IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DELAWARE RIVERKEEPER NETWORK,
925 Canal Street, Suite 3701
Bristol, PA 19007

)
)
)
)
and
)
)
MAYA VAN ROSSUM, Delaware
)
Riverkeeper,
)
925 Canal Street, Suite 3701
)
Bristol, PA 19007
)
)
Plaintiffs,
)
)
v.
)
)
FEDERAL ENERGY REGULATORY
)
COMMISSION,
)
888 First Street, N.E.
)
Washington, D.C. 20426
)
)
and
)
)
NORMAN C. BAY, TONY CLARK, COLETTE )
HONORABLE, and CHERYL A. LAFLEUR,
)
in their official capacities
)
as Commissioners of the Federal Energy
)
Regulatory Commission,
)
888 First Street, N.E.
)
Washington, D.C. 20426
)
)
Defendants.
)
)

CASE NO. 16-416

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 TO THE HONORABLE COURT:
The Delaware Riverkeeper Network, and Maya K. van Rossum, the
Delaware Riverkeeper, by and through their undersigned counsel, allege as
follows:
I.

INTRODUCTION

“Could an umpire call balls and strikes objectively if he were paid for
the strikes he called?” – Sierra Forest Legacy v. Rey, 577 F.3d 1015,
1026 (9th Cir. 2009) (John T. Noonan, J., concurring).
1)

This case challenges the review and approval process of the Federal Energy

Regulatory Commission’s (“Commission”) natural gas pipeline program, and the
PennEast Pipeline Project (“Project”) specifically, as being infected by structural
bias, which violates the Due Process rights of the Delaware Riverkeeper Network,
the Delaware Riverkeeper, and its members (collectively, “Plaintiffs”).
2)

The Commission’s structural bias arises out of the Commission’s funding

mechanism, under which the Commission’s entire natural gas pipeline program is
funded by the private companies that it is tasked with regulating.
3)

The funding mechanism for the Commission’s natural gas pipeline program

is codified in the Omnibus Budget Reconciliation Act of 1986 (the “Budget Act”),
which creates a perverse incentive structure for the Commission to be biased in
favor of the pipeline companies that it regulates. See 42 U.S.C. § 7178(a)(1).
4)

The Commission’s funding mechanism, in full, states, “the Federal Energy

Regulatory Commission shall, using the provisions of this section and authority
2

 provided by other laws, assess and collect fees and annual charges in any fiscal
year in amounts equal to all of the costs incurred by the Commission in that fiscal
year.” 42 U.S.C. § 7178(a)(1) (the “funding mechanism”).
5)

For the natural gas pipeline program, the Commission annually compares the

amount of gas each company transports to the total amount transported by all
jurisdictional gas pipeline companies, then calculates and imposes a proportional
volumetric charge on each company. See 18.C.F.R. § 382.202.
6)

Therefore, the Commission’s natural gas pipeline program budget is not

funded by a traditional Congressional appropriation, but instead by the private
companies that it regulates.
7)

The natural gas pipeline program comprises roughly twenty percent of the

Commission’s overall budget. See Congressional Performance Budget Request:
Fiscal Year 2016, Chairman Cheryl A LaFleur, at iii (the Commission estimates
for Fiscal Year 2015 that the natural gas industry will fund 19.16 percent of its
total budget).
8)

Therefore, the Commission cannot fairly preside over the review and

approval process of proposed jurisdictional natural gas pipeline projects because
the revenue collected from the private companies that it is supposed to oversee
comprises a substantial portion of the Commission’s overall budget, and the
entirety of its natural gas program budget. See Esso Standard Oil Co. v. Cotto, 389
3

 F.3d 212, 219 (1st Cir. 2004) (finding “structural bias” because the agency
“benefit[ed] financially” from its own proceeding where the revenue collected by
the agency flowed “to the [agency]’s budget”).
9)

This fatally flawed financial structure violates the Constitutional Due

Process rights of individuals pursuant to the Fifth Amendment.
10)

Due Process requires that an adjudicative agency, such as the Commission,

be neutral in its decision-making process, with even the appearance of bias
rendering the process unconstitutional. See In re Murchison, 349 U.S. 133, 136
(1955); see also Brown v. Vance, 637 F.2d 272, 284 (5th Cir. 1981).
11)

Due Process stands violated when a decision-maker faces “a possible

temptation to the average man as a judge . . . which might lead him not to hold the
balance nice, clear and true.” Tumey v. Ohio, 273 U.S. 510, 532 (1927) (emphasis
added).
12)

Because the Commission is responsible for approving natural gas pipeline

project applications to generate all of its budgetary income for the natural gas
pipeline program, the Commission faces the impermissible “possible temptation”
to be biased toward approving jurisdictional natural gas pipeline projects, such as
the PennEast Project, and favoring pipeline company interests regardless of the
legitimacy of the opposition of, or justifiable need for, the project proposals.

4

 13)

In addition to the unconstitutional incentive structure created by the

Commission’s funding mechanism, the Commission’s Due Process harm is
facilitated and compounded by a corrosive concentration of power, whereby: 1) the
Commission automatically provides natural gas pipeline project applicants with the
power of eminent domain when the Commission approves a project; and 2) the
Commission has the authority to preempt any and all state and local regulations
regarding the siting, construction, and operation of Commission jurisdictional
natural gas facilities.
14)

Therefore, when the Commission approves a natural gas pipeline project, the

project applicant immediately has the right to condemn land for the project, and to
ignore all state and local zoning and regulatory protections.
15)

The Commission’s funding mechanism combined with its overly broad

regulatory power compels the Commission to be a business partner with, rather
than a dispassionate regulator of, the industry it is tasked with overseeing.
16)

The appearance of structural bias is further evinced by Commission actions

that demonstrate actual bias.
17)

For example, since the funding mechanism was put in place: the

Commission has approved 100 percent of the pipeline projects that it has voted on;
the Commission has never issued civil penalty to a pipeline company for a
violation of the environmental terms of its Certification; the Commission has never
5

 issued an Environmental Assessment finding potential significant impacts for a
pipeline project necessitating further environmental review; the Commission has
never granted a rehearing request to a non-industry party; the Commission has
adopted biased policy objectives in favor of pipeline companies;

and the

Commission has left unfunded a Congressionally authorized Office designed to
assist non-industry parties in participating in the Commission’s administrative
process.
18)

Plaintiffs ask the Court to find that the Commission’s review and approval

process for the natural gas program and the PennEast Pipeline Project is
unconstitutional because it violates Plaintiffs’ Due Process rights.
II.
19)

JURISDICTION AND VENUE

This action arises under the Fifth Amendment to the Constitution of the

United States. See Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971); see also Davis v. Passman, 442 U.S. 228 (1979)
(finding that the Due Process Clause of the Fifth Amendment created a right of
action for damages under the Civil Rights Act).
20)

Plaintiffs seek a declaratory judgment under the Federal Declaratory

Judgments Act, 28 U.S.C. §§ 2201-2202, and appropriate injunctive relief.
21)

While Congress may freely choose the court in which judicial review may

occur, City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979), if it makes
6

 no specific choice, then an aggrieved person may pursue constitutional claims in
federal district court pursuant to federal question jurisdiction. See Five Flags Pipe
Line Co. v. Dep.’t of Transp., 854 F.2d 1438, 1439 (D.C. Cir. 1999); see also 28
U.S.C. § 1331.
22)

This Court has already determined that the Budget Act does not specify “the

court in which judicial review . . . initially may be had.” Id. at 1440.
23)

As such, jurisdiction in this Court is appropriate. See NO Gas Pipeline v.

FERC, 756 F.3d 764, 768-9 (D.C. Cir. 2014).
24)

Venue is proper in this judicial district and in this Court pursuant to 28

U.S.C. § 1391(e)(1)(A) because Defendant Federal Energy Regulatory
Commission is an agency of the United States, and resides in this judicial district.
III.

PARTIES
Plaintiffs

2 5 ) The Delaware Riverkeeper Network (“DRN”) is a non-profit organization
established in 1988 to protect and restore the Delaware River, its associated
watershed, tributaries, and habitats.
2 6 ) This area includes 13,539 square miles, draining parts of New Jersey, New
York, Pennsylvania and Delaware, and it is within this region that a portion of the
Project’s construction activity are proposed to take place.

