Underground Construction - April 2019 - 10

WASHINGTONWATCH

Stephen Barlas | Washington Editor

Appeals Courts Provide Good/Bad News for Pipelines
The top federal appeals court in charge of policing
regulatory decisions gave a big victory to the
Federal Energy Regulatory Commission (FERC),
endorsing in February its approval of the Mountain
Valley Pipeline, one of two controversial projects
already underway in Virginia.
The U.S. Court of Appeals for the District of
Columbia issued a decision dispatching complaints
raised by environmental groups about the way
FERC issued a certificate to Mountain Valley in 2017.
The project would extend 300 miles from Wetzel
County, W.V., into Pittsylvania County, Va. Petitioners
raised 16 different challenges to FERC's environmental assessment of the project and subsequent
issuance of the certificate. The court wrote in its
decision: "None of the challenges succeeds."
Natalie Cox, spokeswoman for Equitrans Midstream Corporation, the lead sponsor of Mountain
Valley, which was 70 percent complete by the
end of 2018, said "We are pleased with the Court's
decision to uphold the FERC's approval. The construction process includes very stringent monitoring
by FERC officials, state and local agencies, and MVP
personnel to ensure MVP is adhering to each of the
permitted requirements."
Cat McCue, communications director, Appalachian Voices, the environmental group that filed the
lawsuit, declined to comment.
That decision by the U.S. Appeals Court for
D.C. came about a week before the Fourth Circuit
Court of Appeals affirmed its December 2018
decision saying FERC's decision to approve the
600-mile Atlantic Coast pipeline, also in Virginia,
was flawed. This was because its environmental
impact statement was inadequate in considering
U.S. Forest Service concerns about a crossing of the
Appalachian Mountains.
Karl Neddenien, a spokesman for Dominion
Energy, said, "Within the next 90 days, we will file an
appeal to the Supreme Court of the United States
regarding the Fourth Circuit Court's invalidation
of the Atlantic Coast Pipeline's U.S. Forest Service
Appalachian Trail crossing authorization. We are
also pursuing legislative and administrative options,
and we expect these issues to be resolved in the
coming months, whereby we will recommence
construction."
But the Mountain Valley decision seemed to
strengthen FERC's hand on environmental reviews

APRIL 2019 | UConOnline.com

and on several other matters. Environmental groups
led by Appalachian Voices had tried to tie the Forest
Service concerns over the Atlantic Coast's crossing
of the Appalachian Mountains with FERC's alleged
failure to consider the same issue when it approved
Mountain Valley. However, the court said that
FERC's issuance of the Mountain Valley certificate
"did not hinge" on the granting of any rights-of-way
through federal land.
The court also ruled in favor of FERC on two other
issues that have become prominent objections used
by environmental groups to contest FERC approval
of new pipelines. A popular trending argument made
to sway FERC environmental impact statements (EIS)
is that the commission did not consider the impact
of downstream greenhouse gas emissions which
would be created by a project.
In the case of Mountain Valley, the petitioners
argued FERC erred in concluding that such
emissions are not reasonably foreseeable indirect
effects of the project. The court set that objection
aside saying, "We need not consider that argument,
however, because even if petitioners are correct,
FERC provided an estimate of the upper bound of
emissions resulting from end-use combustion, and
it gave several reasons why it believed petitioners'
preferred metric, the Social Cost of Carbon (SCC)
tool, is not an appropriate measure of project-level
climate change impacts and their significance."
Environmental groups have increasingly cited the
SCC in objecting to various infrastructure projects
approved by different federal agencies.
There will be perhaps some clarity on how FERC
should calculate and weigh greenhouse gas emissions given the DC Appeals Court is now hearing
a lawsuit filed by a New York state environmental
group. This lawsuit objected to FERC's approval of
Dominion Gas Transmission's New Market Project
based on the commission's failure to consider the
direct impacts of GHG emissions.
FERC concluded in 2016 when the project was
first approved that its environmental review of the
New Market Project-a limited undertaking "to construct and operate certain compression and related
facilities" in New York-did not need to include an
analysis of distant, causally attenuated greenhouse
gas emissions "associated with the production,
processing, distribution, or consumption of gas."
Another frequent objection from environmental

groups is that a particular pipeline is not needed.
This argument was also made in the lawsuit against
Mountain Valley. But the court said, "... FERC's conclusion that there is a market need for the project
was reasonable and supported by substantial evidence, in the form of long-term precedent agreements for 100 percent of the project's capacity."

FERC Chairman Lauds
New "Framework" for
Approving LNG Terminals
FERC's weighing of greenhouse gas emissions also
comes into play in its consideration of liquified natural gas (LNG) facilities. It was noteworthy that FERC
Commissioner Cheryl LaFleur concurred with the
two Republican commissioners in approving the
first LNG project that the Trump administration has
greenlighted: Venture Global's Calcasieu Pass LNG
export project in Cameron Parish, La. FERC vote on
Feb. 21 was 3-1, with Democratic commissioner
Richard Glick dissenting.
In announcing the decision, FERC Chairman Neil
Chatterjee said, "I really appreciate the efforts of my
colleagues to work together to come to an agreement on this facility. This is significant, as I anticipate
we'll be able to use the framework developed in this
order to evaluate the other LNG certificates that the
Commission is considering."
It is not clear what new "framework" he was
referring to. The order itself doesn't clarify the
issue, either. But the "compromise" put forward to
break the deadlock-and which enabled LaFleur to
vote for it-was, according to reports, to calculate
the direct annual greenhouse gas emissions
that the Venture Global terminal would emit as
a percentage of total U.S. emissions. The direct
operational emissions of the LNG terminal could
potentially increase CO2e emissions based on the
2016 levels by 0.07 percent at the national level.
LaFleur wanted to weigh the Calcasieu Pass
terminal's emissions along with those from other
LNG terminals in the area and make a decision
based on that local or regional impact, not based
on a national impact.
There are 12 pending LNG applications at FERC.
LaFleur's term is over in June. President Trump
hasn't indicated whether she will be re-nominated,
nor has he announced a Republican nominee for
the fifth commission seat which is vacant. *

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Underground Construction - April 2019

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