FERC Finds Pipeline Impact “Less than Significant”

FERC finds that the proposed Atlantic Coast Pipeline impact can be readily mitigated.

Pipeline impact: Federal regulators say steep slope construction, like that shown here, should not be a problem.

  • FERC’s pipeline impact study says proposed Atlantic Coast Pipeline will have minimal lasting effects on the environment.
  • Dominion claims the study confirms it can build the pipeline while protecting the environment and public safety. 
  • Foes contend the study ducks the question whether the pipeline is a public necessity that justifies the use of eminent domain to acquire rights of way along the route. 

A draft federal assessment has concluded that the environmental impact of the proposed 600-mile Atlantic Coast Pipeline (ACP) would be mostly temporary and largely offset by extensive mitigation measures.

The staff of the Federal Energy Regulatory Commission concluded that approval of the project could have “some adverse and significant environmental impacts. ” However, damage to water resources, wildlife habitat, and property values would be reduced to “less-than-significant levels” with the implementation of plans filed by the ACP and additional measures recommended by the staff.

Dominion Resources, managing partner of the pipeline, hailed the document as “another major step forward” in the lengthy federal review process. “While we have to review the draft further,” said Leslie Hartz, vice president-pipeline construction for Dominion Energy, “we believe it confirms that the project can be built in an environmentally responsible way that protects the public safety and natural resources of our region.”

However, the draft Environmental Impact Statement (EIA), released yesterday, is not the last word. FERC expects to publish the final draft in June. That document, FERC spokeswoman Tamara Young-Allen told the Richmond Times-Dispatch, will address a critical issue not touched upon in the draft EIS: whether the project is a public necessity, a designation needed to invoke eminent domain in order to acquire property along the proposed pipeline path.

Foes of the project lost no time in denouncing the study, arguing that its focus was too narrow. As the authors clearly stated, “Alternative energy sources, energy conservation, and efficiency are not within the scope of this analysis because the purpose of ACP … is to transport natural gas.”

Eminent domain can be justified only if there is a public necessity. But existing natural gas pipelines, opponents contend, can meet the demand for natural gas in Virginia and North Carolina without creating the same environmental risks or taking peoples’ land against their will.

“Dominion’s Atlantic Coast pipeline … is unnecessary,” said Greg Buppert, senior attorney with the Environmental Law Center (SELC). “The current route carves through the mountains in an area the U.S. Forest Service calls, ‘the wildland core of the central Appalachians’, for a pipeline that will lock generations of Virginians into dependence on natural gas. We already have the gas needed to bridge us from dirty to clean energy — existing infrastructure can meet our demands for natural gas for at least the next fifteen years. This is a Dominion self-enrichment project, not a public necessity.”

“In what world does the rapidly increasing, cost-effective contribution of wind and solar not figure into the need for gas-powered electricity generation and, by extension, the justification for taking private property via eminent domain?” asked Jim Bolton, a Lovingston resident quoted in a Friends of Nelson press release.

FERC did evaluate 14 other alternative pipeline routes, including routes that would follow existing highway and electric-transmission rights of way and otherwise minimize crossing of Natural Park Service lands. The study compared total pipeline length, acres affected, the number of residences within 50 feet of workspace, and crossings of wetlands, waterbodies, forested land, public land and recreation features. “We … conclude that the major pipeline alternatives and variations do not offer a significant environmental advantage when compared to the proposed route or would not be economically practical,” the EIS states.

Topics addressed by the pipeline include:

Karst terrain and steep slopes. Portions of the ACP would traverse karst terrain characterized by sinkholes, caverns, underground streams and springs. The vast majority of the pipeline, using standard construction techniques, would limit land disturbance to between six and eight feet below the surface, the FERC document said, whereas sensitive groundwater resources and cave systems are generally found at greater depth.

Prior to construction ACP will perform electrical resistivity investigation surveys to detect subsurface features along the route. These results will be correlated with boring logs to ensure the analysis reflects the field conditions. ACP also will employ a specialist to monitor karst features along the route. The gas pipeline industry is experienced in working under such conditions, the study says: “Many miles of similar pipeline facilities … were installed using similar methods and have safely operated in karst-sensitive areas for decades.”

The ACP would cross 84 miles of steep slopes (greater than 20 percent). Construction in such conditions creates a risk of landslides. However, ACP has developed a Geohazard Analysis Program and is developing a Best in Class Steep Slope Management Program to minimize the potential for slope instability. The company has not yet filed all its plans, but the FERC authors concluded, “Based on our review … we conclude that the potential for ACP … to initiate or be affected by damaging karst conditions would be adequately minimized.”

Public land and recreation. The pipeline would cross the Blue Ridge Parkway, the Appalachian National Scenic Trail, and other recreational assets. To avoid crossing these scenic assets, ACP plans to drill beneath the parkway and trail. Removing trees along the route also would cause permanent visual impacts. FERC staff recommends that the company also restrict the width of right-of-way to 50 feet in certain areas, and also to file “site-specific visual mitigation measures” for each scenic byway crossing.

Sensitive species. Construction and operation of the pipeline would likely adversely affect five federally listed species: the Indiana bat, Northern long-eared bat, Roanoke logperch, running buffalo clover, and Madison Cave isopod. Development of conservation measures is not complete, and the EIS recommends that ACP file additional information.

Water resources. The ACP and associates facilities would cross 1,989 perennial streams, intermittent and ephemeral streams, canals and ditches, and ponds and reservoirs. Construction work would temporarily affect 786 acres of wetlands.

ACP would conduct water quality tests before and after construction to determine if activity adversely affected water resources. Testing would be conducted by qualified independent contractors. “No long-term impacts on groundwater are anticipated,” says the EIS, “because disturbance would be temporary, erosion controls would be implemented, natural ground contours would be restored, and the right-of-way revegetated.”

Wildlife. Construction work along the pipeline right-of-way would require cutting down the tree canopy. Construction-related impact would be temporary, lasting until trees grew back, but land in the pipeline right-of-way would be permanently changed. “We conclude that the ACP … would not have a significant adverse impact on vegetation and wildlife, with the exception of forested areas, which would experience significant impacts as a result of the effects of fragmentation and where forest land would convert to herbaceous vegetation in the permanent right of way.

