Category Archives: FERC

Kaine Calls for FERC Rehearings on MVP and ACP


In a January 5, 2018 letter to FERC Chair Kevin McIntyre, Senator Tim Kaine requested that FERC grant rehearings on the Mountain Valley Pipeline and Atlantic Coast Pipeline petitions and asked for clarification on “tolling orders,” which some suggest are a way for FERC to freeze legal appeals while allowing construction to move forward.

Full text is below and a copy of the actual letter is here.

Dear Chairman McIntyre and Commissioners:

I request that FERC grant rehearings on the Mountain Valley Pipeline and Atlantic Coast Pipeline petitions.

The Commission approved the MVP and ACP on 2-1 votes when two of the five commissioner slots were vacant. The split decisions were most unusual – 98% of FERC orders in 2016 were unanimous. Given that the Commission now has a full complement of five members, there is a real concern about whether the divided rulings by a partial Commission fairly reflect the FERC position.

In addition, I would like to request fuller understanding of “tolling orders.” In many cases in which a request for rehearing is filed, FERC issues a tolling order to take more than the allotted 30 days to decide on the request, during which time legal options are frozen but construction may proceed. This suggests that even if an original FERC decision changes upon either rehearing or judicial order, it could be moot if the project is already built and any impacts already felt. I would like to know whether this is your interpretation as well, and if so, whether you believe this is consistent with the intent of the rehearing option.

To be clear, I do not endorse or oppose the views of these petitioners on the substantive merits of these projects. Having Congress vote on individual projects would inevitably lead to partisan decision-making, and it is appropriate that a technical agency consider projects according to a robust public input process, laid out in federal law. I appreciate your recent announcement that the Commission would revisit its 1999 standing policy on pipeline applications, in light of major changes to the U.S. energy economy since then. It is important for the public to have confidence in the integrity of FERC’s process. All I request is for every step of that process to be followed to the fullest extent of the law.

Thank you for your consideration.

Sincerely,

Tim Kaine

2017 in Review

2017 was a busy year in the pipeline fight. Here are some highlights – there are a lot!

On December 30, 2016, FERC released the Draft Environmental Impact Statement (DEIS) for the proposed Atlantic Coast Pipeline. In response to requests from numerous elected officials and organizations, FERC extended the usual 45-day period for public comment so the deadline was April 6, 2017. Over January-March 2017 FERC held public hearings on the DEIS, where the majority of speakers (once beyond Dominion’s front-loaded supporters) pointed out omissions and inaccuracies in the DEIS, as well as numerous instances where Dominion had not provided required information. Thousands of groups and individuals, some property owners along the route and others not, filed comments with FERC.

On January 5, 2017, the Buckingham County Board of Supervisors ignored their constituents so thoroughly that after five hours of testimony almost totally opposed to the ACP compressor station in Buckingham County, they read a PREPARED statement approving the station, having obviously reached their decision well ahead of the meeting. On February 2 a complaint for declaratory relief was filed against the Supervisors and Dominion asking that the special use permit for the station be vacated.

FERC Commissioner Norman Bay resigned on February 3, and with only two remaining commissioners, FERC no longer had a quorum and could not issue decisions.

Judge Michael T. Garrett ruled in Nelson County Circuit Court on February 6, 2017, that Dominion may have access to survey for the proposed ACP on the property of landowners who had steadfastly denied access. The landowners filed a joint notice of appeal with the Virginia State Court of Appeals in early March.

