What’s Next for the Pipeline Controversies?

DEQ will tighten erosion regulations on steep slopes like this for construction of the proposed Atlantic Coast Pipeline and Mountain Valley Pipeline in Virginia.
Virginia’s DEQ will pay close attention to construction on steep slopes like this for the proposed Atlantic Coast Pipeline and Mountain Valley Pipeline.

With the announcement last week that Virginia’s Department of Environmental Quality (DEQ) would provide closer scrutiny of water-quality standards than legally required, battles over the Atlantic Coast Pipeline and Mountain Valley Pipeline shift from the federal level to the states.

Foes of the natural gas pipelines have failed so far to block the projects in the federal permitting process. The Federal Energy Regulatory Commission, which approves or denies interstate pipeline projects, found in separate draft environmental impact statements that, with appropriate mitigation, the ACP and MVP projects can be reduced to “less than significant levels.” DEQ’s announcement throws environmental and citizen groups a lifeline by giving them another shot at blocking the pipelines.

“We are confident that a full-fledged review of the projects will show that there is no way they can be built and operated without harming water quality, said Mike Tidwell with the Chesapeake Climate Action Network in a press release. “Allowing public input will further highlight the enormous public opposition to the MVP and ACP.”

“It’s a big announcement, and we’re very happy about it,” David Sligh, regulatory system investigator with the Dominion Pipeline Monitoring Coalition (DPMC), told Bacon’s Rebellion. “DEQ cannot issue a certification for the ACP as a whole without accounting for all the water bodies affected. .. It’s a huge chore. … I do not think it’s possible for either ACP or MVP to do what they propose to do and meet water quality standards.”

The ACP and MVP response to the DEQ announcement has been muted. “Throughout this process, we’ve worked with state and federal agencies to ensure the project receives a thorough environmental review with robust public participation,” said ACP spokesman Aaron Ruby. “We stand ready to work cooperatively with DEQ on an efficient review and timely process.”

In the Byzantine regulatory process governing interstate pipelines, FERC relies upon the U.S. Army Corps of Engineers (COE) to review water crossings for impact on water quality. DEQ had the options of deferring to the COE, of issuing a general permit that calls for basic protections to be met, or of undertaking its own in-depth review. In choosing the in-depth analysis, DEQ will hold additional public hearings and provide more time for citizens to provide input.

The main issue, according to the DPMC and other activist groups, is that general permits do not adequately address the challenges of massive pipeline projects that cross hundreds of water bodies. Construction, which entails the digging of trenches, is particularly problematic where steep mountain slopes elevate the risk of landslides and erosion that release sediment into rivers and streams, and in sinkhole-ridden karst terrain, where polluted water can travel undetected before surfacing miles away. Steep slopes and karst are characteristic of the mountains of western Virginia where both pipelines would cross.

Sligh told of a colleague who walked a section of the proposed Mountain Valley Pipeline route with a local resident and found three or four springs that state and federal agencies were unaware of. It is imperative, he says, that citizens with in-depth local knowledge of the terrain be given a chance to provide input on how the pipelines propose to deal with each specific stream crossing.

Pipeline foes have had little luck in either North Carolina or West Virginia, the other two states impacted by the pipelines. The West Virginia Department of Environmental Protection has granted a water-quality permit for the 195-mile segment of the Mountain Valley Pipeline that runs through the Mountaineer state. Little opposition to the pipelines has surfaced in North Carolina. That leaves Virginia as the stopgap.

If DEQ sides with the pipelines, the battle still is not necessarily over. In West Virginia, Mountain Valley Advocates, an anti-pipeline group, seeks a hearing with West Virginia regulators to dispute the department’s issuance in March of MVP’s water-quality certification. If that bid fails, environmental groups have the right to sue. But the odds of stopping the pipelines seem to get longer with each passing day.

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32 responses to “What’s Next for the Pipeline Controversies?”

  1. vaconsumeradvocate Avatar

    “(DEQ) would provide closer scrutiny of water-quality standards than legally required,”

    Say what? No, DEQ is doing what it is supposed to do and what the larger system intends for it to do.