Economy and property values. The report downplayed the pipeline impact on property values.

With regard to potential future sale of properties that contain natural gas facilities, each potential purchaser has different criteria and differing values or considerations for purchasing land. Decisions made by a purchaser are often site-specific and are difficult to generalize or predict. With some exceptions, such as building structures within the pipeline easement or planting trees, once a pipeline is buried, it does not preclude future use. Based on literature reviews and discussions with real estate appraisers, we conclude that ACP … would not result in decreased property values.

Opponents also have cited a negative pipeline impact on local tourism and economic development, particularly in the Nelson-Augusta-Bath county region. The study acknowledges that travelers and tourists would experience “temporary visual and noise impacts” from construction. ACP would keep local businesses and recreational stewards informed of scheduled construction activities to avoid conflict with special events. As for the much-publicized Yogaville meditation center, it would be located more than four miles away. “Therefore, we conclude no direct or indirect impacts on tourism to Yogaville would result.”

Another fear is that the project would stymie development in and around the Wintergreen resort and the Rockfish Valley. A proposed luxury hotel at Wintergreen would produce $15 million to $20 million in annual revenue. But ACP can reduce or mitigate any negative impacts “as demonstrated by other residential and commercial developments in the area and similar projects throughout the country.”

Public safety. FERC staff minimized concerns about pipeline impact safety. All proposed facilities would adhere to federal safety standards. Regulations include specifications for material selection, minimum design requirements, and protection of the pipeline from internal, external, and atmospheric corrosion.”We conclude that ACP … would not significantly impact public safety.”

There are currently no comments highlighted.

43 responses to “FERC Finds Pipeline Impact “Less than Significant”

  1. Jim, you started partying a bit too soon. FERC is the Federal Energy Regulatory Commission. Happy 2017 to all the Rebels on BR.

  2. Ack! What was I thinking? Obviously, I wasn’t thinking. Thanks for the catch Happy New Year!

  3. Happy New Year!

    Finding of No Significant Impact – (FONSI) has a specific meaning in the world of NEPA. “Findings of No Significant Impact are public documents issued by a Federal agency briefly presenting the reasons why an action for which the agency has prepared an environmental assessment will not have a significant effect on the human environment and, therefore, will not require preparation of an environmental impact statement.”

    It’s pro-forma for many Federal Agencies and VDOT to see if they can not have to prepare a much more detailed full NEPA document. The public does not know the term of the meaning but the Federal Agencies do as well as the major environmental groups like SELC which is no doubt going to challenge that idea in court if they have to – to force a full NEPA study to be done and one of the more important aspects of a full NEPA study is the part of it called Alternative Analysis – which allow all parties including the public and environmental groups to submit – for the “record” which NEPA is by law required to produce and becomes the basis for future actions if that record is determined to be “not complete” – i.e. all possible feasible alternatives have been identified and compared in terms of cost and impacts including one that is required called the Least Environmentally Damaging alternative.

    The question is how many environmental groups will commit money to a legal challenge – even SELC lawyers have to be paid!!!

    I’d be shocked if no one challenges the finding of FONSI.. and force a full blown NEPA study… we’ll see

    • Based on a March 2016 D.C. federal court case, An agency’s decision to issue a FONSI, rather than to prepare an EIS courts must recognize that “[a]n agency has broad discretion in making this determination, and the decision is reviewable only if it was arbitrary, capricious or an abuse of discretion.” Sierra Club v. U.S. Dep’t of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985). The court’s role “is a ‘limited’ one, designed primarily to ensure ‘that no arguably significant consequences have been ignored.'” TOMAC, Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852, 860 (D.C. Cir. 2006) (quoting Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 848 F.2d 256, 267 (D.C. Cir. 1988)). Courts are not to “‘flyspeck’ an agency’s environmental analysis, looking for any deficiency no matter how minor.” Nevada v. U.S. Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006) (quoting Fuel Safe Wash. v. FERC, 389 F.3d 1313, 1323 (10th Cir. 2004)). In this Circuit, courts have long been guided in their analysis of an agency’s decision to issue a DN/FONSI by the following four-step test:

      First, the agency must have accurately identified the relevant environmental concern. Second, once the agency has identified the problem, it must have taken a “hard look” at the problem in preparing the EA. Third, if a finding of no significant impact is made, the agency must be able to make a convincing case for its finding. Last, if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum. Sierra Club, 753 F.2d at 127; see also TOMAC, 433 F.3d at 861.

      Nat’l Parks Conservation Ass’n v. U.S. Forest Serv., Civil No. 15-cv-01582 (APM) (D.D.C. March 31, 2016)

      Sierra Club, 753 F.2d at 127; see also TOMAC, 433 F.3d at 861.

  4. Attached is a letter to the editor that I sent to our paper:

    I am greatly disappointed in the quality of the DEIS issued by FERC for the Atlantic Coast Pipeline. The poor quality is a failure both on the part of Dominion and FERC to follow the requirements of the National Environmental Policy Act (NEPA). The applicant has not responded to numerous requests asking for proof of the need for the project when adequate supplies of natural gas can be provided to this region using existing pipelines at a much lower cost and with far less disruption. The DEIS must identify the impacts of the project and show how they will be minimized. These details are supposed to be provided by the applicant and it appears to be FERC’s intention to leave them until after the Final Environmental Impact Statement is issued when the public can no longer comment.

    That is not how this process is supposed to work. Typically, the staff members that provided the information are subject to cross-examination under oath in front of an Administrative Law Judge to establish the facts for final decision-making.

    FERC follows this process in approving electric transmission lines but not for natural gas pipelines. If a project has merit it will survive a rigorous process.

    The need for the ACP and its purported economic advantages has been established only in press releases. Information actually submitted to FERC reveals that pipeline jobs will last just 8-10 months and that using the ACP to transport the gas will cost ratepayers hundreds of millions of dollars per year more than using existing pipelines. Without establishing the need for the project or substantiating its economic benefit, Virginia landowners are being asked to yield their land to a private corporation purely for private gain.

    I have been involved in permitting large utility projects in other states and never have I seen such blatant disregard for the public and for federal law. The regulatory review of this project should not continue until the required information is provided so that the public’s interest can be protected and a conscientious and fair decision can be rendered.

