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The pipeline boom

With Two New Trump Appointees, FERC is Ready to Open the Tap on Appalachia’s Pipeline Boom

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In the past few years, Appalachia has seen an explosion of plans for pipeline infrastructure from utilities and natural gas companies wanting to transport gas from the abundant Marcellus and Utica shale formations in Ohio, West Virginia, and Pennsylvania to markets in the Southeast, East Coast, and Midwest.

“It’s a mad dash,” said Ben Luckett, staff attorney for nonprofit law and policy center Appalachian Mountain Advocates. “Everyone wants to build their own highway, their own toll road.”

Nearly half of the pipelines proposed in Appalachia have already been approved, but the rest — including the controversial Mountain Valley and Atlantic Coast pipelines — are awaiting certification from the Federal Energy Regulatory Commission. The industry scored a victory last week when the Senate voted to confirm two of President Trump’s nominees, restoring quorum for the agency and allowing it to vote on certificates for gas infrastructure projects for the first time in seven months.

“FERC has been a rubber stamp for the industry for a long time,” Luckett said. “I’m not aware of a single project where there have been contracts in place where FERC has denied an application.”

That record is unlikely to change with the newly appointed commissioners, who are well-known as being industry-friendly themselves. One is Neil Chatterjee, energy policy adviser to Senate Majority Leader Mitch McConnell. Chatterjee was integral in the Republican effort to rescind the Clean Power Plan.

Joe Arnold, vice president of communications for the Kentucky Association of Electric Cooperatives, said that Chatterjee impressed Kentucky’s electric cooperatives during his time with the National Rural Electric Cooperative Association.

“Neil has firsthand awareness of the energy landscape, including of the important role coal plays in [ensuring] the delivery of affordable, reliable power and we believe he will fight to insure the lights stay on and people can maintain their livelihood and way of life in Appalachian communities,” Arnold said.

The other new FERC commissioner is Robert Powelson, who spent years as a member and chairman of the Pennsylvania Public Utility Commission. He’s also the current president of the National Association of Regulatory Utility Commissioners. Before Trump appointed him earlier, Powelson was criticized for a comment he made saying people protesting pipelines were leading a “jihad” to keep gas from reaching new markets. He also publicly praised the CEO of Dominion, the company behind the Atlantic Coast Pipeline.

Lynda Farrell, executive director of the Pennsylvania-based Pipeline Safety Coalition, said that in Pennsylvania, Powelson was widely considered to be pro-gas industry, even before he made that comment.

“That was a very biased and telling statement, and his nomination and confirmation at FERC are troubling because he’s got that bias,” she said.

The president has also nominated Richard Glick, a Democratic Senate aide, and Kevin McIntyre, who heads energy practice at Jones Day, a law firm that has sent several attorneys to the Trump administration, for the remaining two commission positions. The Senate Energy and Natural Resources Committee will hold a hearing for them in September, according to Mary O’Driscoll, the director of media relations for FERC.

The nominations don’t bode well for environmental groups hoping to stop pipeline construction. Pending approval are two controversial projects: the 300-mile Mountain Valley Pipeline, which will run through Virginia and southwestern Virginia, and the 600-mile Atlantic Coast Pipeline, developed by Duke Energy and Dominion, which will run from West Virginia through Virginia to North Carolina. But they are just two of nearly a dozen proposed in the region, even though industry experts say there isn’t enough demand for natural gas to meet the number of pipelines being built. Many of the same companies developing the pipelines are the companies buying the gas, and they see big return investments with these projects, despite the fact that consumers may have to pay higher rates to finance them.

The only decision the commissioners have left to make is whether to issue a certificate for the pipelines. All the other work, like the environmental impact statements, has been completed by FERC staff, who have been working while the agency was stalled. The Atlantic Coast and Mountain Valley pipelines should be decided on sometime in the fall.

Luckett said he’s seen an “incredibly strong” movement building against the pipelines throughout Appalachia, in a way that he never saw with mining projects. “The taking of private property and coming through peoples’ communities, plus the companies’ and FERC’s attitude of dismissiveness has rubbed people the wrong way,” he said. “It’s bringing together more typical environmentalists from the left, property rights advocates from right, and people who don’t consider themselves politically active but a giant pipeline was going to come through their farm.”

