Category Archives: FERC

FERC Issues Stop Work Order for MVP


On August 3, 2018, FERC issued the following stop work order to the Mountain Valley Pipeline:

August 3, 2018

Matthew Eggerding, Counsel
Mountain Valley Pipeline LLC
625 Liberty Ave., Suite 1700
Pittsburgh, PA 15222

Re: Notification of Stop Work Order

Dear Mr. Eggerding:

On July 27, 2018, the United States Court of Appeals for the Fourth Circuit issued an order vacating decisions by the Department of the Interior’s Bureau of Land Management (BLM) and by the Department of Agriculture’s Forest Service (Forest Service) authorizing the construction of the Mountain Valley Pipeline Project (Project) across federal lands and remanding to those agencies for further proceedings to address issues identified in that opinion. In light of this development, Mountain Valley Pipeline, LLC (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.

There is no reason to believe that the Forest Service or the Army Corps of Engineers, as the land managing agencies, or the BLM, as the federal rights-of-way grantor, will not be able to comply with the Court’s instructions and to ultimately issue new right-of-way grants that satisfy the Court’s requirements. However, Commission staff cannot predict when these agencies may act or whether these agencies will ultimately approve the same route. Should the agencies authorize alternative routes, MVP may need to revise substantial portions of the Project route across non-federal lands, possibly requiring further authorizations and environmental review. Accordingly, allowing continued construction poses the risk of expending substantial resources and substantially disturbing the environment by constructing facilities that ultimately might have to be relocated or abandoned.

MVP is hereby notified that construction activity along all portions of the Project and in all work areas must cease immediately, with the exception of any measures deemed necessary by those land managing agencies or FERC staff to
ensure the stabilization of the right of way and work areas. Commission staff intends to review the need for this stop work notification in light of further actions that the Forest Service, the Army Corps of Engineers, and the BLM will take with respect to the issues raised in the Court’s opinion and stand ready to assist to achieve a prompt resolution.

In addition, within 5 days, MVP must provide an interim right-of-way and work area stabilization plan for review and written approval by the Director of the Office of Energy Projects.

Sincerely,
Terry L. Turpin
Director
Office of Energy Projects

The letter is here on the FERC Web site.

Groups File Joint Comments on FERC’s Pipeline Review Policy

In a message announcing the filing of an extensive (165 pages!) joint comment to FERC on the 1999 Natural Gas Policy Statement for reviewing proposed interstate gas pipeline projects, Monica Cole of Natural Resources Defense Council writes, “In total, over 60 organizations joined together to send a clear message to FERC that change is needed. We wish to particularly acknowledge those who contributed to the drafting of these comments: Moneen Nasmith of Earthjustice; Diana Csank of Sierra Club; David Neal of Southern Environmental Law Center; and Helen Kimble of Friends of Nelson, who helped to compile the affidavits from affected community members. This was a true team effort. The comments are a substantial contribution to this proceeding and include specific recommendations to FERC on how it should revise its policy, which is currently contributing to the overbuilding of gas pipelines and all of the many associated harms. The comments will also help create a robust record from which stakeholders can draw arguments and materials to support their efforts in gas pipeline certificate cases at FERC and in court appeals.”

The initial summary of comments recommends that FERC:

  • Institute a holistic “all relevant factors” approach to issuing certificates of public convenience and necessity.
  • Place reasonable restrictions on private exercise of delegated power of eminent domain and clarify the important role the Commission must play to protect landowners.
  • Fully evaluate climate pollution and other environmental impacts.
  • Ensure meaningful opportunities for public participation.

The Summary of Recommendations at the end of the document states:

We live in a vastly different world than the one in which the Policy Statement was created. The Commission wisely recognizes that these differences necessitate a fresh look into how the Commission executes its duties under the NGA. As proposed above, we recommend a variety of measures that we believe will better serve the Commission in fulfilling this vital role, as well as better serve pipeline applicants, affected landowners and communities, the environment, and the public at large. These are:

  • Implement a review approach that analyzes the purported economic need offered by the applicant along with all other relevant factors to ensure that only projects that are required by the public convenience and necessity receive a certificate. Relevant factors shall include, but are not limited to: (1) state policies; (2) energy demand projections; (3) potential cost savings and cost increases to consumers; (4) the purported end-use of the gas to be transported; (5) the presence of other existing or proposed pipelines; (6) environmental impacts, including, but not limited to NEPA data; (7) a pipeline’s effect on competition; (8) community and landowner impacts; (9) regional considerations; and (10) precedenlly dispositive in a need determination.
  • Assign affiliate precedent agreements less probative value given their intra-corporate nature.
  • Eliminate the issuance of conditional certificates to pipeline applicants relying on eminent domain authority. If the Commission does not do this, it should strictly limit eminent domain authority to applicants awaiting other federally mandated authorizations to temporary limited access for the specific purpose of conducting surveys necessary to finalize those reviews, while preserving and respecting landowner rights.
  • Incorporate post-survey environmental data into the Commission’s NGA and NEPA environmental reviews.
  • Require pipeline applicants to submit proposed landowner offer letters to ensure that the applicant is not using the certification process to obtain rights beyond what it would be entitled under the scope of the requested certificate.
  • Require applicants to continuously update the Commission with respect to the expected use of eminent domain.
  • Revitalize the Commission’s NEPA analysis by modifying its consideration of project alternatives, as well as upstream, downstream, and cumulative environmental impacts, including GHG emissions and climate change.
  • Take affirmative steps to improve public participation and confidence in the agency. Steps to work toward this goal include, but are not limited to, creating an Office of Public Participation and ensuring that the Commission gives special consideration to environmental justice and tribal concerns.