    I know that many see the comments that I have made in BR as “anti-pipeline”. I do not make them from that point of view. Rather I am seeking the best energy system for Virginia, its utilities, and ratepayers.

    A project must be subject to rigorous examination. Every other proceeding that I have been a party to at the state and federal level required the applicant (I was representing that interest at the time) to answer the questions of the intervenors in the case and allow the providers of the information in the EIS to be cross-examined under oath to fully develop the facts of the case for final decision-making.

    If the draft EIS did not meet NEPA requirements and the requirements of the issuing agency, the applicant was required to submit the necessary information.

    The aspect of the project that I am most interested in, the need for the pipeline, has not been addressed in any way near the fashion required by NEPA. The way the need for the pipeline has been “proved” in the DEIS is by two arguments:

    1. ACP had an “open season” and no one responded.
    2. ACP has “customers”.

    This information falls drastically short of what NEPA requires to prove the “need” for a project. Even so, the owner of an existing pipeline could not offer a bid to meet the need for new gas supply when they were not provided with the capacity required or the location for the service. The ACP interpreted this lack of response as meaning there is a lack of existing capacity. Full disclosure of the existing supply to the region (as required by NEPA) would reveal that this is not the case.

    Now that adequate pipelines exist to move the production of the Marcellus into the national gas transmission system, much of the gas demand in the northeast is being met directly from the Marcellus. This frees up about half of the capacity of the Transco system to move gas from north to south. Dominion is using this method to supply the Brunswick and Greensville plants. The Department of Energy says that this reversal of flow is sufficient to supply Virginia and the Carolinas through 2040. This conclusion is also supported by independent studies.

    This information should be stated in the DEIS and the applicant should be required to prove why it is not an accurate representation of the current supply situation. Dominion would then have to defend its interpretation that the many projects that are supplying this north to south flow cannot meet the needs of the power plants planned for Virginia and North Carolina. The only response thus far is that these other projects are “fully subscribed” but a careful examination that should be part of the regulatory process would reveal that the “subscribers” of these projects are all natural gas developers or gas marketing companies looking for customers. This turns the general interpretation of “fully subscribed” on its head. Rather than inferring that no gas is available, the closer examination shows that it means plentiful supplies of natural gas are available to this region without the need for new pipelines.

    The common interpretation of “fully subscribed” also applies to Dominion’s claim that the pipeline is needed because the capacity of the ACP is almost fully subscribed. Over 93% of the subscribed capacity of the ACP is reserved by affiliates of the pipeline owners. FERC’s own guidelines say that this sort of self-dealing between affiliates is not sufficient to prove the market demand for a new pipeline, yet no such mention has been made of it in the DEIS.

    The finding of “no significant impacts” is a real mystery since the nature of the impacts have not been described in adequate detail by the applicant or in the DEIS. For many months, numerous requests have been made for a description of the engineering plans for the various stream crossings that will be accomplished along the pipeline route, in order to assess the impacts of that activity. Only generic responses have been forthcoming. FERC appears to be willing to let that essential information be delayed until after the issuance of the Final EIS, negating any opportunity for public review and comment. How can any conclusion be drawn about the degree of impacts of the project, if the potential cause of those impacts is not fully described?

    No one has built a pipeline this large, on terrain this steep, in mountains this high ever before in the U.S. Conclusions about its impacts can only be made by careful examination of all of the facts. Sweeping generalizations based on superficial studies do not meet NEPA requirements.

    The companies that write the Impact Statements for FERC are paid for by the applicants and are often hired by pipeline developers for other projects. This is an inbred system that makes a mockery of the NEPA process and a charade of the regulatory process. We are supposed to be a nation that follows the rule of law. Special interests have subverted that process to serve their own needs.

    Approval of this project will subject the ratepayers of Virginia to hundreds of millions of dollars per year in higher costs (according to submittals by Dominion to FERC). Virginia property owners will be forced by eminent domain to give up their property to a private company purely for private gain, contrary to the Virginia Constitution. Surely, such an outcome deserves to have the evaluation required by federal law to be fully accomplished before such a project is approved.

  5. All the challengers really have to do is identify a viable alternative that was not considered in the NEPA process.

    The point of NEPA is not make a particular decision that they courts will approve or disapprove – it’s whether or not the agency considered relevant alternatives – identified – and the agency cannot prevent others from going to court to make that challenge.

    The stated goal of NEPA is to make an INFORMED decision which means the information that would be informative must be allowed into the record and once in that record – must be addressed in a substantive – cannot be dismissed because it’s not the agencies preferred option.

    If it gets to the NEPA stage – they have to demonstrate essentially that other alternatives were in the record and considered . Beyond that, the law does not require that the “best” alternative be chosen – only that it was identified and known.

    In other words FERC can choose an alternative that is more costly in terms of dollars and impacts – as long as the other alternatives were identified and considered.

    it’s sort of a subtle distinction but it’s on purpose. The courts do not decide which is the best alternative – only that the record is “complete” in identifying the other viable alternatives.

    that would include whether or not TWO pipeline corridors are needed or just one or none…

    that’s the ‘hard look” that is required – that they actually do take that “hard look” and not dismiss it before hand.

    • You have it right Larry. The agencies in charge of issuing permits can and do make decisions that are not necessarily supported by the record that has been established in the case.

      However, if it can be shown that the agency did not follow the process required for the issuance of the permit, the decision can be stayed or overturned by a court.

      That was the point I was trying to make. Perhaps too verbosely, but I am embarrassed for the energy industry to allow such a slipshod process to be in place. I guess we might be headed for more rapid approvals with less rigorous reviews, but I don’t think we will be well served by that.

      I think the general perception is that this is an ” energy and jobs vs. the enviros” battle. This is a gross misconception and is leading many to support a superficial review of these projects.

      The general assumption is that we need more pipelines to support the necessary buildup of more natural gas-fired power plants to provide the energy we need and promote economic prosperity.

      This is the fundamental flaw in the argument. Testimony to the SCC and cross-examination of Dominion witnesses revealed that utilities’ load forecasts consistently overestimated demand, even in the Polar Vortex year. Utilities also admit that using gas-fired generators have a built-in cost increase because of rising fuel costs.