    This is also what our state elected officials have promised. They have assured us that water will be clean if these pipelines are built. Landowners and communities unlucky enough to be selected for the pipelines deserve close scrutiny of what is planned, requirements to protect our water, soil and air, and a lot more.

    DEQ has agreed to do its job, not do more than legally required.

  2. Here’s how I understand DEQ’s options (as explained in the story) DEQ had the options of deferring to the Corps of Engineers, of issuing a general permit that calls for basic protections to be met, or of undertaking its own in-depth review. In choosing the in-depth analysis, DEQ will hold additional public hearings and provide more time for citizens to provide input.

    DEQ had two legal options that would have required far less public involvement and independent staff analysis. Ergo, by picking the option it did, it is exceeding legal requirements.

  3. Sounds like a reasonable provision, perhaps too late in the process, of course. Too often it seems like projects in Virginia are approved without adequate consideration of water runoff and other issues. In this case, since it is not a state of Virginia project, sounds like we can afford to be a little more proactive and force somebody with deeper pockets to submit to review, and take possible corrective actions before the project is already completed. But we’ll take what we can get as far as adequate prior review.

  4. TooManyTaxes Avatar

    And yet the City of Alexandria seems to be getting pretty lenient treatment for its ongoing failure to separate its sanitary sewer from its storm sewers. This has to be one of the biggest storm water messes in the state. My home town of St. Paul, MN did this back in the early 1970s.

    Is the issue storm water management? Or anti-fossil fuels? I cannot tell.

    1. It’s going to cost the City of Alexandria a bundle to separate those sewer systems. But I too don’t understand why the delay was granted. It has to be done eventually, and it’s only going to cost more the longer they wait, and the harm to the Potomac meanwhile is — disturbing.

      1. TooManyTaxes Avatar

        It’s more fun for the environmental bureaucrats to reorder the electric power industry than to address basic pollution problems. Yet I bet the city council and city managers are focused more on carbon emissions that stopping human waste from entering the Potomac River every time it rains hard.

        If these pipelines cause storm water runoff problems they should be addressed, but I strongly suspect the goal is to stop others from using fossil fuels.

  5. It is not possible to address all of the issues related to this post.

    My main concern is that as a society we are becoming too numb to the continued onslaught against the rule of law.

    The Natural Gas Act requires that FERC issue a certificate only when the project meets the Public Convenience and Necessity. Yet FERC has provided no information in the Draft Environmental Impact Statement that addresses that issue other than the project has “customers” (who are the subsidiaries of the owners of the pipeline). If a project has merit it should be able to withstand an objective review.

    Existing laws are also being circumvented regarding the issue of water quality.

    On April 6th the DEQ announced that it would conduct individual Clean Water Act Section 401 reviews for the Atlantic Coast and the Mountain Valley Pipelines. For some time, the EPA has delegated the authority to issue and enforce 401 Permits to the states.

    On April 7th, the DEQ announced that it would issue a blanket 401 certification for pipelines that are covered by the U.S. Army Corps of Engineers Nationwide Permit Number 12. Utilizing this blanket permit would allow pipeline developers to construct projects that are very damaging to Virginia’s waterways and water quality without thorough reviews and public involvement.

    Also on April 7th, the Dominion Pipeline Monitoring Coalition (DPMC) submitted a FOIA request to the DEQ asking for evidence that the DEQ had conducted the analysis that the pipeline activities would conform to state water quality standards, that is required by law. The DEQ then claimed that the “complexity” of the request justified an extension that would more than double the time required for DPMC to get the information. DPMC asserts that DEQ lacks a proper basis for the time extension and is prepared to make that case in court.

    According to the DPMC,
    “What is especially troubling about DEQ’s efforts at delay in a case like this, is the idea that the agency would not have ready access to the evidence they supposedly used in making an important decision. As an active participant in that regulatory process, DPMC should have been able to get this information automatically. It is unlikely that Dominion or EQT would have to jump through legal hoops and face delays to get whatever documents they want from DEQ. We insist on the same consideration and respect that is afforded the pipeline companies.”

