CURB Reaches Out to House Oversight Committee

posted Jul 30, 2011, 6:45 AM by Site administrator   [ updated Jul 30, 2011, 7:09 AM ]



81 Lighthouse LN - MONETA, VA  24121-1991

29 July 2011


The Honorable Cliff Stearns

Chairman, House Energy and Commerce Committee’s Subcommittee on Oversight and Investigations

U.S. House of Representatives
2306 Rayburn House Office Building
Washington, D.C. 20515


Re:       Federal Energy Regulatory Commission Fails to Meet the Intent of Executive Order 13563

Attachments:   A. Virginia Secretary of Natural Resources letter to Secretary Federal Energy Regulatory

Commission, dated 15 April 2011

B. FERC Office of Energy Products letter to The Honorable Robert Hurt, dated July 15, 2011

C. West Piedmont Planning District Commission Resolution, Concerns and Request for Changes Smith Mountain Lake Appalachian Power Company Shoreline Management Plan, February 24, 2011.


Dear Congressman Stearns:

President Obama’s Executive Order 13563, issued January 21, requires Federal agencies to maximize the benefits of regulations, minimize their impact, and review existing regulations to ensure they are not unnecessarily burdensome.  Executive Order 13563 is replete with commonsense principles.  Its purpose clear—ensure regulation is balanced by considering both the cost and the benefit of the regulatory policy. 

At the House oversight subcommittee hearings on Energy and Commerce held July 7th, FERC Chairman Wellinghoff testified that FERC regularly reviews its rules and has launched a new review. “I have directed the commission’s staff to conduct a review of the commission’s regulations with the goals of the executive order in mind.”  In response to your question about why he did not submit a rule review plan to OMB, Chairman Wellinghoff said “I believed that we were not subject to the executive order.”  When pressed further about why he did not submit a notice about the review for public comment, Wellinghoff said that his general counsel said such notice was not necessary for a staff review.  With all due respect Chairman Stearns, just who is in charge here?

As a direct result of your Committee’s July 7th hearing I was pleased to see that President Obama issued a new executive order: “Within 120 days of the date of this order, each independent regulatory agency should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations …”

FERC is an independent agency; but it would be more accurate to refer to it as an absolute regulator.  It does what it wants, when it wants, regardless of the impact to its licensees or the general public, and apparently is accountable only to itself.  FERC is conflicted as it grants licenses and collects revenue from those licensees that it then regulates.  Congress recently changed this conflicted and failed regulatory model with the Mines and Minerals Service, after it was alleged MMS failed to properly regulate BP.  Recall FERC also failed to regulate ENRON.  The FERC regulatory model needs to change to become more accountable to the public and to Congressional oversight.

We are very familiar with the Commission’s rules and procedures having participated in the recent relicensing of the Smith Mountain Hydro-Project P-2210, including the re-write of its ineffectual Shoreline Management Plan, and have drafted numerous comments and various motions of prodigious formality, attention to detail, and technical analysis.  Having participated for the past seven years, organizing meetings, speaking with citizens, business owners, contractors, developers, government representatives and Appalachian Power, we can assure you and Chairman Wellinghoff that FERC’s rules limit, rather than encourage public and local government participation.

More importantly, we are certain a regulation review and rewrite will be insufficient to fix the FERC.  A reasoned reading of FERC policies and regulations imparts the perception they welcome and are responsive to public input and they are transparent and impartial regulators – none of which is absolute.  The failure of the FERC is in its implementation of regulations, which in our experience has been counter to the published regulation.  FERC seeks public input only to ‘check that box’ and then ignores it; FERC is unresponsive to constructive criticism from informed stakeholders; FERC favors private discussion over public discussion; and FERC uses its regulations as a shield to avoid constructive confrontation and resolution of issues.

FERC sets no deadlines for its staff, there are no guaranteed FERC responses, and the FERC appeals process is designed to obfuscate, obstruct and cover its proverbial ‘butt.’  FERC, as an independent agency, exercises the powers to legislate, to enforce and to judge -- legislator, sheriff, judge, jury and appeals–all authority in one independent regulatory agency, free from political influence.  In our representative democracy, these powers are always distributed among three separate but equal branches of government to ensure fairness and due process. 