      Creating a statewide energy system that does not create long-term jobs (8-10 months for pipelines and less for power plants) and establishes a known trend of higher energy costs is not attractive to new industries or a source of long-term employment.

      Investing billions of dollars in projects that will be undercut in price by new technology within 10-15 years exposes Virginians to higher rates or stranded costs. The new technologies have proven track records of long-term job creation and contribute to a system with stable or declining energy costs.

      If we truly are seeking more energy at a lower cost that also creates jobs, this is the path we should travel. As a side benefit, it will also provide the greatest environmental benefits.

      FERC and any other lead federal agency are required by NEPA to evaluate options outside of their normal jurisdiction when evaluating projects. This has not been addressed in the Impact Statements for the ACP or MVP.

      The Council on Environmental Quality (CEQ) is the final arbiter of how federal agencies implement NEPA. They are aware that the FERC process does not conform to NEPA requirements, but the CEQ operates only in an advisory capacity. Only a court or new legislation would have the authority to force FERC to follow federal law.

      Because FERC does not report to any other agency and their expenses are paid by the natural gas industry, they are relatively immune from influence by Congress or other federal agencies.

      Because the issues at stake for the ordinary citizen have not been widely reported in the popular press, the general impression is that this is another jobs vs. environment issue and most people decide their position based on the labels rather than the actual consequences to their pocketbook.

  6. TH, LG, you both seem to think FERC should have addressed the need for this pipeline at this, NEPA, stage of this proceeding. I’m no expert in Natural Gas Act proceedings but I thought “need” was determined by FERC under the 1938 NGA,, sec. 7, not under NEPA. Sec. 7 (e) says in relevant part, “a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application, if it is found . . . that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity . . ..” So here, Dominion has to show that there is a “public necessity” for the project, and that showing is to be the subject of FERC’s later phase of this proceeding. Are you saying Dominion also has to show necessity or “need” in the NEPA phase? Wouldn’t that be redundant?

  7. @Acbar – you don’t need to justify “need” in NEPA. You do have to define “Purpose and Need” to the applicant, and then show your proposal meets that defined “need” but need can be something simple – like “provide for natural gas to meet an economic demand”, etc… it does not need to prove that – that need is qualitative or quantitative only that in the mind of the applicant – there is a “need” and their preferred proposal will satisfy it.

    Whether or not there is a “real” “demand” nee is a separate FERC process which I suspect is also cursory. That document becomes a reference in NEPA and that process is called “Tiering” so as to reduce redundancy. In other words if another document addresses some question then it becomes incorporated by reference.

    Any kind of illegitimate project – like a boondoggle of a road favored by developers can be proposed and a NEPA document written to document it’s “benefits”. The difference is that the public can also participate in the generation of content for the NEPA doc.

    For instance, if there is a factual thing like an endangered fish in a creek the project impacts – then it has to be made part of the record. It does NOT mean that the fish can’t be wiped out.. if in the eyes of the decision-makers the project is more important than the loss of the fish – that’s in the hands of the agency – and usually judges will not substitute their judgement for that of the experts and their recommendations.

    NEPA is a paper exercise – the only requirement is that costs and benefits – impacts are identified, documented and assessed/analyzed.

    the flow from a FONSI to a full blown NEPA is based on a key phrase “significance” which is somewhat in the eyes of the beholder but most knowledgeable NEPA folks and legal folks seem to know it when they see it and what it means is that in the eyes of the applicant – there are NO impacts of any kind that are significant. You might meet that threshold on something like widening a road that already impacts the adjacent lands or a project that will put effluents into a river – but the river is already degraded and not pristine.

    for new projects on new location – it’s almost impossible to not cause NEW impacts… but many agencies give the FONSI a shot anyhow even when they know it’s not going to stand. In FERCs case though it might since pipelines traditionally are considered lower impact that roads and the like.

    Here is an excellent doc that describes NEPA in simple and concise terms:

    A Citizen’s Guide to the NEPA

    https://ceq.doe.gov/nepa/Citizens_Guide_Dec07.pdf

    it’s a quick read and very informative.

  8. Here’s another , also informative:

    FERC Compliance Under NEPA:
    FERC’s Obligation to Fully Evaluate Upstream and
    Downstream Environmental Impacts Associated
    with Siting Natural Gas Pipelines and Liquefied
    Natural Gas Terminals

    https://gielr.files.wordpress.com/2015/04/flyer-final-pdf-27-2.pdf

  9. The Finding of No Significant Impact that has popped up in this discussion does not apply to this case. That is a finding that the lead federal agency can make when they believe that no environmental Impact Statement is required. That is not the case with the ACP, as evidenced by the fact that a draft EIS has been prepared.

    Any lead federal agency that is responsible for issuing a permit for a project that has the potential for significant environmental impacts must follow NEPA requirements.

    FERC has taken a bit of a maverick approach to this as shown by their refusal to address Greenhouse Gas Contributions in their deliberations about natural gas pipelines. This is addressed in the second article Larry has referenced. The CEQ has directed all other federal agencies to consider the upstream and downstream contributions to greenhouse gases that a project might have. FERC has told the CEQ “we don’t know how to do that so we won’t”. The CEQ responded, “we will show you how”. But FERC has not agreed to do what all other federal agencies are doing regarding GHGs.

    When producing an EIS, lead federal agencies are bound to follow NEPA requirements. They are summarized as follows:

    a. Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.
    b. Devote substantial treatment to each alternative, including the proposed action so that reviewers may evaluate their comparative merits.
    c. Include reasonable alternatives not within the jurisdiction of the lead agency.
    d. Include the no action alternative.
    e. Identify the agency’s preferred alternative or alternatives.
    f. Include appropriate mitigation measures not already included in the proposed action or alternatives.