    From pipelineupdate.org,

    “The state’s certification is supposed to be granted for such Nationwide permits only if the DEQ can ensure that all Virginia water quality standards will be met. However, those generalized conditions cannot anticipate and protect the great variety of waters that would be affected across the state, and the Corps flatly admits that aquatic life and recreational uses will be damaged or eliminated, sometimes for years and sometimes permanently, even if NWP 12’s requirements are met. These damages cannot be allowed under Virginia’s water quality standards.”

    The Atlantic Coast Pipeline will cross over 1,100 streams. The ACP also wants to have an exemption from the 500 feet of open-trench requirement that is designed to prevent erosion from ongoing construction projects. The ACP is crossing high mountain ridges in western Virginia that have been subjected to over 10″ of rain in a 24-hour period. The provisions in the blanket permit are not adequate to protect valuable trout streams, or public and private water supplies.

    Pipeline developers are seeking to circumvent the 401 process because the construction methods used cannot meet the ordinary 401 permit requirements that every local contractor must meet.

    The hue and cry from pipeline developers about the “enviros” slowing down the certification of new pipelines is not accurate. If the applicants provided the necessary information required by NEPA, the Water Quality Act (Section 401) and other long-standing federal laws, the process might move more quickly. But if such information was completely and accurately provided the project might not appear to be needed or as benign as has been advertised.

    We are left with subterfuge and circumvention of existing laws. Our corporations and regulators should be held to the minimum standard of obeying the law. If they do not like the law, change it – don’t ignore it.


    1. “Our corporations and regulators should be held to the minimum standard of obeying the law.”

      Well, yes. But. Like most federal agencies, the FERC has a powerful staff. In fact, quite unusually, it has three large staffs and a smaller, fourth one, and each of these is subdivided further. This is because the same FERC commissioners administer three separate regulatory statutes, governing electricity (wholesale markets & transmission, and, hydropower), natural gas (interstate pipelines), and oil (interstate pipelines), and under the first of these, there are two sections such that the “dams” people don’t talk to the “wires” people. I mention all this because it’s remarkable how different the gas pipeline case precedents are from the (very analogous) transmission wires precedents, under very similar statutory language. And it’s the same commissioners, the same political appointees, issuing the decisions! What does “just and reasonable” mean? What is “in the public interest”? Ask a “Gas Act” staffer and you get different answers from a “Power Act” staffer.

      One big statutory difference is, on the gas side, the federal Commission has pipeline siting (“certificate”) authority preempting the States, while on the electric side it generally does not, with transmission siting left to the States and their utility commissions. FERC”s gas side staff has a very bureaucratic, formulaic, way of handling these gas certificate cases that goes back to a time before there even was an EPA, let alone heightened environmental concerns pressed by organized interveners. The gas side staff would insist they don’t ignore the law, they merely apply it the way they always have, and that’s a way that’s been upheld by the courts, and nothing you say about the plain meaning of the statutory words pointing in another direction is going to faze them.

      1. TooManyTaxes Avatar

        One of the major weakness of the American regulatory system is that it engages in silo regulation. A company is deemed to be an X and its regulated as such irrespective of the facts. For example, what is the difference between Verizon Fios and Cox or Comcast? All provide voice, data and video services. But Verizon is viewed primarily as a telephone company/common carrier, while its competitors are viewed primarily as cable TV operators. Even adjusting for areas where each might have some market power, does it make sense to regulate them differently?

        Similar questions should be asked of FERC. Should distribution systems, such as pipelines and power lines, be treated similarly to the extent reasonable. For example, the National Electric Safety Code needs to apply to an electric transmission line, but not a pipeline. And a pipeline would seem to have more risk of polluting water than a transmission line. But the distribution facility nature of both should probably be regulated the same.

        Congress needs to fix these things. But watch out for competitors trying to hobble the competition through silo regulation.

        1. LarrytheG Avatar

          re: ” Congress needs to fix these things. ”

          HOLY MOLY TMT! Are you advocating for EXPANDING Govt and MORE regulations?

          good GAWD!

          1. TooManyTaxes Avatar

            Congress makes the laws. I think the regulatory statutes need revision as they are generally built around types of companies, rather than function or issue. Let’s take privacy. Regulation of privacy protections for interstate commerce seems reasonable. But we see the FCC regulating Internet Service Providers as common carriers, while not regulating edge providers like Google, Apple, Facebook. They are regulated under different rules by the FTC, which, by law, has no authority over common carriers.

