Category Archives: FERC

Cart Before the Horse

In her guest column in the September 21, 2018, Staunton News Leader (West Augusta pipe yard is putting the ‘cart before the horse’), Nancy Sorrells discusses Dominion’s request to the Augusta Board of Zoning Appeals for a proposed pipe yard in West Augusta. She notes that when FERC was contacted to verify Dominion’s Emmett Toms’ statement to the BZA that they had approval to “leave the thousand dump truck loads of contaminated gravel from the parking area in a pile in the field after construction, rather than take the cleaned gravel to an approved landfill as is standard procedure,” they were told by FERC that “the contractor/pipe yard you referenced below has not been proposed to FERC.”

Further, the area where Dominion proposes the pipe yard (that FERC doesn’t know about) is one that has paved roads of “less than minimum design standards” because the county agreed in 2010 that the area is not to be the target of any development, and therefore should certainly not “have the kind of traffic and heavy equipment that would occur on this road for two years or more with ACP’s proposed construction yard.”

She concludes, “So there you have it: Dominion has proposed something that both DEQ and FERC are unaware of in an area that the county has legally promised never to develop. Cart before the horse? In reality there never should have been a cart or a horse proposed here.”

FERC Lifts Stop Work Order on ACP

Early afternoon on September 17, 2018, the Federal Energy Regulatory Commission lifted the stop work order for the Atlantic Coast Pipeline it issued on August 10. The FERC Notice was based on the issuance of new permits by, respectively, the National Park Service and the Fish and Wildlife Service.

  • On September 11, 2018, the FWS issued a revised Biological Opinion (BO), which included a modified Incidental Take Statement for the ACP
  • Additionally, on September 14, 2018, the NPS issued a new right-of-way permit for crossing the Blue Ridge Parkway

 

Earlier versions of these permits had been vacated by the U.S. Court of Appeals for the Fourth Circuit, which had prompted FERC to issue its stop work order.
 

In its press coverage, the Virginia Mercury quotes D.J. Gerken, an attorney with the Southern Environmental Law Center in Asheville, N.C., who said, “The Park Service right of way is almost the same document,” Gerken said. “It’s very disappointing. … It sure looks like more of the same, which is these agencies making political decisions rather than fact-based ones. All of these federal agencies with responsibility to protect public resources moved too fast on a political timetable. This is entirely consistent with that approach. And that’s what got them in trouble last time.” Gerken added, “There is no question that these pipeline developers deliberately race the courts. So no matter how bad the legal violations are, the project is well under way before the courts have an opportunity to review it. This is baked into their business model. It doesn’t matter if it’s wrong as long as it’s fast.”

Motion Submitted to Rescind ACP Certificate and FEIS

On September 4, 2018, Friends of Nelson and Wild Virginia submitted a motion to the Federal Energy Regulatory Commission to “rescind and place in abeyance the Certificate of Convenience and Necessity for the Atlantic Coast Pipeline issued by the Commission staff on October 13, 2017, to rescind the Final Environmental Impact Statement (“FEIS”) for the Atlantic Coast Pipeline (“ACP”) issued on July 21, 2017 in the above captioned dockets, to and to initiate a new DEIS/FEIS NEPA process in this matter.”

The motion states, “Pursuant to NEPA Section 102, 42 U.S.C. § 4332, and its implementing rules, specifically 40 C.F.R. § 1502.9, Friends of Nelson and Wild Virginia move that the Commission rescind and place in abeyance the Certificate of Convenience and Necessity in this matter in accordance with the requirements of the Endangered Species Act, 16 U.S.C. § 1531 et seq. and National Environmental Policy Act, 42 U.S.C. § 4321 et seq. and in violation of FERC conditions placed upon the issuance of the Certificate of Convenience and Necessity. This is necessary because 1) the DEIS published on December 30, 2016 is deemed “so inadequate as to preclude meaningful analysis,” id., § 1502.9(a), as demonstrated by the copious amount of new and crucial information that has been submitted to FERC and emerged after the release of the DEIS, 2) the subsequent vacating of the United States Fish and Wildlife takings permit upon which the FEIS is based on August 6, 2018 and 3) the necessary rerouting of the ACP which will require a full NEPA analysis in lieu of the vacating of the right of way permit by the National Park Service on August 6, 2018.