Virginia attorneys recently filed a lawsuit challenging the Mountain Valley pipeline and FERC’s eminent domain authority, saying that the developers have violated constitutional rights by taking property from landowners. The Virginia Supreme Court ruled in favor of the Atlantic Coast Pipeline company last month in a lawsuit against a woman who sought to keep them from surveying her property. The West Virginia Department of Environmental Quality, which just halted construction of Energy Transfer Partner’s Rover pipeline over water pollution risks, is holding informal hearings this week on the Mountain Valley Pipeline. The Virginia DEQ is holding hearings as well. There have also been many protests against the pipelines across the region this year.

Even though the movement against the pipelines is gaining momentum, FERC’s history indicates that it is unlikely to reject them. In June, FERC released its final environmental impact statement for Mountain Valley, saying that there would be “significant” impacts on forests but otherwise the impacts would be limited. The pipeline crosses the Appalachian Trail, nearly 1,000 bodies of water, and hundreds of acres of forest. The Atlantic Coast Pipeline, which will run through tribal lands, national forests, habitats for endangered species, also got a nod of approval from FERC in July. Its environmental impact stated the pipeline’s effects can be mitigated.

FERC did reject a single pipeline in 2016, but in that case, the proposed pipeline in Oregon had no contracts and linked to a terminal that didn’t exist yet. The Atlantic Coast and Mountain Valley pipelines would link to existing terminals, and both already have contracts.

Pipeline companies have already started staging some areas for construction while awaiting approval; the seven-month delay isn’t expected to set their schedules back. In February, before FERC lost quorum when chairman Norman Bay resigned, one of the commission’s last actions was to approve the Atlantic Sunrise Pipeline, a 180-mile project in Pennsylvania.

FERC declined a request to speak to commissioners directly, but Driscoll said “it will be up to the commissioners to determine when and how they vote on the matters before them. We do not speculate on when or how the Commission will vote.”

If the agency does approve the certificates, Luckett said the agency could take other steps to “lessen the damage” by using their power to enforce the certificates and monitor environmental impacts. 

“All too often we see that if there’s no one to enforce [the certificates] it’s pretty meaningless,” Luckett said. “But the agency could still have real impact.”

Lyndsey Gilpin (@lyndseygilpin) is a contributing editor of 100 Days in Appalachia based in Louisville, Kentucky. She is also the editor of Southerly, a newsletter covering the American South.

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The pipeline boom

As Pipeline Construction Booms, Citizens Take Inspections Into Their Own Hands

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Photo: Larry Dowling/West Virginia Public Broadcasting

On a recent hot, August weekend, about a dozen citizens spent three days along the route of the Mountain Valley Pipeline. Armed with cameras, smartphones and drones the volunteers traveled portions of the pipeline’s route under construction from Monroe to Doddridge counties. 

“There was several things that we saw,” said Summers County resident and organic farmer Neal Laferriere. 

Laferriere organized the three-day “violations blitz.” He said volunteers documented small problems like poorly-maintained erosion controls as well as much larger ones. 

“Sediment-laden water in one situation was overflowing the controls and going directly into a creek,” he said. “So, definitely affecting the waterways of the state, which is a big violation.”

In total, the volunteers collected about 60 examples of what they deemed to be permit violations by the pipeline. Their efforts are part of a citizen monitoring program run by conservation group the West Virginia Rivers Coalition. 

In 2012, West Virginia Rivers and Trout Unlimited created a program that trained volunteers how to monitor their local trout streams to determine if they were being affected by the state’s booming oil and gas industry. As more natural gas pipelines have been approved for construction in West Virginia, the program expanded to include pipeline construction monitoring

“Pipeline construction releases a lot of sediment and sediment-laden water — muddy water — into what would otherwise be clear and pristine streams,” said Autumn Crowe, senior scientist with West Virginia Rivers. “That sediment, when it gets into the water body, it has multiple negative impacts on aquatic life and water quality.”

West Virginia Rivers collects the complaints and submits them to the West Virginia Department of Environmental Protection. The group worked with WVDEP’s enforcement department to develop the training materials. 

Crowe said citizen monitoring, including this most recent “violations blitz,” fills an enforcement gap in West Virginia.  

“What the vio-blitz was showing us is that there were multiple issues along the entire route that were not being addressed,” she said. “And if not for our volunteers, a lot of those issues would have gone unnoticed.”

Monitors observed this example of erosion control devices failing along the MVP’s route in Lewis County. Photo: Courtesy of Neal Laferriere

Regulation Challenges

As hydraulic fracturing or fracking has boomed in the Marcellus shale, so too has pipeline construction in Ohio, Pennsylvania, Virginia and West Virginia. Since 2015, federal regulators have approved the construction of 10 interstate natural gas pipelines through West Virginia. 