    The Natural Gas Act also imposes other consideration when determining whether a project merits receiving a Certificate of Public Convenience and Necessity. The primary considerations are:

    a. Precedence agreements.
    b. Subsidization by existing customers.
    c. Adverse effects on existing pipelines.
    d. The possibility of overbuilding pipeline infrastructure.
    e. Enhancement of competitive transportation alternatives.
    f. Potential cost savings to consumers.
    g. Applicant’s responsibility for unsubscribed capacity.
    h. Demand projections.
    i. Comparison of projected demand with the amount of capacity currently serving the market.
    j. Avoidance of unnecessary disruptions of the environment.
    k. Unneeded exercise of eminent domain

    These issues have not been addressed by the applicant or the DEIS, even though numerous comments have been submitted by intervenors that show how the ACP does not meet these requirements.

  10. Thanks — looks like some background reading ahead. As mentioned, the siting and construction of electric transmission is fundamentally a State process and to the extent FERC is involved the environmental aspects are handled differently than for gas pipelines even though it’s the same agency. I was trying to understand the context for Dominion and FERC shortchanging, as you put it, TH, “what NEPA requires to prove the “need” for a project.”

    • @Ackbar – they’re all “state” processes I believe because it kicks off when a Federal permit is needed and it is in that permit process that it is the govt agency that issues the permit that ends up with the requirement to follow process – which includes environmental assessments – minor EAs, or FONSI or EIS.. etc…

      as far as I know – no non-govt entities do that process .. it has to be a govt agency doing it.

      keep in mind – in terms of scope – it’s way more than roads and powerlines and pipelines.. it’s things like military bases and weapon testing… etc. It the Forest Service and National Park services when they propose logging or oil and gas proposal by private companies – seeking to do it.. etc.

      Wiki also has an excellent article:
      https://en.wikipedia.org/wiki/Environmental_impact_statement

      But I’m also seeing articles that indicate that FERC traditionally does not do rigorous NEPA docs and apparently have not been successfully held to that standard in court..

      impacts that extend beyond the actual project boundaries – are called secondary and cumulative… and ones that involve larger policy issues are called “programmatic”…

      examples of secondary might be something – like a road but it could be other things that create noise or vibrations that impacts those nearby.

      cumulative means over time – something that has minor impacts that over time accumulate to major impacts.. like a river seeing impacts near the site but over time downstream becomes more and more impacted also.

      Programmatic might be should BLM allow cattle leases on Federal Lands and if so under what rules and conditions – not just on one parcel – but all BLM lands.. etc, etc…

    • Acbar,

      As I understand it, FERC does review all interstate electric transmission projects. Since many intrastate projects connect to the interstate grid, they are also subject to FERC review. This process to issue a Certificate of Public Convenience and Necessity proceeds like every other major utility project permitting process that I am familiar with. FERC coordinates with the appropriate RTO to develop a complete record of the need for the project, appoints an Administrative Law Judge, and the FERC staff acts as a neutral observer and a protector of the public interest.

      This type of process requires the applicant to respond to questions from the intervenors and its witnesses are subject to cross-examination (similar to SCC hearings).

      The ALJ makes a recommendation to the Commission based on the record of the proceeding. The Commission then decides on whether a CPCN is issued and what conditions it contains.

      This is what I was expecting from FERC on the gas side. The ultimate decision might not please all parties, but at least a fair hearing of the issues takes place and a complete record is developed to inform the public about the different points of view.

      FERC’s review of gas pipeline applications does not follow this method. They do not even follow the guidelines they have set up for themselves to accomplish a more even-handed review of projects.

      It is very puzzling as to how a Draft Environmental Impact Statement can draw conclusions about the severity of impacts of a project when the details of the project activities that are necessary to assess those impacts have not been provided.

  11. Just a note about why FERC is fighting the requirement to assess GHG impacts from pipelines.

    Recent studies have shown that the leakage of methane along the natural gas supply chain might be far greater than we previously assumed. Given that methane is a much more potent greenhouse gas than CO2, this removes a major reason for basing much of our electrical generation on gas-fired power plants. The concept behind the CPP was that closing coal plants and building new gas-fired plants would reduce our man-made contribution to climate change. The new findings do not support such a claim.

    A major effort has been made in the media and with policymakers to implant the notion that gas-fired electricity production is an environmentally friendly option. And a great deal of momentum is going in that direction.

    If further research bears out the initial results, Wall Street and the natural gas industry will not want anything to slow down the speed at which new pipelines and gas-fired power plants are being approved. I suspect that FERC will continue to fight the current requirements to assess the upstream and downstream effects of a project and hope that the new administration will remove the requirement.

    • TomH – what I’ve heard is that the research on methane from fracking is still not settled.. and some are now even blaming cows more than NG wells!

      I’m of the view that it’s much more likely the NG wells.. and if true, that’s really troubling, but then that issue would be way bigger than just one pipeline proposal.. and one proposal to get stopped for that reason would have national , industry-wide consequences as there would then be thousands of lawsuits against every pipeline proposal, every well, anything associated with the extraction of gas.

      No one associated with an individual proposal is going to do that… it would be like arming a legal timebomb that would cascade across the country -and shut down the entire industry!

      Even then, NEPA never directs a decision – only that known facts have to be considered by the applicant.. then they can still choose a bad decision!

      Here’s what I’ve read – and actually experienced in a challenge I was involved in – in years past.

      ” NEPA does not require
      the decisionmaker to select the environmentally preferable alternative
      or prohibit adverse environmental effects. Indeed, decisionmakers in
      Federal agencies often have other concerns and policy considerations
      to take into account in the decisionmaking process, such as social,
      economic, technical or national security interests. But NEPA does
      require that decisionmakers be informed of the environmental
      consequences of their decisions. ”

      A Citizen’s Guide to the NEPA

      “The courts have consistently found that while NEPA does not elevate environmental protection over all other aspects of public policy, it does require a “hard look” at environmental impacts and at alternatives. NEPA does not require a particular result; it does not require that the best alternative from an environmental perspective be selected. It does mandate a process for taking that “hard look” at what an action may do to the environment, and what can be done about it.”

      The NEPA Review Process – National Preservation Institute (NPI)

      • Larry,

        Yes, the methane leaks need more research and there might be ways to mitigate them. I brought it up because of the article about upstream and downstream effects that you referenced.

        My main purpose was to highlight that FERC marches to its own tune. Although every federal agency is supposed to address GHGs in their permitting processes, the one federal agency that is most likely to encounter the issue (FERC) refuses to do so.

