for further consideration”. As a result, the public’s ability to challenge the FERC decision is put into legal limbo until such time as FERC renders and issues its final decision regarding the rehearing request. It is common for FERC to place people in this legal limbo for up to a year or more, while allowing the pipeline company to advance its project, take property by eminent domain, undertake the felling of trees including in forests and wetlands, and undertake other significant aspects of construction.  

Because of the recent decision in Allegheny Defense Fund v. FERC in June 2020, the use of tolling orders has been abandoned temporarily by FERC for a new set of rules decided by FERC, without Congressional input, making the challenge to obtain judicial review even more complicated for stake holders.  Notably the new rules do not stay eminent domain proceedings while the Rehearing process is pending.  

Equity demands that Congress weigh in and ensure that people are given timely access to the courts to be heard before their property is taken, public lands are damaged, and the beauty and sanctity of one’s home and property are taken forever for an unneeded and unwanted pipeline.

Eliminate language that results in preemption of state laws or authority for FERC regulated infrastructure projects in order to honor and respect state’s rights and obligations within their own borders to protect natural rights and their citizenry.  
 
Critical Natural Gas Act Reform #8:
->The Natural Gas Act should be amended so as to either:

a) remove outright the preemption of state laws in the context of natural gas pipelines and compressors and allow them to be subject to state law in the same way other industries are, or
b) limit the areas of law where preemption applies – there is no reason a pipeline should not be require to comply with all waterway, air quality and health and safety protections applicable to other industries in a state and essential to protect a state’s citizenry.  


A fundamental underpinning of our nation is respect for the rights of states to govern within their boundaries and to ensure the protection of the health, safety and welfare of their people.  States’ rights are carefully honored throughout our nation’s laws and history.  Stripping states and municipalities of their legal authority, particularly given the tremendous health, safety and economic harms pipelines inflict on communities is not justified.

In addition, pipeline companies are well able to adapt their construction practices from one state to another – stream crossings in one locale are often different to those in another locale due to ecological differences; air emission technologies often differ compressor to compressor, etc. To exempt interstate natural gas infrastructure from the state and local laws that apply to every other industry gives them an inappropriate competitive advantage.  

Require a ban be put in place on Liquefied Natural Gas Exports.

Critical Needed Reform 9:
->The Natural Gas Act should be amended so as to put in place a ban on export of Liquefied Natural Gas Exports to foreign nations.

The climate crisis is an existential threat.  LNG exports are fueling increased and ongoing fossil fuel extraction that is literally fueling and growing the climate crisis. Given the incontrovertible contributions of LNG exports and fracking to the climate crisis, and the devastating health and economic consequences for our nation, there is no justification to allow the continued export of natural gas from the U.S. abroad.  The level of community harm and sacrifice is too great for an energy supply that is then shipped overseas to support foreign nations, industries and users.

Compel a focus on “avoidance of harm” in order to secure FERC Certification.

Critical Needed Reform 10:
->The Natural Gas Act should be amended to mandate rights of way and construction practices that avoid ecological harm when and where possible including by:

• requiring that all recommendations from other regulatory agencies – state, federal or regional – that would result in an avoidance of ecological harm must be included in any FERC Certification;
• mandating that FERC require an assessment of alternatives to avoid harm to water quality, air quality, ecological habitats, plant and animal species, and publicly protected open space;
• mandating that any alternatives identified for construction practices and/or pipeline rights of way that would avoid harm to water quality, air quality, ecological habitats, plant and animal species, and publicly protected open space, be required as part of any FERC issued Certification;
• prohibiting the use of mitigation when there is a solution that would avoid the ecological harms identified.  

The Natural Gas Act should be reformed to ensure a mandatory focus by FERC on avoidance of harm as part of its certification decisionmaking.  Currently the pipeline companies make their proposal and FERC reviews it as it stands. There may be inclusion of modifications for endangered species or wetlands if recommended by another agency, but all too often mitigation is accepted in lieu of available options for avoidance of harm.  The Natural Gas Act should be amended to require that all recommendations from other regulatory agencies – state, federal or regional – that would result in an avoidance of ecological harm must be included in any FERC Certification.  In addition, the law should be modified to mandate that FERC itself require an assessment of alternatives by the applicant into alternatives that would avoid harm to water quality, air quality, ecological habitats, and plant and animal species, as well as avoidance of harm to publicly protected open space.  In addition it should be required that identified alternatives for construction practices or pipeline rights of way that avoid harm be a required as part of any FERC issued Certification; prohibiting the use of mitigation when there is a solution that would avoid the ecological harms identified.  

It's time to REFORM FERC.

For nearly half a century FERC has served as a rubber stamp agency for pipeline and LNG infrastructure.  It has misused its authority and the law at every turn in order to advance these projects.  In recent years, Congress has increasingly turned its attention to FERC’s abuses; while we are encouraged by that, the fixes proposed do not get to the source of the problem. Increasingly we are watching legislators put forth window dressing fixes that fail to address the root of the problem, and as a result allow FERC’s abuses and unsupportable approvals to continue.   Every one of the substantive and needed reforms we propose in this letter pertain to the Natural Gas Act and provide meaningful protection for our communities, states, environment, climate, future generations and the rule of law. It is in the spirit of seeing robust fixes pursued firmly, quickly, and without compromise that we share our recommendations with you.
We would be happy to meet to discuss these proposals in greater detail.  If you are interested in scheduling a meeting with VOICES representatives please email keepermaya@delawareriverkeeper.org or karen.feridun@gmail.com.

Respectfully,

Organizations listed in order of sign on