On February 15 Oil Change International released two studies finding that if built, the controversial Mountain Valley and Atlantic Coast pipelines would together contribute as much greenhouse gas pollution as 45 coal-fired power plants — some 158 million metric tons a year. ACP basic facts: http://priceofoil.org/2017/02/15/atlantic-coast-pipeline-greenhouse-gas-emissions-briefing/ ACP full briefing: http://priceofoil.org/content/uploads/2017/02/atlantic_coast_pipeline_web_final_v3.pdf

In mid-March, Friends of Nelson released the Steep Slope Report by Blackburn Consulting Services, which concluded that “Dominion has not adequately identified those soils and landforms that are prone to debris flows (and) landslides.” The report also states that “the potential for debris flows in the very steep mountainous portions of Nelson County is underestimated by the reports submitted to FERC by Dominion.” Steep Slopes Study by Blackburn Consulting:
http://friendsofnelson.com/wp-content/uploads/2017/03/Final-Steep-Slope-Report-March-2017.pdf

On April 5 Friends of Nelson submitted comments to FERC on the DEIS – 96 pages including charts, diagrams, maps, and photos. Read it here: http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20170405-5161

On April 6, Virginia’s Department of Environmental Quality announced that both proposed Virginia pipelines, the ACP and the MVP, would be subject to DEQ water-quality review. This meant that DEQ would require water quality certifications under Section 401 of the federal Clean Water Act for each segment of both projects that crosses or potentially affects water bodies. But the next day, on April 7, 2017, DEQ provided water quality certification for the U.S. Army Corps of Engineers 2017 Nationwide Permits, thus issuing a blanket Clean Water Act section 401 certification for pipelines that are covered by the U.S. Army Corps of Engineers’ Nationwide Permit number 12. And in late May DEQ said they would not require specific water quality impact analysis for water crossings for the proposed ACP or MVP. On June 5, the Dominion Pipeline Monitoring Coalition (DPMC) filed suit against the DEQ in state Circuit Court for the City of Richmond, asking the court to rule that DEQ issued a Clean Water Act section 401 Water Quality Certification for construction of utility lines, including natural gas pipelines, in state waters without legal authority to do so and without ensuring water quality would be protected.

On April 27, a briefing paper released details on how Dominion intends to blast away, excavate, and partially remove entire mountaintops along 38 miles of Appalachian ridgelines as part of ACP construction, flattening them by anywhere from 10 to 60 feet. See http://friendsofnelson.com/press-release-acp-would-require-extensive-mountaintop-removal/

June 17-July 2: Walking the Line. Group walks the proposed ACP path for 150 miles, through Bath, Augusta and Nelson Counties, into the heart of Virginia, Buckingham County, where the walk ends at Union Hill, the site of the proposed compressor station.

On June 29, 2017, the Virginia Conservation Network, along with its partners Southern Environmental Law Center and Shenandoah Valley Network, sent a letter (signed by over 80 organizations) to Governor McAuliffe, DEQ Director David Paylor and the State Water Control Board asking them to use their full authority under the Clean Water Act to conduct a thorough and transparent review of stream and wetland crossings along the proposed ACP and MVP fracked gas pipeline routes and ensure that Virginia water quality standards are met.

And then there was one: Friday June 30, 2017, was FERC Commissioner Colette Honorable’s final day at FERC. Although a pair of Trump administration nominees remain on the sidelines awaiting Senate votes, Honorable’s a departure leaves the already quorumless panel with a single member.

At their meeting on July 4, members of Wintergreen Property Owners Association voted overwhelmingly for a new covenant prohibiting construction of “any lines, facilities, structures, or other appurtenances related to the transmission of utilities” if they do not provide services to the Association or its members.

The Federal Energy Regulatory Commission issued its final Environmental Impact Statement on the Atlantic Coast Pipeline on July 21, 2017. FERC has 90 days to make a decision on issuing a certificate of approval for the project. The full statement can be found here: https://ferc.gov/industries/gas/enviro/eis/2017/07-21-17-FEIS.asp. The summary statement from FERC staff said, “The FERC staff concludes that construction and operation of ACP and SHP would result in some adverse effects,” but that with adherence to mitigation measure and FERC staff recommendations “most, but not all of these impacts, would be reduced to less-than-significant levels.” FERC said their determinations were based on information provided by Dominion and ACP, with no mention of extensive contradictory information filed by a variety of experts.