7

 2 7 ) The Upper Delaware River is a federally designated “Scenic and
Recreational River” administered by the National Park Service. The National
Wild and Scenic Rivers System also includes l a r g e p o r t i o n s of the Lower
Delaware and the Delaware Water Gap.
2 8 ) The Lower, Middle, and Upper Delaware River have high water quality and
are subject to Delaware River Basin Commission Special Protection Waters
Designation.
2 9 ) The Basin and River are home to a number of federal and state listed
endangered and

threatened species including, but not limited to, the dwarf

wedgemussel, Indiana bat, bog turtle, Atlantic sturgeon, shortnose sturgeon,
loggerhead and Kemp’s ridley sea turtles, and Northeastern bulrush.
3 0 ) Over 200 species of migratory birds have been identified within the
drainage area of the Upper Delaware River, including the largest wintering
population of bald eagles within the Northeastern United States.
3 1 ) The federally endangered shortnose and Atlantic sturgeon are present in the
Delaware River.
32)

The ecologically, recreationally, and economically important American Shad

population migrates up through the nontidal portions of the Delaware River to
spawn. American Shad populations in the Delaware River are currently at
depressed numbers.
8

 33)

The Delaware River and Delaware Bay are also home to dozens of species

of commercially and recreationally important fish and shellfish species.
34)

In its efforts to protect and restore the watershed, DRN organizes and

implements stream, wetland, and habitat restorations; a volunteer monitoring
program; educational programs; environmental advocacy initiatives; recreational
activities; and environmental law enforcement efforts throughout the entire
Delaware River Basin and the basin states.
35)

DRN is a membership organization headquartered in Bristol, Pennsylvania,

with more than 16,000 members with interests in the health and welfare of the
Delaware River and its watershed.
36)

DRN began its advocacy efforts to protect the Basin from the adverse

impacts of natural gas and pipeline infrastructure development in March of 2008.
37)

DRN has actively worked since that time to bring the environmental impacts

of natural gas and pipeline infrastructure development to the public’s attention
through action alerts, press outreach, public appearances, public statements, and
editorials.
38)

DRN has also advocated for and has funded expert scientific studies on the

impact of natural gas and pipeline infrastructure development.
39)

In 2014, DRN successfully litigated a case against the Commission where

the United States Court of Appeals for the District of Columbia found that the
9

 Commission violated the National Environmental Policy Act (“NEPA”) with
regard to its issuance of a series of Certificates of Convenience and Public
Necessity for several interconnected and interdependent natural gas pipeline
projects. See Delaware Riverkeeper Network, et al. v. Fed. Energy Regulatory
Comm’n, 753 F.3d 1304 (D.C. Cir. 2014).
40)

DRN is therefore deeply familiar with the impacts to human health, the

environment, and property rights as a result of pipeline construction activity, as
well as the biased process the Commission has utilized to approve pipeline
projects.
41)

DRN brings this action on behalf of the organization as part of the pursuit of

its organizational mission, and on behalf its impacted members, the board, and
staff.
42)

Maya K. van Rossum came to work for the Delaware Riverkeeper Network

as the organization’s Executive Director in 1994.
43)

In 1996, she was appointed Delaware Riverkeeper and leader of the

Delaware Riverkeeper Network.
44)

Ms. van Rossum is also a member of the Delaware Riverkeeper Network

and supportive financial donor.
45)

Maya van Rossum as the Delaware Riverkeeper regularly visits the

Delaware River and Delaware Estuary, including the areas affected by pipelines
10

 and has taken family, friends, DRN members, and other interested people onto the
Delaware River and its tributaries to educate them and to share with them the
aesthetic beauty of the river.
46)

DRN’s members live, own property, recreate, and work throughout the

watershed, which includes areas affected by Commission-jurisdiction pipeline
projects, and have had their aesthetic, recreational, and property interests harmed
as a result of construction and operational activity.
47)

DRN and its members value the aesthetic qualities of their property and

public parks; enjoying the scenery, wildlife, recreation opportunities, and
undeveloped nature.
48)

DRN’s members own property that has been, and/or in the future will be,

adversely impacted by Commission-jurisdictional pipeline construction and
operational activities; impacts which include physical damage to real estate as a
result

of

Commission-jurisdictional

pipeline

construction

activity,

and

encroachment of construction debris upon their homes and property.
49)

DRN’s members who live within the blast radius of proposed or existing

Commission-jurisdictional pipelines are concerned about the increased risk of
bodily and/or property harm as a result of pipeline accidents or explosions.
50)

DRN’s members own property that has been, or will be, subject to eminent

domain proceedings for Commission-jurisdictional pipeline projects.
11

 51)

DRN’s members’ bargaining position with pipeline companies for easement

agreements has been, and is currently being, compromised as a result of the
pressure and threat of eminent domain proceedings.
52)

DRN’s members recreate in public parks that have been adversely impacted,

and will be adversely impacted in the future, as a result of environmental
degradation of aesthetic and recreational values by Commission-jurisdictional
pipeline construction and operation.
53)

The Commission’s actions have violated DRN’s right to timely judicial

review of Commission certifications.
54)

The legal violations alleged in this complaint therefore cause direct injury to

the aesthetic, conservation, economic, recreational, scientific, educational, wildlife
preservation, and property interests of the organization and its members.
55)

DRN and its members’ aesthetic, conservation, economic, recreational,

scientific, educational, wildlife preservation, and property interests have been, are
being, and will continue to be adversely and irreparably injured by the
Commission’s actions unless the relief sought here is granted.
56)

These actual injuries are traceable to the Commission’s actions and would be

redressed by the requested relief.
Defendants

12

 57)

Defendant Federal Energy Regulatory Commission is an independent federal

agency charged with issuing Certificates of Convenience and Public Necessity
pursuant to the Natural Gas Act for jurisdictional natural gas pipeline projects.
58)

The Commission is the lead agency for the purposes of environmental

review of natural gas pipeline projects pursuant to NEPA.
59)

The Commission is headquartered in Washington, D.C.

60)

The Commission is composed of up to five commissioners who are

appointed by the President of the United States with the advice and consent of the
Senate.
61)

Commissioners serve five-year terms and have an equal vote on regulatory

matters.
62)

The current Commissioners are: Norman Bay, Tony Clark, Colette

Honorable, and Cheryl LaFleur.
IV.
A.

63)

STATEMENT OF FACTS

General Background and History of the Commission and Its
Funding Mechanism

The Commission is an independent regulatory agency within the U.S.

Department of Energy.
64)

The Commission’s statutory authority centers on major aspects of wholesale

electric, hydroelectric, natural gas, and oil pipeline industries.

13

 65)

The Commission was created through the Department of Energy

Organization Act on October 1, 1977.
66)

As authorized by statute – specifically, the Omnibus Budget Reconciliation

Act of 1986 – the Commission recovers the full cost of its natural gas pipeline
program through annual charges and filing fees assessed on the industry it
regulates. See 42 U.S.C. § 7178(a)(1).
67)

This revenue is deposited into the Treasury as a direct offset to its

appropriation, resulting in no net appropriation. See 42 U.S.C. § 7178(f).
68)

The Commission consists of up to five commissioners who are appointed by

the President of the United States.
69)

The Commission’s role in regulating the natural gas industry is largely

defined by the Natural Gas Act of 1938.
70)

Under Section 3 of the Natural Gas Act, the Commission reviews the siting,

construction, and operation of facilities to import and export natural gas.
71)

Under Section 7 of the Natural Gas Act, the Commission issues Certificates

of Public Convenience and Necessity for the construction and operation of
interstate natural gas pipelines and storage facilities.
72)

As required by NEPA, the Commission is also tasked with preparing the

environmental review documents for proposed natural gas facilities.

14

 73)

The Commission is therefore responsible for the generation and review of

Environmental Assessments and/or Environmental Impact Statements related to
proposed jurisdictional projects, including natural gas pipeline projects.
74)

Additionally, the Commission is required to conduct compliance inspections

of the natural gas pipelines and storage facilities during construction and operation.
75)

For a proposed Commission jurisdictional natural gas project, Commission

staff review a project applicant’s submissions and make a recommendation to the
Commissioners.
76)

The Commissioners then vote on whether to approve a project application or

deny the application with each Commissioner providing one vote.
77)

Commission approval requires a majority vote in favor of the application for

the project.
78)

The Commission was not always funded by the industry that it regulates.

79)

Prior to 1987 the Commission did not have the authority to assess charges

on regulated companies for the work performed by the Commission in regulating
natural gas pipelines.
80)

In 1982 the Commission itself began requesting legislation to authorize it to

assess annual charges on the companies subject to its regulation to cover its
budget, which was ultimately granted in the Omnibus Budget Reconciliation Act
of 1986.
15

 81)

In the context of the Commission’s natural gas pipeline program, the

Commission covers all its costs – and cost increases – by assessing charges on
pipeline operators. See 18 C.F.R. § 382.201-03.
82)

The agency levies fees, known as Annual Charges Unit Charge on natural

gas companies, who pay a volumetric charge based on how much gas they transmit
via Commission-approved pipelines. See 42 U.S.C. § 7178(a); 18 C.F.R. §
382.202.
83)

The Commission historically relies on natural gas project approvals to

provide about twenty percent of its overall budget. See Congressional Performance
Budget Request: Fiscal Year 2016, Chairman Cheryl A LaFleur, at iii.
84)

For example, for the natural gas program in 2014 there were 42,439,281,812

dekatherms of gas transported in the Commission’s jurisdictional pipeline system,
which provides a budget of $59,836,000. See Congressional Performance Budget
Request: Fiscal Year 2016, Chairman Cheryl A LaFleur, at iii.
85)

Absent the Commission’s collection of charges, the Commission would not

be able to reimburse its appropriation to the Treasury Department as required by
law.
86)

