Scurrying to use its rubberstamp before a Commissioner departing leaves it tied 2:2, FERC once again rubberstamped multiple pipelines, this time three on a Friday plus an LNG export project, while neither its main online library nor its backup library yielded copies of the orders.

I found these four by googling:

• 164 FERC ¶ 61,099 Florida Southeast Connection, LLC Transcontinental Gas Pipe Line Company, Sabal Trail Transmission, Docket Nos. CP14-554-003, LLC CP15-16-004, LLC CP15-17-003, ORDER DENYING REHEARING, Issued August 10, 2018
• 164 FERC ¶ 61,098, PennEast Pipeline Company, LLC, Docket No. CP15-558-001, ORDER ON REHEARING, August 10, 2018.
• 164 FERC ¶ 61,100, Atlantic Coast Pipeline, LLC, Dominion Transmission, Inc., Atlantic Coast Pipeline, LLC, Piedmont Natural Gas Company, Inc., Docket Nos. CP15-554-002, CP15-555-001, CP15-556-001, Order on Rehearing, August 10 2018.
• 164 FERC ¶ 61,102, Dominion Energy Cove Point LNG, LP, Docket No. CP17-15-001, ORDER DENYING REHEARING, August 10, 2018.

Oh, wait, a mention of a docket number in a FERC agenda leads me to one more Friday rubberstamp, of a new Transco pipeline in New Jersey:

• 164 FERC ¶ 61,101, Transcontinental Gas Pipe Line Company, LLC, Docket No. CP17-490-000, ORDER ISSUING CERTIFICATE, August 10, 2018.

Commissioner Cheryl A. LaFleur dissented from all five of these Orders, on Atlantic Coast Pipeline (ACP) even noting FERC should have considered both it and the Mountain Valley Pipeline together for environmental aspects. Commissioner Richard Glick from all except the ACP one, in which he instead summed up what is going on. Richard Glick, FERC, August 10, 2018, Statement of Commissioner Richard Glick on Atlantic Coast Pipeline LLC, Docket Nos.: CP15-554-002; CP15-555-001; and CP15-556-001,

I chose not to participate in today’s order denying rehearing of the Commission’s October 13, 2017 order issuing a Certificate of Public Convenience and Necessity to the Atlantic Coast Pipeline (ACP) Project (CP15-554-002; CP15-555-001; and CP15-556-001) solely to enable those parties challenging the Certificate to have their day in court. If I had voted, the rehearing order would have failed on a 2-2 vote (Chairman McIntyre also is not participating in this proceeding), and pursuant to the requirements of section 19 of the Natural Gas, the appellate courts would not have had jurisdiction to review the Commission’s decision to grant the Certificate.

I share many of the concerns articulated in Commissioner LaFleur’s dissenting opinion and I do not believe that the ACP Project has been shown to be in the public interest. Accordingly, if I had voted today, I would have voted to grant rehearing. Further, I do not believe there would have been the opportunity to vote on this rehearing order after Commissioner Powelson departs leaving only three commissioners to participate in this proceeding for the foreseeable future.

This situation highlights the need for Congress to enact legislation amending the judicial review provisions of the Natural Gas Act and the Federal Power Act to account for the ability of an aggrieved party to seek redress in the courts of appeal. It is fundamentally unfair to deprive parties of an opportunity to pursue their claims in court, especially while pipeline construction is ongoing. Alternatively, the Commission could revise its practices so that a rehearing tolling order is withdrawn when the participating Commissioners are evenly divided on a rehearing order and there is no immediate prospect of a resolution. I have heard some suggest that action is unnecessary because the Commission rarely evenly splits on a matter. But, as today’s order demonstrates, a tie vote is certainly possible even when all five commissioner seats are filled.

Commissioner Glick did not vote on the ACP rehearing because he wants an appeal to be possible through the courts on FERC’s decision to grant a certificate. Apparently a 2:2 tie would prevent that, I’m guessing by keeping the ACP in a FERC rehearing. With Commissioner Robert F. Powelson leaving at the end of this month, 2:2 split votes are to be expected, since Commissioners LaFleur and Glick have been dissenting on just about everything since FERC lost Sierra Club v. FERC (Sabal Trail).