Also on July 21, the U.S. Forest Service issued a draft Record of Decision to authorize the use and occupancy of National Forest System lands for the Atlantic Coast Pipeline. The Forest Service release statement is available at: https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd551404.pdf.

In July Friends of Nelson posted interactive maps showing the ACP route through Nelson County. See http://friendsofnelson.com/information-resources/maps/

Through August, DEQ held public hearings to receive comments on draft water quality certifications designed to protect water quality along the routes of the proposed ACP and MVP.

On August 3, 2017, the Senate voted to confirm Donald Trump’s nominees for the Federal Energy Regulatory Commission (FERC), Neil Chatterjee and Rob Powelson. They join Cheryl LaFleur, who had been the sole member of the five member commission, so FERC now has a quorum.

In mid-August, Friends of Nelson submitted extensive comments to DEQ on the proposed 401 Water Quality Certifications for the ACP. See http://friendsofnelson.com/friends-of-nelson-submits-comments-to-deq/ And a group of thirteen expert scientists and engineers submitted reports to the DEQ on August 22, finding that DEQ has failed in its duty to properly analyze and protect against the water quality damages the Mountain Valley Pipeline and Atlantic Coast Pipeline would cause to Virginia’s waters. See http://friendsofnelson.com/failure-to-meet-minimum-standards-of-scientific-proof/

On August 22, the Virginia Supreme Court agreed without argument to hear on appeal the survey suit against the ACP brought on behalf of six Nelson residents by Lollar Law. Briefings will take place in autumn 2017, and the oral arguments before the full seven-justice court will take place in late 2017 or early 2018. See http://friendsofnelson.com/virginia-supreme-court-to-hear-survey-case/

On August 22 in a 2-1 ruling, the Court of Appeals for the District of Columbia Circuit found that the Federal Energy Regulatory Commission (FERC) did not properly analyze the climate impact from burning the natural gas that a Florida pipeline project would deliver to power plants.

A lawsuit, filed September 5 in Washington D.C. federal district court, on behalf of 57 Landowners, Bold Alliance and Friends of Nelson, challenged the constitutionality of the eminent domain provisions of the Natural Gas Act, and seeking to end the unconstitutional and unconscionable process of taking citizens’ private property via eminent domain for a corporation’s profits — and not for “the public good” as the Constitution intended.

September 15-17: No Pipeline Action Camp held in Nelson County, sponsored by Friends of Nelson, Greenpeace, and Blue Ridge Rapid Response.

In mid-September North Carolina delayed by three months its decision on certification of the proposed Atlantic Coast Pipeline under section 401 of the federal Clean Water Act. This followed West Virginia’s September 7 announcement that the state was vacating its water quality certification for the proposed MVP in order to reevaluate. Virginia’s DEQ pressed ahead, even as other states hit the brakes.

In late September, Dan Weekley, Dominion Energy’s vice president and general manager of Southern pipeline operations, told attendees at an energy conference ‘everybody knows’ the Atlantic Coast Pipeline — currently slated to pass through Virginia, West Virginia and North Carolina — is not going to stop there, despite what the current plans say, and that the ACP will be extended into South Carolina.

The NC DEQ disapproved the erosion and sedimentation control plan submitted to the agency by the ACP, Their September 26, 2017, letter of disapproval, cites 17 specific deficiencies in the submitted plan as grounds for disapproval.

Late on Friday evening October 13, FERC approved both the ACP and the MVP. Authorization had been widely expected by both supporters and opponents of the pipelines. The certificates granted by the commission came with dozens of conditions, and other necessary permits for both projects are still pending. The approval was issued with a highly unusual dissenting opinion by Commissioner Cheryl A. LaFleur. The FERC permit is not the final word on the projects. VA, NC and WV must still issue environmental permits.

Meeting in Richmond on October 16, the Virginia Outdoors Foundation (VOF) voted to approve Dominion’s application for 11 land conversions of open-space easements on the route of the proposed ACP through southern Highland, northern Bath, Augusta and Nelson counties, and approved a single swap for the proposed Mountain Valley Pipeline near Roanoke.

