On May 16 U.S. Court of Appeals for the District of Columbia Circuit denied the Federal Energy Regulatory Commission’s bid to delay a lawsuit brought by environmental groups against the Mountain Valley Pipeline. FERC had asked to delay the lawsuit until it concluded its own rehearing process. FERC made the motion to delay in February, asking that the case challenging the FERC certificate of public convenience and necessity for the MVP be held in abeyance, allowing FERC to address the “numerous and complex matters” raised by environmentalists and landowners in their requests for rehearing. (The FERC process could take many months.)
“FERC should not be allowed to use tolling orders and other delay tactics to block court challenges even as it allows companies like Mountain Valley to move forward with pipeline construction,” Sierra Club attorney Elly Benson said in a statement. “The people and communities that would be affected by this fracked gas project deserve a comprehensive review process that fully examines the threats posed to them and the environment.”
Read more here.
Late on Wednesday May 16, 2018, the Federal Energy Regulatory Commission responded to the May 15 decision by the U.S. Court of Appeals Fourth Circuit to halt construction on the Atlantic Coast Pipeline (see story below). FERC wrote to Dominion indicating it would agree to the company’s commitment not to proceed with construction on the ACP in any areas where listed protected species may be present:
Atlantic Coast Pipeline, LLC (Atlantic) has informed Commission staff that it will not proceed with construction in any areas where such activities may affect listed species covered by the FWS’ Incidental Take Statement for the project. Atlantic should, within 5 days, file documentation that specifically identifies by milepost/stationing the habitat areas that will be avoided with respect to each of the listed species, and confirms the company’s commitment to avoid construction in these areas.
The full text of the FERC letter is here.
According to a May 16 article in the Richmond Times-Dispatch (Did court ruling stop Atlantic Coast Pipeline construction? Depends on whom you ask), “The Southern Environmental Law Center, which argued the case on behalf of the Sierra Club, Defenders of Wildlife and the Virginia Wilderness Committee, says the court’s action undermines every other federal approval the project has received, from the FERC authorization to approvals by the U.S. Army Corps of Engineers and the U.S. Forest Service. ‘You can proceed only if you have a valid incidental take permit,’ said D.J. Gerken, an attorney with the law center. ‘You’re missing a fundamental building-block authorization on which all the others are based. …. According to the Federal Energy Regulatory Commission’s own certificate, FERC’s previous notices issued to Atlantic Coast Pipeline developers to proceed are no longer valid,’ Gerken said. ‘If what FERC is now saying is that developers can now proceed to construction without the Fish and Wildlife Service’s valid permit, it is undermining its own requirements.'”
Everything is sunshine and blue sky in FERC’s photo of their building on the new FERC Facebook page, and the employee testimonies on the page about working for FERC are blue sky and sunshine as well.
Not so the comments that are piling up on the page. Add yours – tell FERC what you think! Note: FERC says comments on the Facebook page won’t be considered as formal comments to FERC. But don’t let that stop you!
On Friday May 11, 2018, the Federal Energy Regulatory Commission (FERC) granted authority for the Atlantic Coast Pipeline “to commence full construction in the certificated workspace and select areas with changes, for the 2018 construction spreads in West Virginia.” FERC’s notice also states that “this authorization grants approval to proceed on properties where tree felling has occurred or for which there are no trees, excluding any workspace located on U.S. National Forest Service lands.”
Read the full FERC notice here.
From ABRA Update #180:
Strong support for the recent denial by the Federal Energy Regulatory Commission (FERC) to extend tree felling for the Atlantic Coast Pipeline was voiced this week by the Virginia Society of Ornithology (VSO). In a May 8 letter to FERC, VSO said:
Providing a buffer of trees around any nest site that was identified has been proposed as a mitigation approach. We believe this proposal is impractical, even if the nests were identified. By eliminating neighboring trees and, by coincidence, disturbing adjacent vegetation, and the food resources they harbor, would necessitate nesting birds to forage greater distances to feed their young or simply not have enough food to sustain them. That could make nest failure just as possible as if the nest itself had been destroyed. It is highly unlikely that the ACP project could provide a reasonable buffer for each nest, even assuming it could identify the species involved.
In conclusion, the letter stated:
We cannot justify any scenario of extended tree felling that would provide equal or greater security tor migratory birds or other protected species which are dependent on these forested habitats, in comparison with the original March 15 deadline. Extending tree felling into the heart of the breeding season for many of our most imperiled breeding species runs counter to Dominion Energy’s stated commitment to minimizing environmental impacts. Please continue to support the original intent of the mitigation plan.
FERC issued the following press release on April 19. 2018:
“The Federal Energy Regulatory Commission (FERC) today launched an inquiry seeking information and stakeholder perspectives to help the Commission explore whether, and if so, how, to revise existing policies regarding its review and authorization of interstate natural gas transportation facilities under section 7 of the Natural Gas Act.
“FERC issued a Notice of Inquiry (NOI) to examine its policies in light of changes in the natural gas industry and increased stakeholder interest in how it reviews natural gas pipeline proposals since the Commission adopted its current Policy Statement on pipeline certification. The Commission issued its current Policy Statement, “Certification of New Interstate Natural Gas Pipeline Facilities – Statement of Policy” (Docket No. PL99-3-000), in September 1999.
“Today’s NOI poses a range of questions that reflect concerns raised in numerous public comments, court proceedings and other forums. Through the NOI, FERC is seeking input on potential changes to both the existing Policy Statement and the structure and scope of the Commission’s environmental analysis of proposed natural gas projects.
“The Commission also is seeking feedback on the transparency, timing, and predictability of its certification process. FERC is encouraging commenters to specifically identify any perceived issues with the current analytical and procedural approaches, and to provide detailed recommendations to address these issues.
“Comments are due within 60 days of issuance of the NOI in The Federal Register.”