            The average consumer wants some basic protections to know what companies accessing personal and financial information can do with it. How is it protected? Who can have access? Affiliates? 3rd parties? How can I restrict the use of my information? What happens in the event of a security breach? It shouldn’t make a difference when companies handle this information. Does it make sense to require a different level of protection from Verizon than from Google? Yet, today, Google is lobbying for different and weaker protection obligations than are imposed on Verizon. What sense does that make? We need to get rid of the silos and regulate appropriate areas by one set of rules.

      2. FERC is not involved with the water quality issue. That is entirely up to the Virginia DEQ.

        FERC issues the Certificate of Public Convenience and Necessity. They have a habit of relying solely on signed contracts as proof of “necessity” for the project. However, most pipeline developers now have their subsidiaries sign up as “customers” with no proof of actual market demand in their applications or in the DEIS.

        FERC does not have the staff on the gas side that they do for electric transmission lines. The environmental review and EIS preparation is handled by outside consultants. Half of the team assigned to write the DEIS for the ACP have been employed by pipeline developers on other projects. They are not exactly objective observers, which is why much of the DEIS parrots the information provided by Dominion. They have also added over 1000 pages of new information since the DEIS was published that provide a bit more detail about issues that were so scantily covered in the DEIS but will not be open to public review and comment.

        My comment about ignoring the law was mostly intended for the DEQ. To elect to go the Corps of Engineers’ Blanket Permit route, the DEQ must determine that there is “reasonable assurance” that pipelines and other utility lines installed in our waters according to the Corps of Engineers’ Nationwide permit meet all state water quality standards.

        By announcing, on April 7th, that they intend to go the Blanket Permit route, DEQ must have made a determination that all water quality standards will be met by pipeline construction.

        This was a great surprise to the expert environmental scientists who have been diligently reviewing the information related to the ACP. Especially because they have told FERC that there is not detailed enough information provided by Dominion to properly make the assessment whether pipeline construction can meet the water quality standards.

        On April 7th, when DEQ reversed their previous decision and announced that they would use the the Corps’ Nationwide Permit. They can only legitimately do that if they have made an assessment that Virginia water quality standards would be met. DPMC’s FOIA request was to see the information that they used to make that determination.

        DPMC’s David Sligh wrote to DEQ on April 10th: “either records were used as support for this decision or they were not – there should be no work involved in determining ‘whether they are available.’ If they are not at-hand, then they were clearly not used. I do not seek records the staff may search out and present as part of the basis for the decision when they were not used as such.”

        I understand that agencies have taken shortcuts before. FERC has been ignoring the Natural Gas Act and their own guidelines for decades. But we are entering a period of wholesale abandonment of existing law. There is ample evidence that these pipeline projects might not be in the public’s interest either economically or environmentally. Because these projects have such long-term consequences, they should be objectively reviewed.

        If We the People remain numb to the trampling of one groups’ rights, soon our own might be abridged.

        1. LarrytheG Avatar

          TomH speaks the truth here and there is real irony when we hear others complain about the “regulations” that should be “removed”.

          Much, if not most of the FERC process … and for that matter DEQ is a joke. Both of them are basically shuffling paper that will go into the “record” of what is pre-ordained..

        2. TooManyTaxes Avatar

          A certificate of public convenience and necessity is appropriate in a monopoly or quasi-monopoly where utilities have a right to put their investment in a regulated rate base, upon which it earns the allowed rate of return on capital and can include related expenses, including depreciation, from rates.

          As Larry has pointed out many times, this pipeline should be in the rate base only if a major portion of its capacity delivers gas sold as a utility service. If it’s a private pipeline, I see no public interest served by requiring a CPCN for such a pipeline. But neither is access to the right of condemnation appropriate. If we have the latter disguised as the former, we have out and out fraud. That should be a criminal offense.

          1. TMT,

            FERC does regulate the rate of return on interstate pipelines. Unfortunately, they allow returns for gas pipelines that are up to 50% higher than returns authorized for other utility projects by state regulators such as power plants, and their own authorized returns for interstate transmission lines.