On October 18 Dominion released a proposed construction plan, see http://friendsofnelson.com/wp-content/uploads/2017/10/Dominion-construction-plan20171018-5002-32464467.pdf, When they sent their original “we want your land” letters in spring 2014, Dominion planned to start construction of the ACP in the Fall of 2016 and have the pipeline in service sometime early in 2018. But Dominion did not expect so many people and organizations to fight back!

On November 2, 2017, the Senate approved Trump’s final two nominees to FERC, giving the Commission the full five members for the first time in two years.

On November 13, a motion was filed with the Federal Energy Regulatory Commission (FERC) requesting a rehearing of the Commission’s order issuing a certificate for the Atlantic Coast Pipeline. The petition, filed on behalf of 22 organizations (including Friends of Nelson) and 10 individuals. See https://www.abralliance.org/wp-content/uploads/2017/11/Petition_for_Rehearing_to_FERC_20171113.pdf.

On November 14 Friends of Nelson filed a Request for Rehearing with the Federal Energy Regulatory Commission (FERC) on FERC’s decision to issue a Certificate of Convenience and Necessity for the Atlantic Coast Pipeline. The filing is on behalf of 63 property owners and citizens of Nelson County, and 4 community organizations.

The NAACP released a report on November 14, Fumes Across the Fence Line: The Health Impacts of Air Pollution from Oil & Gas Facilities on African American Communities. “The life-threatening burdens placed on communities of color near oil and gas facilities are the result of systemic oppression perpetuated by the traditional energy industry, which exposes communities to health, economic, and social hazards. Communities impacted by oil and gas facility operations remain affected due to energy companies’ heavy polluting, low wages for dangerous work, and government lobbying against local interests.”

On November 17, the US Forest Service released a final Record of Decision (ROD) approving amendments to the Forest Plans for the Monongahela National Forest and the George Washington National Forest to accommodate the Atlantic Coast Pipeline (ACP).

Late in the afternoon on December 7, 2017, after two days of hearings, the Virginia State Water Control Board approved water quality certification for the Mountain Valley Pipeline. The vote was 5-2, with members Roberta Kellam and G. Nissa Dean dissenting.

On December 12, 2017, the Virginia State Water Control Board voted 4 to 3 to approve certification under Section 401 of the Clean Water Act the Atlantic Coast Pipeline. However, the approval does not immediately grant the 401 water permits requested by Dominion; it is subject to certain conditions and to information which must be provided by the ACP. The permit can’t take effect until several additional studies are reviewed and approved by DEQ, including soil and erosion control plans and stormwater management plans. Although this is not an outright denial of the permits, it does not allow Dominion to move forward at this time.

SO…. As we move into fourth year of the pipeline fight, we know the ACP is closer to receiving all final approvals, but we continue our work to stop this economically unnecessary and environmental damaging project. Legal challenges to some approvals have already been filed, more are being evaluated. No, the pipeline is NOT a done deal.

FERC to Review Its 1999 Pipeline Policy Statement


News release from FERC
, December 21, 2017

“The Federal Energy Regulatory Commission (FERC) will review its policies on certification of natural gas pipelines, Chairman Kevin J. McIntyre said today. The policy governs how the Commission evaluates natural gas pipeline proposals that come before it.

“McIntyre said the Commission will examine the Policy Statement on Certification of New Interstate Natural Gas Pipeline Facilities, issued in 1999, as part of a pledge he made during his Senate confirmation to take a fresh look at all aspects of the agency’s work.

“‘I believe we in the government should constantly be examining our various processes and procedures to see if we can do anything better,’ McIntyre said. ‘Much has changed in the energy world since 1999, and it is incumbent upon us to take another look at the way in which we assess the value and the viability of our pipeline applications.’

“The next steps will be announced in the near future, McIntyre said, adding that the format and scope of the review are being discussed. But he said that any review of this type would be thorough, and the Commission would invite the views of all stakeholders to ensure that FERC accurately and efficiently assesses the pipeline applications it receives.

