October 2021 Vol. 76 No. 10

Washington Watch

Washington Watch: FERC Blesses MVP’s Use of Trenchless Methods

By Stephan Barlas, Washington D.C. Editor

The Mountain Valley Pipeline (MVP) bringing fracked gas 300 miles from West Virginia to Virginia, cleared its latest federal regulatory hurdle when the Federal Energy Regulatory Commission (FERC) said, in an environmental assessment, that the trenchless methods MVP plans to use when crossing water bodies met with its approval. 

The decision was not final, however, and could be influenced by public comments that will be forthcoming. MVP had originally planned to use open-cut dry crossings for the streams and water bodies at issue. 

“The issuance of MVP’s EA was a significant step towards achieving full permitting and ultimate completion of this important infrastructure project.,” said Natalie Cox, spokeswoman for Equitrans Midstream Corporation, MVP operator and main partner. Total project work on MVP is more than 92-percent complete, including more than 264 miles of pipe welded and in-place. 

Jessica Sims, a spokeswoman for Appalachian Voices, an environmental group that has been the leading opponent of the MVP, argues, “Trenchless methods of crossing have resulted in major pollution events during the construction of other pipelines, such as inadvertent returns and frac-outs, so FERC should be asking itself whether those risks have been fully mitigated.” 

MVP is also awaiting final approval of its Nationwide Permit 12, which the Army Corps of Engineers grants for crossing of wetlands. The Corps, in part, relies on states to complete Clean Water Act evaluations of any construction, as the base of the Corps’ NWP 12 decision. 

The Corps did issue an NWP 12 for the MVP in 2020. But that was called into question by lawsuits and the change in administrations from President Trump to President Biden. That forced EQM and its partners to reassess the water body crossings and in early 2021, MVP filed an amendment to its earlier construction approval citing revisions in the way it would cross the water bodies at issue. FERC then performed an environmental assessment of those new crossing protections and approved the changes based on trenchless technology. 

Virginia has done the same, reviewing its initial permit. On Aug. 25, the Virginia DEQ issued its draft 401 permit, which is a critical element in the regulatory process and another important step forward for the MVP project. 

The MVP amendment pledged to change the crossing method of specific waterbodies and wetlands from open-cut dry crossings to trenchless methods ,including conventional bore, guided conventional bore, or Direct Pipe. Specifically, Mountain Valley proposed to use trenchless methods at 120 locations to cross 136 streams and 47 wetlands that the Commission originally authorized as open-cut crossings. 

Top Federal Appeals Court Raps FERC’s Knuckles 

Not that it needed encouragement, but the Federal Energy Regulatory Commission (FERC) received new legal leverage from a top federal appeals court to do a more thorough job calculating greenhouse gas emissions and impacts on minority communities, when performing environmental impact statements and assessment for liquid natural gas (LNG) and pipeline construction applications. The U.S. Court of Appeals for the District of Columbia is the court that assesses federal agency compliance with federal laws, in this case the National Environmental Policy Act. 

Among the projects at issue was Enbridge’s Rio Bravo Pipeline to be built in south Texas to transport up to 4.5 billion cubic feet per day of natural gas from the Agua Dulce supply area to Next Decade’s Rio Grande LNG project in Brownsville, Texas. 

In an August decision answering environmental group complaints about FERC approval of three LNG projects and affiliated pipelines in Texas, the federal court – which did not cancel the previously awarded construction permits – told FERC to go back and apply a more rigorous counting of GHG emissions and calculate the “significance” of a project’s contribution to climate change. 

The court also agreed with the environmental groups that FERC’s analysis of the projects’ impacts on minority communities within only two miles of census blocks of the project sites – which is as far as the FERC analysis went – was arbitrary, given the commission’s determination that environmental effects from the projects would extend well beyond that distance. 

It is unclear what FERC might do now that the court dumped the case back into FERC’s lap, without negating the construction approvals. Neither Nathan Matthews, the Sierra Club lawyer who argued the case, nor Jeffrey R. Holmstead, a Bracewell attorney representing the Interstate Natural Gas Association of America (INGAA), responded to requests for comments on what FERC was likely to do as a result of the decision. 

Neither did Enbridge respond to a query about the potential impact of the decision on its Rio Bravo Pipeline. 

The Appeals Court decision revolved around 2016 applications to FERC by Texas LNG Brownsville LLC; Rio Grande LNG, LLC; and Annova LNG Common Infrastructure, LLC. The Commission completed an EIS for each project in the spring of 2019 and issued final orders approving the projects later that year. The Commission denied environmental group requests for rehearing in early 2020. The groups then filed their lawsuit arguing FERC’s noncompliance with the NEPA. 

In its EIS for each project, the Commission quantified the greenhouse gas emissions associated with the construction and operation of the project, described “existing and potential cumulative climate change impacts in the project area,” and explained that “construction and operation of the project would increase the atmospheric concentration of [greenhouse gases] in combination with past, current and future emissions from all other sources globally and contribute incrementally to future climate change impacts,” according to the court decision. 

What the Commission did not do was determine the “significance” of the GHG emissions’ contribution to climate change, which the NEPA arguably requires the agency to do. The Commission claimed there was no methodology that allows it to calculate the GHG impact on a regional or even national level. 

The Sierra Club led a group of local Texas environmental and citizen groups in first contesting FERC’s project approvals and then at the DC Appeals court. They objected to FERC’s EIS because it did not use the “social cost of carbon” protocol or some other generally accepted methodology to evaluate the impact of each project’s contribution to climate change. 

The current Social Cost of Carbon is approximately $50 per ton. James Auslander, an attorney at Beveridge & Diamond, said in a blog post, that number is expected to increase significantly when the Biden Administration completes its review and updates the Social Cost of Carbon analysis over the next few months. 

“This latest decision may also bolster soon-expected federal recommendations for agencies to expand use of the Social Cost of Carbon beyond rulemaking actions to also encompass individual project reviews, and new federal guidance on consideration of GHGs in NEPA analysis,” he wrote. 

“Because of the substantial costs associated with GHG emissions, use of the Social Cost of Carbon is likely to weigh heavily against pipelines in FERC’s public interest analysis under the Natural Gas Act, at least if the pipeline fails to demonstrate that the gas it proposes to transport would reduce overall GHG emissions by, for example, displacing GHG-intensive electric generation or providing low-GHG alternatives to transportation fuels.” 

To assess the environmental justice impacts of each project, the Commission examined the impacts on communities in census block groups within a two-mile radius of the project site, but not on communities farther afield. The Commission found that all communities within those census blocks were minority or low-income. The Commission examined potential ecological, aesthetic, historical, cultural, economic, social or health impacts within those communities. The Appeals Court stated FERC should have gone beyond those census tracks when checking on minority communities.

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