By Cindy Rank
The saga of pipelines appears to have no end.
As the courts continue to wrangle with the adequacy of permits from federal agencies (Fish and Wildlife, Forest Service, and Army Corps of Engineers) the Federal Energy Regulatory Commission (FERC) has stepped out on its own to give Mountain Valley Pipeline (MVP) permission to continue construction for portions of the pipeline.
Wait – What ?
They don’t have permits but are allowed to proceed ?????
In 2018, the 4th U.S. Circuit Court of Appeals vacated authorizations issued by the Bureau of Land Management and U.S. Forest Service for the pipeline to cross 3.5 miles of the Jefferson National Forest in West Virginia and Virginia. FERC subsequently issued a stop-work order barring construction in a 25-mile exclusion zone between two watersheds to protect the forest’s waterbodies.
On December 17th FERC ruled in a 2-1 vote among its three commissioners that construction along a 17-mile segment of that zone through Giles and Craig counties in Virginia, just outside of West Virginia, would not contribute sediment to any part of the forest or any waterbody that flows into it.
The decision follows the Forest Service’s issuance earlier this month of an environmental impact statement that is thought by some to support plans for the pipeline to pass through the Jefferson National Forest.
As noted in a Charleston Gazette-Mail article December 24, 2020, FERC Commissioner Richard Glick called the commission’s order “a serious mistake,” noting that federal courts have repeatedly invalidated various federal permits that Mountain Valley Pipeline needs to finish construction and opining that the FERC has failed to take seriously, in this and past rulings, an environmental condition that requires the pipeline to secure all federal permits before it can take any action to construct the pipeline.
“The Commission’s … contention that the condition is relevant only when a pipeline first commences construction, makes the condition look like an excuse for justifying the Commission’s practice of granting conditional certificates and not a serious attempt to protect the environment or the public interest,” Glick wrote.
We couldn’t agree more.
Mountain Valley Pipeline proposes Certificate Amendment
In mid-November, MVP applied to FERC for an amendment to its certificate of need hoping to resolve some of its stream crossing issues.
The application is an attempt to skirt the issue of Corps permitting with a new proposal to bore under streams in the first 77 miles of the pipeline thus avoiding the need for permits from the Army Corps of Engineers.
On December 22nd and acting on behalf of WVHC and seven other plaintiffs Ben Luckett of Appalachian Mountain Advocates filed a motion to intervene including comments in opposition to MVP’s application for the certificate amendment.
“Mountain Valley has requested authorization to change the method of waterbody crossing for the first 77 miles of the Mountain Valley Pipeline (“MVP”) from a dry open-cut method to a conventional bore method. As explained below, the actions for which Mountain Valley has requested authorization—boring under 69 streams and wetlands at 41 locations—pose serious environmental risks that were not disclosed in the Final Environmental Impact Statement on which the certificate of public convenience and necessity for the MVP relies.”
As we so often say, stay tuned.