On October 9, 2020, the Federal Energy Regulatory Commission granted a request from the Mountain Valley Pipeline for a two-year extension of the project’s certificate to complete construction of the pipeline. The existing certificate was to expire October 13, 2020. Many organizations and individuals had opposed MVP’s request.
The vote was 2-1, with Commissioner Glick dissenting. Read the FERC decision here. Note especially the last two pages where Commissioner Glick registers his partial dissent, and delivers a scathing criticism of FERC for their decision to deny intervenor status to a number of landowners who had not been formal intervenors in the original Certificate process, but who had attempted to intervene in the time extension request proceeding.
Glick writes, “Time and time again, landowners do their very best to navigate the complexity of FERC proceedings. And, time and time again, the Commission relies on technicalities to prevent them from even having the opportunity to vindicate their interests. When it comes to protecting landowner interests, we should look at what the Commission does, not what it says. With that in mind, today’s order tells you everything need to know about how much the Commission cares about landowners.”
Glick’s dissent indicates the “care” landowners may expect in upcoming ACP extension decision. ACP’s original Certificate of Public Convenience and Need expires on Oct. 13, 2020. That means they can do nothing after that date – including cleaning up the mess they made on many people’s properties. So, ACP asked for a one-year extension to complete necessary “stand down” activities, remove pipe that has been staged but not buried, stabilize and restore the abandoned construction sites, etc.
Many organizations (including Friends of Nelson), the lawyers from SELC, and many individuals submitted comments to FERC this summer requesting that certain conditions be met as part of the process of such an extension being granted. A couple of notable conditions were 1) that all landowners be released from the easement agreements they signed and 2) that there be a formal opportunity for landowners and other stakeholders to submit further comments to FERC delineating exactly what kind of restoration or other things are needed to restore impacted lands and make impacted property owners “whole” so that those needs could be taken into account in whatever orders FERC gives to ACP as the “stand down” process begins.
We expect to hear FERC’s decision about the extension — and thus on whether they will require conditions that would help landowners — any day now.
From Allegheny-Blue Ridge Alliance’s ABRA Update #290, August 27, 2020
The Mountain Valley Pipeline (MVP) has asked the Federal Energy Regulatory Commission (FERC) for an extension of time of “an additional two years, or until October 13, 2022, to complete construction of the Project and place the Project facilities into service.” FERC issued on August 27 an official notice of a comment period for the public to have input on the MVP request, the deadline for which is Friday, September 11, 2020.
You are strongly urged to file comments with FERC by 5 pm, Friday, September 11 in opposition to the extension of the certificate for the MVP. Regarding filing comments, the FERC Notice states: The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “e-File” link at http://www.ferc.gov. Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
For further information and details of the MVP request, see the ABRA article, MVP Asks FERC for Two More Years to Construct Pipeline.
From Allegheny-Blue Ridge Alliance’s ABRA Update 232, August 13, 2020
U.S. Senators Mark R. Warner (D-V) and Tim Kaine (D-VA) introduced legislation on August 6 to strengthen the public’s ability to evaluate the impacts of natural gas pipelines being considered by the Federal Energy Regulatory Commission. S. 4502 would make it easier for the public to offer input and clarify the circumstances under which eminent domain should and should not be used.
Among other guidelines, the bill requires public comment meetings to be held in every locality through which a pipeline would pass, at every stage of the review process, in order to minimize situations where individuals are forced to commute long distances with very little time to comment. It also strengthens landowners’ rights by improving the processes in which landowners are notified of a pipeline application and bolstering their ability to intervene to ensure any concerns about their property are given fair consideration and compensation.
The bill builds upon an earlier version of legislation the Senators introduced in the last Congress. More info here.
We are urging everyone — and especially impacted landowners — to file comments to FERC on the request that Dominion Energy Transmission, Inc. (DETI) submitted to the Federal Energy Regulatory Commission (FERC) on July 10, 2020, for an extension of time of
- one-year to address abandonment and restoration issues for the Atlantic Coast Pipeline, and
- two-years to complete construction of the Supply Header Project (SHP).
FERC has set a comment deadline of 5 p.m. Monday, August 3.
For details on how to comment, click here.
The major points that should be made in comments are:
1) – Landowners who entered into an easement agreement with Atlantic Coast Pipeline, LLC (Atlantic) should be provided an opportunity to be released from those agreements as a condition of FERC’s granting Atlantic its requested extension so that the landowners can once again utilize their land without the restrictions such agreements placed upon future use. The recommendation for such a remedy made in the July 17 filing by a group of conservation organizations (cited below) should be adopted by FERC. “Requiring Atlantic to promptly contact all landowners where a right-of-way easement exists and inform them that
- (i) Atlantic will release the right-of-way easement within 90 days of a written request from an affected landowner,
- (ii) Atlantic will provide the affected landowner with the proposed written release of the right-of-way easement,
- (iii) Atlantic will pay the reasonable attorneys’ fees of the affected landowner in reviewing and negotiating changes to the proposed written release of the right-of-way easement, and
- (iv) Atlantic will file the final, executed written release of the right-of-way easement in the land records of the appropriate jurisdiction. Atlantic has already committed that landowners will keep the easement compensation they have received.”
