Commissioner Richard Glick Dissent Regarding Mountain Valley Pipeline, LLC (CP16-10-000, CP19-477-000)

Commissioner Richard Glick Statement
October 9, 2020
Docket No. CP16-10-000, CP19-477-000

Today’s order grants, in part, Mountain Valley Pipeline, LLC’s (MVP) request to resume certain construction activities for the Mountain Valley Pipeline Project (Project) after MVP received some—but not all—of the various permits and authorizations that were invalidated in court.[1]  I dissent because I disagree with the Commission’s decision to allow piece-meal construction on the MVP pipeline while the remaining federal authorizations are still outstanding. 

MVP obtained its section 7 certificate from the Commission in October 2017.[2]  The certificate’s Environmental Condition 9 required that, before commencing construction, the project developers document that they received all permits required under federal law.[3]  On January 22, 2018, Commission staff found that MVP met that Condition and authorized it to commence construction.[4]  Since that time, the courts have vacated one MVP permit after another, including the authorization to cross the Jefferson National Forest issued by the Bureau of Land Management (BLM) and the Forest Service[5] and the U.S. Army Corps of Engineers’ (Corps) Nationwide Permits No. 12.[6]  In addition, the courts also stayed the Fish and Wildlife Service’s (FWS) Biological Opinion and Incidental Take Statement for the Project.[7]  After the court vacated BLM’s and the Forest Service’s authorizations, Commission staff issued a Stop Work Order, noting “should the agencies authorize alternative routes, MVP may need to revise substantial portions of the Project route across non-federal lands, possibly requiring further authorizations and environmental review. . . . [A]llowing continued construction poses the risk of expending substantial resources and substantially disturbing the environment by constructing facilities that ultimately might have to be relocated or abandoned.”[8]  Similarly, after the court issued a stay of the Biological Opinion and Incidental Take Statement, Commission staff, again, issued another Stop Work Order along all portions of the Project, with the exception of restoration and stabilization of the right-of-way and work areas.[9]     

In response to the various vacaturs, FWS has issued a revised Biological Opinion and the Corps has reissued its nationwide permits.[10]  BLM and the Forest Service have not, however, re-authorized MVP to cross the Jefferson National Forest.  Nevertheless, the Commission is allowing MVP to resume construction in certain areas covered by the reissued permits. 

I would take a more measured approach to recommencing construction.  Especially given the troubled history of MVP’s various federal authorizations, I do not believe that we should be restarting construction when the Project lacks the permits necessary to cross vital portions of the planned route.  MVP may eventually receive permission to cross the Jefferson National Forest.  But, by allowing it to recommence construction before doing so, the Commission has put the cart before the horse. 

That is a mistake.  Even if BLM and the Forest Service reissue the authorization it is possible that they could require potential significant changes to the route.  And, as the Atlantic Coast Pipeline aptly illustrates, it is possible that a pipeline, even one already under construction, might never be completed or might have to follow a different course,[11] leaving the work done to date little more than a pipeline to nowhere. 

In addition, because BLM and the Forest Service have not reissued the Jefferson National Forest crossing authorization, MVP remains out of compliance with Environmental Condition 9 in the Certificate Order.  That condition requires MVP obtain all necessary authorizations before beginning construction.  MVP does not currently have an authorization to cross the Jefferson National Forest and, therefore, it should not be allowed to again begin construction.  Plain and simple. 

The Commission contends that Environmental Condition 9 applied only the first time MVP had to commence construction and does not apply to orders to recommence construction.[12]  Even if we assume that such a strained interpretation could represent a reasonable reading of that Condition, today’s order fails to explain why it makes sense to require that a pipeline developer have the necessary permits when it first starts construction, but not throughout construction or, at the very least, before construction can restart after being halted after a court found that those initial permits were invalid.  Instead, the Commission argues that recommencing construction is somehow better for the environment and landowners, even though both environmental groups and landowners oppose that decision.[13]  Furthermore, Commission staff has already allowed MVP to undertake activities for stabilization and restoration along the pipeline right-of-way to address those concerns while federal authorizations were pending on remand.[14]  Today’s order simply does not explain why the marginal benefit of the additional construction activities on top of the stabilization already authorized outweighs landowners request to hold off while permits remain outstanding.

I appreciate that the construction of a pipeline can often do more harm to environmental and landowner interests than the operation of a completed pipeline.[15]  But that concern cannot always justify plowing ahead with construction in the face of uncertainty.  If it did, we might never halt construction when a permit is vacated by the courts—which even this Commission recognized as the appropriate course of action – or allow construction to commence in the first place before all necessary federal approvals have been obtained.[16]  Instead, our responsibility in considering whether to authorize MVP to recommence construction is to balance the full panoply of factors that bear on the public interest, not just the desire to complete the pipeline in the shortest time possible.  Today’s order, however, fails to wrestle with the uncertainty created by the outstanding permits, not to mention the litigation that is likely to follow, and instead rushes to recommence construction.  That is not, in my view, a reasoned application of our responsibility to the public interest. 

For these reasons, I respectfully dissent.

________________________

Richard Glick

Commissioner