According to the Commission, it “is required to collect not only all its direct

costs but also all of its indirect expenses such as hearing costs and indirect
personnel costs.” Revision of Annual Charges Assessed to Public Utilities, Order
16

 No. 641, FERC Stats. & Regs. ¶ 31,109, at 31,841 n. 4, 65 Fed. Reg. 65,757,
65,757 (Nov. 2, 2000).
B.
87)

The Proposed PennEast Pipeline Project

On September 24, 2015, pursuant to Section 7(c) of the Natural Gas Act,

PennEast Pipeline Company filed an application with the Commission for a
Certificate of Public Convenience and Necessity (“Certificate”) pursuant to Part
157, Subpart A of the Commission’s regulations, which would authorize PennEast
to site, construct, own, and operate a new natural gas pipeline system, including
pipeline facilities, a compressor station, metering and regulating stations, and
appurtenant facilities in Pennsylvania and New Jersey.
88)

PennEast requested that the Commission complete its review of the

proposed Project and issue the Certificate by August 1, 2016.
89)

The PennEast Project is a 114 mile 36-inch diameter new greenfield pipeline

that is proposed to provide up to 990,000 dekatherms per day of natural gas
transportation capacity to the market on a year-round basis.
90)

The Project would cut through Luzerne, Carbon, Northampton, and Bucks

Counties in Pennsylvania and Hunterdon and Mercer Counties in New Jersey.
91)

As proposed, the Project will disturb over 2,400 acres of land, convert over

400 acres of forested land to open land, cross 234 waterbodies, and impact over
seventy-four acres of wetlands.
17

 92)

On September 28, 2015, Plaintiffs filed a Motion to Intervene in the

Commission’s review process opposing the Project. See Delaware Riverkeeper
Network Motion to Intervene, No. CP15-558, September 28, 2015 (Accession No.
20150928-5168); Maya van Rossum Motion to Intervene, No. CP15-558,
September 28, 2015 (Accession No. 20150928-5192).
93)

No answer in opposition was filed within fifteen days of Plaintiffs’

submissions. As such, Plaintiffs’ Motions to Intervene were automatically granted.
See 18 CFR § 385.214 (c)(2).
C.

94)

The Commission’s Reliance on the Regulated Industry to Fund its
Entire Pipeline Program Budget Creates a Constitutionally Fatal
Structural Bias

Rather than continue to be subjected to a process fatally infected by

constitutionally intolerable bias, Plaintiffs come to this Court seeking declaratory
and injunctive relief to stop an unconstitutionally biased proceeding. See MCS
Health Mgt. Options, Inc. v. Mellado Lopez, 2015 WL 1212215, at *18 (D. Puerto
Rico, March 17, 2015) (finding that “[t]o require plaintiff to continue before a
biased

adjudicator

would

effectively

deprive

it

of

its

property

without due process of law and irreparable injury will thus follow”).
95)

As a uniquely self-financing independent executive agency reliant on the

private pipeline companies it regulates to supply twenty percent of its overall
budget and all of its natural gas pipeline project budget, the Commission and its
18

 Commissioners are unconstitutionally biased adjudicators of natural gas pipeline
project Certification requests.
96)

The Commission’s faulty financial structure violates the Constitution in

several related ways.
97)

First, because the Commission is responsible for approving natural gas

pipeline project applications to cover its entire pipeline program budget, the
Commission faces the impermissible “possible temptation” to be biased toward
approving jurisdictional projects – such as the PennEast Project – and favor
industry interests regardless of the legitimacy of the opposition to project
proposals.
98)

This “possible temptation” alone is enough for Plaintiffs to prevail on its

claims.
99)

Additionally, the finite lifespan of pipeline projects and the increasing fixed

costs of the Commission dictate that the Commission ultimately must approve
proposed jurisdictional projects; therefore, the Commission has no choice but to
act in an overtly biased manner and approve new projects, regardless of their merit,
to ensure the continued existence of the Commission’s expanding bureaucracy.
100) Beyond the appearance of bias, the Commission’s actual bias is
demonstrated in a variety of ways, including its 100 percent approval rate for
projects, its failure to enforce its Certifications, its obstruction of timely judicial
19

 review of its decisions, its unlawful environmental review process, its biased
policy objectives, its effort to keep an Office defunded that was designated to help
the public engage in the Commission’s review and approval process, and its
“revolving door” with the private industry.
i.

The Possible Temptation Doctrine

101) Due Process requires fair adjudicative proceedings before neutral and
detached decision-makers. Ward v. Village of Monroeville, 409 U.S. 57, 59-60
(1972); see also Beauchamp v. De Abadia, 779 F.2d 773, 776 (1st Cir. 1985) (“An
impartial decision maker is, of course, a fundamental component of due process”).
102) While the Constitution clearly mandates that adjudicative proceedings be
free of actual bias, see In re Murchison, 349 U.S. at 136, the Constitution also
forbids the mere appearance of bias in adjudications. Id. at 136 (“[O]ur system of
law has always endeavored to prevent even the probability of unfairness”); see also
Exxon v. Heinz, 32 F.3d 1399, 1403 (9th Cir. 1994) (“[T]he Constitution is
concerned not only with actual bias but also with ‘the appearance of justice’”);
D.C. Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231, 1246-7 (D.C. Cir. 1971)
(“With regard to judicial decisionmaking, whether by court or agency, the
appearance of bias or pressure may be no less objectionable than the reality”);
Offut v. United States, 348 U.S. 11, 14 (1954) (placing as paramount the
appearance of justice in adjudications); Richmond Newspapers, Inc. v. Virginia,
20

 448 U.S. 555, 594 (1980) (Brennan, J., concurring) (“For a civilization founded
upon principles of ordered liberty to survive and flourish, its members must share
the conviction that they are governed equitably”); Sirias v. Sec’y, Dep’t of Corr.,
2015 WL 5440336, at *5 (M.D. Fl. Sept. 15, 2015) (“Due process assures every
litigant, civil or criminal, of a trial by an impartial court, free of bias or
the appearance of bias”).
103) The principle of neutrality “preserves both the appearance and reality of
fairness, ‘generating the feeling, so important to a popular government, that justice
has been done.”’ Marshall v. Jerrico, 446 U.S. at 242 (quoting Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123, 172 (1951) (Frankfurter, J.,
concurring)).
104) Studies have shown that the perception of procedural fairness is critically
related to the presence of a “demonstrably independent decisionmaker.” J.
Marshaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil & M. Carrow, Social
Security Hearings and Appeals, at XXIV (1978); see also Paul R. Verkuil, A Study
of Informal Adjudication Procedures, 43 U. Chi. L. Rev. 739, 751 (1976).
105) Due Process stands violated when a decision-maker faces “a possible
temptation to the average man as a judge . . . which might lead him not to hold the
balance nice, clear and true.” Tumey, 273 U.S. at 532.

21

 106) This objective inquiry considers all “circumstances and relationships” that
might push an adjudicator to be biased. See Caperton v. A.T. Massey Coal Co.,
Inc., 556 U.S. 868, 880 (2009).
107) The adjudicator’s stake in the relevant proceedings need not be “direct or
positive” to violate Due Process. Gibson v. Berryhill, 411 U.S. 564, 579 (1973)
(holding unconstitutional the “possible temptation” to rule based on the possible,
attenuated elimination of economic competition); see also Lucky Dogs LLC v. City
of Santa Rosa, 913 F.Supp. 2d 853, 860 (N.D. Cal. 2012) (declaring
unconstitutional an adjudicator that was financially reliant on a particular party
becoming a “repeat player” before it, as the adjudicator faced the “possible
temptation” to rule for the party, and create an atmosphere more likely to induce
the party to return.)
108) There are two different types of pecuniary interests which elicit procedural
Due Process concerns.
109) First, courts have recognized bias where individual decision makers stand to
gain personal financial benefits from their decisions. See Tumey, 273 U.S. at 523.
110) Second, courts have recognized the appearance of bias where the decision
making body has an institutional financial interest that may lead it to make biased
decisions. See Ward, 409 U.S. at 60.

22

 111) This latter category is labeled “institutional” or “structural” bias, and is the
type of bias present in the instant matter. See Alpha Epsilon Phi Tau Chapter
Hous. Ass’n v. City of Berkeley, 114 F.3d 840, 844 (9th Cir. 1997).
112) The “possible temptation” standard “applies with equal force to…
administrative [agencies].” Gibson, 411 U.S. at 579; see also Sierra Forest Legacy
v. Rey, 577 F.3d at 1024 (Noonan, J., concurring) (9th Cir. 2009) (applying the
“possible temptation” doctrine to agencies is an “elementary” extension).
113) Agencies may not operate pursuant to a “dual status as judge and a party
interested in the outcome of the proceedings.” United Church of the Med. Ctr. v.
Med. Ctr. Comm’n, 689 F.2d 693, 699 (7th Cir. 1982); see also Gibson, 411 U.S.
564.
114) When an agency adjudicates, Due Process is offended when “the decisionmaker, because of [its] institutional responsibilities, would have so strong a motive
to rule in a way that would aid the institution.” Alpha Epsilon Phi Tau, 114 F.3d at
844 (internal quotation omitted).
115) When an agency may use its adjudicative powers to supply more than de
minimus funds for its budget, it cannot afford Due Process. United Church, 689
F.2d at 699; see also Esso Standard Oil Co. v. Lopez-Freytes, 522 F.3d 136, 146
(1st Cir. 2008) (noting that an agency with a budget dependent upon fines it issues

23

 faces a “possible temptation” that is “intensifie[d]” by the size of the fine relative
to the agency’s budget).
ii.

