Trump’s Infrastructure Failure at FERC

The Trump administration has still not nominated candidates to fill three vacancies at the Federal Energy Regulatory Commission. While hardly the stuff of Washington Post A-section attention, the inability of Trump to unlock FERC, which currently has no quorum, holds up important U.S. infrastructure projects, including natural gas pipelines and liquefied natural gas export terminals. This costs U.S. jobs.

Is the inability of the White House to come up with nominees intentional or incompetent? So far, that’s unknowable. The White House – acting in concert with some congressional figures (Mitch McConnell perhaps?) may have relieved Norman Bay of the agency chairmanship knowing he would resign, leaving FERC with only two commissioners and unable to function fully. With Bay as chairman, the commission consisted of three Democrats and a working institution.

Leaving FERC unable to make major decisions, Trump has given environmental activist groups at least temporary victories in their campaigns to defeat new natural gas pipelines, focused particularly on moving gas produced by fracking to markets in the Northeast and New England. It’s hard to believe that is an outcome the administration favors.

A case in point is the 120-mile PennEast pipeline, moving Marcellus Shale gas from Pennsylvania to New Jersey. The FERC staff, in a final environmental impact statement earlier this month, concluded that “approval of the proposed project, with the mitigation measures recommended in the EIS, would result in some adverse environmental impacts, but impacts would be reduced to less than significant levels with the implementation of PennEast’s proposed and our recommended mitigation measures.” The staff conclusion mirrors the draft EIS last July. The mitigation measures largely involve erosion control during construction.

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Environmental groups, including the New Jersey Sierra Club chapter, have opposed the $1 billion project, claiming it would endanger forests and the Delaware River, which the agency rejected. The project has also won clearance from Pennsylvania’s environmental agency and is expected to clear review by New Jersey water regulators. The opponents have advocated that the state use its authority delegated under the Clean Water Act to nix the project, but that’s unlikely.

The pipeline’s request is ripe for FERC action, but the commission is unable to act on it because of the lack of quorum. It is clear that the commission would give a green light to the project, almost certainly by a 5-0 vote, should it come up to a vote with a commission able to act. But it will be unable to take action because of the Trump administration’s inability to revitalize FERC.

A long-shot approach by PennEast might be a filing in federal court for a writ of mandamus, an order from a court to an administration agency to fulfill its statutory responsibilities. Cornell University’s Law School defines this action “as an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.”

The Cornell law school article cites the 2004 suit by conservative and liberal groups against Vice President Dick Cheney to reveal records of his energy policy group in its discussion of mandamus. The litigation sought a writ of mandamus to enforce the Federal Advisory Committee Act. Ultimately, the Supreme Court ruled that Cheney did not have to reveal the details of his advisory committee and the appeals court, on remand, agreed.

Veteran Washington area lawyer David Masselli is skeptical of that approach. He told me, “Mandamus, 28 USC 1361, is complicated in any case. Remember that mandamus, as opposed to injunction, compels affirmative action. Normally, it is only allowed when the government official being compelled has a clear, ministerial duty – meaning there is no discretion. And the duty has to be owed to the person suing. Does anyone owe a pipeline company the duty to appoint a member to FERC and constitute a quorum? I doubt it.”