Subcommittee on Civil Rights & Civil Liberties

CONTACT: Aryele Bradford, (202) 226-5181, December 7, 2020

Washington D.C. (Dec. 7, 2020)—On Wednesday, Dec. 9, 2020, at 10:00 a.m., Rep. Jamie Raskin, the Chairman of the Subcommittee on Civil Rights and Civil Liberties, will hold a hearing to examine the Federal Energy Regulatory Commission’s (FERC) failure to protect the rights of landowners whose properties are affected by natural gas projects, and to follow up on the investigation and video report the Subcommittee released earlier this year.

FERC is the primary federal permitting agency for the construction and operation of all major interstate natural gas pipelines. Landowners face obstacles from FERC at every stage of the natural gas pipeline process: FERC rubberstamps natural gas projects without fair consideration to landowners, favors pipeline companies, and provides insufficient options for landowners to seek recourse against pipeline companies.

On February 19, 2020, the Subcommittee launched an investigation into the use of eminent domain in the construction of natural gas pipelines. FERC routinely grants pipeline companies “certificates of public convenience and necessity,” allowing them to take possession of private land under the right of eminent domain.

On April, 28, 2020, the Subcommittee released preliminary findings of the investigation revealing that the natural gas pipeline approval process used by FERC unjustly trampled on the rights of private landowners.

On June 11, 2020, following the Subcommittee’s investigation, FERC announced it would no longer authorize construction activities for natural gas pipelines until the agency acts on the merits of challenges from private landowners and other stakeholders.

On November 20, 2020, the Subcommittee expanded its investigation by requesting information about procedures used to resolve conflicts between landowners and energy companies.

WHAT: Civil Rights and Civil Liberties Subcommittee Hearing:

WHEN: Dec. 9, 2020, at 10:00 a.m. EST

WHO:
1. David L. Morenoff, Acting General Counsel, Federal Energy Regulatory Commission

2. Terry Turpin, Director, Office of Energy Projects, Federal Energy Regulatory Commission

..... “NO Eminent Domain for Private Gain” ..... No MVP on Me or Thee

U.S. Senate Confirms Two New FERC Commissioners, ABRA Update 297, December 4, 2020

The U.S. Senate on November 30 confirmed the two nominees for outstanding vacancies on the Federal Energy Regulatory Commission (FERC). The two new commissioners are:

• Mark Christie, Republican, who has been a longtime member and most recently Chairman of the Virginia State Corporation Commission
• Allision Clements, Democrat, now with the Energy Foundation and formerly with the Natural Resources Defense Council.

FERC will now have a full-complement of five commissioners, 3 Republicans and 2 Democrats. The FERC Chairman, James Danley, a Republican, was named by President Trump to that position on November 5, replacing Neil Chatterjee. The Chairman of FERC serves at the pleasure of the President, so Danley will presumably be replaced as Chair by President-elect Biden after January 20 by a Democrat, expected to be Commissioner Richard Glick. The present term of Commissioner Chatterjee expires in June 2021, affording Mr. Biden the opportunity to replace him with a third Democrat.

Among issues that the new FERC Commissioners will be addressing will be consideration of the forthcoming restoration plan of the Atlantic Coast Pipeline route, which is due to be filed with FERC by December 26.

What Dr. Howell bargained for looked like this.

Marcellus on the farm

Article by S. Tom Bond, Retired Chemistry Professor and Resident Farmer, Lewis County, WV

It’s no secret that I don’t want Marcellus development on my farm.  Here is why:

In 1962, four of us, my sister, her husband,  my wife and I, bought an old farm in a remote place about 3 miles from Jane Lew.  For over 50 years, all my spare time, and every cent we made from the farm went back into improvements.  Today, my wife and I own it.  It is fenced with modern high-tensile fence, there are cattle guards in critical places where roads and fences intersect, and it is very clean.  We have the essential equipment and quality livestock,  and space for 55 to 60 head of brood cows.  After 50 years of planning and scrimping and work on our part, we hope to pass this land along to a new generation.