            The owners of the pipelines are not regulated utilities however. They are definitely privately owned for-profit concerns. The finding of public convenience and necessity is intended to justify the use of federal eminent domain for these private projects. My objection to their lack of assessment of market need and public necessity corresponds to your comment that this is not an above board process. Many feel that this is in blatant opposition to the 5th amendment that prohibits the forcible taking of property for private gain. Especially, when there is no legitimate assessment of public good in the FERC process.

          2. TooManyTaxes Avatar

            TomH -As you may well know, the FCC regulates rate0of-return for rural telephone companies. Last year it adopted an order that reduces the allowed return on capital (common stock, preferred stock and debt) from 11.25% to 9.75% over six years. Return is not regulated for any large telephone companies or their competitors. Competitors may not charge access at rates that exceed those of the incumbent telephone company against which they compete.

  6. LarrytheG Avatar

    Oh I think I’m finally starting to understand! FERC is the very essence of a job killing, every expanding, government bureaucracy .. the kind Conservatives keep arguing – should be done away with …and unfetter the free market to prosper – right?

  7. Does mean that rural phone companies can recover their higher cost of service plus a rate a of return.? Otherwise it would not seem fair to limit them to what is available in the cheaper to serve, more densely populated areas.

    The approximately 10% rate of return is what the electric utilities are getting.

    FERC’s rate of return of 15% for natural gas pipelines seems outrageous in this day of low single digit interest rates. Through manipulation, pipeline owners often receive 20-30% returns with no consequences from FERC.

    A rate this high severely distorts investment decisions and has lured a dozen utility holding companies into the pipeline building business, whether such pipelines are actually needed to provide an adequate gas supply.

    1. TooManyTaxes Avatar

      Back in the Bell System days, long distance was provided on a monopoly and partnership basis. Each rural company pooled its LD revenues with AT&T. Rural companies were allowed to recover all reasonable expenses plus a return on investment that was the same as that earned by the pool. Rural telcos could draw on the pool based on their actual costs as demonstrated by a cost study (“Cost Companies”) or based on AT&T cost studies for similar sized companies “Average Schedule Companies”). The Bell System audited results from time to time.

      With long distance competition, these master agreements were replaced by access charge tariffs on file with the FCC. Rural companies didn’t file their own tariff, but concurred in the tariff of the National Exchange Carrier Association (“NECA”). They pooled revenues and recovered costs as before from the NECA Pool.

      In the early 1990s, the FCC began to stop regulation earnings for larger telephone companies, instead, just regulating their prices – Price Cap Regulation. Later the FCC began reducing access charges and replacing them (in part) with Universal Service Fund payments. Some NECA pooling remains, and rural companies receive payments from both USF and rates on the same “Cost” and “Average Schedule” basis as before.

    2. TooManyTaxes Avatar

      A return on capital of 15% does seem excessive both in fact and under the law and could lead to overinvestment. But in theory, the CPCN process should take care of that. From what you say, it doesn’t.

      To take a wild guess, I speculate pipeline opponents are too focused on environmental issues and may not be making the best case on need. Chanting carbon emissions is probably not the top argument in utility regulation. Economics is probably much better.

      1. I agree that the economic and need approach would be more effective. Although, probably only with the public and with the policymakers. FERC seems immune to any consideration of need or cost to ratepayers. They have a presumption that every project that has a portion of its capacity reserved by contracts is necessary, even though most of the contracts today are signed by subsidiaries of the project developers.

        No in-depth review of actual market demand or the ability of existing pipelines to supply that demand is undertaken. If all of the projects currently proposed were built, we would have 40% more pipeline capacity than is necessary to transport the maximum capacity of the Marcellus. Yet, the current administration is intending to appoint new commissioners to FERC who will speed up pipeline development even more.

        There is no assessment of whether this is good energy policy, just the overriding thought that more is better. The demand presumed for the ACP is based on new power plants that have not been approved by state regulators. PJM’s forecast shows that Dominion has over-forecast the growth of electricity demand by two power plants. Between 2018 and 2030, Dominion is intending to build only two new power plants plus a peaking unit. If Duke belonged to PJM a similar situation might exist. The underlying assumption as to why the ACP is needed is not being examined (80% of its capacity will be for new power plants).

