FERC is an independent federal agency that regulates the transmission and wholesale sale of electricity and natural gas in interstate commerce and regulates the transportation of oil by pipeline in interstate commerce. FERC also reviews proposals to build interstate natural gas pipelines, natural gas storage projects, and liquefied natural gas (LNG) terminals, in addition to licensing non-federal hydropower projects.
FERC is composed of five commissioners who are nominated by the President and confirmed by the U.S. Senate. There may be no more than three commissioners of one political party serving on the commission at any given time.
On February 17th, FERC issued two new policy statements that would have had significant detrimental effects on the construction of natural gas. The statements would have created new opportunities for litigation to slow or stop pipeline construction.
Both draft policy statements were advanced by 3-2 majorities on party lines, with Democratic appointees in the majority. The partisan nature of these decisions introduces another element of uncertainty into the process, because a partisan policy statement is certain to be reassessed once the partisan makeup of the Commission changes under the next Republican president.
FERC’s statutory mandate is to ensure reliable gas supplies at a reasonable cost to consumers, but these draft policy statements support and advance the policy demands of organizations and activists who are directly opposed to those goals, including several former employers of one of the current commissioners in that 3-2 majority.
On March 3, 2022, the Senate Energy and Natural Resources Committee – chaired by Senator Joe Manchin (D-WV) – conducted a hearing regarding these policy statements. During the hearing, Senator Bill Cassidy of Louisiana asked Commissioner Glick if anyone higher up in the Biden Administration sought to influence the FERC to impede the development of natural gas pipelines. Chairman Glick responded with an unambiguous no.
In a March 24 meeting, seemingly in response to opposition from Chairman Manchin and Senator John Barrasso (Ranking Member of the Committee), Commissioner Glick, presently awaiting a Committee vote on his renomination as Chair, issued an order redesignating the pipeline policy statements as draft statements, rendering them inoperative – for now.
IER has sought, through FOIA, to substantiate the veracity of Commissioner Glick’s response to Senator Cassidy in the March 3 hearing and to better understand how the decision was made to change the pipeline policy and to redesignate the policy as a draft, including by understanding the role other entities including the White House have been playing in FERC’s deliberations.
Federal agencies are required to disclose any information requested under FOIA unless it falls under one of the nine express exemptions Congress created intended to create a bias toward disclosure while protecting interests such as personal privacy, national security and law enforcement. Since becoming law, FOIA has played an essential role in exposing government waste, misconduct, and mismanagement.
Beginning on March 29, IER submitted FOIA requests to the FERC seeking the correspondence of a handful of senior FERC appointees to or from White House email domains over the course of a seven-month period. Subsequent IER FOIA requests sought routine information from the Commission, including calendars and correspondence with outside groups who have actively promoted the restriction of natural gas pipelines.
In many cases, subsequent IER FOIA requests were driven by FERC’s responses (or lack thereof) to our initial early requests, raising more questions than answers. For example, this ultimately led to seeking Teams and Zoom Chats, text and other messaging correspondence, and phone bills to reconcile with these other records. FERC, whose FOIA processing seems to have undergone a significant change since under the prior administration, has pursued what are reasonably viewed as delay tactics.
One major contributor to these delays, as acknowledged by a Department of Justice lawyer to IER’s attorneys, is FERC’s coordination with the White House on how to respond.
Further, due to FERC’s broad and growing lack of compliance with its legal obligations, IER has had to file now 10 lawsuits to date seeking the release of the public information that FERC either ignored, insists on redacting claiming the White House has a privileged “deliberative” role in FERC decisions, or withholding in its entirety often on that same basis. When FERC did at least respond, IER has also been forced to file numerous administrative appeals for those same reasons.
This website includes the documents reflecting each FOIA request filed, including the steps taken, filings and other statements made, and ultimately the information provided by FERC.
Until recently, FERC was historically and even admirably timely and responsive about FOIA requests. This new posture from FERC, however, suggests either a change in policy under the leadership of Chairman Glick or that FERC (or possibly the White House) has no interest in being transparent about the role that the White House or outside groups have played in the formulation of policy and other decisions made at what is legally an “independent commission”.
We will continue to add documents to this website as we receive them. Further, in the coming days and weeks, IER will lay out some of our specific concerns with both the process and the findings of our request.
To view documents select one of the four categories. Click on the title you would like to examine and a pop-up window through the site’s PDF viewer will appear. This allows the documents to be enlarged, flipped through, and downloaded. For any questions about these documents please contact [email protected]..