        The concept behind the requirement was to have the issue examined during the approval of projects that contribute to the problem. There is no other venue where this review takes place. By refusing to examine the issue, FERC prohibits a record of the different points of view from being developed.

        • TomH – yep .. I’m getting the picture – FERC does march to it’s own drummer and NEPA practices may be different under them – and not as rigorous.

          the thing with NEPA though is that the DEIS is required to have all information submitted – as part of the record – no matter what FERC wants to address or not.

          But NEPA is also with respect to specific individual projects and issues that extend beyond one project are not typically addressed.

          For instance, particular road may have cumulative induced demand traffic impacts … but typically what happens is that the applicant/sponsor will respond to that by saying that they’re actually responding to increased demand and there are differing views.. not hard facts.

          In a road project down our way – they actually chose the most damaging alternative over the least damaging and most effective!

          It died when 3 other Federal agencies refused to sign off .. in much the same way that the US 460 project died for a lack of Army Corp permits.

          it was not the NEPA doc that killed them… but other agency permits who refused to issue – based on the documented impacts in the DEIS.

          If there are no other permits required other than FERC – it’s going to be a high bar but that’s the best opportunity to stop or slow a project – and that depends on how much and how long you have funded legal help.

          • Other permits besides FERC’s are required. State environmental agencies execute the provisions of the federal Clean Water Act. They issue the 401 and 404 permits required for the construction of pipelines. In New York, the Department of Environmental Conservation is repsonsible for those permits. After FERC approved a pipeline (Constellation, I think) the NY DEC informed the applicant of the information that it would need in order to issue a water quality permit for the pipeline. The applicant failed to respond so the pipeline is either on hold, in litigation, or cancelled.

            Dominion has not provided adequate information about the nature of the impacts of the ACP on water quality. What was included in the DEIS was not complete enough to pass muster for any state in which I have worked. But it is unclear whether the Virginia DEQ will fully execute its responsibility in the review and permitting of the ACP.

  12. re: draft environmental impact – TomH is right – I did not see a reference link t the report and assumed the language used meant FONSI… and that’s not the case – here is a link to a report that makes it clear:

    ” A long-awaited federal draft environmental impact statement issued Friday says Dominion’s proposed 600-mile Atlantic Coast Pipeline would have “some adverse and significant environmental impacts,” though most would be reduced to “less-than-significant levels” with mitigating measures proposed by the partners building the pipeline and recommendations by federal regulators.”

    http://www.richmond.com/business/article_8e98ba37-dd42-51df-859d-0ebf2fa252a0.html

    The environmental groups have formed a consortium, represented by SELC:

    ” A statement released on behalf of a consortium of organizations, including the Southern Environmental Law Center, the Virginia chapter of the Sierra Club and Appalachian Voices, among others, blasted the Federal Energy Regulatory Commission for ignoring evidence that the pipeline “is not needed, (and) puts lives, communities’ drinking water supplies, private property, publicly owned natural resources and the climate at unacceptable risk.””

    Nothing in that article mentioned methane or greenhouse gases and I’d suspect that at some point that potential might be put in the record – and then some response will be along the lines that – those things are still not precisely quantifiable with regard to impacts and there is no national policy with regard to those impacts – for all projects.. etc, etc..

    For NEPA – judges do not substitute their judgement for the applicant agency unless incontrovertible facts that amount to a refusal to address known and accepted facts are at issue.

  13. Something a little interesting –

    the title of this blog ” FERC Finds Pipeline Impact “Less than Significant”

    differs substantially from what RTD has characterized:

    ” A long-awaited federal draft environmental impact statement issued Friday says Dominion’s proposed 600-mile Atlantic Coast Pipeline would have “some adverse and significant environmental impacts,” though most would be reduced to “less-than-significant levels” with mitigating measures proposed by the partners building the pipeline and recommendations by federal regulators.”

    They’re NOT saying there are no significant impacts – at all.

    they’re saying they ARE significant but they can be mitigated.

    keep in mind they are, in fact, significant impacts, but they are asserting/claiming that they CAN be mitigated.

    but that’s quite often what most applicants will claim and if that’s all that had to be done – make that claim – without substantiative discussion about the impacts scope, scale, longer term impacts, etc.. then the process would be done.

    applicants are not usually allowed to make unsubstantiated claims – as if they are facts… but maybe FERC is different! 😉

    remember NEPA is not about denial of a proposal – NEPA does not do that.

    What NEPA requires is ENOUGH information from which the applicant can make an “Informed decision”. The public and opposing groups ARE ALLOWED to submit information they feel was not considered by the applicant when they “claim” along the lines of ” little impact… and they can be mitigated anyhow’.. “Enough” means facts – not yet in the document and as a result not yet addressed”.

    it’s purely a paper exercise and almost all lawsuits center around that basic concept … i.e. – were facts put in the record and where they addressed?

    NEPA does not require a “GOOD” decision – only an INFORMED decision!!!

    the Law delegates to the applicant – the judgment as to the “worth” of a project in terms of trade offs of benefits versus impacts. What they cannot do is ignore facts and not have those facts in the record.

    So FERC could easily and quite legally say ” yes. there are severe impacts but in OUR view, we think the value of more gas to the market is “worth” it”.

    The power of NEPA is that most agencies do NOT like the idea that they KNOW there are severe impacts but proceed anyhow – but that’s a political calculation not a legal one!!! They are legally allowed to do harm once they’ve “considered” it.

    • “applicants are not usually allowed to make unsubstantiated claims – as if they are facts… but maybe FERC is different! ”

      Decidedly so! The information on the need for the pipeline that was submitted in their application said “There can be no question” that the pipeline was needed, that it was “clearly” necessary. These statements were followed by a few paragraphs of generalizations and misleading information.

      I recall pages of in-depth information that we included about the need for projects that were reviewed by state or federal regulators. We were required to respond to every interrogatory from the intervenors. Many helped clarify things or add information. Some were frivolous, mean-spirited or downright outrageous. But the process developed a more complete record.

      The FERC process is purely a paper exchange. If the applicant never chooses to address the issue or provide more information, there is no remedy. This avoids embarrassing disclosures and allows incomplete responses when the applicant cannot really prove their point, but it does move the process towards what appears to be its pre-determined conclusion.