        The fact that ratepayers will pay hundreds of millions of dollars more per year to transport the gas with new pipelines compared to existing pipelines is also being ignored. State regulators and consumer advocates from the state Attorneys General believe they have been superseded by FERC’s federal authority and for the most part are silent on this issue.

        Nowhere in this process is the public’s economic interest examined, even though that is the purpose of the CPCN. Only the highly exaggerated claims of economic windfalls from the short-term jobs, tax payments to counties, and a contrived calculation of energy savings is being considered by FERC in calculating the economic benefits of the project. The billions of unnecessary charges to ratepayers over the life of the project and the loss of county tax revenues due to the destruction of local roads and the loss of tax revenues due to reduced property values from parcels in proximity to the pipelines are not addressed.

        We are at a crucial point in our energy future. Our current path leads to much higher costs and greater environmental degradation. The alternative path will provide many more jobs, lower energy costs and a cleaner future. FERC is ill equipped to properly measure these issues, but they are the only one in the game. Where are the voices of the policy makers and political leaders? They seem to be rushing forward following an old formula that no longer fits the situation.

        1. TooManyTaxes Avatar

          From the luxury of looking it, I’d say professional environmentalists likely cause more harm than good. The average American does care about his/her environment and would likely care about achieving affordable and reliable renewable energy. At the same time, they want to know their house can be heated with gas next winter and that they can afford to drive to work. Few real people loose sleep over global warming. They are more worried about when they might see a raise someday.

          Also keep in mind that a large group of Americans think the federal government and its legions of bureaucrats (no personal affront intended), lobbyists and interest groups are not on their side. Look at all the former Obama voters who either switched to Trump or stayed home rather than vote for the Washington insider Hillary Clinton. In sum, a crusade against all but renewable energy is not going to play well in real America.

          And the silence of the states is, IMO, often related to the same arrogant, anti-ordinary person syndrome. Why are they silent on pipeline demand when they are trying to usurp federal immigration policy? I’d say because many state AGs are leftists dedicated to their ideology of anti-fossil fuels rather than the interests of ordinary people. Look at Herring, for example.

          I agree no one is representing the ordinary consumer.

      2. TomH, LarryG, TMT, this is a good discussion and I regret actually having something I had to do these past few days other than sit glued to the screen. Good discussion. But I have to say, this not only illustrates TMT’s point about “silo regulation” to a “T” [pun intended I guess] but also has led me to do a little background education. To my mind the whole water quality area is a regulatory morass, not so much consisting of silos as interlocking puzzle pieces arranged in deliberately and damnably obscure patterns presenting both applicants and opponents alike with no straight paths but a series of roadblocks, detours, delegated agency reviews, preliminary findings, update requirements, reconsideration of initial findings due to changed circumstance, thresholds for expedited multi-phase consideration, hearing limitations, conditional final opinions . . . . the process was NEVER INTENDED TO BE POSSIBLE TO NAVIGATE WITHOUT POLITICAL INTERFERENCE AND SUBTERFUGE. In other words, it is the set-up for government corruption in its worst modern manifestation and if it doesn’t lead to campaign contributions or payoffs under the table of one kind or another we are a bunch of blessedly naive folks, here!

        Now here, we have a federal agency (the Federal Energy Regulatory Commission) administering a federal law (the Natural Gas Act of 1938, as amended in 1942) which provides inter alia for a certificate of convenience and necessity to be issued to any applicant who wants to build an interstate natural gas pipeline. Why? Because the States, in their parochial wisdom, learned from the railroads how to extract too many pounds of political flesh from corporations with an interstate economic (transportation) vision, and the corporations learned that getting Congress on your side, even in the form of the Interstate Commerce Commission, could cut through all that for a lot less time and money. And because those who have a COPN have a leg up on any potential competitors who can’t operate without one. The history of the Natural Gas Act is a history of modern monopoly power and the back and forth over how to regulate prices and market entry.

