FERC Answers Kaine

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.