The Commission’s Funding Mechanism Violates the
Possible Temptation Doctrine

116) The constitutional issue here specifically arises where the Commission’s
funding structure intersects with its adjudicative responsibilities pursuant to the
Natural Gas Act.
117) Given that the Commission’s natural gas pipeline program is entirely reliant
on the private companies that seek approvals from the Commission, the
Commission cannot fairly or constitutionally preside over the review and approval
process of those natural gas pipeline project proposals. See 42 U.S.C. § 7178(a)(1);
see also Alpha Epsilon Phi Tau, 114 F.3d at 844; Esso Standard Oil Co. v. LopezFreytes, 522 F.3d at 146; United Church, 689 F.2d at 699.
118) A natural gas pipeline applicant is required to submit a request to the
Commission for a Certificate of Public Convenience and Necessity. See 15 U.S.C.
§ 717f(c)(1)(A).
119) When a certificate application is filed for a natural gas pipeline project the
Commission’s regulations dictate that “the Commission will approve an
application for a certificate only if the public benefits from the project outweigh
any adverse effects.” Statement of Policy, No. PL99-3-000, 88 FERC ¶ 61,227, at
28 (September 15, 1999) (emphasis added).
24

 120) Therefore, the Commission has a duty to perform a delicate balancing test to
determine whether or not to issue a Certificate. Id.
121) As part of the Commission’s analysis, Commission staff review the project
proposal as a whole – which includes an environmental analysis pursuant to NEPA
– and make a recommendation to the Commissioners, who then vote on whether to
issue or deny the Certificate of Public Convenience and Necessity. Id.
122) When the Commission issues the Certificate it then collects money annually
from the project applicant for as long as the pipeline remains in use as an interstate
natural gas pipeline, which can extend twenty years, forty years, or longer. See 42
U.S.C. § 7178(a)(1).
123) The Commission cannot fairly perform a balancing test and administer the
review and approval process regarding the necessity of a natural gas pipeline
project where the private companies that are seeking approvals from the
Commission finance the Commission’s natural gas pipeline program budget. See
Congressional Performance Budget Request: Fiscal Year 2016, Chairman Cheryl
A LaFleur, at iii.
124) The Commission is therefore reliant upon the willingness and ability of
natural gas pipeline companies to build, operate, and pay fees on natural gas
pipeline projects, and faces an unconstitutional “possible temptation” to engage in
a mutually lucrative profit-sharing scheme with those companies, to ensure the
25

 companies continue to generate income while also providing revenue to sustain
and grow the agency.
125) In other words, when the Commission issues a Certificate for a natural gas
pipeline project, it effectively puts money into the pockets of the private companies
that build the projects, and then the Commission receives a long-term commitment
to receive a portion of that money back to cover its pipeline program budget.
126) The more pipeline projects that the Commission approves, the more
“product” the Commission can tap for funding.
127) This conflicting interest renders the Commission incapable of holding “the
balance nice, clear and true.” Tumey, 273 U.S. at 532.
128) The necessary breakup of the Minerals Management Service (“Service”)
provides an instructive example of how an organizational conflict of interest
compromises the decision making capacity of an agency.
129) Similar to the Commission, the Service was tasked with issuing licenses and
permits to private companies, while at the same time relying on the collection of
fees from those same private companies for a portion of its discretionary budget.
See NATIONAL COMMISSION ON THE BP DEEPWATER HORIZON SPILL
& OFFSHORE DRILLING, DEEP WATER: THE GULF OIL DISASTER AND
THE FUTURE OF DRILLING, Report to the President, 65 (2011), at 67, available

26

 at,

https://www.gpo.gov/fdsys/pkg/GPO-OILCOMMISSION/pdf/GPO-

OILCOMMISSION.pdf (“Report to the President”).
130) The result of these conflicting responsibilities was that “the same agency
became responsible for regulatory oversight of offshore drilling - and for collecting
revenue from that drilling.” Id. at 65.
131) Because safety and environmental concerns were subordinate to revenue
collection and generation of user fees, the Service was ill-equipped to “adequately
address the risks generated by the offshore industry’s new technologies and
exploration, development, and production activities, including industrial expansion
into deeper waters.” Id. at 68.
132) The Commission is similarly flawed.
133) The Ninth Circuit has already identified that agencies suffer from
unconstitutional “impaired partiality” where the agency’s financial interests
intersect with its adjudicative powers. See, e.g., Sierra Forest Legacy, 577 F.3d
1015.
134) In Sierra Forest Legacy, the agency generated revenue via salvage timber
sales, which helped sustain and grow the agency’s bureaucracy. Id.
135) The Court was concerned with the agency’s ability to remain unbiased in its
adjudicative decisions regarding whether or not to approve salvage timber sales,
and specifically questioned, “[c]an an agency [with a] . . . strong financial interest
27

 in the outcome proceed objectively? Could an umpire call balls and strikes
objectively if he were paid for the strikes he called?” Id.
136) Answering that question, the Court strongly indicated that the agency was
too tempted by self-interest to afford constitutional Due Process: “[i]nvoking the
federal law, [Petitioners were] entitled to seek [their] application by an agency
which was without an interest of its own in a result contrary to the law…In the
instant case, the decision-makers are influenced by the monetary reward to
their agency.” Id. (emphasis added).
137) The same principle applies to the Commissioners and their adjudicative
powers over the projects they oversee, such as the PennEast Pipeline Project.
However, in contrast to Rey and the Minerals Management Service, where only a
portion of those agencies’ budgets were funded by the private companies it was
tasked with regulating, the Commission’s entire natural gas pipeline program
relies on the continuing approval of project proposals that come before it.
138) This is particularly important considering that the natural gas pipeline
program accounts for a substantial portion of the Commission’s overall budget.
139) The PennEast Pipeline Project is currently under review by the Commission,
and when the Commission – in keeping with its past practice – inevitably approves
the Project, the PennEast Pipeline company will provide funds directly for the
Commission for at least the next fifteen years, potentially significantly longer if
28

 contracts are renewed. See Application of PennEast Pipeline Company, LLC for
Certificate of Public Convenience and Necessity and Related Authorizations under
CP15-558, No. CP15-558, September 24, 2015 (Accession No. 20150925-5028), at
32-33 (“Project’s shippers have committed to fifteen-year contract terms”).
140) The clear interest of the Commission in the outcome of its review process
creates a constitutionally-unacceptable structural bias, or at least the appearance of
bias, which is manifested here with the review of the PennEast Pipeline Project.
iii.

The Commission is Compelled to Approve Pipeline
Projects

141) Beyond the impermissible possible temptation to approve pipeline project
proposals, which is all that is necessary to grant Plaintiffs’ the relief requested, the
Commission is also subject to a compulsion to approve pipeline projects.
142) As discussed above, the Commission relies on the natural gas pipeline
program to generate roughly twenty percent of its entire budget via user fees
collected from existing natural gas pipeline project operators.
143) However, natural gas pipelines have a finite life-span, and will eventually
need to be replaced and/or removed.
144) For example, the PennEast pipeline company estimates that its proposed
large-scale natural gas pipeline will have an expected useful life span of roughly
forty years. See Application of PennEast Pipeline Company, LLC for Certificate of
Public Convenience and Necessity and Related Authorizations under CP15-558,
29

 No. CP15-558, September 24, 2015 (Accession No. 20150925-5028), at 33 (“The
sponsoring owners have taken on further investment risk due to PennEast’s
proposed 2.75 percent aggregate depreciation rate, which approximates a Project
useful life of forty years for pipeline . . . facilities) (emphasis added).
145) Therefore, the Commission is compelled to approve new natural gas pipeline
projects, or risk losing twenty percent of its budget.
146) Furthermore, the Commission’s fixed budgetary needs naturally increase
over time, thus necessitating new approvals to compensate for the additional costs
of operation.
147) For example, if the Commission stopped approving natural gas pipeline
projects the Commission’s budget will still naturally increase for at least two
reasons: 1) increasing external overhead costs (e.g. rent, insurance premiums,
maintenance, depreciation of assets, salaries, benefit payouts etc.), and 2) inflation.
Id.
148) It is indisputable that the Commission’s fixed costs of operation naturally
increase over time. See, e.g., FERC Congressional Budget Request: Fiscal Year
2016, Chairman Cheryl LaFleur, at v (denoting various agency rising fixed
expenses).

