Atlantic Coast Pipeline
The Federal Energy Regulatory Commission (FERC) has ordered the Atlantic Coast Pipeline to stop construction because it does not have the proper permits and approvals.
In previous episodes
There are three things going on that always have had the potential to stop construction of the Atlantic Coast Pipeline, at least temporarily. The first is the difficulty with approvals by the Fish and Wildlife Service on its efforts to protect endangered species.
FERC is the big dog in this fight. It gets to decide the big question: whether the Atlantic Coast Pipeline gets built at all. In deciding the big question, it relies upon the decisions of several other agencies. These decision by other agencies serve as the building blocks upon which the big decision is based.
One of these other agencies is the United States Fish and Wildlife Service. It has to decide whether the developers have an adequate plan to avoid harm to endangered species.
There are eight different endangered species which are potentially imperiled by the Atlantic Coast Pipeline. The Pipeline developers are supposed to make a plan on how they will avoid harm to these species; the Fish and Wildlife Service is supposed to approve the plan.
The Fish and Wildlife Service had approved the Atlantic Coast Pipeline’s plan for avoiding harm to endangered species. As reported in the May issue of The Highlands Voice, the United States Court of Appeals for the Fourth Circuit decided that the pipeline’s developers’ plan was inadequate and sent it back to the drawing board.
The second thing that could stop construction of the pipeline is difficulty getting approval from the National Parks Service. The pipeline’s proposed route intersects the Blue Ridge Parkway, a unit of the National Park System managed by National Park Service. The National Park Service issued a right-of-way permit allowing the pipeline to drill and pass underneath the Parkway surface. The pipeline will also carve a path through a nearby forest, affecting views from the Parkway’s scenic overlooks.
Just as they had with the United States Fish and Wildlife Service decision on endangered species, several environmental and citizen groups petitioned the United States Court of Appeals for the Fourth Circuit.
The Court decided that the National Park Service had improperly issued the right-of-way. Unlike the National Forests (which are managed for multiple uses) the Blue Ridge Parkway is like a National Park. It is only managed for conservation. The National Park Service could only issue a right-of-way if it determines that the right-of-way is part of a conservation use. In the words of the Court, “the right-of-way permit in this case would violate statutory requirements if not accompanied by a valid agency determination that the pipeline is not inconsistent with the Parkway’s scenic value and the public’s enjoyment thereof.”
According to the Court, the National Park Service’s failure was to explain its conclusion that the pipeline right-of-way would be a conservation use. There was evidence before the agency that it would not be such a use. Theoretically the Park Service could have weighed this evidence and any other and decided that a pipeline right-of-way was a conservation use. It could have, but it didn’t. It just determined, without apparently thinking about it, that this right-of-way was consistent with its duty of manage the Blue Ridge Parkway for conservation, and only conservation. The Court considered such acting without weighing any evidence or making a reasoned decision to be illegal.
The third thing that has the potential to stop the Atlantic Coast Pipeline, at least temporarily, is its failure to get the proper approvals for its stream crossings. The Clean Water Act requires that all pipelines that cross streams or wetlands have a permit. Developers may either seek an individual permit for each crossing or seek to qualify under a Nationwide Permit.
Nationwide Permits are issued for large classes of activities. They are appropriate for projects with minimal individual and cumulative environmental impacts. It is a one size fits all approach for lots of nearly identical activities that have small impacts. Individual permits are site specific; developers would submit an individual plan for each crossing and regulators would look at each one individually. Developers of the Atlantic Coast Pipeline sought to use the less site specific Nationwide Permit.
As reported inthe August issue of The Highlands Voice, several environmental and citizen groups had asked the United States Court of Appeals for the Fourth Circuit to stop the pipeline because the Atlantic Coast Pipeline was trying to use the wrong kind of Clean Water Act permit. It was trying to use the less specific Nationwide Permit instead of the more site specific individual permit.
Now what has happened
The Court of Appeals had ruled that the Fish and Wildlife Service and the National Park Service had each been mistaken in its ruling on the Endangered Species Act and the management of the Blue Ridge Parkway. Even though the Court told the agencies that they had to go back and try again, it did not stop the pipeline construction in the meantime.