“’I am approaching this topic with an open mind and want the staff and the Commission to take a fresh look at all aspects of the issue,’ he said.”

In an interview with Open Access, McIntyre also said he wants to bring more transparency to FERC’s decision-making process. “‘As a matter of good governance, I would like to see us move in the direction of making FERC more transparent,’ he said. ‘As a practitioner, I know first hand what it’s like to wonder when on earth the commission is going to make a decision on a given matter. I think we owe it to stakeholders and the public itself to be as transparent as we can possibly be.'”

What’s Next?


On December 12, 2017, the Virginia State Water Control Board, by 4-3 vote, conditionally approved ACP certification.  The conditional approval, issued formally by the Department of Environmental Quality on December 20, makes it clear that the effective date when ACP construction can start is delayed until several conditions are satisfied:

  • This certification shall be effective only following submission, review and final approval as required by law of the Karst Mitigation Plan, Annual Standards and Specifications, and Erosion and Sediment Control Plans and Stormwater Management Plans, and a report to the Board and the public by DEQ on the adequacy of these materials. The Board may consider further actions on the Certification following the review of the DEQ report.
  • Pursuant to 33 U. S.C. § 1341 (a)(3), the Board reserves the right to impose further conditions if any existing plans and/or mitigation measures are amended by the Owner and/or FERC that may materially reduce the water quality protection provided thereunder.

Dominion thus has a conditional certification, but one which does not allow them to begin construction as planned before the end of 2017. The projected date for completing the required studies is March or April 2018. However, Dominion, regardless of the fact that they do not have the required permits from North Carolina and have only a conditional one from Virginia, wants to start construction preparations immediately. The ACP has asked FERC for permission to begin limited tree cutting. DEQ has given an opinion that under Virginia regulations some cutting may be allowed where the activities do not qualify as “land disturbance.” Dominion Pipeline Monitoring Coalition (DPMC) believes DEQ does have the authority to prohibit any tree cutting that is related to the project and will advocate that view.

Both Friends of Nelson and a group of 13 organizations headed by Shenandoah Valley Network have submitted documents to FERC opposing the ACP’s petition.  They state that:

  • Multiple permits and approvals are outstanding or incomplete, including Clean Water Act Section 401 Certifications in Virginia and North Carolina, the National Historic Preservation Act Section 106 Programmatic Agreement, the Clean Water Act Section 404 permit, formal consultation under the Endangered Species Act, and state erosion and sediment control and stormwater management plans. The Commission also has not resolved numerous requests for rehearing and motions for stay.
  • In North Carolina, state law prohibits tree felling because the state has not fully approved Atlantic’s proposed Erosion and Sedimentation Control Plan. North Carolina has also not issued a Section 401 Certification for the project. And in West Virginia, the Department of Environmental Protection has not approved a required stormwater permit.
  • In Virginia, the State Water Control Board has not issued an effective Section 401 Certification for the project, and therefore, Atlantic does not have the required state approval for tree felling. The Board is not expected to make a final decision on whether to certify the project until March or April 2018 at the earliest.
  • Reviews could result in possible denial of the final permit, changes in the route, or further conditions placed on the Atlantic Coast Pipeline. In addition, the Section 106 permits are still outstanding, and while ACP intends to avoid these areas, adjacent properties could potentially be impacted and there is a possibility of minor or significant route changes.

A December 22, 2017 Richmond Times-Dispatch article, Atlantic Coast Pipeline wants to start cutting down trees, discusses Dominion’s petition to FERC to begin tree cutting, outlines the stated position of the North Carolina and Virginia DEQ, and describes the objections of pipeline opponents.  The article quotes from “the filing submitted by the Southern Environmental Law Center in Charlottesville on behalf of more than a dozen conservation groups. ‘At this point, it is unknown whether Atlantic will obtain all of the necessary approval and permits to move forward with its project,” the document says. “The commission must reject Atlantic’s attempts to cut corners and pre-empt state authority by denying the company’s premature request.’”

