Category Archives: FERC

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.

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.