30

 149) Without approving new projects the Commission can only generate revenue
to cover such naturally rising costs by increasing the annual charge it levies on the
industry.
150) However, the Commission can raise those fees only so much; at some point
pipeline companies will not be able to pay the amount required to be raised by the
Commission. This is particularly true if no new pipelines are added while others
are put out of service as they reach the end of their useful life-span.
151) If the Commission were to deny a natural gas pipeline project proposal, an
action it has never taken since the funding mechanism was instituted, it would also
deny itself a secure long-term revenue stream for its naturally increasing budget.
152) If nothing else, the Commission is at least unconstitutionally “tempted” to
foster a pro-industry atmosphere in favor of project approvals so that the
Commission’s revenue stream can continue to grow proportional to its costs of
operation.
iv.

The Commission is
Budgetary Oversight

Insulated

from

Congressional

153) The Commission’s funding mechanism provides a degree of insulation from
our democratically elected Congress that no other independent federal agency
enjoys, thus exacerbating the Commission’s “possible temptation.”
154) Therefore, congressional oversight does not and cannot remedy the
constitutional infirmity here.
31

 155) As long as the budget appropriation proposed by the Commission is fully
reimbursed to the Treasury Department, Congress has no incentive to question the
size or growth of the Commission’s budget request.
156) Evidence of this lack of incentive to constrain the Commission’s budget is
demonstrated by reviewing the congressional appropriation to the Commission
over the last ten years.
157) Indeed, over the last decade the Commission has seen its annual budget
grow by an astonishing fifty-one percent, rocketing from sub-$200-Million in 2004
to a more than $300-Million in 2014. Compare FERC Congressional Budget
Request: Fiscal Year 2004, Chairman Pat Wood III, at 1 (requesting
$199,400,000), with FERC Congressional Budget Request: Fiscal Year 2014,
Chairman Jon Wellinghof, at 2 (requesting $302,600,000).
158) The Commission’s budget has grown by more than double the rate of its
parent government agency, the Department of Energy, which grew roughly twentytwo percent during the same time period. Compare Department of Energy
Congressional Budget Request: Fiscal Year 2004, Office of Management, Budget
and Evaluation/CFO at 11 (requesting $23,280,028,000), with Department of
Energy Congressional Budget Request: Fiscal Year 2014, Office of Management,
Budget and Evaluation/CFO at 11 (requesting $28,415,657,000).

32

 159) Because private companies finance the Commission, funds appropriated to
the Commission are not reallocated from competing federal agencies.
160) With no opportunity cost resulting from allocating scarce public funds,
Congress has no incentive to deny the Commission’s ever increasing budget
requests.
161) Therefore, Congress is simply not required to weigh the costs of increasing
income taxes, federal deficits, or cuts in other deferral budgets against the benefits
associated with allocating funds to the Commission.
162) This calculation is the fulcrum by which all other areas of government
examine spending, but this consideration is completely absent with regard to the
Commission as a result of its unconstitutional funding mechanism.
163) Ultimately, the Commission’s ability to approve projects to justify its budget
request makes it effectively immune from Congressional budgetary oversight.
164) The Commission therefore operates outside of Congressional budgetary
control, as the agency has the near-unilateral ability to spend what it wants, so long
as it recovers all of its costs from the private companies it regulates.
165) An impermissible “possible temptation” thus develops; as long as the
Commission can raise it, the Commission can spend it – setting up the
Commission’s bias to approve pipelines to feed its ever-growing budget.

33

 166) The Commission’s unique independence from Congressional oversight
therefore further aggravates the Due Process violation.
v.

The Commission is Insulated from Executive Oversight

167) Not only is the Commission inoculated against Congressional oversight as a
self-funded agency, but the Commission is also simultaneously insulated from the
oversight of the executive branch as a result of the limitation of the President’s
removal power of Commissioners.
168) The “for-cause” limitation on the removal of the Federal Energy Regulatory
Commission’s Commissioners only allows the removal of Commissioners under a
very narrow set of circumstances, i.e. “. . . inefficiency, neglect of duty, or
malfeasance in office.” 42 U.S.C. § 7171(b)(1).
169) Therefore, only under extraordinary circumstances may the President
exercise any degree of oversight over the agency once a Commissioner has been
appointed.
170) The Commission’s unique independence from the oversight of both the
executive and legislative branches of government therefore leaves the Commission
especially vulnerable to the undue influence of the exact same companies that fund
its budget.

34

 171) This is particularly true because the Commission itself operates without the
scrutiny of any type of regulatory oversight or regulatory board, i.e. a watchdog
responsible for overseeing regulatory quality.
172) As discussed below, the framework for such an oversight board exists;
however, unsurprisingly the Commission has never requested funds for the board.
173) No other independent federal agency is equally free from congressional,
executive, and internal oversight.
174) Further, no such agency is also simultaneously fully funded by the private
companies it is supposed to regulate.
vi.

The Commission Manifests its Possible Temptation in
Actual Bias

175) While the appearance of bias is sufficient to grant Plaintiffs the relief they
seek, the Commission’s “possible temptations” also frequently manifest
themselves in impermissible actual bias in agency adjudications – or, at least, in
highly questionable and irregular agency behavior indicative of structural bias.
176) When an agency carries out administrative proceedings that are “flawed and
unfair,” it “offends the most basic principles of due process.” MCS Health Mgmt.
Options, 2015 WL 1212215, at *18; see also Lamboy–Ortiz v. Ortiz–Velez, 630
F.3d 228, 240-41 (1st Cir. 2010) (citing Esso Standard Oil. Co. v. Lopez–
Freytes, 522 F.3d 136, 145–8 (1st Cir. 2008) (“an action for depravation
of due process may be brought upon bias infecting administrative proceedings”)).
35

 177) The Commission’s actual bias is demonstrated in a variety of ways,
including its 100 percent approval rate for projects, its universal failure to enforce
the terms and conditions of Certifications, its abuse of regulations to block timely
judicial review of agency decisions, its improper environmental review process, its
biased policy objectives, its deliberate effort to keep an Office defunded that was
designed to help the public navigate the Commission’s review and approval
process, and the Commission’s “revolving door” with the companies it regulates.
a. The Commission has a 100 percent approval rate for pipeline
applications
178) Proof of the Commission’s bias lies in the historical record of companies
seeking approval of projects before the Commission.
179) Since the funding mechanism was put in place, the Commission has never
denied an application for a natural gas pipeline project that was submitted for vote
to the Commissioners.
180) Upon information and belief, no other federal agency has deployed a 100
percent approval rate for project applicants seeking authorization or certification
from the agency.
b. The Commission has demonstrated a pervasive failure to
enforce the terms and conditions of its Certificates on pipeline
projects
181) Beyond the universal and highly conspicuous favoritism towards pipeline
companies reflected in its approval rates, the Commission also routinely commits
36

 egregious acts of partiality and bias with regard to project applicant compliance
with the terms and conditions of the Commission’s Certificates.
182) For example, when the Commission issues an approval of a pipeline project,
it includes a requirement that the pipeline company abide by the terms and
conditions of the approval with regard to environmental protection during
construction activities.
183) The Commission mandates that pipeline companies provide status reports
updating the Commission on construction activity detailing any environmental
problem areas or instances of non-compliance.
184) The Commission is then authorized to issue civil penalties for circumstances
where violations are identified.
185) However, since the funding mechanism was put in place, the Commission
has never issued a civil penalty for violations related to construction, maintenance,
or operational misconduct for any pipeline project despite noncompliance events.
186) A prototypical example of the Commission’s inexplicable failure to issue
civil penalties involves the construction of Tennessee Gas Pipe Line Company’s
(“Tennessee”) 300 Line Upgrade Project (Commission No. CP09-444).
187) By the end of project construction the Commission had recorded forty-three
instances of silt laden water entering resources/depositing sediment off of the rightof-way; fifteen instances of failures to properly install erosion controls or use
37

 required “best management practices” to adequately protect resources;

nine

instances of failures to properly install/maintain erosion controls resulting in
impacts to resources; six instances of erosion/disturbance resulting from
stormwater discharges off of the right-of-way; and at least two instances of instream work conducted during fishery restriction, among many others. See 300
Line Project Quarterly Status Report, December 23, 2015, Docket No. CP09-444
(Accession No. 20151223-5181).
188) The Pennsylvania Department of Environmental Protection found that these
clear violations were sufficiently serious to secure an $800,000 settlement from
Tennessee for the harm it caused to the environment.
189) However, the Commission not only failed to issue any civil penalties
relating to numerous recorded violations, the Commission did not even issue a
stop-work order to attempt to remedy the causes of the violations before allowing
the pipeline company to proceed with other construction activity.
190) This is not an isolated incident, but rather exemplifies the Commission’s
standard operating procedure.
c. The Commission’s actions block timely judicial review of
agency decisions
191) An additional example of the Commission’s bias toward industry relates to
the Commission’s arbitrary treatment of requests for rehearing.

