Friday, August 15, 2014

Minisink lost appeal (Minisink Residents v. FERC)

DC Circuit Court to Minisink Residents:

Sorry, you DO NOT MATTER. Suck it up.
The rest of the country needs the gas.
Their collective rights trump your individual rights.

This does not look good for other people fighting FERC cases.
The DC Circuit Court is the court of original jurisdiction for all
cases appealing any FERC decision.

Opinion for the Court filed by Circuit Judge WILKINS.

"Given the choice, almost no one would want natural gas infrastructure
 built on their block. "Build it elsewhere," most would say. The sentiment
is understandable. But given our nation's increasing demand for natural gas
... it is an inescapable fact that such facilities must be built somewhere.... "

12-1481 Minisink Residents for Enviro. v. FERC 08/15/2014
http://www.cadc.uscourts.gov/internet/opinions.nsf/E85B91009B1FF66485257D35005254A9/$file/12-1481-1507746.pdf
 

To recap other recent cases involving FERC:

The DRN v. FERC case was very important because the Court admonished FERC that they cannot
segment cases in violation of NEPA (National Environmental Policy Act), despite the fact
that the projects involved are already built and in-service;
Then this case came out in July, which says that FERC can violate NEPA
or other laws all they want to! But citizens cannot bring petition for review
unless they have suffered actual injury-in-fact (in this case, health impacts
from radon gas exposure from Marcellus shale gas in homes.)


Bottom line to communities:

1: FERC is a rogue agency which is NOT funded by Congress,
    but by the very industry they regulate. They have a mission to
    build out gas infrastructure.

2:  FERC's Environmental Impact Statements  leave out upstream and downstream
    impacts, as well as many other concerns raised by people during the scoping process. 

3: Neither the President nor Congress have oversight over FERC's operations.
    (Although Congress could TAKE control by changing the law).

4: The system is rigged so lawsuits can only be filed AFTER FERC issues
    their permit.

5: The permitting agency (FERC) is different from the safety agency (PHMSA)
   so FERC generally does not get input about an operator's safety or compliance
   record into the permitting process.

6: The DC Circuit Court seems to be very pro-gas, pro-industry, anti-local communities.
    Allows FERC to violate the law by refusing standing to plaintiffs.

7: Bottom line: Any community fighting a FERC project should try EVERY POSSIBLE
    LEGAL REMEDY, but be prepared to lock down and blockade the project with your
    bodies, using Nonviolent Direct Action (NVDA).


If we look back to the Civil Rights cases, the federal courts eventually changed,
but it required a massive movement of people.

There are 100 different battles against various new infrastructure buildouts
all over the country... I suggest we find more ways to join together and fight
these battles collectively.

There is already work underway on having a regional meeting to link people
& groups fighting pipelines in the Northeast... this looks like the meeting
may be December. Contact me if your group wants to get involved here
and I'll pass along to the organizers.

There is also an effort to try to get congressional hearings on all of these
infrastructure projects destroying communities. If you were not on the call
today and want to keep informed, again let me know and I will try
to get your group connected to this effort.

Best,
BH

 

--
--
May you, and all beings
be happy and free from suffering :)
-- ancient Buddhist Prayer (Metta)

Don't forget to sign the
Pledge to Resist
the Constitution Pipeline:
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1 comment:

Carolyn Elefant said...

This is Carolyn Elefant, the attorney who represented Minisink for part of the FERC process and the appeal. Although the loss was not entirely unexpected given heightened deference to administrative agencies, the opening paragraphs that you quoted were very disheartening. The Minisink case was never about a community saying simply that it did not want the project. Rather, it was about the fact that there was an operationally, economically and environmentally superior alternative that would have spared the community, not adversely impacted any other communities and still allowed the gas company to meet its goals.

After Minisink - where there was an alternative that would have been built in a remote forest on a site where a compressor station had already operated and an upgrade to an unsafe pipeline that Millennium had already planned to replace -- I don't see how any of these cases are winnable.

August 17, 2014 at 8:32 PM

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