Yet these rehearing denials are not what has been in the news. This has: Lauren K. Ohnesorge, Triangle Business Journal, August 10, 2018, ‘Stop Work Order’ issued for Atlantic Coast Pipeline,

Days after a federal appeals court invalidated a pair of permits, the Federal Energy Regulatory Commission has issued a “Stop Work Order,” halting Dominion and Duke Energy’s Atlantic Coast Pipeline in its tracks.

In its order, FERC writes that, allowing continued construction in the meantime “poses the risk of expending substantial resources and substantially disturbing the environment by constructing facilities that ultimately might have to be relocated or abandoned.”

That sounds more like FERC being concerned for the pipeline company’s bottom line than anything else.

Somebody else carried the full FERC statement and quoted “the operative paragraph”. lowkell, Blue Virginia, August 10, 2018, BREAKING: Federal Energy Regulatory Commission Issues “Stop Work Order” on “All Portions” of the Atlantic Coast Pipeline [UPDATED: FERC Partially Approves MVP Stabilization Plan],

“Atlantic and Dominion Energy Transmission, Inc. (DETI) are hereby notified that construction activity along all portions of the ACP and Supply Header Project and in all work areas must cease immediately, with the exception of any measures deemed necessary by appropriate agencies such as NPS and the U.S. Forest Service, or by FERC staff to ensure the stabilization of the right-of-way and work areas.”

However, the rest of the FERC stop work letter says this is because there may be route changes. It gives no indication of actually wanting to stop eventual construction of the pipeline.

FERC’s intention to go ahead with ACP is further evidenced by FERC that same day rejecting a rehearing on ACP. In that rejection (and the other rehearing denials), FERC threw out any objections that did not cite specific EIS or previous Order passages. About Penneast, FERC even refused to consider complaints from two New Jersey state Senators and one Aseemblyman because they had not timely filed to intervene. Yet FERC itself continued to refuse to quantify or interpret greenhouse gas emissions, despite the court order in Sierra Club v. FERC.

The only rehearing requests FERC did not deny, reject, or dismiss as moot were:

(B) Atlantic’s November 14, 2017 request for rehearing is granted in part and denied in part, and we direct Atlantic to file actual tariff records setting forth its pro-rata allocation of pack capability provisions available to all firm transportation shippers and the applicable rate associated with the pack account service, at least 30 days but no more than 60 days prior to the date the project facilities go into service.

So FERC wants to know who ACP is getting its gas from when (not if, as far as FERC is concerned), ACP goes into service.

An industry story about FERC’s Stop Work Order a week earlier for the Mountain Valley Pipeline already arrived at the same conclusion. Nick Snow, Oil & Gas Journal, August 6, 2018, FERC’s Mountain Valley Pipeline stop-work order may be temporary,

The US Federal Energy Regulatory Commission has issued a stop-work order for the proposed Mountain Valley interstate natural gas pipeline. Opponents immediately said the Aug. 3 action was a major setback for the planned 303-mile system from West Virginia to southern Virginia, but the project’s sponsors noted on Aug. 6 the order itself indicated that it could be temporary.

The wording of that MVP Order was very similar to the ACP Order:

“There is no reason to believe that the Forest Service or the Army Corps of Engineers, as the land-managing agencies, or the BLM, as the federal rights-of-way grantor, will not be able to comply with the court’s instructions and to ultimately issue new right-of-way grants that satisfy the court’s requirements,” FERC Energy Projects Office Director Terry L. Turpin said in the order.

“However, [FERC] staff cannot predict when these agencies may act or whether these agencies will ultimately approve the same route,” Turpin said. “Should the agencies authorize alternative routes, [Mountain Valley Pipeline LLC (MVP)] may need to revise substantial portions of the project route across nonfederal lands, possibly requiring further authorizations and environmental review.”

Courts seem generally limited to ruling on specific aspects of pipelines. Actually stopping the fracking industry’s last-ditch cash-out through many new pipelines may require changes in federal law or new FERC Commissioners actually willing to enforce existing laws, either of which probably require changes in Congress. It’s an election year. This is an issue.

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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