On March 24, 2021, FERC modified a December 17, 2020 order (“December Order”) while reaching the same overall result, allowing construction to recommence for a portion of the Mountain Valley Pipeline, LLC (“Mountain Valley”) project located near Jefferson National Forest in Virginia. FERC determined that the Environmental Conditions in Mountain Valley’s certificate order did not preclude FERC from permitting Mountain Valley to resume construction on portions of its pipeline, even though certain federal authorizations that were vacated on appeal are still pending, and also reaffirmed that completing the construction would be preferable to temporary mitigation efforts. Chairman Richard Glick and Commissioner Allison Clements dissented, arguing that FERC cannot authorize Mountain Valley to resume construction while federal authorizations remain outstanding.
FERC issued a certificate of public convenience and necessity authorizing Mountain Valley’s project in 2017 (“Certificate Order”) and subsequently authorized Mountain Valley to commence construction of its project after all necessary authorizations were received. However, FERC issued a Notification of Stop Work Order in 2018 after the U.S. Court of Appeals for the Fourth Circuit vacated certain authorization orders from other federal agencies. At various points, FERC has allowed Mountain Valley to recommence construction on segments of the pipeline route after the relevant federal agency reissued one of the vacated authorizations, finding in certain instances that allowing construction would be better for the environment than stabilizing the area while the pipeline waits for necessary authorization. The December Order partially allowed Mountain Valley to begin construction in the area from Mileposts (“MP”) 201.6 to 218.6 near the Jefferson National Forest in Virginia.
Various requests for rehearing of the December Order were filed by environmental groups, arguing among other things that lifting the stop work orders was inconsistent with a condition in FERC’s Certificate Order that requires Mountain Valley to have obtained all federal permits before construction can begin and that Mountain Valley was required to retain those permits throughout construction. According to the environmental groups, if the other federal agencies do not approve the proposed route then completion of construction of the segments approved by FERC will not serve any useful purpose. The environmental groups also requested that FERC stay its December Order.
FERC explained that although the environmental conditions in its Certificate Order require all relevant authorizations before FERC can authorize construction, they do not create an ongoing obligation and therefore does not apply when federal authorizations are vacated after construction has commenced. Furthermore, FERC reasoned that once significant construction is underway, the completion of construction and final restoration is best for the environment and local landowners. In such scenarios, the Director of the Office of Energy Projects acts pursuant to delegated authority to take whatever steps are necessary to ensure the protection of the environment during the remainder of the construction. FERC also explained that it had considered the risk that Mountain Valley’s proposed route could change as a result of the vacated orders, determined that the route was no longer in question, and that completing the project was environmentally preferable to maintaining temporary erosion control measures. Lastly, FERC denied the requests for stay, finding that the environmental groups had not demonstrated that they would suffer irreparable harm absent a stay of the December Order.
Chairman Glick and Commissioner Clements wrote in dissent, arguing that the requirement to secure all necessary authorizations prior to commencing construction is intended to ensure that land is not bulldozed to make way for a pipeline project that might not be completed or might have to be re-routed, and thus, to interpret a project that had all its federal authorizations for even a fleeting period as satisfying those requirements in perpetuity waters down important environmental and landowner protections.
A copy of the order is available here.