Commissioner Mark C. Christie Statement
February 18, 2021
Docket No. CP16-9-012
Order: C-4
What the majority does in this order is inconsistent with the purpose and principle behind a future-looking review of certification applications. Today, the Commission makes a foray into retroactively changing the rules long after the fact: long after construction was begun and long after investors committed significant funds, as described below, to a project. Today’s capricious action violates the most basic standards of regulatory due process and regulatory finality, both of which are absolutely necessary to balance appropriate regulatory protections for people who live in geographic proximity to infrastructure projects with regulatory certainty for those who are building and financing needed infrastructure to provide vital services to consumers and create jobs for Americans.
On January 25, 2017 – more than four years ago – this Commission authorized Applicants to construct and operate certain pipeline and compression facilities in New York, Connecticut, and Massachusetts (Atlantic Bridge Project), and, in so doing, found that the “public convenience and necessity require approval and certification of the Atlantic Bridge Project under section 7 of the NGA,” subject to certain conditions.[1] In reliance on the issuance of that certificate of public convenience and necessity (CPCN), investors committed hundreds of millions of dollars to construct the project.[2] Construction took place and on September 24, 2020, Commission staff issued a delegated letter order authorizing the remaining facilities associated with the Atlantic Bridge Project be placed into service, including the Weymouth Compressor Station in Norfolk, Massachusetts, and the Maritimes Westbrook Metering and Regulator Station in Cumberland, Maine, and finding that “Algonquin and Maritimes have adequately stabilized areas disturbed by construction and that restoration is proceeding satisfactorily.”[3]
Now, four years after finding public convenience and necessity require approval and certification of the Atlantic Bridge Project and inviting investors to commit substantial funds to build it, and without recognizing the request for rehearing was denied by operation of law, the majority literally invites opponents of the project to re-litigate the core question of whether the project should even have been built. The majority’s order unquestionably raises the specter of shutting down this completed and functioning project even permanently, although it offers no discussion as to how it would do so under the law.
The majority’s decision is apparently – it is unclear – based on an alleged safety issue with a compressor station that is no longer under this Commission’s jurisdiction, but is rather under that of another federal agency.[4] The Certificate Rehearing Order states that the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) is the agency charged with developing safety regulations for the design and operation of natural gas pipeline facilities and enforces compliance with these regulations. To compound the Kafkaesque quality of the Commission’s action, PHMSA has already investigated and given the compressor facility a temporary green light to operate.[5]
Fairness and due process in the regulatory consideration of project certification applications means litigating all relevant issues during the original proceeding, providing for robust public participation, and then issuing a decision well-grounded in law and fact. Then out of fairness to all concerned, the regulatory body should stand behind its decision. Today’s decision violates this basic standard.
Instead, today’s order creates more questions than it answers and leaves uncertainty only in its wake. Nothing in today’s order suggests that the Commission has not left open the possibility that it will shut down this project. As a result, today’s order may, regrettably, impact investment in all infrastructure projects making them less appealing to engage in by those who normally seek to build the projects and harder to finance or, at the very least, more expensive to finance due to the increased risk created by this specter of uncertainty.
Mark Twain said the art of prophecy is very difficult, especially with respect to the future; however, I suspect that the use of the legal weapons of unending litigation and collateral attacks against infrastructure projects long after they have been approved, as is enabled by today’s order, will not be limited to natural gas projects, even though they are today’s primary target. Campaigns of unending legal warfare may well be used one day against other types of infrastructure projects, including those the majority may well want to promote.
For these reasons, I respectfully dissent.
[1] Algonquin Gas Transmission, LLC, 158 FERC ¶ 61,061 at P 31 (Certificate Order) (emphasis added), order on reh’g, 161 FERC ¶ 61,255 (2017) (Certificate Rehearing Order), aff’d sub nom., Town of Weymouth v. FERC, No. 17-1135, 2018 WL 6921213, at *1 (D.C. Cir. Dec. 27, 2018) (unpublished opinion).
[2] The Certificate Order states that, at the time of the applications, Applicants estimated the cost of the Atlantic Bridge Project to be $451,791,440. Certificate Order at P 10 (footnote omitted).
[3] Algonquin Gas Transmission, LLC, Docket No. CP16-9-000, at 1 (Sep. 24, 2020) (delegated order) (Authorization Order). Subsequent to the Authorization Order, on October 23, 2020, the Fore River Residents Against the Compressor Station (Fore River Residents), the City of Quincy, Massachusetts, Weymouth Councilor Rebecca Haugh, Michael Hayden, and Food and Water Watch filed what was styled as request for rehearing of the Authorization Order.
[4] The Commission’s action may also be based on an argument in the request for rehearing that has already been denied by operation of law, that the Weymouth Compressor Station poses a threat to neighboring communities during the COVID-19 pandemic and represents a change in core circumstances that requires the Commission to re-open the record in this proceeding. Such an argument appears to be another attempt to re-open and re-litigate the original certificate proceeding with a goal of overturning that decision and shutting the project down permanently.
[5] See In the Matter of Algonquin Gas Transmission, LLC, Corrective Action Order, CPF No. 1-2020-014-CAO, Dep’t of Transp. (Oct. 2020) (prohibiting Algonquin from operating the Weymouth Compressor station following two unplanned emergency shutdowns on September 11 and 30, 2020); see also In the Matter of Algonquin Gas Transmission, LLC, Region Approves Restart Plan, CPF No. 1-2020-014-CAO, Dep’t of Transp. (Nov. 2020) (approving Algonquin’s restart plan for the Weymouth Compressor Station at 80 percent capacity), January 22, 2021 Letter from PHMSA to Enbridge, CPF 1-2020-014-CAO (permits the temporary removal of the pressure restriction and approves the temporary operation of the compressor units in the station). As a result of the January 22, 2021 PHMSA Letter, Applicants filed a Notice of Commencement of Service with the Commission in this docket on January 25, 2021. Even if additional measures are ordered by PHMSA, that would be under PHMSA’s authority not the Commission’s.