The Lewis F. Powell Jr. federal courthouse in Richmond is home to the U.S. Court of Appeals for the 4th Circuit, which has been a key battleground over the Atlantic Coast and Mountain Valley pipelines. (Ned Oliver/ Virginia Mercury)
The Federal Energy Regulatory Commission may have to soon figure out how to paper over another defect in the federal permitting process for the Atlantic Coast Pipeline.
Environmental groups asked FERC Tuesday for another stop-work order on the 600-mile, Dominion Energy-led project after the U.S. Court of Appeals for the 4th Circuit in Richmond issued a stay of the U.S. Forest Service’s record of decision and a special use permit that would allow the pipeline to carve through national forests in West Virginia and Virginia.
The stay, in place while the court considers an appeal of the permit, means the project no longer meets the conditions set forth in the federal certificate that allowed it to move forward, burrowing and blasting its way through farms, fields, streams and ridgetops. Construction has begun in West Virginia and North Carolina, but the pipeline still lacks some environmental approvals in Virginia, and work here has been limited to tree clearing.
“As the commission is aware, this is the third time in four months that the 4th Circuit has vacated or stayed federal authorizations for the ACP that represent mandatory conditions of the certificate order,” lawyers for the Southern Environmental Law Center wrote. The stay follows court orders vacating permit decisions by the U.S. Fish and Wildlife Service and the National Park Service.
In response to those earlier decisions, FERC issued a stop-work order in August, though the agencies were already busy trying to figure out a way around the deficiencies in their approvals. They ultimately decided that they largely couldn’t and issued what opponents say are essentially the same permits the court had invalidated.
“Rather than taking the time to address the major problems we have seen in federal agencies’ reviews of the Atlantic Coast Pipeline, these agencies continue to rush through a rubberstamp process that ignores legal requirements – not to mention the public interest,” said DJ Gerken, an attorney with the SELC.
FERC’s decision to allow work to proceed again forces the opponents to go back to court to get judges to rule on whether the federal agencies have actually addressed the problems the court identified. In the meantime, Atlantic, (and their fellow travelers in seizing other people’s property for fun and profit, the Mountain Valley Pipeline, which suffers from many of the same permitting flaws) will push to get as much pipeline in the ground as they can before the courts can catch up with them.
Dominion, predictably, doesn’t think the latest stay is a big deal.
“While we respectfully disagree with the court’s ruling, it will not have a significant impact on our construction schedule,” Dominion spokesman Aaron Ruby said in an email to Reuters. “We will continue working in all other areas of West Virginia and North Carolina, where we are making significant progress.”
Ruby’s favorite three words to describe the pipeline regulatory process are “thorough and exhaustive,” (Google “Aaron Ruby” and “thorough and exhaustive” if you don’t believe me). In fact, he thinks it’s been the most rigorous review of a pipeline project ever at the state and federal level.
Turns out though, the reviews don’t appear so fulsome once the courts start looking under the hood.
How much of a difference the courts will make when FERC and the agencies required to sign off on the pipelines seem free to sidestep their rulings remains to be seen.
But there is growing unease about how FERC approves pipeline projects amid evidence that the U.S. oil and gas industry is overbuilding capacity because of the profit and risk incentives at work, uniting some Republicans and Democrats in Congress. And the biggest case yet will also be heading to the 4th Circuit, challenging FERC’s certificate for the ACP, which underpins the entire project.
A ruling vacating that approval might be tough to get around.
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