Although DEQ has said some cutting may be allowed where the activities do not qualify as “land disturbance,” the article also reports that SELC’s filing, “citing the DEQ’s own stormwater management handbook, notes that ‘interception,’ the amount of rainfall that fails to reach the ground because it gets caught in the tree canopy and evaporates, plays a crucial role in reducing runoff.  ‘Clearing removes the vegetation that intercepts, slows and returns rainfall to the air through evaporation,’ the handbook says, according to the filing. ‘As Virginia DEQ has acknowledged, “raindrops hit the exposed soil like tiny bombs,”’ the opponents argued, citing a DEQ document called Fundamentals of Erosion and Runoff.  Asked to respond to those contentions, Golden [DEQ’s director of operations] said he had no comment.”

Read DPMC’s post, What Did the Water Control Board Do?
The Virginia DEQ December 20, 2017, 401 Water Quality Certification (conditional) is here.
The ACP petition to FERC for permission to begin cutting trees is here.
Friends of Nelson letter to FERC opposing Dominion’s tree cutting is here.
The filing to FERC by Southern Environmental Law Center on behalf of Shenandoah Valley Network and others opposing tree cutting is here.
The Richmond Times-Dispatch article is here.

Wintergreen Property Owners Plan to Sue ACP


Press Release from Friends of Wintergreen, November 20, 2017:  Nearly 1,000 Wintergreen Property Owners Plan To Sue the Atlantic Coast Pipeline.  Contact Jonathan Ansell, 804-405-1109

Friends of Wintergreen announced today that nearly 1,000 Wintergreen property owners, a number that is growing daily, plan to individually sue the Atlantic Coast Pipeline for damages to their property if the pipeline company seizes land used by the Wintergreen community. These actions follow a rare split-decision by the Federal Energy Regulatory Commission (FERC) to approve the 600-mile, 42-inch compressed natural gas Atlantic Coast Pipeline (ACP) and grant the private pipeline company the power to use eminent domain to seize private land, including 7-acres of common land at Wintergreen.

“By approving the ACP, FERC effectively guarantees a 14% profit (or over $200 million a year) to the Dominion-managed pipeline company, a return that comes at the expense of many unwilling, uncompensated or under-compensated Virginia landowners”. In the case of Wintergreen property owners, the land to be seized by the pipeline will come with no compensation to individual property owners, but significant inconvenience and damage to their property values” said Jonathan Ansell, Chairman of Friends of Wintergreen, Inc.

Most of the individual “inverse condemnation” lawsuits will be managed by the Norfolk-based eminent domain law firm, Waldo & Lyle PC. According to Brian Kunze, Partner at the firm: “Under the US Constitution and Virginia law, no private property can be damaged or taken for public use without just compensation to the owner. If a property owner does not receive compensation for the taking of land, as is the case for nearly 4,000 individual Wintergreen owners, these owners are entitled to obtain compensation under a legal procedure known as “inverse condemnation”. We intend to file these cases the day after the ACP takes Wintergreen property”.

Separately, Friends of Wintergreen and the Wintergreen Property Owners Association (WPOA) filed a legal action with FERC to halt the construction of the pipeline until a full rehearing is completed. “We believe that FERC’s approval of the pipeline was arbitrary, capricious and not supported by the substantial evidence and alternatives we and others have provided”, said Jay Roberts, Executive Director of the WPOA. “On October 13, the FERC Commission voted 2 to 1 to approve the ACP, a rare split-decision in a federal agency where 98% of votes are unanimous”, noted Ansell. The dissenting opinion was issued by a Commissioner with seven years experience on the FERC Commission; the two Commissioners who approved the ACP were each on the job for about 60 days.

Friends of Wintergreen, Inc. is a not-for-profit corporation dedicated to protecting and enhancing the value, beauty, integrity, and sustainability of the Wintergreen VA area.