For impacted landowners: Click here for additional information, including a comment template.
2) – The extension request for the ACP to address abandonment and restoration activities along the project’s right-of-way should not be granted without a public comment period of at least 30 days. It is in the Commission’s interest to know the concerns that the public and affected landowners have about restoration activities and impacts on landowners’ rights in the future.
FERC’s agreement with these first two items would be in keeping with the recently expressed interest by Chairman Chatterjee for the Commission to be more responsive and sensitive to the interests and concerns of landowners who are affected by projects being considered by the Commission.
3) – The SHP time extension should be denied because it has not and cannot be justified in accordance with FERC standards. The project was proposed as being dependent upon the Atlantic Coast Pipeline (ACP). Dominion Energy clearly stated on the record that “the SHP does not have independent utility and would not be built without construction of the ACP.” If built, the SHP would be a pipeline to nowhere!
If you are interested in learning more about all of these issues, you can read more about them in the excellent and detailed comments that that SELC submitted to FERC.
Dominion asked FERC for a two year extension on its expiring certificate to build the Atlantic Coast Pipeline. Without the extension, no ACP construction could happen after October 13, 2020. The comment period opened on June 17, 2020, and the deadline for comments was 5 pm on Thursday, July 2, 2020. We are pleased to report that many people submitted comments opposing a construction extension for this unnecessary pipeline.
Here are links to a few of the powerful submissions opposing the extension:
- Southern Environmental Law Center, Appalachian Mountain Advocates, Chesapeake Bay Foundation, and Johns & Counsel PLLC filed a Motion to Intervene and Comments in Opposition to Atlantic Coast Pipeline’s request for extension of its Certificate in FERC Docket Nos. CP15-554-000 et seq. & CP15-555-000 et seq. The filing was made on behalf of Conservation Groups and Landowners.
Comments on behalf of Allegheny-Blue Ridge Alliance (ABRA)
submitted to FERC in opposition to the extension of the certificate for the ACP. Note that the comments themselves are only 3 pages. The rest are referenced attachments (Tom Hadwin’s paper released in January on need and the recently released landslide paper).
- Comments from members of the Virginia General Assembly: “As members of the Virginia General Assembly each representing tens of thousands of Virginians, we respectfully request that the Federal Energy Regulatory Commission deny an extension of the Certificate of Public Convenience and Necessity for the Atlantic Coast Pipeline (ACP). Further, we also request that the Commission deny any requests from Atlantic Coast Pipeline, LLC, for permission to cut trees, clear land, or install pipe in the Commonwealth.” [Signed by Senators Creigh Deeds, John Bell, Jennifer Boysko, John Edwards, Ghazala Hashmi; Delegates Betsy Carr, Patrick Hope, Elizabeth Guzman, Chris Hurst, Mark Keam, Ken Plum, Sam Rasoul, Danica Roem, Kathy Tran]
- Comments from members of the North Carolina General Assembly, explaining why “The ACP is unnecessary to meet our energy demands in North Carolina, and we are concerned that harmful impacts on communities, the environment, and ratepayers outweigh any potential benefits to North Carolina’s citizens. We urge FERC to deny ACP’s request for a two-year extension to construct the pipeline and place it into service.” [Signed by 8 Senators and fifteen Representatives]
There were many, many other eloquent and detailed comments in opposition from both individuals and organizations filed during the 15-day comment period. To see all the comments, go to https://elibrary.ferc.gov/, set the date range to 06/17/202 through 07/02/2020, un-click “Issuance” (so the only checked category is “Submittal”), for Library click “Natural Gas,” enter CP15-554 in the Docket Number box, and then click Submit at the bottom of the page. The results pages give a variety of options for viewing the individual submissions.
On Tuesday June 30, 2020, the DC Circuit Court of Appeals ruled that the Federal Energy Regulatory Commission could not use “tolling orders” to avoid facing a legal challenge in court for approval of projects like natural gas pipelines. The decision came in the case involving the Atlantic Sunrise Pipeline, Allegheny Defense Project, et. al. v. Federal Energy Regulatory Commission. Several ABRA members (including Friends of Nelson) filed a brief in the case.
The majority opinion, written by Judge Patricia Millett on behalf of all the active judges on the DC Circuit, said: “…we hold that, after thirty days elapsed from the filing of a rehearing application without Commission action, the Tolling Order could neither prevent a deemed denial nor alter the jurisdictional consequences of agency inaction. To the extent our prior decisions upheld the use of tolling orders in that manner, they are overruled in relevant part.”
Tolling orders allow FERC to put off responding to requests for a rehearing, thus blocking challengers from bringing their concerns to court, while still allowing construction on pipeline projects to move forward. The ruling means that although FERC is not required by the decision to decide a rehearing request within the 30 days it must stick to the mandated 30-day time frame to decide on whether to accept a request for rehearing. If FERC does not act on a rehearing application within thirty days, it means the request for a rehearing can be deemed denied and the applicant may then go straight to court to obtain judicial review of FERC’s action.
Read the court’s decision here.