  14. In terms of the best path for the pipeline(s) – why can’t they use the same path that has been and continues to be used for moving coal to power plants?

    No steep slopes through undisturbed national forest is required.

    There are, in addition to active rail , hundreds of abandoned rail track bed – bridges and tunnels already in existence… not any steeper than what a train needed.

    so why c an’t they be used?

  15. Curious how Dominion’s corporate sponsorship appears right next to the misleading title of this post.

    FERC’s draft EIS on the ACP is exactly what was expected out of this sham process, just like their September draft EIS on the MVP which has been blasted by the Department of the Interior, National Park Service, and Virginia DEQ. FERC couldn’t even get the route of the Appalachian Trail right! http://www.roanoke.com/news/local/franklin_county/state-feds-call-for-improved-pipeline-environmental-impact-statement/article_be89bea6-4a36-5734-8d54-cbb5d03a634e.html

  16. Agree.

    The PURPOSE of ANY NEPA style environment assessment is to quantify the impacts FIRST so that the scope and scale of the actual impacts are quantified and understood……

    THEN, NEXT the proposed mitigation that permits interested parties to decide if the proposed mitigation is adequate – or not..

    To Start off with the govt or the applicant saying that impacts are minimal because they will be mitigated is totally bogus and condescending. It’s the applicant telling the public “we’ve looked into this and it will be “okay” – no need for ya’ll to be doing anything – just listen to us.

    That’s pretty insulting … actually

    It’s a PROCESS and the purpose of the document is for the public to KNOW specifically what the raw – unmitigated impacts ARE , BEFORE you ever talk about mitigation – which is a separate phase of environmental aspects.

    Knowing what the raw impacts ARE – is what the law refers to as a “Hard LOOK” … a Hard Loop is not the agency/applicate looking and then telling the public that they’ve got it all taken care of.

    That’s really the entire reason the law requires the process – and the document.

    for a parallel – consider a scenario :

    Think about a developer proposing a new major traffic-producing project …and the county planning folks recommending approval telling the public – they’ve looked the impacts over and they are confident that the mitigation is adequate without ever telling the public what the specific impacts were nor the various options considered for mitigation..

    Jim Bacon is a “transparency” terror when it comes to his demands that schools.. and other agencies be TRANSPARENT and ACCOUNTABLE but when it comes to the pipeline – no such thing – he just lets those guys slide on by!!!

    Come on Jim – how about it? how about a little more transparency for FERC and Dominion on the ACP?

    The RTD says there are substantial impacts so what are they?

    😉

    • LG, your understandable feelings about FERC’s condescension notwithstanding — what you are reacting to is normal, typical regulatory talk. That’s all regulators, not just FERC. What they are saying is, simply, we approve your planned construction subject to these conditions. The conditions may have been expected by Dominion and already proffered in the application to head off another phase of review, but they were, in any case, mitigation measures that are hereby made conditions of the COPN. Almost all construction permits issued by just about any government agency I know of are approved subject to a laundry list of standard and non-standard (specific) conditions. It’s not intended to be in-your-face the way you took it, although it’s certainly one reason why I sympathise with JB’s point of view on COPNs and their abuse — by federal, State and local government bureaucrats generally.

      • Acbar,

        You make a valid point. However, in the case of FERC, they are not providing a complete enough description of the design of the project (stream crossings, horizontal directional drilling activities, etc.) that allows for an accurate assessment of the impacts so that appropriate mitigation measures can be developed.

        NEPA requires that this is provided in the DEIS phase so that the public can review and comment on it. Failure to do so at this stage excludes any third-party review and contribution to identifying necessary mitigation measures. This is a gross abuse of the process. Especially since, at least so far, the Virginia DEQ seems unwilling to assume their proper role.

  17. Wow, you are into the nuts and bolts of the NEPA process. My question dealt with whether, or when, ‘need’ was going to be evaluated for this gas pipeline.

    Back in the dark ages when I began working in electric regulation, there was a jurisdictional ‘bright line’ between what the States regulated and what the feds regulated. The States regulated retail sales for the most part, and they also regulated the overall finances of electric utilities that made those sales (other than government owned utilities like municipals, and REA co-ops), and the land use and siting decisions surrounding new construction of generators and substations and wires. That means, for example, that evaluating the environmental impact of a new transmission line was a State matter — in VA, an SCC and DEQ matter — unless some federal agency like the Corps of Engineers also got involved due to a water crossing. This was despite the fact that FERC has long had jurisdiction over transmission rates if separately broken out. There was no requirement for a federal COPN for transmission facilities, only a State certificate.

    All this got somewhat muddied by two developments in the 90s. First, the FERC’s creation of RTOs, like PJM, shifted grid planning and the final determination of transmission ‘need’ to the RTO, which was regulated by FERC; but States still regulated siting. The solution was to have the RTO come to the State regulator and present its reasoning for the need for a new line, and if the State disagreed it could appeal to FERC. Second, the Energy Policy Act of 1992 added a complicated process whereby FERC could override a State’s refusal to permit a transmission line to be built. It’s not clear to me whether those developments have changed the way NEPA is, or isn’t, applied to electric transmission construction.

    None of this affects gas pipeline regulation, which was created a 100% federal process in the 1930s Natural Gas Act, includes a federal COPN, and is clearly subject to NEPA. Even though it’s administered by the same FERC that does electric transmission, the procedures are totally different, and handled by totally different staffs (though the same ALJs handle both).

    • I agree that different laws govern FERC’s activities in electricity matters versus gas.

      As far as I know, there are no ALJs, no adjudicatory proceedings, no interrogatories, no cross-examinations on the gas side. This is what greatly disappoints and puzzles me. There is nothing that says FERC cannot apply the same process that is used in nearly every other federal and state review of major projects, but they choose not too.

      I can understand that the applicants and regulators want an easier path to reach the decisions they are predisposed to make. However, it was the intent of the Natural Gas Act to reduce the monopoly power of the gas companies and to provide the public with adequate access to affordable natural gas. The Act itself, Supreme Court decisions, numerous rules issued by the Federal Power Commission (and later FERC) and the FERC guidelines of 1999 and 2000 encouraged a review of similar projects in the same region (a Supreme Court decision) and that specifically stated that the need for a pipeline could not be justified solely by contracts (precedent agreements) with customers, especially if those customers were affiliates of the owners of the pipeline.