        And then came the federal environmental revolution, brought to us by the Clean Water Act and the Clean Air Act and the National Environmental Protection Act and the Environmental Protection Agency. And in an explosion of cooperation with the States, Congress gave us the most Byzantine regulatory environment ever created in this world, whereby the federal government regulated countless activities through environmental review processes delegated mostly to existing agencies created for other, very different, purposes, including State agencies that would otherwise not have any involvement. And including federal agencies such as my absolute favorite, that model of military efficiency and prompt decision-making, so clearly removed from all taint of politics, the United States Army, through its Corps of Engineers! And all providing very clearly that if a State wished to duplicate the entire panoply of federal review processes but hold each applicant to higher State standards, it was free to do so! And arguably requiring that each State issue a water quality certification even if it hadn’t otherwise reviewed anything to do with a project.

        And so here we have the Corps administering its jurisdiction over potential obstructions to commercial navigation on the navigable waterways of the United States, descended from its original mission to fortify the coastal river entrances against foreign warships, and its collateral mission to map the rivers and harbors and maintain aids to navigation and remove obstacles to shipping in those waters, now expanded to cover the environmental review of construction silt deposits in ditches and streams you and I can jump over.

        All right, somebody has to do it and who better than the CE? But they didn’t want this responsibility either and created (under Congressional pressure) a “blanket permit” program which says in effect, “if you can check the boxes and meet these basic criteria for an uncomplicated project, you can get an expedited permit for construction.” And, naturally, every applicant tries its damnedest to force-fit its square peg of a project into the round hole of the “blanket permit” program. Why not? The alternative, a full-blown contested proceeding before the CE, is as likely to be fatal as any adventure ever undertaken by Indiana Jones.

        So here, TomH, you are correct, the immediate key to resolution (if not forward movement) by these federal applicants, the ACP and MVP, and their host of opponents, lies before a Virginia State agency, the DEQ, under COPN authority administered by FERC, but delegated by Congress for water quality review to the CE’s military district of Norfolk, which in turn has established a blanket permit program which may or may not apply, which the State of Virginia’s DEQ has opined does apply. And if DEQ is correct, it can avoid giving its own opinion about the project because if the “blanket permit” process is good enough for the CE, it’s good enough for Virginia. Which assumes the CE’s blanket permit program is even applicable on its face to interstate gas pipeline projects of this scope. All the while, the FERC waits for somebody, somebody else, somebody please, to make their minds up.

        Thanks, by the way, for bringing to my attention this informative letter written by your friends at DPMC to the CE laying out their objections to the ‘blanket permit” process here — I think given the laws and regulations on the books, on the face of it DPMC is probably right. https://dl.dropboxusercontent.com/u/21393847/ACE%20Norfolk%20District%20-%20NWP%20%2012%20Comments%20for%20Atlantic%20Coast%20Pipeline%20%282015_12_08%29%20%281%29.pdf
        All of which begs the really important question: Step Back: is this any way for government to decide whether a “private” interstate natural gas pipeline or similar transportation project, of huge economic importance to this Country and State, should be found “in the public interest”? Isn’t there some middle way to get the regulatory job done, competently, respecting the economic importance of these projects AND respecting the environment, without submitting to the whims of “deniers” like Scott Pruitt to get anything accomplished at the federal level?

  8. LarrytheG Avatar

    The whole FERC thing is a joke – a ruse and here’s why.

    Suppose there was no FERC, how would the pipeline entrepreneurs proceed?

    FERC is not to protect the rights of the property owners or ratepayers nor the taxpayers – it’s there to use the force of govt to force property-owners to sell their land – not for a regulated monopoly at a dictated ROI but instead to a for-profit venture that can and will earn an ROI of 25% and more – at the direct expense of property owners forced to sell at the pipeline company’s price which is far lower than if they had to engage in a market transaction of willing-seller/willing-buyer.

    The portrayal of this issue as nimby’s and enviro-weenies trying to inappropriately use the law and regulation to obstruct the pipeline folks have taken the Dominion PR bait hook, line and sinker.

    Without FERC – Dominion would have to operate like a legitimate business venture where the ROI was what they could expect to net – after their legitimate expenses of any like venture seeking the use of land (and water) that they do not own – both with regard to direct ownership and impacts to adjacent lands that also are not their land.

