Va. pipelines set off ‘an alarm bell’ for skeptical energy regulator

WASHINGTON — Most Americans have no idea who Cheryl LaFleur is.

The wonkish attorney, a Massachusetts native and electricity expert, has spent nearly a decade as a commissioner on the Federal Energy Regulatory Commission, a federal agency that regulates the transmission of oil, electricity and natural gas pipelines, among other responsibilities.

It’s not often that she gets recognized in the supermarket.

“I believe we have important jobs, but there’s a lot more famous people in this town,” LaFleur told the Virginia Mercury in a recent interview in her office a few blocks from the U.S. Capitol. “It’s not like being a congressperson where every time you’re sitting and having a glass of wine with a friend, somebody might be snapping you on their iPhone. Being a FERC commissioner is definitely not like that.”

But while she’s not one of Washington’s best-known policymakers, LaFleur, who is not being nominated for a new term, has been central figure in the battles playing out in Virginia and around the country over the necessity and environmental impacts of gas pipelines — behemoth infrastructure projects that can cost developers billions of dollars and that often ignite fierce opposition campaigns.

“LaFleur has been an important voice in mobilizing the conversation for a comprehensive approach to analyzing climate impacts,” said Gillian Giannetti, a staff attorney at the Natural Resources Defense Council.

LaFleur, appointed to the commission by President Barack Obama in 2010, made waves a couple of years ago when she split with her Republican colleagues over the approval of the controversial Atlantic Coast and Mountain Valley natural gas pipelines, massive projects slated to run through Virginia.

The GOP-led commission approved both pipelines, but LaFleur wrote in her Oct. 2017 dissent that she couldn’t conclude that either project was in the public interest.

“I am particularly troubled by the approval of these projects because I believe that the records demonstrate that there may be alternative approaches that could provide significant environmental advantages over their construction as proposed,” she wrote at the time.

That dissent marked a significant moment for LaFleur and for the commission, which has long been criticized as a rubber stamp for industry when it comes to approving interstate pipeline projects.

“It was not an easy decision,” LaFleur told the Mercury. “I had been voting on pipelines for seven years before this came up. I had had dissents on cases before, infrequently.” But “this was unusual.”

The decision “crystallized a lot of the issues that had been troubling me,” she said.

FERC is supposed to weigh the public interest of constructing proposed pipelines, she said. But the fact that the two pipelines were proposing very similar routes was “an alarm bell in my mind. … Why do we need both of them?”

LaFleur said the fact that the pipelines proposed to cross national parks, sinkhole-prone karst terrain and historic resources demanded more scrutiny.

“I just wanted to be sure they were both needed if we were going to approve both of them. So what I said was that I would not have approved both of them, I would have required them to work harder on the alternatives analysis to see whether they could co-locate more of the route,” she said. “But I used the dissent to talk about some other issues, such as how we assess need. If we assess need pipeline by pipeline, and then you had multiple pipelines in the same region and a very similar route.

“These happened to be coming for a decision at the same time but you might accidentally overbuild if you’re kind of building one and then another and not looking at them in a more macro-basis.”

‘People were shocked’

LaFleur was in North Carolina — where the 600-mile underground Atlantic Coast Pipeline is planned to end — the weekend after her dissent came out. She saw coverage in the papers there and learned “some people were shocked” by her opposition.

“I felt like we’ve actually been agonizing about these things all along, we’ve been talking about these things for a couple years,” she said.

“So the fact that people didn’t think a FERC commissioner could ever say no was somewhat disappointing. But it was because we don’t say no very often, I do understand that.”

Over 30 years, FERC only rejected two pipelines out of hundreds proposed, according to a 2017 investigation by the Center for Public Integrity and StateImpact Pennsylvania.

LaFleur declined to discuss internal deliberations on the commission, but she said “people might have been frustrated with me to come along this late in the game and say, ‘Hey, you should have had a common route,’ because maybe we should have said that before.”

She added, “I understand that frustration, but at some point I had to feel like, if I’m going to take a stand, I have to start somewhere.”

Since her lone dissent in late 2017, the two pipelines have been mired in legal battles, much of it playing out in the Richmond-based 4th U.S. Circuit Court of Appeals.

The court dealt a blow to the Atlantic Coast Pipeline’s lead developer, Dominion Energy, in December, when judges ruled that the U.S. Forest Service lacked the authority to allow the pipeline to cross the Appalachian National Scenic Trail. The Mountain Valley Pipeline is also facing legal challenges.

“They’ve had all kinds of issues … in the 4th Circuit primarily,” LaFleur said.

She thinks some of those court opinions validated her concerns about the pipelines.

“The subsequent history, which, I am not so self-centered as to think had anything to do with my dissent, but the subsequent history in the courts and so forth has led me to believe I guess my instinct that this one was environmentally complicated might have been correct,” she said.

LaFleur is credited more broadly with pushing FERC to change how it accounts for pipelines’ impacts on the environment, including on how the combustion of the natural gas that’s transported through those pipes and methane released from pipeline operations contributes to climate change.

Her “dissents in Mountain Valley and Atlantic Coast ignited and brought into focus a conversation that was long overdue about how FERC considers and incorporates upstream and downstream greenhouse gas emissions into their reviews,” said Giannetti of NRDC.

‘She’s not a bomb thrower’

LaFleur announced earlier this year that she’ll be retiring from the commission after the end of her term on June 30. Senate Democratic leaders declined to nominate her for a third five-year term.

“I always knew it was up to others besides me,” she said. “I think the Democratic majority leader in the Senate [Chuck Schumer of New York] had a lot to do with it. I never thought I was entitled to a third term, although I think the issues are going to be interesting.”

She declined to say what she might do next, but noted, “I want to stay involved in these issues in some way.”

Mike McKenna, a Republican energy lobbyist who led President Trump’s Energy Department transition, said Senate Democrats appear to be “looking for somebody who’s a bit more confrontational” to fill LaFleur’s seat on the bipartisan five-person commission.

LaFleur isn’t “a crazy-eyed environmentalist by any stretch of the imagination,” McKenna said. “Cheryl is very much a believer in FERC as an institution. In cases where she disagrees with either staff — which is occasionally — or other commissioners, she tends to be a fairly low-key person. She’s not a bomb thrower.”

McKenna said he expects that “some variation” of the pipelines through Virginia will get built. “You’re pulling a lot of gas out of the ground in Pennsylvania, now Ohio, and that’s going to go places,” he said.

It’s possible that the paths will be tweaked to satisfy court demands or that lawmakers will make legislative deals to boost their construction, McKenna added.

Some opponents of the pipelines, meanwhile, aren’t as certain.

“I think it’s difficult to handicap them with so many things outstanding,” said Giannetti. “We do hope that both [Gov. Ralph Northam] to the extent that he can and the courts take a real deep look at these pipelines, because NRDC is of the position that they are not needed to satisfy our energy needs.”