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FERC shuts door on threats to approvals of several major gas pipeline projects

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FERC shuts door on threats to approvals of several major gas pipeline projects

The Federal Energy Regulatory Commission issued a flurry of orders late Aug. 10 that upheld approvals for major interstate natural gas pipeline projects. The decisions, coming in the last hours of Republican Commissioner Robert Powelson's term, emphasized the split between Republicans and Democrats on evaluating public need and climate impacts.

FERC rejected requests for rehearing involving the approvals of several pipeline projects: the giant Southeast Market Pipelines project, composed of three components, including the up-to-1.1-Bcf/d Sabal Trail pipeline developed by Enbridge Inc. and others; Atlantic Coast Pipeline LLC's 1.5-Bcf/d pipeline and related supply header project; Dominion Energy Inc.'s 294,000-Mcf/d Eastern Market Access compression expansion to serve a power plant and LDC off of the Dominion Energy Cove Point LNG LP pipeline that supplies the Cove Point LNG export terminal in Maryland; and PennEast Pipeline Co. LLC's 1-Bcf/d pipeline project.

On the same day, FERC ordered Atlantic Coast Pipeline, a joint venture of Dominion, Duke Energy Corp. and Southern Co., to stop construction after a decision by the U.S. Court of Appeals for the 4th Circuit knocked off a U.S. National Park Service permit and explained one of its earlier orders that vacated an authorization from the U.S. Fish and Wildlife Service.

The rejection of the four rehearing requests closed the door on the pipeline review proceedings at FERC and will allow the petitioners, in most cases environmental groups and property owners, to bring their challenges to federal appeals court. The opinions of the Republican FERC majority of Chairman Kevin McIntyre and commissioners Neil Chatterjee and Powelson stuck to the original certificate orders in each case and to the commission's traditional analysis of pipeline projects. Aug. 10 was Powelson's last day at the commission, which gave the majority a reason to move on pipeline business, an area that has divided the commission in recent months.

Commissioners Cheryl LaFleur and Richard Glick, both Democrats, dissented in whole or in part, mostly based on what they view as shortcomings in the commission's analysis of public need for a pipeline project and the project's contributions to climate change. Their arguments, similar to others they have made in pipeline proceedings, will flag the attention of federal judges in the likely scenario that the cases go to court.

Commissioners outline opinions

In the Sabal Trail order, the majority denied requests that FERC revisit its approval of the Southeast Market Pipelines project and stay the authorization. LaFleur and Glick said the commission failed to comply with its obligations under the National Environmental Policy Act to evaluate gas emissions from sources connected to a gas transportation system and had similarly failed to comply with a 2017 decision by the U.S. Court of Appeals for the District of Columbia Circuit that required extra analysis of emissions from power plants at the end of the project.

In disagreement with the majority, they said FERC should use the social cost of carbon, a tool that attempts to put a dollar figure on carbon emissions. LaFleur called it "a useful metric to evaluate climate change impacts from a pipeline project." (FERC dockets CP14-554, CP15-16, CP15-17)

McIntyre and Glick did not participate in the Atlantic Coast order on rehearing. LaFleur dissented. She said she was not able to find the Atlantic Coast and Mountain Valley projects in the public interest when they were approved by the FERC majority and she still did not find the Atlantic Coast project in the public interest. She also said she disagreed with the FERC majority's treatment of climate impacts, and she had problems with how the majority fits environmental impacts into its determination that a project is in the public interest. (FERC dockets CP15-554, CP15-555, CP15-556)

Delaware Riverkeeper on PennEast

In the PennEast order, LaFleur agreed with the majority that the project, in New Jersey and Pennsylvania, was in the public interest, but she again took issue with parts of the commission's approach to environmental reviews. Glick dissented, pointing to what he saw as shortcomings in the commission's analysis of public need and environmental impacts. (FERC docket CP15-558)

The environmental group Delaware Riverkeeper Network said in a statement that its request for rehearing of the FERC approval was rejected in less than a year, which the environmental group took as a possible sign that the commission listened to its criticisms of the use of tolling orders that give FERC unlimited time to review such requests and push back the date when opposition groups can take their case to court.

The group, which has brought FERC to court before, said Aug. 13 that it had already asked the D.C. Circuit to review the approval of PennEast. The FERC majority said in its order on rehearing that it found that "Delaware Riverkeeper's argument consists of over 20 pages of bulleted accusations that are vague and unsupported and without citation to the final [environmental review] or to the certificate order."

In the Dominion Cove Point order, LaFleur said the commission should have examined downstream greenhouse gas emissions of the power plants connected to the project, an argument similar to the one involving the Southeast Market Pipelines project. Glick said the commission should not find the project to be in the public interest without first evaluating its climate impacts. (FERC docket CP17-15)