I have developed methods suitable to medium size hilly farms which I discuss at this website and have written a book about my life farming and changes in the community which appears here.   And I did these things while teaching Chemistry and helping raise four children.

The oil and gas was “severed” from the surface in 1934, 80 years ago, by the second predecessor-in-title, Dr. Howell.   He was a physician in Buckhannon and his heirs live in Colorado.  I called three decades ago, and the granddaughter who spoke for the heirs couldn’t even distinguish which of her grandfather’s farms I was talking about.  So much for any responsibility to the community.

In Howell’s time, there were hand built rigs, pipelines dug by hand (and not so intrusive), equipment hauled only in good weather and by oxen without roads.

Marcellus Shale drilling is a different beast than what I had to deal with from the four Benson (5000 foot) wells drilled on the 500 acres in my tenure.  Benson wells took a few hundred square feet, and required a lightly rocky road.  The wells were drilled in a couple of months, and reclamation allowed some grass production to return to the surface, however there was some dust, and a little storm drainage.  Other effects include the requirment for constant access by well tenders, oil removal, occasional replacement of transmission lines, open spaces for lines through forest land.  One interesting fact is that all the wells in the community have the same lock and the keys are passed around freely, so you can not maintain control of access to your farm.  Little negotiation with them is possible for things like remediation of the roads, but they are good about coming to relocate pipelines when you need to drive fence posts into the ground, or you are laying drainage ditches.  And they do a good job of keeping the well sites “clean.”

Benson wells are tame in comparison to Marcellus Shale development.  The pond that was used on the Benson wells could not have been used to  park a truck larger than a pickup.  Ponds today can hold two or more dozen of the big tankers they use and are  several times deeper.  The well pad size is in acres, not hundreds of square feet.  The pad and the road is heavily rocked and will never produce decent pasture again.  The pipeline rights-of-way are wide enough to accommodate very large equipment.  Trees won’t be allowed to produce timber until the lines are abandoned.  If it is economically feasible to remove the pipelines, the ground will be disturbed again then and it will be decades before the forest can recover after that, if ever.

On this land now diverted to drilling, there will be endless dust on the pasture and meadow  - hundreds of truckloads of water and chemicals in and out, many pickup loads of workers.  Bright light at night, and high decibel sounds constantly  negatively affecting the cattle.  Storm water carrying silt and chemicals from the well pad and the roads will end up diverted into productive areas of the farm, and worst this adverse process can go on for years if wells are drilled one at a time.

Many people have the idea that cattle are tough.  While they can survive some harsh conditions which they are adapted for in natural settings like cold, hunger, and some predation, the unnatural industrial drilling on farmlands with non-natural (chemical) insult does hurt production.  The farm business is already operating on a very thin margin.

What if somebody in my chain of title made an agreement with somebody who is the predecessor in the gas companies chain of title for something much different than what I am getting from him?  Is there any precedent?  There certainly is.  It was done for strip mining.  The first strip mining paid nothing to the surface owner.  The coal was sold with the necessary rights to remove.  No one had contemplated this new technology, so the law was changed so that the surface owner received what is now known as “surface rights.”

Decades ago I learned that the Corps of Engineers maintained a stable of appraisers to value land that they take for various projects.  These individuals are certified and used over and over again.  They are trained to appraise at just the least amount the landowner might accept, rather than fight in court.  I took time to study the matter at a couple of sites, and found that almost anyone who went to court received more, but had to endure great stress to do so.   Some oil and gas companies also offer “damages,” sometimes like the Corps of Engineers offer, sometimes an arbitrary figure, but not nuanced nor acknowledging the factors above.