“Therefore the Certificate of Convenience and Necessity issued on October 13, 2017 should be rescinded and placed in abeyance until 1) a new route has been determined, 2) a revised DEIS is issued that fully addresses and provides the public an opportunity to comment on the significant new information that has been submitted to FERC since the release of the original DEIS, 3) a Final Environmental Impact Statement (FEIS) has been issued, and 4) the project and its National Environmental Policy Act (NEPA) analysis is in full compliance with the Endangered Species Act (ESA) as required by NEPA.”

The motion is followed by 19 items of supporting facts and law, and concludes, “Friends of Nelson and Wild Virginia respectfully request that the Commission grant their motion and rescind and place in abeyance the Certificate of Convenience and Necessity for the Atlantic Coast Pipeline and Supply Header Project, CP15-554-000, CP15-555-000 et.al. and also rescind the FEIS upon which the Certificate relies. In this matter, the Commission must take a “hard look” at all new information and review it in the context of the application. This must include all information required by NEPA including full review of new information by USFWS and NEPA compliant ITS for all required species. It must also include information relating to any route changes required by the vacating of the NPS authorization of the right-of-way permit that NPS had issued to ACP. At such time that a new DEIS is completed, the commission shall initiate a new public comment period for the intended completion of a FEIS. Lastly, the Commission should require Dominion to file all additional information that is vital to the NEPA environmental review before proceeding further.”

The full motion is here.

Appendix 1 contains a motion to rescind or revise the Draft Environmental Impact Statement (“DEIS”) for the Atlantic Coast Pipeline (“ACP”) issued on December 30, 2016.

Appendix 2 contains “a partial list of important information that was submitted by Dominion in an untimely manner, too late to be considered in the NEPA analysis for the ACP and should be considered in a new DEIS/FEIS process. All of these are available on the FERConline website for Docket #CP15-554-000 et.al.”

Appendix 3 is the August 23, 2018, Richmond Times-Dispatch article, State scientists confirm more sightings of endangered bumblebee along pipeline route.

Appendix 4 is a copy of FERC’s August 10, 2018 denial by Commissioners Neil Chatterjee and Robert F. Powelson of requests for rehearing and Commissioner Cheryl A. LaFleur’s dissent.

ACP Timeline of Defiance: Dominion Games System, FERC Plays Along


A new post from Dominion Pipeline Monitoring Coalition:

When the Federal Energy Regulatory Commission (FERC) approved construction of the ACP in late 2017, it made its approval conditional upon approvals from other regulatory agencies. However, when a U.S. Fourth Circuit Court of Appeals ruling in May 2018 voided one of the required approvals, Dominion continued with construction of the ACP and FERC did nothing to stop it. Only after the Court voided another permit in August of 2018 and reconfirmed its earlier ruling, did FERC finally issue a stop work order. By then ACP construction activity in West Virginia included over 30 miles of right-of-way clearing and excavation, extensive trenching, and deployment of over 30,000 feet of pipe in the construction corridor. Although Dominion was on notice that it lacked an essential approval when it chose to continue with construction, FERC has accepted Dominion’s request that it be allowed both to complete installation of deployed pipe in previously excavated trench and to excavate additional trench in steep slope areas.

See the full story here – complete with detailed timeline and timeline photos.

FERC Lifts Stop Work Order for MVP

Even though the Mountain Valley Pipeline does not yet have any of the key approvals that prompted the Federal Energy Regulatory Commission (FERC) to issue a stop work order on August 3, 2018, on August 29 FERC issued a Letter to Mountain Valley Pipeline LLC re a Partial Authorization to Resume Construction under CP16-10.