38

 192) To obtain judicial review of a Commission Certificate an aggrieved party
must first submit a request for rehearing. See 15 U.S.C. § 717r(b).
193) The Commission then must “act” on the request before an aggrieved party
may initiate a lawsuit in the appropriate Circuit Court. Id.
194) However, the Commission habitually “acts” upon the requests for rehearing
by issuing orders granting the request for rehearing solely for the purposes of
“further consideration.” See 18 C.F.R. § 385.713(f).
195) The Commission’s regulations leave the time period to make a decision
undefined, and therefore, unlimited. Id.
196) Therefore, the length of the “tolling orders” issued, in practice, are
indefinite. Id.
197) This places aggrieved parties in an untenable state of administrative limbo,
as an order on a request for rehearing is a condition precedent to seek judicial
review of an initial Commission order such as the Certificate Order approving a
pipeline project. See 15 U.S.C. § 717r(b); see also Petition for Writ of Mandamus,
In re Stop the Pipeline, No. 15-926 (2d Cir. March 27, 2014).
198) While the request for rehearing is pending before the Commission, the
Commission routinely issues notices to proceed with various phases of
construction activity, and also initiates condemnation actions against landowners.

39

 See, e.g., Tennessee Gas Pipeline Co., LLC, 142 FERC ¶ 61025, at *3, *7 (Jan. 11,
2013).
199) The Delaware Riverkeeper Network and its members have been the victim
of the Commission’s biased practice of issuing tolling orders.
200) For example, the Delaware Riverkeeper Network submitted a rehearing
request to the Commission in January of 2015 citing several ways in which the
Commission violated the Clean Water Act and NEPA when it issued a Certificate
for Transcontinental Pipeline Company’s Leidy Southeastern Pipeline Project. See
Rehearing Request of Delaware Riverkeeper Network, No. CP13-551 (Accession
No. 20150116-5100), January 16, 2015.
201) It has now been over a year since the Delaware Riverkeeper Network
submitted its rehearing request, and during that time the Commission has issued at
least twenty different Letter Orders allowing the Transcontinental to proceed with
various forms of construction activity, but has not made a final ruling on the
request for rehearing. See Commission Letter Orders, No. CP13-551 (Accession
Nos.

20150130-3009,

20150205-3003,

20150226-3032,

20150309-3026,

20150325-3068, 20150331-3040, 20150409-3018, 20150421-3005, 201504283040,

20150507-3061,

20150713-3015,

20150519-3003,

20150521-3026,

20150612-3025,

20150723-3033, 20151016-3023, 20151125-3014, 20151214-

3036, 20151230-3019, 20151231-3004).
40

 202) Indeed, the Commission has approved tree-felling, grading, trenching,
blasting, and has actually authorized numerous portions of the pipeline project to
become fully operational; and yet the Commission has failed to issue a decision on
Plaintiffs’ rehearing request, thereby blocking any effective judicial review of the
pipeline project. Id.
203) Such non-action by the Commission is, by itself, a gross deprivation of Due
Process, as it robs the public of its opportunity to respond, explain, or defend itself
from the unlawful actions of the Commission. See Gorman v. University of Rhode
Island, 837 F.2d 7, 12 (1st Cir. 1988) (“Few principles of law, applicable as well to
the administrative process, are as fundamental or well established as a party is not
to suffer . . . without an opportunity of being heard”) (internal citation omitted).
204) The Commission therefore deliberately creates administrative inertia that is
difficult, if not impossible, to stop once initiated, even if an aggrieved party’s
viewpoints are eventually vindicated in court. See e.g., Delaware Riverkeeper
Network, 753 F.3d 1304 (D.C. Cir. 2014) (After being subjected to a tolling order
that prevented litigation from being filed, the Delaware Riverkeeper Network and
other petitioners successfully argued that the Commission violated the mandates of
NEPA, but only secured the legal judgment after the pipeline project at issue had
been fully constructed and was in operation).

41

 205) This is not an isolated incident; rather it reflects the Commission’s standard
operating procedure. Upon information and belief, the Commission has utilized
this practice in every single pipeline project docket where a non-industry
aggrieved party has submitted a request for rehearing.
206) The Commission’s steamrolling of aggrieved parties’ rights is clear evidence
of the Commission’s bias in allowing proposed pipeline projects to be constructed
and operated before timely judicial review, thus allowing the Commission to more
easily add to its bottom line.
207) Furthermore, upon information and belief, since the funding mechanism was
put in place the Commission has never granted a request for rehearing to a nonindustry party.
208) Instead, the Commission uses the indefinite “tolling order” delay to bulletproof its initial order so that its likelihood of successfully defending a legal
challenge to a proposed project in Circuit Court is significantly increased.
209) The Commission’s standard practice here is, itself, a further deprivation of
Due Process, and at least an example of agency bias.
d. The Commission unlawfully pre-determines the environmental
review process pursuant to the National Environmental Policy
Act for natural gas pipeline project applications

42

 210) A third way in which the Commission demonstrates its favoritism to the
industry that it regulates involves the way in which the Commission conducts
environmental reviews of proposed projects pursuant to NEPA.
211) Before the Commission can approve a project, it must satisfy the
requirements of NEPA by identifying and evaluating the environmental impacts of
the proposed action.
212) This means that the Commission is required to prepare an Environmental
Assessment and, if significant impacts are found, to then prepare a more
comprehensive Environmental Impact Statement. See 40 C.F.R. § 1501.4.
213) However, the Commission does not follow the procedure as described in
NEPA’s governing regulations.
214) Instead, the Commission “eyeballs” a project applicant’s initial request, and
subsequently categorizes the project to receive either an Environmental
Assessment or an Environmental Impact Statement.
215) While the Environmental Assessment was specifically designed to be the
vehicle to determine when an Environmental Impact Statement is necessary, the
Commission has never issued an Environmental Assessment that found possible
significant impacts, or even unknown impacts, which would then require a full
Environmental Impact Statement.

43

 216) For example, in response to concerns raised by Senator Elizabeth Warren
regarding the Atlantic Bridge Project, the Commission issued a response stating
that “[t]he Commission staff will issue an environmental assessment (EA) to meet
our responsibilities under the National Environmental Policy Act.” Letter to
Senator Warren, No. CP16-9 (Accession No. 20160216-0009), February 12, 2016.
217) In other words, the Commission abjectly stated its belief that once it issues
an Environmental Assessment, the Commission has fully met its NEPA
responsibilities. This is simply not how NEPA operates.
218) Such truncated environmental review procedures save the industry both time
and money, but shortchange those aggrieved parties who are impacted by
construction activity that is allowed to proceed absent the appropriate level of
environmental scrutiny.
e. The Commission’s natural gas pipeline policy objective is
overtly biased in favor of project applicants
219) The Commission’s policy regarding the certification of new interstate
pipeline facilities inappropriately relies on project applicants to provide all the
information about public benefits and costs of the proposed project. See Statement
of Policy, No. PL99-3-000, 88 FERC ¶ 61,227, at 26-28 (September 15, 1999).
220) The Commission’s overtly biased policy objective “is for the applicant to
develop whatever record is necessary . . . for the Commission to be able to find

44

 that the benefits to the public from the project outweigh the adverse impact
on the relevant interests.” Id. at 26 (emphasis added)
221) The Commission therefore encourages and incentivizes project applicants to
be generous in counting and disclosing potential benefits and overly parsimonious
in counting the costs of its proposal.
222) It is this incomplete and biased record that the Commission relies on to make
its determination of whether to issue a Certificate.
223) Under these circumstances, the Commission’s biased policy objective
renders it highly unlikely that the Commission will find that a project’s actual costs
are greater than the proposed public benefits, a conclusion that is reflected by the
fact that the Commission has never rejected a pipeline proposal.
f. The Commission has failed to request funds for an Office that
was established to assist non-industry parties in participating
in the Commission’s review and approval process
224) Congress established an Office of Public Participation (“Office”) at the
Commission as part of the 1978 Public Utility Regulatory Policies Act. See 16
U.S.C. § 825q–1.
225) By creating this Office, Congress recognized that effectively participating in
Commission proceedings is especially challenging for individuals, homeowners
associations, non-profit organizations, local government bodies, and consumer
protection organizations because the highly technical nature of Commission
45

 dockets require significant specialized and costly resources often unavailable to
non-industry related parties. Among the Office’s responsibilities is to help
“coordinate assistance to the public” on Commission dockets, and the Office may
“provide compensation for reasonable attorney's fees, expert witness fees, and
other costs of intervening” for the public. 16 U.S.C. § 825q-1(b) (1-2).
226) The Office is important because repeat industry parties enjoy vast
advantages in navigating the Commission’s review and approval process in
comparison to the public.
227) However, the Commission has inexcusably never requested or allocated any
funds for this Office since the Commission’s funding mechanism was put in place,
even though fully funding the office would constitute less than 1.8 percent of the
Commission’s budget.
228) As such, this Office exists only on paper, and the public has never received
the opportunity of assistance it would provide to impacted individuals, families,
communities, and organizations faced with the significant impacts of a pipeline
project and faced with the high complexity and cost of properly reviewing and
potentially challenging a project when the need arises.
229) The Commission’s failure to fund the Office of Public Participation reflects
the Commission’s lack of institutional interest in cultivating a balanced, fair, and
impartial review and approval process for natural gas pipeline projects.
46

 230) These examples of agency bias demonstrate that the Commission has
succumbed to its “possible temptation” to favor project applicants in nearly all
facets of the review and approval process.
231) It is not that these examples show that the Commission sometimes favors
private companies; rather, these examples show that the Commission favors private
companies at every opportunity and has done so since the Commission’s funding
mechanism was put into place.
232) All of these marks of actual bias flow directly from one primary source, the
Commission’s funding mechanism, which compels the Commission to be a
business partner with, rather than a dispassionate regulator of, the pipeline industry
it is tasked with overseeing.
233) Even if the Court finds that these examples do not rise to the level of actual
bias, they certainly at least demonstrate a constitutionally intolerable appearance of
bias. See e.g., MCS Health Mgmt. Options, 2015 WL 1212215, at *16-7 (finding
actual bias where “the administrative process ha[d] been marked by inconsistencies
and general unfairness”).
g. The Commission has developed a “revolving door” between
itself and the private companies it purportedly regulates
234) There is a “revolving door” between employees that leave the Commission
who then immediately take positions promoting industry interests.