    Instead – we act like FERC is making sure Dominion follows the “rules” but the “rules” are basically to guarantee that Dominion is provided superior land rights over others who actually own that land.

    And to add insult to injury- those landowners will have no choice but to turn over land they own – not to a regulated monopoly providing an essential and necessary service but instead to a for-profit venture that will receive an ROI that far exceeds what a true regulated monopoly would receive.

    If there was no FERC – it’s more than likely that there would not be TWO pipeline ventures.. and if there was going to be one – it would be a true business proposition with the owners having to carefully calculate their actual costs versus their hoped-for profits.

    Imagine if we had a FERC for other business ventures.. where if that venture says they provide a market “need” that they can then force property-owners at the sites they want to locate to give up their land.

    You actually cannot do that with Virginia Eminent Domain laws.. but because they cross State lines they can use the force of the Federal Govt to force people to sell to a for-profit business venture.

    1. As TomH said earlier, “My main concern is that as a society we are becoming too numb to the continued onslaught against the rule of law.” True. But also, we are becoming blind to the outrage building up among people who simply want to run businesses and build a stronger economy responsibly, who find the federal and State “decision making process” to be so hopelessly gridlocked and corrupted by special interests — that they would, in desperation, deliberately elect a buffoon as a President because of his promise to bring a trainwreck to federal Washington. If you do believe in the rule of law, like the rest of us, we MUST find a way to meet in the middle and do better than either of these political extremes.

  9. Acbar,

    Regulatory processes have become quite convoluted. In my experience, the USACE was limited in their jurisdiction to navigable waters and the issuance of a Section 404 permit. The effect on the water quality of smaller streams and public and private water supplies was dealt with by the Section 401 Permit. The Virginia DEQ seems willing to forfeit their 401 responsibility.

    I don’t have any firsthand experience with nationwide permits. On the face of it, it does not appear likely that a “one size fits all” type of permit could adequately address all of the variations encountered in the 1100+ streams crossed by the ACP. It is puzzling to me why local contractors must meet a greater burden to produce adequately detailed information and satisfactory mitigation measures than is required for major pipeline projects.

    Many members of the public don’t understand how significant stretches requiring mountain-top removal can be so easily passed off as “no significant impact” or “easily mitigated” with limited description of the construction activities and mitigation measures provided by the applicant.

    I agree with your desire for a middle way. I think that is the outcome most people expect from the regulatory process, but which is seldom, if ever, achieved. Regulatory matters have become great theater but behind the curtain the processes are ruled by special interests.

    I am concerned that abuses of the process have caused many to call for curtailing what little actual good these processes provide. The President of Dominion’s Gas Division testified to the Senate Energy and Natural Resources Committee that “environmentalists” have significantly delayed the permitting process for the ACP. She made no mention that the lengthy review by the Forest Service and others was because Dominion did not submit the necessary information, despite repeated requests. Many reasonable requests for specific information on the part of the public have been ignored from the outset of the process.

    The new FERC nominees are expected to try and speed up the process. I am concerned that any chance for the evaluation of the actual need for these projects will be abandoned. It never has existed in FERC’s approval process that always results in the approval of projects with little consideration of the public’s interest. It is just assumed that more is better, even though we are already on the path to considerable overbuilding of pipeline capacity and massive extra costs for ratepayers.

    I don’t know where there will be an opportunity for an even handed assessment of a project or a discussion of our energy future will occur. I have been trying to raise the issue that it is likely our current proposals will not result in the creation of jobs and lower-cost energy that everyone seems to be eager to achieve. Unexamined assumptions and popular pronouncements get the herd rushing off in a direction with little contemplation.

    We are stuck in win-lose contests with little acceptance of other points of view. The middle way is getting trampled by the extremes.

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  11. […] News Virginian, 4/7/17.  Pipeline opponents praise DEQ decision, WDBJ TV-Roanoke, 4/7/17.  What’s Next for the Pipeline Controversies?, Bacon’s Rebellion, 4/14/17.  [All regarding announcement on April 6, 2017, by the Virginia […]

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