Read the full filing here.

FERC Approves ACP Construction Start in NC

As reported by the Virginia Mercury and WVNews, on July 24, 2018, FERC gave approval for the start of ACP construction in North Carolina, despite a federal court challenge that seeks to halt construction. In May the 4th Circuit Court in Richmond invalidated a key environmental review of U.S. Fish and Wildlife Service’s “incidental take statement,” which sets limits for harming or killing certain sensitive species along the pipeline route, finding it too vague to be enforced. Although the 4th Circuit has yet to release its full opinion, opponents of the project argue the court’s opinion should have stopped the entire project. However, in a letter to FERC last month, the Fish and Wildlife Service said the take statement was only relevant to habitat and species in Virginia and West Virginia.

Patrick Hunter, a North Carolina attorney with the Southern Environmental Law Center, which handled the 4th Circuit case on behalf of environmental groups, said, “These piecemeal authorizations of a project that doesn’t have all the approvals it needs just doesn’t make sense.” A request that the 4th Circuit halt construction in pending before the court, he added.

Deadline for Comments on FERC Process: July 25


Last week we posted an article about commenting to FERC on revising its policies on review and authorization of natural gas pipeline proposals, policies which have not been revised since 1989!  FERC is “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.”

The deadline for comments is July 25, 2018.

In our post last week we provided instructions for commenting. After several people had problems with both searching for previous comments or making their own comments on the FERC Web page, a call by Friends of Nelson to FERC resulted in revised instructions:

  • To search for comments, enter only the docket number (PL18-1), and do NOT include the sub-docket number; the system does not recognize sub-dockets numbers for anything but projects.
  • One cannot submit comments for this using e-comments – you must use e-filing. Apparently the simpler-to-use e-comments will only accept comments on projects, not on policy review.

The person to whom we talked at FERC kept saying, “Yes, we know there are all kinds of problems with the system, and yes, we know it is down a lot – they really need something better because it can’t handle the volume.” Seems like that is worthy of comment in and of itself!

With this new information, we urge everyone to comment to FERC on their permitting process.

You can also send comments and letters by U.S. mail, addressed to:

Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
888 First Street NE, Room 1A
Washington, DC 20426

West Virginia Public Broadcasting has published an interesting article, How Would You Improve the Natural Gas Pipeline Process?  It discusses comments made by many people, and includes links to their comments.

Appointment of a New FERC Commissioner Up in the Air

The resignation of Robert Powelson as a member of the Federal Energy Regulatory Commission (FERC) takes effect August 4 (see our June 29 article). To date, there has been no announcement from the White House regarding the timing of a nomination to fill the vacancy., which has prompted speculation as to how long FERC might once again be without a full complement of Commissioners.

The Atlantic Coast Pipeline and the Mountain Valley Pipeline were both approved in October with only three sitting Commissioners; Powelson’s departure leaves the Commission with two Democrats and two Republicans. On some recent votes, the remaining members have been on opposite sides on pipeline issues, with Democrats Richard Glick and Cheryl LaFleur dissenting on approval several recent natural gas pipeline projects over the issue of greenhouse gas emissions considerations and the question of market need. In an interview last week with E&E News, Senator Lisa Murkowski (R-AK), Chairwoman of the Senate Energy and Natural Resources Committee, expressed concern that FERC would be deadlocked on several important votes in the future, and said she is going to ‘put a fire’ on the issue.

The interview article further noted that “hopes of a speedy Senate confirmation could be complicated for Trump’s new FERC nominee by the looming debate over Supreme Court pick Brett Kavanaugh. Murkowski, a moderate pro-abortion-rights Republican, will be under particular pressure as a potential swing vote. Murkowski said she had not yet talked to anyone in the Trump administration about the open FERC job and declined to say who she thought should get the nod.”

Deadline for Comments on FERC Process: July 25


The deadline for commenting to FERC on revising its policies on review and authorization of natural gas pipeline proposals is July 25, 2018. FERC’s policies have not been revised since 1989!

FERC’s news release of April 19, 2018: Commission Initiates Notice of Inquiry into Pipeline Certificate Policy Statement

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.

A number of recent news stories have addresses FERC’s refusal to address broader impacts of pipelines on climate change and greenhouse gases, e.g. LaFleur defies FERC majority, will consider broad climate impacts of pipelines, and Federal appeals court dismisses pipeline case that charged FERC with bias.

Be sure to use docket number PL18-1-000 when submitting your comment to FERC, whether you submit electronically or by U.S. mail.

You may  submit a comment to FERC electronically (https://ferconline.ferc.gov/QuickComment.aspx).  

Directions to submit an e comment:

Go to https://ferconline.ferc.gov/QuickComment.aspx and fill in your information.  They will send you an email immediately. You will need to click on the link they provide in the email. It will take you to the FERC comment page. You will need to enter the docket number – PL18-1-000. After you have entered it, it should show up in a box, and you will need to click on the blue ‘+’ next to it. Then you copy and paste your comment into the provided box or write in your comment and submit.

You can also send comments and letters by U.S. mail, addressed to:

Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
888 First Street NE, Room 1A
Washington, DC 20426

To read other submissions to FERC:  You can search the FERC database of comments submitted on the ACP using either their General Search page or their Advanced Search page.  In both cases, be sure to include the docket number (PL18-1-000).  Note:  You should be aware that the search page and its functions on FERC’s Web site are temperamental and often non-functional – that in itself is something worthy of comments to FERC!