Regarding due process, the FERC’s administrative procedures deny the right to a timely and fair trial before an impartial judge.  Before litigation can commence, one must first exhaust all avenues of appeal with FERC, which can take years, as FERC sets its own deadlines to wear-down its critics.  The right to a speedy trial in Federal District Court is skipped and instead, one must proceed to a US Circuit Court of Appeals.  This is unconstitutional; as I believe it violates both the 5th and 14th amendments, and must be corrected.

FERC’s absolute authority is pervasive in its Use and Occupancy and Shoreline Management Plan standard license articles, both of which trample State’s rights and individual property rights.  Using the Smith Mountain Project P-2210 as an illustrative example, regardless of how well reasoned or researched a position, the Commission too often turned a deaf ear, or cherry picked a study finding, or cited an irrelevant legal precedent or Commission order, or hid behind yet another confounding administrative rule designed to preserve FERC’s unrestrained authority.  The Commission has shown bias favoring its licensee over the public. The Commission is guilty of neglecting science as a basis for regulation, of ignoring and marginalizing public input critical of its policies, of writing confusing and inconsistent orders it fails to enforce, and of developing duplicate regulations that openly conflict with existing federal, state and local ordinances.

In support of our position, Attachment A. is a letter from Virginia’s Secretary of Natural Resources explaining that Virginia’s regulations are sufficient to protect Virginia’s natural resources and that Appalachian Power’s proposed rewrite of its Shoreline Management Plan fails to strike the appropriate balance between environmental protection and economic development. 

Attachment B. is a letter from the FERC Office of Energy Products to Congressman Robert Hurt, Representative Virginia 5th Congressional District, denying the Congressman’s request to support a technical conference to resolve issues with the rewritten Shoreline Management Plan.  Instead FERC prefers to hide behind a flawed implementation of its rules than to resolve issues with the Smith Mountain Project Shoreline Management Plan.  In its SMP guidelines FERC states: “The SMP should be monitored and reviewed on a regular basis to determine how effective it is in accomplishing the licensee's goals, and to respond to new or evolving situations or conditions.  … A well-crafted SMP does result in a stakeholder and licensee partnership.” [See Guidance for Shoreline Management Planning at Hydropower Projects, April 2001].  The SMP currently under review by Commission staff has unanimous disagreement with the stakeholders that participated in its rewrite, rather than agreement.  How is it then that the Director, Office of Energy Products can openly violate Commission guidelines in his response to the Congressman: “Finally, please note that the Commission's review of this application will not involve revisiting the entire shoreline management plan.”

Attachment C. is a resolution from the West Piedmont Planning Commission critical of the proposed Shoreline Management Plan and its unsupported and unnecessary regulations which are negatively impacting the greater area.

I and the greater community of Southwestern Virginia would welcome an opportunity to address your subcommittee and present factual evidence demonstrating that Chairman Wellinghoff’s agency employs a failed regulatory model, lacks incentive to modify its regulations, and is incapable of conducting a comprehensive top down regulatory review without public input and more extensive Congressional oversight.



William C. Brush

President, Cut Unnecessary Regulatory Burdens, Inc.



The Honorable Robert McDonnell, Governor of Virginia

The Honorable Fred Upton, Chairman of the House Committee on Energy and Commerce

The Honorable Henry Waxman, Ranking Minority Member, House Committee on Energy and Commerce

The Honorable Ed Whitfield, Chairman House Subcommittee on Energy and Power

The Honorable Bobby L. Rush, Ranking Minority Member, House Subcommittee on Energy and Power

The Honorable Diana DeGette, Ranking Minority Member, Subcommittee on Oversight and Investigations for Energy and Commerce

The Honorable Doc Hastings, Chairman of the House Natural Resources Committee

The Honorable Edward Markey, Ranking Minority Member, House Natural Resources Committee

The Honorable Robert Hurt, Virginia 5th District Representative

The Honorable Morgan Griffith, Virginia 9th District Representative

The Honorable Kenneth Cuccinelli, Attorney General of Virginia

The Honorable Doug Domenech, Virginia Secretary of Natural Resources

Site administrator,
Jul 30, 2011, 6:59 AM