Mountain Valley Pipeline LLC has properly addressed compliance concerns, the Federal Energy Regulatory Commission said Aug. 28, despite environmental group allegations that the builder had failed to follow conditions of its certificate authorizing the natural gas project.
Commission staff formally declined the request by Wild Virginia, India Creek Watershed Association and Preserve Craig to suspend or revoke certificate authorization for the 300-mile, 2 Bcf/d natural gas pipeline project, as the groups had requested in a June 21 complaint.
The pipeline project is 85% completed but has faced a number of legal roadblocks slowing final work. An important upcoming question is whether the U.S. Court of Appeals for the Fourth Circuit will grant a separate stay request sought by Wild Virginia and other groups pending their court challenge over Endangered Species Act projections. Potentially reducing the chances for a stay, Mountain Valley Pipeline, or MVP, has voluntarily suspended work in some areas.
Another Aug. 28 development will likely be relevant to that litigation: FERC wrote to the U.S. Fish and Wildlife Service asking to reinitiate Endangered Species Act consultations, specifically to assess so the impacts to four species, given new information. Mountain Valley in response said it was "encouraged the process is moving forward." The Sierra Club insisted all work should be suspended until new authorizations are in place.
"The key question will be, is the court going to view the voluntary stop-work [action] as broad enough to avoid the potential harm, or do they think there are additional work activities that need to be stopped," Gary Kruse of LawIQ said of the developments. The Fish and Wildlife Service and U.S. Department of Interior responses to the stay request are due Aug. 30.
As to the compliance issues raised at FERC, Wild Virginia, India Creek Watershed Association and Preserve Craig had filed a complaint at the commission on June 21 contending the project had violated environmental conditions on "hundreds of occasions and on a project-wide scale" and that the developer had continued work after federal authorizations were invalidated or suspended. Many of the allegations revolved around erosion and sedimentation problems.
James Martin of FERC's Office of Energy Projects said in an Aug. 28 letter to Wild Virginia that formal complaint procedures would not apply despite the request, as FERC's practice is for commission staff to handle allegations of noncompliance. His letter constituted final agency action, he said, noting FERC would continue watching the project through its compliance monitoring inspection program.
Martin's letter included a defense of multiple FERC actions over the past year and pushed back on some specific concerns. For instance, FERC counted 40 instances — rather than the alleged 307 — where mud or sediment-water went outside the right-of-way between February 2018 and May 2018. Martin said "there may be legitimate reasons" why Mountain Valley was unable to retrieve sedimentation in a timely fashion. Acquiring landowner permission can take an extended period of time, as can coordination with other agencies about compliance with the National Historic Preservation Act and Endangered Species Act, Martin said, in response to the environmental group's complaint that there were delays in fixing problems.
"[W]e believe that Mountain Valley is remediating [land]slips appropriately," he wrote.
Martin also reiterated FERC's position that the agency had allowed work to continue in some areas, despite a court action vacating certain authorizations, because the director of the energy projects office found that promptly completing construction in cleared and graded areas would best protect the environment.
The letter rejected the group's assertion that FERC has an obligation to enforce water quality requirements. "Enforcement of the West Virginia and Virginia permit requirements falls under the jurisdiction of West Virginia and Virginia," Martin wrote.
In response to the letter, David Sligh of Wild Virginia said FERC has not yet provided a legal justification for allowing the project to go forward amid some outstanding permits, and lacks legal authority to avoid processing his filing as a formal complaint. While FERC responded to some specifics, he contended the complaint points to a "vast body of violations" showing Mountain Valley is no longer able to live up to requirements in the FERC certificate.
Mountain Valley spokeswoman Natalie Cox disagreed. "FERC addressed each of the opponent's concerns and found that the allegations of noncompliance have been adequately addressed," she said.
Maya Weber is a reporter with S&P Global Platts. S&P Global Market Intelligence and S&P Global Platts are owned by S&P Global Inc.