47

 235) A recent report examining Commission job negotiations and stock holdings
found that “[e]mployees at the Federal Energy Regulatory Commission have deep
ties to the industry they regulate.” Kevin Bogardus and Hannah Northey,
Employees Negotiate for Industry Jobs Under Agency’s Eye, GREENWIRE,
available at, http://www.eenews.net/stories/1060016380.
236) An evaluation of Commission employment records for 2014 shows an
agency riddled with examples of Commission staff “seeking employment with grid
operators, law firms and utilities that the agency has jurisdiction over and often
meets with as it sets new orders and rules,” and that Commission employees
frequently “held stock in or remain part of pension plans from companies that can
be affected by the agency’s work.” Id.
237) For example, the former Deputy Director of the Commission’s Office of
Energy Policy and Innovation, Mason Emnett, left the Commission after almost
eight years to take a position as a senior attorney for NextEra Energy Incorporated,
and now serves as a Senior Attorney of Federal Regulatory Affairs. Id.
238) Additionally, in January 2015 Teresina Stasko, a former Commission
attorney working in the Enforcement Division, recused herself from decisions
involving the North American Electric Reliability Corporation, where she was
seeking employment. Ms. Stasko is now the Senior Counsel and Manager of
Enforcement Actions at that company. Id.
48

 239) Another recent high profile example of the Commission’s “revolving door”
is that of former Commissioner Philip Moeller, who left the Commission in May of
2015 and immediately joined the Edison Electric Institute – a trade association that
represents over 270 private energy industry suppliers and related organizations – to
direct the association’s retail energy services, energy delivery, and regulatory
outreach programs. Phil Moeller Joins EEI as Senior Vice President, PR
Newswire, Jan. 6, 2016, available at, http://www.prnewswire.com/newsreleases/phil-moeller-joins-eei-as-senior-vice-president-300200725.html.
240) Indeed, the revolving door at the Commission has spun so easily and
frequently that the line between the regulators and the regulated community has
become progressively meaningless.
D.

The Commission’s Unconstitutional Structural Bias is Enabled
and Facilitated by the Commission’s Improper Concentration of
Power Through Eminent Domain Authority and the Power to
Preempt all Local and State Laws

241) The Commission’s inherent structural bias towards private pipeline
companies is compounded and enabled by a concentration of power that: 1) allows
the Commission to automatically provide a project applicant with the power of
eminent domain when the Commission issues Certificates of Public Convenience
and Necessity, see 15 U.S.C. § 717f(h); and 2) gives the Commission the authority
to preempt all state and local regulations regarding the siting, construction, and

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 operation of Commission jurisdictional natural gas facilities. See 15 U.S.C. §
717f(c)(1)(A).
242) The Commission’s structural bias in favor of private companies, combined
with its unique power to literally reach into the backyards of everyday people,
flagrantly violates Due Process.
243) The Commission’s eminent domain powers are codified in 15 U.S.C. §
717f(h), which states that the holder of a Certificate of Public Convenience and
Necessity is empowered to “exercise of the right of eminent domain in the district
court of the United States for the district in which such property may be located, or
in the State courts.” 15 U.S.C. § 717f(h).
244) Therefore, when the Commission issues its final decision on a natural gas
pipeline project, it simultaneously also confers to the project applicant the power of
eminent domain to wield whenever, and however, the project applicant sees fit. See
Millennium Pipeline Co., L.L.C. v. Certain Permanent & Temp. Easements, 777 F.
Supp. 2d 475, 481 (W.D.N.Y. 2011) (holding that a court’s “role in proceedings
involving FERC certificates is circumscribed by statute . . .”); USG Pipeline Co. v.
1.74 Acres in Marion Cnty., Tenn., 1 F. Supp. 2d 816, 821 (E.D. Tenn. 1998)
(holding that the court’s role is simply to evaluate the scope of the Certificate and
to order condemnation of property as authorized in the Certificate).

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 245) Therefore, an agency whose decision making capacity is fundamentally
compromised by structural bias also has the unfettered authority to provide the
power of eminent domain for every single natural gas pipeline project it approves.
246) Such authority bypasses the traditional avenue for securing eminent domain
rights through a federal or state judicial proceeding, and robs the public of a fair
and unbiased adjudication of their rights.
247) Indeed, those holding a Certificate do not even need to negotiate with
landowners in “good faith” prior to initiating eminent domain lawsuits to take
property for a project. See E. Tenn. Natural Gas, LLC v. 1.28 Acres in Smyth Cnty.,
2006 WL 1133874, at *29 (W.D. Va. Apr. 26, 2006) (“nothing in the [Natural Gas
Act] or Federal Rule of Civil Procedure 71A requires the condemnor to negotiate
in good faith. All that the Act requires is a showing that the plaintiff has been
unable to acquire the property by contract or has been unable to agree with the
owner of the property as to the compensation to be paid”).
248) In other words, a Certificate holder can attempt to strong-arm a landowner
into signing an overbroad and unfair agreement in bad faith, and if this effort fails,
the Natural Gas Act empowers the project applicant to immediately initiate an
eminent domain proceeding.
249) In addition to its ability to provide the power of eminent domain to the
private parties that fund its budget, the Commission also frees its applicants from
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 complying with any state or local laws governing the siting, construction, or
operation of jurisdictional pipeline projects.
250) The Commission’s preemptive authority is derived from 15 U.S.C. §
717f(c)(1)(A), which states that project applicants who “undertake the construction
or extension of any [interstate natural gas ]facilities” must obtain a Certificate of
Public Convenience and Necessity, from the Commission. See also N. Natural Gas
Co. v. Iowa Utilities Bd., 377 F.3d 817, 821 (8th Cir. 2004) (“The [Natural Gas
Act] specifically provides that the Commission will oversee the construction and
maintenance of natural gas pipelines through the issuance of certificates of public
convenience and necessity. See 15 U.S.C. § 717f(c). The Commission has the
authority to regulate the construction, extension, operation, and acquisition of
natural gas facilities, see id. § 717f(c)(1)(A), and does so through its extensive and
detailed regulations concerning applications for certificates. See generally 18
C.F.R. Part 157, Subpart A).
251) After receiving a Certificate from the Commission a project applicant can
therefore ignore all State and local laws that would otherwise apply to any other
type of private company seeking to construct industrial infrastructure projects.
252) Therefore, residents and landowners who made decisions to purchase land or
property relying on the existing zoning or regulatory framework for that particular
area lose those protections to private companies that have been empowered by a
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 compromised federal agency. See e.g., Gunpowder Riverkeeper v. F.E.R.C., No.
14-1062, July 31, 2014, Standing Materials in Support of Opening Brief of
Gunpowder Riverkeeper, Affidavit of Susan and Frank Tedeschi (“The proximity
of the pipeline to the well however, i.e. within 19' of the pipeline, is not acceptable
to Harford County and the County has indicated they will not approve a property
plat with the well and pipeline so close. Columbia requested a reprieve from the
Order which FERC granted. FERC’s disregard of Local requirements has
placed us in a position where Columbia may proceed with construction while
we could be left with an unapproved property plat, non-compliant with
Country requirements”) (emphasis added).
253) The Commission’s overly broad and corrosive concentration of power
ultimately further enables the Commission’s actual and perceived structural bias.
254) To the extent this power is curtailed, constrained, or otherwise removed it
could mitigate the Commission’s inherent structural bias.
255) In United Retail & Wholesale Emps. Teamsters Union Local No. 115
Pension Plan v. Yahn & McDonnell, Inc., the Third Circuit held that its task was to
determine whether the Multiemployer Pension Plan Amendments Act of 1980
incorporated decision-maker bias, and if so, whether it provided sufficient
measures to eliminate the bias. See United Retail & Wholesale Emps. Teamsters
Union Local No. 115 Pension Plan v. Yahn & McDonnell, Inc., 787 F.2d 128 (3d
53

 Cir. 1986) abrogated in part by, Concrete Pipe & Prods, of Cal, Inc. v. Constr.
Laborers Pension Trust for S. Cal., 508 U.S. 602 (1993) (finding no Due Process
violation because the decision making administrator of the agency was acting in a
enforcement role rather than in an adjudicatory role).
256) The Third Circuit reasoned that the Multiemployer Pension Plan
Amendments Act created inherent structural bias, which was enabled and
compounded by a further statutory presumption that on review the agency’s
“tainted verdict” was correct. Id. at 141.
257) Concluding that these provisions violated Due Process, the Third Circuit
held that the least intrusive means of preserving the Multiemployer Pension Plan
Amendments Act’s constitutionality would be to let the decision making powers
stand, but eliminate the statutory presumption of correctness. Id. at 142.
258) Absent the statutory presumption, the Court determined that the
Multiemployer Pension Plan Amendments Act “[w]ould meet the constitutional
requirement of providing an impartial decisionmaker.” Id. at 143.
259) Here, absent the Commission’s preemptive authority over all local and state
laws, local and state governments could alleviate biased Commission decision
making by holding private companies accountable to protective local and state
environmental and zoning regulations.

