Commissioner Richard Glick Statement
August 31, 2020
Docket No. CP16-10-005
Today, the Commission denies rehearing of a letter order that the Director of the Office of Energy Projects, through his designee, Chief of Gas Branch 3, Division of Gas — Environment and Engineering, issued in response to a complaint alleging Mountain Valley Pipeline, LLC violated certain environmental conditions of the Commission’s October 13, 2017 certificate order.[1] While I agree with today’s decision to deny rehearing, I continue to have concerns with the Commission’s practice to delegate authority to Commission staff to respond to federal court actions remanding or vacating a federal authorization that is among the necessary pre-conditions for commencing construction.
As today’s order describes, Commission staff customarily acts within its delegated authority to address the impact of federal court actions that raise significant questions about a certificate holder’s required federal authorizations, by evaluating the impact those court actions may have on post-certificate pipeline activities.[2] For example, after the U.S. Court of Appeals for the Fourth Circuit vacated Mountain Valley Pipeline’s federally-mandated authorizations from the Department of the Interior’s Bureau of Land Management (BLM) and the Department of Agriculture’s Forest Service (Forest Service), Commission staff initially issued a Notification of Stop Work Order and then subsequently determined that partial construction should resume.[3]
In light of this practice, rehearing of staff’s decisions to stop construction or allow construction to resume in each delegated letter order is effectively the Commission’s first opportunity to consider the impact of federal court actions on post-certificate pipeline activities.[4] I continue to believe that, given the increasing complexity of such issues, the Commission should revisit this practice and ensure that, when a court remands or vacates a required federal authorization, the decision regarding whether and how the pipeline company may proceed with construction is made in the first instance by the Commission, rather than its staff. Ultimately, it is the Commission’s responsibility to ensure the project is in the public interest.
For these reasons, I respectfully concur.
[1] Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043 (2017) (Certificate Order), order on reh’g, 163 FERC ¶ 61,197 (2018), aff’d sub nom., Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199 (D.C. Cir. Feb. 19, 2019) (unpublished).
[2] Mountain Valley Pipeline, LLC, 172 FERC ¶ 61,193, at P 18 (2020).
[3] See Director of OEP’s August 3, 2018 Notification of Stop Work Order and August 29, 2018 Partial Authorization to Resume Construction issued in Docket No. CP16-10-000.
[4] While I expressed significant concerns with Commission staff’s decision to allow construction to resume while required right-of-way and temporary use permits remain outstanding, no party sought rehearing of the Director of OEP’s August 29, 2018 delegated letter order. See Commissioners LaFleur and Glick Aug. 29, 2018 Joint Statement on Mountain Valley Pipeline Construction.