This left things to the Federal Energy Regulatory Commission. It ordered construction to stop along the whole length of the pipeline route. It assumed that the Atlantic Coast Pipeline would be able to eventually straighten out its problems with endangered species and the crossing of the Blue Ridge Parkway. At the same time, however, FERC could not predict when that would be or what new approvals would require. FERC wanted to avoid the possibility that changes in these two approvals would make it necessary to change the route of the rest of the pipeline, raising the possibility that land along the route that the Atlantic Coast Pipeline had to abandon had been disturbed for nothing.
The Court of Appeals has also acted on the request to shut down construction because the ACP does not have the proper permit under the Clean Water Act. The Court denied that request, at least for right now. It said that it did not have sufficient evidence that the permit which the ACP sought to use was improper. Because of this, it would not stop construction until it had a more complete hearing.
This does not, however, settle the matter. The United States Army Corps of Engineers has the responsibility to approve use of a Nationwide Permit by the Atlantic Coast Pipeline. Because of the controversy, it has temporarily suspended stream crossings in the West Virginia portion of the pipeline.
Now where are we
Construction on the Atlantic Coast Pipeline has stopped, sort of. In its order stopping construction until the developers could straighten out problems with the Endangered Species Act and crossing the Blue Ridge Parkway, FERC had allowed the developers to continue work necessary to stabilize the right of way and work areas. ACP has prepared a plan to do this and FERC has issued another letter detailing what ACP is allowed to do while FERC’s stop work order is in effect. Construction has stopped other than what is in that letter.
The Mountain Valley Pipeline
The Federal Energy Regulatory Commission has ordered construction on the whole length of the Mountain Valley Pipeline stopped, subject to some conditions.
As originally planned, the Mountain Valley Pipeline would run 300 miles from Wetzel County, West Virginia, to Pittsylvania County, Virginia. EQT Corporation, the project’s parent company, had originally said that it would be finished in late 2018; it has recently announced that it would be finished in early 2019. The planned route takes it through the Jefferson National Forest.
The pipeline as a whole must be approved by the Federal Energy Regulatory Commission (FERC). FERC’s job is to promote reliable and efficient and sustainable energy services at a reasonable cost. It decides whether a proposed pipeline is necessary and will serve the needs of consumers. It had previously decided that the Mountain Valley Pipeline was necessary.
Because the pipeline was slated to cross the Jefferson National Forest, it would have to be approved by the United States Forest Service (which manages the National Forests) and the Bureau of Land Management (which manages land which the United States owns). Both of these agencies had previously approved the pipeline’s crossing of the Jefferson National Forest.
In a previous episode
As reported in the August issue of The Highlands Voice, the United States Court of Appeals for the 4th Circuit Court vacated the Bureau of Land Management’s decision to grant a right of way, and the U.S. Forest Service’s decision to allow a right of way and construction through the Jefferson National Forest after both were challenged by a coalition of citizen and environmental groups.
Now what happened?
Once the pipeline was stopped, at least for now, in the Jefferson National Forest, the question remains what happens along the rest of the route. Only a small fraction of the pipeline is planned for the Forest. Even if, under the Court’s Order, construction could not go ahead in the Forest, could it go ahead on other parts of the line?
The Federal Energy Regulatory Commission says no. In its order it ordered all construction all along the line to stop. While it assumes that the Mountain Valley Pipeline will be able to eventually get proper approval to cross the Jefferson National Forest, the approval might end up making it necessary to move other parts of the line. FERC does not want to allow construction to continue in one spot with the possibility that changes in the route across the National Forest might make it necessary to put the pipeline in a different spot.
But what about areas where the developers had begun construction already? The FERC order covered that too. It allowed work that was necessary to stabilize the right of way and work areas.
In response, the Mountain Valley Pipeline asked that it be allowed to continue to work on the first 77 miles of the pipeline. It said that it had already cleared the right of way, dug the ditches for the pipe and moved the pipe to the site. It said that if it couldn’t reclaim the site without substantial earth moving; at the same time, it could not just walk away and leave the site idle while it straightened out its permitting problems with the Jefferson National Forest. It said it feared vandalism, corrosion, and erosion at the site were it left idle.
FERC bought it. It allowed construction to continue on the first 77 miles of the pipeline.
Meanwhile, politics has once again intruded itself into the process. BothSens. Joe Manchin and Shelley Moore Capito as well as Rep. David McKinley, R-W.Va. urged the Federal Energy Regulatory Commission to allow construction to resume on the Atlantic Coast Pipeline and Mountain Valley Pipeline as quickly as possible.