Docket No. CP21-57-000
We concur in today’s order. The only question before us today is whether to approve Mountain Valley’s limited request to amend its certificate, primarily to change its method of crossing numerous waterbodies. We agree that Mountain Valley has met its burden to show that the proposed amendments are consistent with the public interest.
We write separately to explain our support for issuing today’s order notwithstanding the U.S. Court of Appeals for the Fourth Circuit’s decisions vacating (1) the Bureau of Land Management (BLM) and the Forest Service authorization to cross the Jefferson National Forest and (2) the Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement. We have previously voiced concerns with the Commission’s practice of issuing conditional certificates prior to the pipeline developer obtaining the other federal permits necessary to build a proposed pipeline.[1] In particular, we have expressed concern that the Commission was putting the cart before the horse in allowing certificate holders to condemn private land and commence construction notwithstanding substantial uncertainty as to whether the project would ever be developed successfully. Those concerns may be heightened when, as here, the permits and authorizations needed to develop the project have been vacated—several times—by the courts.[2]
Today’s order is different for several reasons. First, in one of its recent decisions vacating MVP’s permits, the Fourth Circuit held that it was arbitrary and capricious for BLM to approve Mountain Valley’s water crossing method “without first considering FERC’s analysis.”[3] Considering that holding, we agree that it is appropriate for the Commission to issue today’s order, so that BLM can have the benefit of FERC’s analysis to satisfy the court’s remand. Second, Mountain Valley’s usage of trenchless waterbody crossings will result in fewer environmental impacts than the crossing method that the Commission approved under the original certificate, meaning that today’s order amending Mountain Valley’s certificate will almost certainly represent an improvement over the status quo. Third, the record reflects that the Mountain Valley project is almost entirely constructed[4] and the amendment project will not require taking any additional land by eminent domain.[5]
Finally, as to the Fourth Circuit’s recent vacatur of the Biological Opinion, if FWS finds that the amendment would in fact jeopardize a listed species or a critical habitat, then no further construction would be appropriate and Mountain Valley likely would need to come back with another amendment. In addition, today’s order does not authorize any change in the route or affect any new landowners, which helps to mitigate our longstanding concerns over the prospect of private property being condemned long before construction begins on a project that may never be fully approved.[6]
[1] PennEast Pipeline Co., 174 FERC ¶ 61,056, at PP 1-2 (2021) (Glick & Clements, Comm’rs, concurring); see Mountain Valley Pipeline, LLC, 174 FERC ¶ 61,192, at P 1 (2021) (Glick, Chairman, Clements, Comm’r, dissenting).
[2] See, e.g., Appalachian Voices v. U.S. Dep’t of the Interior, 25 F.4th 259, 271-77 (4th Cir. 2022) (vacating FWS Biological Opinion because it failed to adequately evaluate environmental baseline and cumulative effects for two listed species, and climate change).
[3] Wild Virginia v. U.S. Forest Serv., 24 F.4th 915, 930 (4th Cir. 2022) (emphasis added); id. at 929 (“MVP cannot construct the stream crossings outside the Jefferson National Forest using the conventional bore method until FERC actually fully approves the amendment to the FERC Certificate to authorize that method.”).
[4] Weekly Status Report No. 226, Docket No. CP16-10 (Mar. 25, 2022).
[5] See Mountain Valley Pipeline, LLC, 179 FERC ¶ 61,013, at P 14 (2022).
[6] See, e.g., PennEast, 174 FERC ¶ 61,056 at PP 3-4 (Glick & Clements, Comm’rs, concurring).