Item C-2: Commissioner Richard Glick Dissent Regarding Mountain Valley Pipeline LLC

Commissioner Richard Glick Statement
December 17, 2020
Docket No. CP16-10-000
Order:  C-2

Today’s order grants Mountain Valley Pipeline, LLC (MVP) authorization to resume construction activities in the 25-mile exclusion zone bordering the Jefferson National Forest.  That is a serious mistake.  Since the Commission authorized the MVP Pipeline Project (Project), the federal courts have repeatedly invalidated the various federal permits that MVP requires to complete its route.  As a result, MVP is still missing necessary permits, including authorization to cross the Jefferson National Forest.  Given the MVP permits’ checkered litigation record, we should not authorize MVP to commence piece-meal construction, including construction affecting a national forest, before it has all the permits needed to complete the Project along its current route.[1] 

MVP obtained its original certificate from the Commission in October 2017.[2]  A condition of that certificate—Environmental Condition 9—required MVP to show that it had all necessary permits required under federal law before it could begin construction.[3]  On January 22, 2018, Commission staff authorized MVP to commence construction after finding that it had satisfied that condition.[4]  Ever since, the courts have invalidated one MVP permit after another, repeatedly bringing construction to a halt.[5]  For example, 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[6] as well as the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit No. 12.[7]  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.[8]  And, earlier this month, the Fourth Circuit stayed the recently reissued Nationwide Permit No. 12, depriving MVP of authority to cross more than 400 wetlands and waterbodies along the Project route.[9]

Under those circumstances, we should not be allowing MVP to recommence construction at this time.  As an initial matter, I believe that allowing MVP to recommence construction without all necessary permits violates Environmental Condition 9 of its certificate.  As noted, Environmental Condition 9 requires MVP to secure all federal permits before it can take any action to construct the pipeline.[10]  The most logical interpretation of that condition is that, to the extent MVP lacks federal permits, it should not be allowed to begin any construction along the pipeline, including by recommencing construction that was halted due to court order. 

Although unstated in today’s order, the Commission has previously taken the position that Environmental Condition 9 is relevant only when a project developer first begins construction.[11]  That interpretation is nonsensical and waters down an important environmental and landowner protection measure.  If the public interest requires a pipeline to have its ducks in a row when it first begins construction, I see no reason why it is not equally important to require the pipeline to meet the same condition every time it recommences construction, especially after having a necessary permit invalidated by court order.  The Commission’s failure to take Environmental Condition 9 seriously, and its contention that the condition is relevant only when a pipeline first commences construction, makes the condition look like an excuse for justifying the Commission’s practice of granting conditional certificates and not a serious attempt to protect the environment or the public interest.  It is that kind of hand-waving analysis that has earned the Commission a reputation for “rubber stamping” interstate natural gas pipelines. 

Allowing MVP to recommence construction now is also bad policy.  The 25-mile exclusion zone abutting the Jefferson National Forest is designed to protect the critical resource that is the national forest, particularly wetlands within the forest, and we should not be undermining those protections before BLM and the Forest Service decide whether to reissue MVP’s authorization to cross the forest lands, along with whatever new protections it may require.  In any event, as I have previously explained, allowing MVP to take actions that may harm the Jefferson National Forest or affect the pending route approvals puts the cart before the horse in a way that is inconsistent with our responsibility to the public interest.  Particularly given the history of this proceeding, and the numerous defeats that MVP’s permits have suffered in court, the Commission should demand an affirmative reason to believe that the Project will go forward as planned, such as having all necessary permits, before authorizing additional construction. 

In response, the Commission takes the bewildering position that because “the record gives . . . no reason to assume that there will be a change to the proposed route,” it will assume that the project will go ahead on the current route.[12]  That type of perfunctory reasoning simply does not cut it.  It is the Commission’s job to protect the public interest throughout construction of a new pipeline and we are not taking that responsibility seriously if we brush aside concerns about the invalidated permits and treat the absence of conclusive evidence that the pipeline route will change as a basis to assume that a project will go forward as planned, even while key permits remain outstanding.  Once again, that approach is exactly what earns this Commission its unfortunate reputation as a rubber stamp.

For these reasons, I respectfully dissent.