FERC Rejects Rehearing Request for ACP

Around 11 pm on Friday evening August 10, 2018, the Federal Energy Regulatory Commission posted on its website and sent to intervening parties its decision to reject the many petitions that have been pending before the Commission to rehear its October 13, 2017 decision to issue a permit for building the Atlantic Coast Pipeline
. The action occurred on a 2-1 vote, with Commissioner LaFleur dissenting. Commissioner Glick did not participate and posted on his own website page a short explanation of why he decided not to participate (discussed below).

The 162 page Order, including Commissioner LaFleur’s 12 page dissent, is available at https://elibrary.ferc.gov/idmws/file_list.asp?accession_num=20180810-3073. Mindful that some people may not wish to wade through the entire document, ABRA’s Lew Freeman has reviewed it and prepared a 3-page summary of highlights from the Order as it addressed some of the issues raised by the various petitioners.

Commissioner LaFleur’s excellent dissent begins on page 152 of the Order, but you can also access it directly from her website page at https://www.ferc.gov/media/statements-speeches/lafleur/2018/08-10-18-lafleur-ACP.pdf. In her opening paragraph, she states:

I did not support the Commission’s underlying order authorizing the ACP Project because I concluded the project as proposed was not in the public interest.2 My consideration of the ACP Project was influenced by my consideration of the certificate application of the Mountain Valley Pipeline (MVP) Project,3 which was decided on the same day as the ACP Project. After carefully balancing the aggregate environmental impacts resulting from the authorization of both of these projects against the economic need of the projects, I could not find either proposal in the public interest. I am dissenting today on the rehearing order for the following reasons: (1) I still do not find the ACP Project is in the public interest. I disagree with the Commission’s approach to evaluating system and route alternatives, particularly in light of the recently-issued Fourth Circuit Court of Appeals (Fourth Circuit) decision which vacated the National Park Service’s (NPS) federal authorization allowing the ACP Project to cross the Blue Ridge Parkway; (2) I disagree with the treatment of climate impacts; and (3) I have serious concerns regarding the majority’s articulation of how a project’s environmental impacts weigh into the Commission’s finding that a project is required by the public convenience and necessity under the Natural Gas Act (NGA).

Commissioner Glick’s says in his explanation of why he did not participate in the vote:

I chose not to participate in today’s order denying rehearing of the Commission’s October 13, 2017 order issuing a Certificate of Public Convenience and Necessity to the Atlantic Coast Pipeline (ACP) Project (CP15-554-002; CP15-555- 001; and CP15-556-001) solely to enable those parties challenging the Certificate to have their day in court. If I had voted, the rehearing order would have failed on a 2-2 vote (Chairman McIntyre also is not participating in this proceeding), and pursuant to the requirements of section 19 of the Natural Gas, the appellate courts would not have had jurisdiction to review the Commission’s decision to grant the Certificate. 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.

Glick’s complete statement is at https://www.ferc.gov/media/statements-speeches/glick/2018/08-10-18-glick-ACP.pdf.

(Many thanks to ABRA’s Lew Freeman for organizing this information and preparing the summary!)