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 260) Similarly, if the Commission’s authority to automatically confer the power
of eminent domain with each Certificate was removed or reduced, aggrieved
parties could resolve conflicts before a fair and unbiased court in a traditional
eminent domain proceeding.
261) Thus, in addition to declaring the Commission’s funding mechanism
unconstitutional, the Court could mitigate the constitutional violation by removing
or reducing the Commission’s other powers, thereby providing the public a more
fair opportunity to challenge or otherwise confront the Commission’s biased
decisions, returning some sense of justice in accordance with “the deep-rooted
demands of fair play enshrined in the Constitution.” Joint Anti-Fascist Refugee
Comm. v. McGrath, 341 U.S. at 161 (Frankfurter, J., concurring).
V.

CAUSE OF ACTION

Violation of Plaintiffs’ Due Process Rights Under the Fifth
Amendment
262) The other allegations of the Complaint are herein incorporated by reference.
263) Defendants, acting under color of law, are subjecting Plaintiffs to an
administrative process that is tainted with structural bias, or the appearance of bias,
as well as actual bias in violation of Plaintiffs’ rights under the Due Process Clause
of the Fifth Amendment to the United States Constitution.
264) The statutory scheme and the Commission’s regulations as applied within
the natural gas pipeline program violate Plaintiffs’ Due Process rights.
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 265) As described above, the Commission is subject to an impermissible
temptation to be biased in favor of the private companies, such as PennEast, that
seek Certificates of Convenience and Public Necessity because the Commission’s
entire natural gas pipeline program budget is funded by the same private
companies.
266) This intersection of the Commission’s adjudicative responsibilities in
approving new pipeline projects with the fact that the Commission’s pipeline
program budget is entirely funded by those very projects subject it to the
temptation of impermissible structural bias.
267) Not only is there an impermissible temptation for bias, which is all that is
necessary to grant Plaintiffs’ requested relief, the Commission has acted in a biased
manner because it is fundamentally compelled to approve natural gas pipeline
Certificates of Convenience and Public Necessity.
268) The finite lifespan of natural gas pipelines and the Commission’s naturally
rising long-term costs compel the Commission to approve new projects to secure
its pipeline program budget.
269) Evidence of the Commission’s actual bias can be derived from the
Commission’s 100 percent approval rate of pipeline projects, its universal failure
to enforce the terms and conditions of its Certificates of Convenience and Public
Necessity, the deliberate obfuscation of timely judicial review of Commission
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 decisions, its review of environmental impacts, its biased policy objectives, the
failure of the Commission to fund an existing office that would provide support to
communities and individuals who are impacted by the Commission’s decisions,
and the “revolving door” between the agency and the private industry.
270) In addition to being an example of actual agency bias, the Commission’s
actions to prevent timely judicial review of natural gas pipeline Certifications is
also a separate and distinct deprivation of Plaintiffs’ Due Process rights.
271) By failing to take action on aggrieved parties’ rehearing requests prior to
authorizing construction activity, the Commission robs those parties of their right
to have their day in court prior to construction proceeding on the project they seek
to challenge.
272) These violations of Plaintiffs’ rights are enabled by the improper corrosive
concentration of power in the Commission regarding its authority to confer
eminent domain powers for natural gas pipeline projects that it approves.
273) Therefore, an agency infected by structural bias in favor of approving
pipeline projects can automatically provide the power of eminent domain for a
private company, such as PennEast, to take land previously owned by Plaintiffs
and use it to advance their private purposes.
274) Here, DRN’s members’ land, and public parks and recreational areas, are
threatened by eminent domain by the PennEast Pipeline project.
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 275) Such power wielded by a structurally biased adjudicator violates Plaintiffs’
Due Process rights to be heard before a fair and unbiased adjudicator before their
property is taken.
276) The violation of Due Process is also enabled by the Commission’s unfettered
ability to preempt all state and local laws regarding the siting, construction, and
maintenance of natural gas pipeline projects.
277) When it grants pipeline project Certificates, the Commission can completely
ignore all local and state laws that Plaintiffs typically rely upon to protect their
property rights.
278) DRN’s members explicitly rely on local and state regulatory laws to
preserve and protect both the character and value of the properties that they own
along the proposed PennEast Project’s right-of-way.
279) DRN and its members’ aesthetic, conservation, economic, recreational,
scientific, educational, wildlife preservation, and property interests have been, are
being, and will continue to be adversely and irreparably injured by the
Commission’s actions unless the relief sought here is granted.
280) The Commission’s power to ignore these long established regulatory
regimes when approving pipeline projects, while simultaneously being tainted by
structural bias in favor of approving those projects, directly infringes upon the Due
Process rights of the Plaintiffs.
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 281) Moreover, the Commission’s unlawfully biased proceedings have forced
Plaintiffs to incur substantial and excessive costs and, if allowed to continue,
would further put Plaintiffs at risk of additional injury in the form of deprivation of
property without Due Process.
282) Defendants’ violations will cause irreparable injury unless enjoined, as the
mere subjection to an unconstitutionally biased process is itself an injury that can
be prevented only by an immediate injunction.
283) Plaintiffs have no adequate remedy at law to prevent Defendants from
proceeding with this biased process.
VI.

REQUEST FOR RELIEF

WHEREFORE, THE DELAWARE RIVERKEEPER NETWORK; AND
MAYA K. VAN ROSSUM, THE DELAWARE RIVERKEEPER pray that this
Honorable Court:
a) DECLARE that the Commission’s reimbursement mechanism as
codified in the Omnibus Reconciliation Act of 1986 is
unconstitutional;
and/or in the alternative;
i)

DECLARE that the Commission’s power of eminent
domain for jurisdictional natural gas pipeline projects, as
codified in 15 U.S.C. § 717f(h), is unconstitutional;
and/or,

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 ii)

DECLARE the Commission’s authority to preempt local
and state laws with regard to jurisdictional natural gas
pipeline projects is unconstitutional;

b) DECLARE that the procedure utilized by the Commission to issue
a Certificate of Convenience and Necessity for the PennEast
Pipeline Project subjects Plaintiffs and its members to a biased
process which deprives Plaintiffs and its members their aesthetic,
recreational, liberty, and/or property interests without Due Process
and causes irreparable harm thereby;
c) DECLARE that the procedure utilized by the Commission to issue
Certificates of Convenience and Necessity for Commission
jurisdictional projects within the Delaware River Basin subjects
Plaintiffs and its members to a biased process which deprives
Plaintiffs and its members their aesthetic, recreational, liberty,
and/or property interests without Due Process and cause
irreparable harm thereby;
d) AWARD Plaintiffs its costs and all reasonable attorneys’ fees; and
e) GRANT Plaintiffs such other and further relief as may be just and
proper.
Respectfully Submitted March 2nd, 2016.
/s/ Aaron Stemplewicz
AARON STEMPLEWICZ
D.C. Bar No. PA0057
Delaware Riverkeeper Network
925 Canal Street, Suite 3701
Bristol, PA 19007
(215) 369-1188
aaron@delawareriverkeeper.org
JORDAN B. YEAGER
D.C. Bar No. 437156
Curtin & Heefner LLP
2005 So. Easton Road, Suite 100
60

 Doylestown, PA 18901
(267) 898-0570
jby@curtinheefner.com
Attorneys for Plaintiffs Delaware
Riverkeeper Network and the
Delaware Riverkeeper

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 CERTIFICATE OF SERVICE
I hereby certify that, on March 2, 2016, I filed the original of the foregoing
Complaint via the Court’s CM/ECF system, and also hand served all parties. It is
my understanding that the following parties were served as a result:
Federal Energy Regulatory Commission
General Counsel
888 First Street, NE
Washington, DC 20426
U.S. Attorney General
Loretta Lynch
950 Pennsylvania Avenue, NW, Room 511
Washington, DC 20530
Civil Process Clerk
U.S. Attorney for the District of Columbia
501 3rd Street, NW, 4th Floor
Washington, DC 20530
Dated: March 2, 2016

/s/ Aaron Stemplewicz
Aaron Stemplewicz
Delaware Riverkeeper Network
925 Canal Street, Suite 3701
Bristol, PA 19007
TEL: 215-369-1188
FAX: 215-369-1181
aaron@delawareriverkeeper.org
Attorney for Plaintiffs

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