Category Archives: FERC

ACTION ALERT: Comments Needed on Dominion Extension of Time Requests

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

  1. one-year to address abandonment and restoration issues for the Atlantic Coast Pipeline, and
  2. 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.

 

Many Comments Filed with FERC Opposing Extra Time for Dominion

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.

DC Circuit Rules Against FERC’s “Kafkaesque” Tolling Order Use


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.

Tell FERC: Time’s Up for Dominion!


Dominion has 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.

Submit your comments to FERC by 5 pm on Thursday, July 2, 2020, asking FERC to DENY Dominion’s request for an extension! Be sure to cite the ACP docket number in your comments, CP15-554.

In their June 17 Notice of Request for Extension of Time, FERC says, “The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and three copies of the protest or intervention to the Federal Energy regulatory Commission, 888 First Street, NE, Washington, DC 20426.” Note that comments sent in paper must also arrive at FERC by 5 pm on July 2.

ABRA has put together a helpful sheet of information on how to file with FERC as an individual or as an organization.

For talking points, see:

The eight permits the ACP is still missing are explained here.

Should Dominion Get a 2-Year Extension? NO!

The certificate issued on October 13, 2017 by the Federal Energy Regulatory Commission (FERC) granting Dominion authority to build the Atlantic Coast Pipeline (ACP) expires on October 13, 2020. Under that certificate, NO construction is allowable after that date.

Dominion, of course, has only a few miles of the ACP actually built and in the ground, so they have asked FERC for a two-year extension. If FERC denies the extension, the ACP is dead, as it should be.

On June 17, 2020, FERC published a Notice of Request for Extension of Time, noting Dominion’s request, and establishing a 15-day intervention and comment period deadline, and saying, “Any person wishing to comment on Atlantic’s and DETI’s request for an extension of time may do so.” This means you must submit comments before 5:00 pm Eastern Time on July 2, 2020.

In their Notice, FERC says, “The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and three copies of the protest or intervention to the Federal Energy regulatory Commission, 888 First Street, NE, Washington, DC 20426.”

Submit your comments to FERC asking them to DENY Dominion’s request for an extension!  Cite the ACP docket number in your comments, CP15-554.

Some talking points  (and see also the Friends of Nelson slide show below on 10 Reasons to Oppose the ACP):

  • The delays that Dominion cites as causing them to require more time are self-inflicted and result from their own failures to do due diligence in collecting valid data during the permitting process and responding in a reasonable, responsible fashion to environmental and other concerns that opponents to the Pipeline have raised in a timely fashion. These failures have, in several cases, led the courts to label their efforts as arbitrary and capricious. If Dominion had, from the get-go, done a credible job of route selection, and thorough data-collection surveys, as well as following these up with sound analysis, and responding promptly and reasonably to legitimate environmental and other concerns that were raised, they would not now find it necessary to beg for more time.
  • FERC has recently committed itself to changing its policies with the goal of making them more fair and equitable to landowners. There is no justifiable and consistent reason to continue to hold landowners in ongoing limbo over the fate of their property.
  • Increased understanding of the impact of climate change, both globally and locally, has made it clear that we are called upon to respond without further delay by weaning ourselves away from the use of all fossil fuels, and especially those that contribute to the release of methane, a greenhouse gas many times more potent than C02, into the environment.
  • Costs associated with the project have ballooned over the intervening period by several billion dollars. The longer this is allowed to continue, the more ratepayers will have to fight to avoid being charged to cover these exorbitant, wasteful project expenses.
  • The Virginia Clean Economy Act that became law earlier this year requires Dominion to shut down all of its existing gas-fired power plants by 2045, and the utility has itself stated to Virginia regulators that the build-out of new gas-fired power plants (the original justification of need for the project) is no longer “viable” in the current climate. Due to the evolving energy market, as well as the increased competitiveness of other transmission projects, the project looks more and more like an obsolete effort that is more and more likely to leave investors, as well as ratepayers, liable for a huge stranded “asset”.
  • In view of all these considerations, FERC shouldn’t be thinking about extending the time for the construction of the Pipeline. Instead, it should be reconsidering its determination that the Pipeline is required by the public convenience and necessity, especially in light of significant changes to the region’s energy landscape and new information about the project’s environmental impacts.

For all of these reasons, the Commission should allow this ill-conceived and ill-executed project to die a natural death at such time as its deadline for completion expires.

Send your comments to FERC before 5:00 pm Eastern Time on July 2, 2020.  Cite docket number CP15-554.  Tell them NOT to give Dominion a two year extension!

 

FERC Provides “Additional Landowner Protections”

In a news release on June 9, 2020, the Federal Energy Regulatory Committee announced an amendment to its regulations which says that even if a project has all other certifications and permissions to begin construction, it must wait to do so until the Commission either acts on the rehearing request or the 30-day time limit passes with no requests for rehearing.

When FERC issues a certificate of public convenience and necessity, allowing a project to proceed, affected landowners have the right to ask FERC to reconsider. Although FERC is supposed to respond to such requests within 30 days, it frequently issues a “tolling order,” which indefinitely extends FERC’s deadline to respond. FERC thus freezes the landowner’s request for a hearing while allowing pipeline companies to continue construction – meaning that by the time a landowner has a hearing the pipeline construction may be completed.

According to FERC Chair Neil Chatterjee, quoted in the press release, “‘The Commission has undertaken a number of initiatives to improve affected landowners’ access to a fair and transparent process and today’s effort is another important step forward,’ Chatterjee said. ‘These are complex issues, with a diverse array of stakeholder input, but I remain firmly committed to doing what we can to make the FERC process as fair, open, and transparent as possible for all those affected while the Commission thoroughly considers all issues.'”

However, FERC did not define what it meant by “begin construction,” and could still allow pipeline companies to condemn property before FERC makes a decision on a landowners appeal, and, depending on the definition of “begin construction,” go forward to cut down all the trees, dig the trench for the pipeline, spray herbicides, cross waterbodies – everything but actually put the pipe in the ground.

FERC has been under mounting pressure from landowner rights advocates and from Congress to address inequities in its hearing process for affected property owners.

Read FERC’s press release here.

Read press coverage in E&E Energywire here and in Utility Dive here.