The two most well-known projects — EQT’s Mountain Valley Pipeline and Dominion Energy’s Atlantic Coast Pipeline — are multi-billion dollar projects that are slated to carry billions of cubic feet of natural gas from Appalachia to the east coast and for export. Both projects have been besieged by lawsuits over issues ranging from forest crossings to water permits. Activists have locked themselves to equipment and protested in trees. 

Unsafe construction practices have led to the temporary shutdown of some pipeline projects. 

In the summer of 2017, construction of the Rover pipeline in West Virginia and Ohio and the Mariner East 2 pipeline in Pennsylvania was shut down by both state and federal authorities for haphazard construction. 

Pennsylvania’s attorney general in March opened a criminal investigation related to the Mariner East pipelines. In December, Virginia’s Attorney General Mark Herring filed a civil suit against the Mountain Valley Pipeline citing more than 300 environmental violations. 

The boom has challenged budget-constrained state and federal agencies, said Sara Gosman, an associate professor at the University of Arkansas School of Law.

“Just in terms of the resources that would be necessary to actually enforce compliance with all of our environmental laws, we don’t have those resources,” she said. “And it would frankly be very difficult to gather all those resources through government agencies.”

The regulatory challenge is further complicated by the fragmented way pipelines are regulated. Multiple federal agencies play a role as well as state environmental regulators in inspections and permitting. 

The Federal Energy Regulatory Commission or FERC approves a pipeline’s route. The Pipeline and Hazardous Material Safety Administration is in charge of making sure it’s safely constructed and responding if there is an accident. The U.S. Army Corps of Engineers regulates construction impacts on wetlands and streams. And then state environmental agencies, like the West Virginia DEP, monitor the impacts of storm water on pipeline construction sites.

“I think anytime you have a fragmented legal system, it’s difficult for that system to work collectively well, and it also creates a lot of confusion among citizens who are wondering who to call,” Gosman said. 

Hannah Wiseman, attorneys’ title professor and associate dean for environmental programs at Florida State University, said it’s only natural that as the buildout of natural gas infrastructure, including pipelines, has occurred and become more visible, citizen interest and concern has grown. 

“Agencies have really had to run to catch up with the increased citizen attention as more wells are being drilled and fractured and as more pipelines are being built,” she said.

Resources remain an issue. In recent years Congress has given more money to the Pipeline and Hazardous Material Safety Administration for inspectors. The agency has approximately 160 pipeline safety inspectors covering construction across the county. 

The West Virginia DEP has 10 positions in its Stormwater Construction Inspection Group, which is charged with inspecting all construction sites larger than one acre so as to ensure compliance with permits designed to prevent stormwater runoff. Currently, only eight of those positions are filled, according to WVDEP Spokesperson Terry Fletcher. The group has grown from three positions in 2005. 

In an email, Fletcher said the agency is confident in its ability to ensure pipelines are in compliance with their permits and values input from citizens. 

Laferriere, the citizen pipeline monitor, disagrees. The Mountain Valley Pipeline alone traverses 200 miles in West Virginia and he fears the agency doesn’t have the capacity to monitor it and others across the state. 

Photo: Mountain Valley Pipeline, LLC

“They’re not doing a good enough job,” he said. “If we can go out and in three days find 60 violations here in West Virginia with a handful of people, how many violations, how many things are we missing? How many watersheds are being affected by this project that nobody’s aware of?”

In response, Fletcher noted WVDEP, as a state agency, “cannot simply create permanent, full-time positions without first having allocated funding for new positions, and then receiving approval from the state Division of Personnel.”

Gosman, at the University of Arkansas School of Law, said it’s likely citizen concerns over natural gas pipelines will continue to grow, and not just over whether they are being constructed safely, but if they’re needed at all, and whether they’re being proposed for the right places. 

“We need to think holistically about pipelines, about where they’re placed, what it means to have an accident in that particular place,” she said. “What it means to have issues around stormwater and wetlands impacts in that particular place over the long term, rather than treat each of these particular issues construction, operation, emergency response as being separate.”

According to WVDEP’s online system, inspectors have investigated just a handful of the citizen complaints. No official violation notices have been issued.  

This article was originally published by West Virginia Public Broadcasting.

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The pipeline boom

Federal Court Tosses Atlantic Coast Pipeline’s Key Endangered Species Permits

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Natural gas pipe for the Atlantic Coast Pipeline sits in a yard Feb. 27, 2019, near Morgantown, W.Va. Photo: Larry Dowling/West Virginia Public Broadcast

A federal court has thrown out two key permits for the 600-mile Atlantic Coast Pipeline.

