After high court relief, ACP seeks two added years from FERC to build pipeline

Washington — Backers of the Atlantic Coast Pipeline and related Supply Header Project on June 16 asked the Federal Energy Regulatory Commission for a two-year extension of an upcoming October deadline for completing construction.

The action came a day after the US Supreme Court removed one of several important snags for the 604-mile, 1.5 Bcf/d ACP project, designed to move Appalachian gas to mid-Atlantic markets.

ACP and Dominion Energy Transmission argued the markets to be served "have been chronically constrained in terms of natural gas supply, as interstate natural gas pipeline capacity is either already fully subscribed or nonexistent." Moreover, they said precedent agreements are still in place and ACP has agreed with its customers on terms to address the impact of regulatory delays and cost increases.

The pitch at FERC follows repeated delays related to permitting since the projects were approved by the commission in October 2017 and then faced legal challenges from environmental groups and adverse rulings from the 4th US Circuit Court of Appeals.

Supplemental EIS

Anticipating the companies' request for extension, Southern Environmental Law Center, Appalachian Mountain Advocates and Chesapeake Bay Foundation, on behalf of a coalition of conservation groups, wrote FERC June 1 to argue that a supplemental environmental impact statement, rather than a quick FERC extension, was needed because of new information that has come to light.

FERC has not yet responded to the environmental groups, but the US Forest Service on June 11 said it planned a supplemental EIS related to a USFS decision on whether to allow the project to cross national forest land. It said a draft SEIS was expected in July and a final report is anticipated later in 2020.

The new report was necessary, USFS said, because of a 4th Circuit ruling, as well as to consider new, relevant information such as new federally listed species and critical habitat designations. It noted that it may need to revise the notice after the Supreme Court ruling.

Upcoming permits

In pressing for FERC's extension, ACP and DETI said they had been working "diligently and in good faith to re-obtain all approvals" and anticipated receiving all needed authorizations by year-end.

They noted the project schedule had been affected by decisions by the 4th Circuit on Forest Service authorizations, including crossing of the Appalachian Trail, the US Fish and Wildlife Service biological opinion and incidental take statement, and the air permit for a compressor station in Buckingham, Virginia.

In a win critical to maintaining the current route, the Supreme Court on June 15 sided with ACP to find the Forest Service had authority to allow the Appalachian Trail crossing for the project, reversing a 4th Circuit finding.

Supporting their request at FERC, the companies added that DETI has been providing data to FWS and FERC in relation to the endangered species consultation, and are expecting reissued ESA authorizations "soon," and provided more information to Virginia regulators to help justify re-issuance of the struck air permit.

Another potential hurdle unmentioned is the US Army Corps of Engineers' Nationwide Permit 12 water crossing permit, which has been vacated by a federal district court in Montana. The Department of Justice has asked the Supreme Court to stay the lower court order, which pipeline companies have warned undermines certainty for a wide array of pipeline project development.