Category Archives: FERC

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.

ABRA Members Sue FERC Over Original Approval of ACP

News from the Allegheny-Blue Ridge Alliance (ABRA):

A group of 13 conservation groups – 10 of whom are ABRA members – filed suit on August 16, 2018, against the Federal Energy Regulatory Commission (FERC) challenging the Commission’s October 13 approval of the Atlantic Coast Pipeline (ACP) and, in the groups view, its wrongful refusal to look behind the inflated claims of Dominion Energy, principal partner in the project, that the pipeline is needed in Virginia and North Carolina markets. The suit was filed on behalf of the petitioners by the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates. It follows the August 6 decision by the Fourth Circuit Court of Appeals to vacate two key permits for the ACP and by an August 10 stop work order issued by FERC for the project. “FERC ordered the ACP construction stopped because the Fourth Circuit determined that permits were issued without proper scrutiny. On the very same day, FERC rejected a rehearing request in which the conservation groups asserted that it also rushed through its decision to permit a pipeline that we don’t need,” said Southern Environmental Law Center Senior Attorney Greg Buppert. FERC’s 2-1 decision to reject a rehearing was accompanied by a dissenting opinion from Commission Cheryl LaFleur that directly questioned whether there is sufficient evidence to support the need for two pipelines in the region. Commissioner Richard Glick, who did not participate in the vote, also issued a statement saying he did not vote “solely to enable those parties challenging the Certificate to have their day in court.” Commissioner Glick also said, “I share many of the concerns articulated in Commissioner LaFleur’s dissenting opinion and I do not believe that the ACP Project has been shown to be in the public interest.” (See below related stories on last week’s decision by the Fourth Circuit Court of Appeals and by FERC.) “It’s clear that even within FERC there are questions about the need for this pipeline and the unnecessary harm it will cause to the surrounding communities, the environment, and the customers in Virginia and North Carolina that will bear the financial burden,” said Buppert. Most of the arguments put forth by ACP developers three years ago have crumbled. The misinformation ACP developers used as justification for this pipeline that we know are false includes:

  • ACP is needed for power plants – Gas-fired power plants in Virginia and North Carolina are already connected to the existing pipeline system and will have few direct connections to the ACP.
  • Savings for residents – Testimony at the Virginia State Corporation Commission has revealed that customers will pay anywhere from $1.6 – $3B for the ACP – and could be paying for this pipeline in their monthly bills regardless of whether the gas is used to generate power or not.
  • Savings for businesses – The fracked gas from the ACP will be more expensive than the gas that is currently available in Virginia through existing infrastructure, which means no savings for businesses.
  • Jobs – Without cheaper gas as an incentive, the pipeline is not likely to attract new businesses and new jobs to our region.

The petitioning groups in the suit are: Appalachian Voices, Chesapeake Bay Foundation, Chesapeake Climate Action Network, Cowpasture River Preservation Association, Friends of Buckingham, Highlanders for Responsible Development, Piedmont Environmental Council, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, the Sierra Club, Sound Rivers, Virginia Wilderness Committee, Wild Virginia, and Winyah Rivers Foundation.

SELC Asks FERC to Reject Request to Proceed

On August 13, 2018, Dominion asked FERC to ignore the stop work order FERC had issued for the ACP on August 10 and allow Dominion to continue construction on some segments of the ACP (see story below). On August 15, the Southern Environmental Law Center, on behalf of multiple organizations, submitted a letter asking FERC

  • to reject Dominion’s request to proceed with construction of three separate segments, and
  • to reject Dominion’s request that the Commission’s stop-work order only relates to the vacatur of the National Park Service’s right-of-way permit, and not to the vacatur of the Fish and Wildlife Service’s Incidental Take Statement

The letter states, “The Commission must not approve construction of portions of the ACP because the three segments proposed by Atlantic would constitute new interstate projects, distinct from the ACP, with different purposes and different potential customers. Atlantic has not submitted a certificate application to the Commission for any of these projects, and the Commission has not reviewed the public convenience and necessity of these segments as required by the Natural Gas Act.”

In a footnote commenting on the August 15 submission by Dominion of a second request to continue construction on additional segments on the basis of “independent utility,” SELC says the arguments in their letter “apply equally to this second, and any subsequent, request to continue construction.”

The letter further states that “the Fourth Circuit has resolved any ambiguity about the effects of its vacatur of ACP’s Incidental Take Statement: Atlantic will violate its certificate of public convenience and necessity if it proceeds with construction without a valid ITS. Again, the Commission must decline Atlantic’s invitation to make a finding that is squarely in conflict with the Court’s opinion on this issue.”

The letter continues with a detailed explanation of why FERC “must reject Atlantic’s request to construct segments of the Atlantic Coast Pipeline on the basis of ‘independent utility,'” and why “all construction must stop until Fish and Wildlife Service approvals are in place.”

Read the full letter here.

Dominion Asks to Proceed Piecemeal

Immediately after FERC issued the Atlantic Coast Pipeline stop work order late on Friday August 10, 2018, Dominion issued a statement saying it was already working with agencies to resolve issues in the stop work order, and separate project sections not impacted by the court ruling could become viable gas infrastructure.

In a letter to FERC on Monday August 13, 2018, Mathew Bley, director of gas certificates for Dominion Energy Transmission, explained that independent segments unaffected by the court ruling could serve as gas transportation infrastructure by themselves.

“Natural gas received via (supply header project in West Virginia), at Marts, can be redelivered by the planned ACP pipeline to its Long Run delivery point into Columbia Gas Transmission Corporation LLC, in Randolph County, West Virginia … The Long Run interconnection thus would provide a substantial, viable, competitive supply option for existing Columbia Transmission shippers, even if other portions of ACP were not constructed. Subject to avoidance of any areas affected by the vacatur of the ITS … Atlantic should be allowed to proceed with construction of this useful component of the ACP.

“The ACP infrastructure from its Buckingham, Va., interconnection with Transcontinental Gas Pipe Line Company LLC (Transco) to points downstream could be used for gas deliveries to markets in both North Carolina and eastern Virginia. These markets are chronically constrained in terms of natural gas supply. Independent of ACP’s proposed construction of pipeline upstream of the Buckingham – including areas affected by the Aug. 6 court order – ACP could receive up to 885,000 Dt/day from Transco for service on the ACP main line and the Virginia lateral.

“Depending on the availability of supply and relative operating pressures on the Transco system, ACP expects that its physical receipts at Buckingham could exceed 885,000 Dt/day. Although this approach would not provide the full benefit of access to the DETI system and the liquid South Point market hub (which customers expect upon completion of the ACP), this portion of the ACP infrastructure … would serve to redeliver gas to Hampton Roads and eastern North Carolina markets, where interstate pipeline capacity is either already fully subscribed, or nonexistent.”

Dominion asked FERC to “promptly allow construction to resume for the independently useful portions of the projects.”

It appears Dominion is tacitly admitting that the entire ACP is not necessary, and gas could be delivered to both existing and future markets by other means.

However, as pointed out by Southern Environmental Law Center in its letter of August 15, 2018 urging FERC to deny Dominion’s request to move forward on certain parts of the ACP, “If these segments do not serve the purpose Atlantic intended them to serve as interdependent parts of the approved ACP, they are separate projects that must go through the approval process set forth in the Natural Gas Act.” (See story above)