Sometimes dead cattle are paid for, but not ones that “aren’t doing well,” abortions, dusted hay, dead pets, sickness (NEVER admit guilt), or losses from all the other  subsidiary complaints you hear about.  Damage to game and fish (note: about one-eighth of my farm income is from hunting rights) does not come into the picture, despite complaints from  hunters and fishermen, nor does destruction of scenic value, or the retirement industry, or the edge effect on forest creatures due to so much more subdivision.

There will be a significant reduction in property value.  Who wants to buy a farm with a well pad on it that enables the driller to fool around for decades on one well after another?  With reclamation that is not renovation, repeated for each well, many times over?    With the uncertainty of  loss of water, damage from fumes, from toxic ponds and compressor stations?  Am I alone in this claim?

Read “Fracking Boom Gives Banks Mortgage Headaches.“  The disgusting part of the article is that it is worried about banks, but there is not a word about property owners.  I suppose landowners are  like grass that has to accept being eaten off by cows.  (And stepped on and the other thing cows do on grass.)  In the places where oil and gas has been extracted before, there is no mineral rights for the surface owners!  Such rights are long gone.  See also the American Banker video here.

Property values will crash if buyers can’t get financing because of the extraction, as is now the case in some places.  And in some places the farming operation can’t be insured because of the “industrial operation” being conducted on it.  Externalized cost is very near theft, and not paying for damages is a form of denying the effect of the extraction.  Shale drilling is like an invading army in power, but unlike a wise invading army, it doesn’t strive to preserve eventual productive value.

A rapid expansion is underway in Pennsylvania and West Virginia to tap into vast amounts of natural gas lying deep beneath the earth’s surface.  Companies have invested billions and are increasing the number of wells rapidly. With the increase in drilling comes an increase in legal activity, from attorneys who help landowners with leasing issues to lawyers involved in disputes over roads and noise to those drafting industry rules and regulations.

Kathryn Klaber, president of the Marcellus Shale Coalition, says the industry welcomes the scrutiny.  ”I challenge you to name another industry this transparent,” she said. “Have you ever seen any industry that has more easy access to information?” Klaber’s organization represents nearly 40 drillers and many other related businesses, many of which are facing legislative hurdles.  New York has issued a temporary moratorium on new drilling permits, and many in West Virginia are calling for legislative action to protect the public and the environment.

More than a dozen law firms have joined the Marcellus Shale Coalition, as partners in the oil and gas industry.  Several firms have designated teams of attorneys who work solely on Marcellus Shale issues and litigation. Industry lawyers say their clients are stepping up to the plate when it comes to issues such as noise, road damage and site restoration.  

Plaintiff attorney Michael Rosenzweig in Pittsburgh says there are a number of cases right now against local municipalities and the states for damage to the roads. “The state is just left holding the bag when these drillers come in and put all this heavy traffic on these roads,” he said. “It’s a recipe for disaster.” Industry lawyers say many companies are making repairs themselves, particularly to landscaping on property once they are finished with a well. Many municipalities are considering charging drillers impact fees to make necessary repairs.

You probably can refuse a horizontal well on your land.  The West Virginia Surface Owners Rights Organization (WV-SORO) believes that a surface owner who does not own the gas rights under their land cannot be forced to have a horizontal well pad on the surface  unless the horizontal well will only be draining the gas lease tract under the surface owner’s land.  Generally, lawyers who work for the industry agree with this (although the companies and local landman may not realize it yet).  Although there are no cases on this in West Virginia, legal encyclopedia’s of gas law say that this is “clearly” true and that the reason that there are no appellate court cases on the point is that such “veto powers” are generally assumed.

WV-SORO generally favors horizontal drilling because one well site, access road and pipeline replaces three or four.  Moreover, if horizontal wells are drilled from centralized well pads, one well site, access road and pipeline can replace more than 20 vertical well sites, etc.  However, this does not mean the rights of the surface owner of the land where the wells are being drilled should be ignored or that the surface owner should not share in the financial benefits of producing the gas.