BREAKING: FERC Rejects Requests for “Rehearing” on Mountain Valley Pipeline Certificate; Strong Dissents by Obama- and Trump-Appointed Commissioners Worth Highlighting

The following response by the Federal Energy Regulatory Commission (FERC), issued this afternoon, to requests for a “rehearing” on FERC’s October 2017 “Certificate Order” for the Mountain Valley Pipeline (MVP) is long – 172 pages! – so I understand if you don’t want to read the whole thing. 🙂 With that in mind, here are a few highlights, including from the excellent – and relatively short – dissents by Commissioners LaFleur and Glick.

• I skimmed the entire FERC order, and while it’s very detailed, the main, recurrent argument seems to be – above all else – that the majority of FERC commissioners simply assert that “we disagree” (I found at least 38 instances of that phrase) with the detailed arguments against approving the Mountain Valley Pipeline put forth by individuals and organizations like the Blue Ridge Land Conservancy; the Nature Conservancy; the New River Conservancy; Preserve Montgomery County; the Blue Ridge Environmental Defense League; Appalachian Mountain Advocates; Preserve Craig; Roanoke, Giles and Craig Counties; etc.
• Basically, the FERC commissioners rejecting the request for “rehearing” do so for a bunch of reasons – some “procedural” (e.g., “Untimely Requests for Rehearing,” “Party Status,” “Deficient Requests for Rehearing,” “Due Process”; whether the “Final EIS Properly Assessed the Project’s Purpose and Reasonable Alternatives”) and some substantive (e.g., whether the pipeline is actually “required by present or future public convenience and necessity”; whether there is actually “market demand” for the gas; whether the need for the project was appropriately balanced against harms to landowners and communities; that “The MVP Project Satisfies the ‘Public Use’ Standard of the Takings Clause” per the Kelo decision; “eminent domain” issues; whether a “blanket certificate” is appropriate; whether or not “The Draft EIS Satisfied NEPA Requirements”; “Threatened and Endangered Species Impact”; “Geology,” including “karst terrain,” “seismicity” and “rugged topography”; potential impact on surface water, groundwater; environmental mitigation measures such as “erosion and sedimentation plans” and reseeding/replanting of forest (“revegetation”), down to the level of the type of seed mix to be used; potential impact on wildlife/bird habitats and “forest fragmentation”; impact on property values; “visual impacts”; “safety”; “historic properties”; and last but MOST DEFINITELY NOT least – “Greenhouse Gas (GHG) Emissions and Climate Impacts” (including whether the “social cost of carbon” is appropriate/valid/relevant).
• In short, the three FERC Commissioners (McIntyre, Chatterjee and Powelson) voting to reject the “rehearing” request – and note that all three of them (McIntyre, Chatterjee and Powelson) are Trump appointees – basically argued down every one of the objections raised, for various reasons which you can read through in the order, below. Personally, I find their arguments highly detailed but, ultimately, highly unpersuasive. But don’t take my word for it; check out the powerful dissents, by Commissioners LaFleur (Obama appointee) and Glick (Trump appointee, believe it or not!), which I will summarize in the next two bullets.
• First, LaFleur argues strongly that: 1) as was the case originally, “I still do not find the MVP project is in the public interest”; 2) “I am concerned about the majority’s response to stake holders who have tried to access documents relevant to this proceeding, including precedent agreements”; and 3) “I disagree with the treatment of climate impacts.” On that latter point, LaFleur argues – convincingly, in my view – that “With respect to GHG emissions, as I have stated repeatedly, the Commission should quantify and consider the downstream impacts of GHG emissions.” LaFleur further argues that, in fact, “The Social Cost of Carbon is a scientifically-derived metric to translate tonnage of carbon dioxide or other GHGs to the cost of long-term climate harm.” And perhaps the key, IMHO, is this: “I reject the notion that the Social Cost of Carbon cannot meaningfully inform the Commission’s decision
  -making” and that “I do not believe that the difficulty of considering climate change relieve us of the obligation to consider climate change impacts as part of our environmental review.” To my way of thinking – and LaFleur’s, clearly – the climate impact of the Mountain Valley Pipeline ALONE should be sufficient reason not to approve it. This shouldn’t even be a close call, as I see it, not even taking into account all the other economic, environmental, etc. reasons to reject this project.
• As for Trump-appointed Commissioner Glick, surprisingly he calls two issues “particularly egregious”: 1) “The mere existence of affiliate precedent agreements  – which, by their very nature, are not necessarily the product of arms-length negotiations —  is insufficient to demonstrate that the Projects are needed”; 1a) “The Commission Has Not Demonstrated that the Projects Are Needed”; and 2) that, “[i]n order to meet our obligations under both NEPA and the NGA, the Commission must adequately consider the environmental impact of greenhouse (GHG) emissions on climate change.” According to Glick, “[b]oth of these considerations  — the need for the Projects and their contribution to the harm caused by climate change — are critical to determining whether the Projects are in the public interest.” Therefore, Glick concludes, “the Commission’s failure to adequately address them is a sufficient basis for vacating this certificate” and “I dissent from today’s order.” Exactly!
• In sum, I believe strongly that the two dissenting FERC commissioners – one appointed by President Obama and one by President Trump – are absolutely correct, and that the Mountain Valley Pipeline should NOT have been approved. I strongly disagree with the three Trump-appointed Commissioners, who basically blow off each and every argument made against approving this project, in great detail but ultimately without proving their case, IMHO. This decision, again, shines the spotlight on Gov. Northam and on Virginia’s authority under Section 401 of the Clean Water Act. Now, more than ever, it is time for Virginia to act, and at the bare minimum to demand a detailed, stream-by-stream analysis of this fatally flawed project.