U.S. 4th Circuit Court Chief Judge Robert Gregory said in an opinion issued Friday that the U.S. Fish and Wildlife Service didn’t adhere to its mandate to protect endangered species when it fast-tracked reissuing two permits to the natural gas project proposed to go through West Virginia, Virginia and North Carolina.

“In fast-tracking its decisions, the agency appears to have lost sight of its mandate under the ESA: ‘to protect and conserve endangered and threatened species and their habitats,'” Gregory wrote.

In 2018, the 4th Circuit suspended the pipeline’s Incidental Take Statement after it was challenged by environmental groups. That permit defines how much harm may come to endangered species during a project. 

Following that ruling, and once the formal consultation process began, the agency reissued the permits in 19 days.

This is not the first time the court has reprimanded federal agencies for their work issuing permits for the Atlantic Coast Pipeline. Last December, the 4th Circuit ruled the U.S. Forest Service improperly granted permits for the pipeline to cross national forest lands. The judge, in that case, quoted Dr. Suess’ “The Lorax.”

The court Friday sided with environmental groups who argued the hastily reissued permits could harm species like the rusty patched bumblebee and Indiana bat.

In a statement, Patrick Hunter, an attorney with the Southern Environmental Law Center, one of the environmental groups that challenged the permits, praised the ruling.

“In its rush to help this pipeline company, the agency failed to protect species on the brink of extinction – its most important duty,” he said. “This pipeline would blast through some of the last populations of these rare animals. For the sake of these rare species and its customers’ wallets, it’s time for these utilities to walk away from this badly planned boondoggle.”

After a number of regulatory setbacks, construction of the Atlantic Coast Pipeline has been stalled since December 2018. 

Majority project developer, Virginia-based Dominion Energy, said in a statement it expects new permits to be issued and is “confident the pipeline will be completed by late 2021.”

This article was originally published by West Virginia Public Broadcasting.

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The pipeline boom

Federal Court Denies Atlantic Coast Pipeline’s Request for New Hearing

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Sections of pipe sit in a storage yard outside Buckhannon, W.Va. Photo: Jesse Wright/West Virginia Public Broadcasting

A federal appeals court has denied a request by the developers of the Atlantic Coast Pipeline to rehear a case over the legality of permits that allow the multibillion dollar natural gas pipeline to cross under national forest lands, including the Appalachian Trail.

The 4th U.S. Circuit Court of Appeals on Monday declined pipeline developer Dominion Energy’s request for the case to be reheard in front of the full bench. The company says it intends to appeal to the U.S. Supreme Court within 90 days.

In December, a three-judge panel of the 4th Circuit ruled the U.S. Forest Service violated two cornerstone environmental laws — the National Forest Management Act and the National Environmental Policy Act — and thus failed to protect federal land when it issued approvals to allow the 600-mile Atlantic Coast Pipeline to cross the George Washington National Forest, Monongahela National Forest and the Appalachian Trail.

In her 60-page opinion, 4th U.S. Circuit Court of Appeals Judge Stephanie Thacker cited Dr. Seuss’ “The Lorax.”

“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues,'” Thacker wrote. “A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.”

The court’s decision not to rehear the case “en banc” or in front of the full court is another blow to the 600-mile interstate natural gas pipeline that would run from West Virginia to eastern North Carolina. Construction is currently halted along its entire route.

The 4th Circuit in December also stayed the pipeline’s revised Biological Opinion and Incidental Take Statement, a key permit from the U.S. Fish and Wildlife Service that authorizes construction through habitat identified as critical for certain threatened or endangered species across West Virginia, Virginia and North Carolina.

In a statement, Dominion spokesman Karl Neddenien said project developers intend to appeal to the U.S. Supreme Court within the next 90 days. The company is also pursuing legislative and administrative options.

In its Feb. 1 earnings call, Dominion said costs for the pipeline had ballooned from between $4.5 billion and $5 billion when first announced to between $7 billion and $7.5 billion.

The company said despite the myriad of delays, it is confident “at least partial construction will recommence in the third quarter of 2019” and the entire pipeline will be completed.

In a statement, the Southern Environmental Law Center and the Sierra Club, two environmental groups challenging the project, said the 4th Circuit’s decision not to rehear the case “sends the Atlantic Coast Pipeline back to the drawing board.”

This story was originally published by West Virginia Public Broadcasting.

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