Specifically, the letter says, “Maintaining the status quo across non-federal lands while the Department of Agriculture’s Forest Service, the Army Corps of Engineers, and the BLM address the Court’s instructions regarding federal lands would likely pose threats to plant and wildlife habitat and adjacent waterbodies as long-term employment of temporary erosion control measures would subject significant portions of the route to erosion and soil movement. Requiring immediate restoration of the entire right-of-way to pre-construction conditions would require significant additional construction activity, also causing further environmental impacts. In consultation with staff, I have determined that protection of the environment along the Project’s right-of-way across non-federal land is best served by completing construction and restoration activities as quickly as possible.”

In other words, the agency claims that continued construction is the only way to “best mitigate further environmental impacts” – a strategy of destroying the village to save the village.

FERC’s 3-2 decision allowing the MVP to continue construction prompted a joint statement of dissent from Commissioners Cheryl LaFleur and Richard Glick:

Today, Commission staff issued a letter modifying the August 3, 2018 Stop Work Order on the Mountain Valley Pipeline (MVP) Project, allowing Mountain Valley Pipeline, LLC to resume construction on all non-federal lands between Milepost 77 up to Milepost 303. We have significant concerns with today’s decision to allow construction to resume while required right-of-way and temporary use permits remain outstanding.

On July 27, 2018, the United States Court of Appeals for the Fourth Circuit issued an order vacating decisions by the Department of Interior’s Bureau of Land Management and the Department of Agriculture’s Forest Service authorizing the construction of the MVP Project across federal lands and remanding to those agencies for further proceedings. In response, on August 3, Commission staff halted construction activity along all portions of the MVP Project acknowledging MVP, “has not obtained the rights-of-way and temporary use permits from the federal government needed for the Project to cross federally owned lands.” We supported staff’s decision given the significance of the court’s order and the questions it raised regarding the future viability of the MVP Project.

Today’s action also highlights a broader concern regarding the Commission’s response to federal court actions that remand or vacate a federal authorization that is among the necessary pre-conditions for commencing construction in the first place. In response to recent court decisions, Commission staff has acted within its delegated authority to address the impact of those court decisions on post-certificate pipeline activities, as it did today. However, given the increasing complexity of such issues, we believe the Commission should revisit this practice. In the future, when a court remands or vacates a required federal authorization following the issuance of a notice to proceed, we believe the decision regarding whether and how to proceed with the pipeline should be made by the Commission rather than its staff. Ultimately, it is the Commission’s responsibility to ensure the project is in the public interest.

FERC Approves Stabilization Plan for ACP Work Stoppage

From the ABRA Update, August 23, 2018:

The Federal Energy Regulatory Commission (FERC) on August 17, 2018, granted permission for the Atlantic Coast Pipeline, LLC (ACP, LLC) to implement plans to conduct interim work on the Atlantic Coast Pipeline (ACP) during the period of the stop work order on the project. FERC had requested the plan as part of its August 10 stop work order for the project, which had been prompted by an August 6 federal court decision vacating two key permits for the ACP and a subsequent request made to the agency by several ABRA members for a stop work order to be issued.

FERC’s August 17 letter to ACP, LLC authorizes the company “to implement the plans with the following condition: for locations where trees have been felled, but mainline construction activity has not yet started (table 3.1-1 of each plan), Atlantic and DETI must continue monitoring the right-of-way as dictated by weather conditions, but no less than once every month.”

Continuing, the letter states, “We note that clearing of felled vegetation has not yet occurred on federal lands. Thus, the stabilization measures (except for monitoring) would generally not apply to these locations. However, Atlantic must continue to work and seek concurrence from the appropriate agencies for any additional measures that Atlantic may propose on federal lands.”

The ACP, LLC plan, submitted August 14, is available here.