Chairman Richard Glick and Commissioner Allison Clements Joint Dissent Regarding Mountain Valley Pipeline, LLC

Chairman Richard Glick and Commissioner Allison Clements Joint Statement
March 24, 2021
Docket No. CP16-10-008

We dissent from today’s order because we do not believe that we can allow Mountain Valley Pipeline, LLC (MVP) to recommence construction while federal authorizations remain outstanding.  At this point, MVP lacks the federal authorizations required to cross over 700 waterbodies and wetlands along the project route.  Under these circumstances, allowing piecemeal construction of a project that is still awaiting critical federal authorizations is inconsistent with any reasonable reading of the purposes behind Environmental Condition 9 in MVP’s certificate, not to mention our responsibilities to the landowners, communities, and others who have interests at stake in this proceeding.

MVP obtained its original certificate from the Commission in October 2017.[1]  Environmental Condition 9 in the certificate provides that:

Mountain Valley and Equitrans must receive written authorization from the Director of [the Office of Energy Projects (OEP)] before commencing construction of any project facilities.  To obtain such authorization, Mountain Valley and Equitrans must file with the Secretary [of the Commission] documentation that it has received all applicable authorizations required under federal law (or evidence of waiver thereof).[2]

On January 22, 2018, Commission staff authorized MVP to commence construction after finding that it had satisfied that condition.  Since then, the courts have invalidated one MVP permit after another, repeatedly bringing construction to a halt.[3] 

An abridged history of those proceedings provides some helpful context.  In 2018, the U.S. Court of Appeals for the Fourth Circuit vacated the authorization to cross the Jefferson National Forest issued by the Bureau of Land Management (BLM) and the U.S. Forest Service[4] as well as the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit No. 12.[5]  In addition, the Fourth Circuit also stayed the U.S. Fish and Wildlife Service’s (FWS) Biological Opinion and Incidental Take Statement for the project.[6]  Now MVP has received new federal authorizations from BLM, the Forest Service, FWS, and the Corps.  But in December 2020, the Fourth Circuit stayed the recently reissued Nationwide Permit No. 12, once again depriving MVP of authority to cross more than 700 wetlands and waterbodies along the project route.[7]

At various points over the last three years, the Commission has allowed MVP to recommence construction on segments of the pipeline route after the relevant agency reissued one of the vacated authorizations, finding that allowing construction would be better for the environment than stabilizing the area while the pipeline waits for necessary authorization.[8]  The Commission doubles down on that argument today, stating that the project area is not a blank slate and that it is better to allow the pipeline to plow ahead with construction rather than stabilize the area while waiting for the authorization needed to perform that construction in the first place.[9] 

We disagree.  For one thing, that argument assumes that the authorizations will be reissued and on substantially the same terms and conditions as the now-vacated authorizations.  Assuming that the relevant agency will essentially reissue the same document on remand, this time dotting the I’s and crossing the T’s, is wholly inconsistent with the purpose of judicial review or the idea that the agency should seriously consider the flaws that precipitated the vacatur.  

In any case, the assumption that the Corps will reissue functionally identical permits is particularly unfounded here because MVP is no longer seeking to rely on the stayed Nationwide Permit 12.  Instead, MVP is pursuing an entirely different approach to securing the authorizations needed to cross the 700 waterbodies and wetlands along its path.  In particular, it has sought an Individual Permit from the Corps under Section 10 of the Rivers and Harbors Act of 1899[10] and Section 404 of the Clean Water Act (CWA)[11] for over 500 waterbodies and wetlands crossings.[12]  As a result, MVP must also obtain a Water Quality Certification under Section 401 of the Clean Water Act[13] from the West Virginia Department of Environmental Protection and the Virginia Department of Environmental Quality for portions of the project within their respective jurisdictions.[14]  As for the remaining waterbodies and wetlands, MVP has filed a proposed amendment to its certificate seeking Commission authorization to change the crossing method for the rest of the approximately 180 crossings not covered by its new permit application with the Corps.[15]  The new approach may well be preferable to reliance on the troubled Nationwide Permit 12, but, even so, we should not act as if those proceedings are a foregone conclusion and MVP is certain to receive all the permits it has requested. 

Allowing MVP to proceed without having all of its federal authorizations is inconsistent with any reasonable reading of Environmental Condition 9 in MVP’s certificate.  As noted, that condition requires MVP to secure all federal authorizations needed to construct the project before it can commence construction.  We see no reason to require a pipeline developer to secure the necessary permits when it first starts construction, but not maintain those permits throughout the entirety of construction.  The governing principle behind Environmental Condition 9 is to ensure that people’s land and the environment are not bulldozed to make way for a pipeline project that might not be completed or might have to be re-routed.  That principle remains relevant throughout construction every bit as much as it did at the outset.  Today, the Commission continues to argue that Environmental Condition 9 only applies to “newly-certificated and unconstructed facilities,” meaning that once MVP had all its federal authorizations, even if only for a fleeting period, it has satisfied Environmental Condition 9 in perpetuity.[16]  That interpretation turns Environmental Condition 9 into a literal check the box exercise, watering down what should be an important environmental and landowner protection measure. 

Furthermore, we do not believe that the Commission has adequately explained why the purported benefits of the additional construction activities—i.e., on top of the stabilization already authorized—outweigh the rights of landowners and other entities who asked the Commission to wait for an answer on the outstanding authorizations before allowing MVP to plow ahead with construction.  To be sure, we all have an interest in getting the construction of a validly certificated pipeline completed without unnecessary delay.  But today’s order puts that interest above the interests of landowners and other affected groups in contravention of our public interest responsibilities. 

For these reasons, we respectfully dissent.