The three Republican Trump appointees on the Federal Energy Regulatory Commission (FERC) voted on June 15, 2018, to uphold FERC’s previous approval of the Mountain Valley Pipeline and denied a request for rehearing. Democrats Cheryl LaFleur and Richard Glick dissented, questioning the finding of a market demand, since all of the pipeline’s shipping agreements are with corporate affiliates of the project’s five developers. When the rehearing request was filed in late 2017, FERC issued a tolling order, meaning the project was allowed to go forward while awaiting FERC’s action on the rehearing request. Thus, construction is well already underway. However, FERC’s formal refusal to rehear means a direct legal challenge by pipeline opponents may now go forward.
A motion was filed June 11, 2018, with the Federal Energy Regulatory Commission requesting that the agency immediately revoke its May 11, 2018, authorization for construction to proceed in West Virginia for the Atlantic Coast Pipeline. The action, filed by the Southern Environmental Law Center on behalf of Defenders of Wildlife, Sierra Club and Virginia Wilderness Committee, was prompted by a report last week to ABRA’s Compliance Surveillance Initiative (CSI) of construction activity occurring south of Buckhannon, West Virginia (in Upshur County). The construction work was subsequently verified by photographic evidence produced by the ABRA/CSI Pipeline Air Force (one of the photos is above).
In Monday’s filing, SELC said:
Petitioners request that the Commission grant rehearing, immediately revoke the West Virginia Notice to Proceed, and stay all pipeline construction authorized by the Notice. On May 15, 2018 the Fourth Circuit Court of Appeals vacated the Fish and Wildlife Service’s Incidental Take Statement for the Atlantic Coast Pipeline. Therefore, Atlantic and Dominion are not in compliance with two mandatory conditions of the project’s Certificate Order: Environmental Condition 54 and Environmental Condition 10. Certificate Order, Appendix A, ¶¶ 10, 54. Both of these conditions require a valid incidental take statement before pipeline construction proceeds.
A copy of the full SELC motion is available here.
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. (See our story on January 5, 2018)
In a letter dated February 5, 2018, FERC responded to Kaine, saying, “On October 13, 2017, when the Commission had a quorum consisting of three commissioners, the Commission approved both the MVP and ACP Projects. Although the decision on those projects was not unanimous, it was a Commission approval that remains valid without regard to the number of commissioners present today.”
The requested clarification on “tolling orders” is not very clear. FERC suggests that the tolling order does not necessarily help the pipeline developer because, after all, should the developer go ahead and continue work, it “bears the risk that the Commission will revise or reverse the initial decision or that the Commission’s order will be overturned on appeal.” Of course, the risk of irreversible damage being done to a landowner’s property is not even mentioned.
Show your support for Senator Kaine’s request and urge your Congressional representatives to do the same!
The ACP and MVP would be the largest emitters of greenhouse gases in the region with more than 95 million tons of GHG emissions per year. These pipelines would increase the threat of climate change and impose significant environmental damage to our mountains, streams and rivers.
We don’t need these pipelines to meet our energy needs. Companies like Dominion Energy have created the illusion of demand by selling the pipeline’s capacity to their own subsidiaries.
Sign the Sierra Club petition! Ask your representative to call on FERC for rehearings now!
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.
On November 13, 2017, Friends of Wintergreen and the Wintergreen Property Owners Association filed a rehearing request and temporary injunction to stop the construction of the Atlantic Coast Pipeline in the Wintergreen area, saying “FERC’s approval was arbitrary and capricious and not based on facts on (and in) the ground.”