      The procedures currently utilized by FERC do not implement the intent of the enabling legislation and subsequent rules and guidelines, in my opinion.

      The headlong rush to overbuild pipelines and power plants is unnecessarily raising prices to the public for the benefit of private developers. The normal protection of ratepayers by state utility commissions is superseded by the federal authority and is given no consideration in the FERC process.

      I raised the issue with the SCC Commissioners and the Virginia Attorney General about how the interests of the ratepayers were being protected when the approval of the ACP would raise fuel transportation costs by hundreds of millions per year without the ratepayers’ knowledge or consent. There was no satisfactory response. It will be postponed because it is a political hot potato. Either the ratepayers or the pipeline developers will be harmed. The issue should be considered as part of the pipeline approval process, where everyone can have a voice (or should).

  18. FERC is in charge of pipelines but not the land they impact… it’s not their authority nor expertise to determine – qualitatively or quantitatively the impacts.

    that the purpose, the work product of the NEPA process.

    what NEPA requires is a statement of Purpose and Need.

    that’s what the applicant/sponsor defines. If you want to rebut it – you have to substantively demonstrate that – their claim in purpose and need for this project is not true… and I think the opponents may have an opening on that.

    even then – NEPA does not direct or require a particular decision. That is the total purview of the sponsor of the NEPA doc.

    Judges do not substitute their judgement for the sponsor. They only look to make sure the “NEPA process” was “followed”…

    NEPA was never intended to be a way to stop a project. In the end, it had a simple premise – that the consequences of a proposed action – were documented and known and even horrendous decisions would stand.

    • NEPA provides an outline for the development of information and the comparison of alternatives. This is supplemented by specific requirements of the issuing agency. When the specified data is provided and the process is followed it can be a way that results in a project not being approved.

      My department was involved in the permitting of a 2400 MW power plant. We spent years doing the required environmental studies and preparing the DEIS, spending millions of dollars. While all of that was going on the high rate of load growth shifted to a much lower growth rate. Early in the proceeding, the regulatory agency ruled that there was no longer a sufficient need for such a large plant.

      It was the right decision based on an in-depth evaluation of the new conditions and saved the ratepayers billions. The conditions are similar today. Decades of growth in electricity demand has halted, although utilities and regulators don’t seem to have noticed yet.

      A similar comprehensive review of the need for new power plants and their associated pipelines is in order. It will save ratepayers and utilities from the pain of overbuilding and creating stranded costs. Perhaps it is my previous experience that makes me more sensitive to this issue. But the fact that these projects are unnecessary now is even clearer than it was then. Someone has to be responsible enough to take a good look at the facts and save everyone a good deal of financial hardship and unnecessary impacts.

  19. TomH – re: ” Early in the proceeding, the regulatory agency ruled that there was no longer a sufficient need for such a large plant.”

    I presume that agency was not FERC and not a Federal Agency…

    perhaps more like the SCC in Va?

    but again – NEPA itself only produces information – and it’s up to other agencies to use that info is making their decisions – and that goes back to what info made it’s way into the NEPA doc (or not).

    it’s a vehicle for requiring the disclosure of information.. upon which others may act.

  20. It was a joint proceeding of the NY Public Service Commission (similar to the SCC) and the federal Nuclear Regulatory Commission.

    “it’s a vehicle for requiring the disclosure of information.. upon which others may act.”

    Yes, that is what it is supposed to be. That is the basis of my disappointment that the DEIS for the ACP is so incomplete. I had hoped that finally all of the issues that Dominion has failed to respond to would be dealt with in the DEIS and we would have a justification for the need for the project and a basis for evaluating the impacts. That information is still missing. Because it is not included in the DEIS there is no opportunity for public comment.

    This case is being supported by press releases and media reports, not by the facts of the case. That should concern us all.

  21. @TomH – I was under the impression that an “incomplete” record is a basis for later challenging the Record of Decision.. and may result in a requirement for a Supplemental DEIS..

    from the doc: Purpose and Need:

    Atlantic’s and DTI’s stated purpose for ACP and SHP are, in summary:

     to serve the growing energy needs of multiple public utilities and local distribution companies in Virginia and North Carolina by using the natural gas to generate electricity for industrial, commercial, and residential uses;

     to provide natural gas for direct residential, commercial, and industrial uses;

     to increase the reliability and security of natural gas supplies in Virginia and North Carolina; and

     to provide access to a low cost supply hub 6 with a large volume of transactions characterized by multiple buyers and sellers willing to trade natural gas on a daily basis and into the futures market (liquidity).

    geeze sounds like Stars and Stripes and Apple Pie!

  22. Yes, an incomplete DEIS is the basis for preparing a supplemental DEIS. Comments from many reviewers of the ACP DEIS say that this is the only appropriate way for this process to move forward. A legitimate decision cannot be made without the required information.

    FERC has never issued a supplemental DEIS.

    “to serve the growing energy needs of multiple public utilities and local distribution companies in Virginia and North Carolina”

    I am less familiar with NC, but Dominion has been over forecasting demand for many years. As long as the SCC properly evaluates the existing data on load growth, I suspect it will be a good while before a new power plant is approved in Virginia. The only new demand is from the data centers and they want solar.

    However, even if we assume all 11 plants in VA and NC are built, there is no need for the ACP in order to supply them with natural gas. Much less expensive and far less disruptive options already exist.

    “to provide natural gas for direct residential, commercial, and industrial uses;”

    The traditional uses are essentially flat. EIA estimates 0.3% per year load growth, mostly from industrial users. These uses will decline as soon as the price of natural gas increases 3-4 times in the next 10-15 years. No ACP is required. Piedmont and Public Service of North Carolina are already receiving Marcellus Gas via Transco.

    “to increase the reliability and security of natural gas supplies in Virginia and North Carolina”

    The current pipeline system in the region receives gas from three regions: the eastern Marcellus (the cheapest source via Transco), the Gulf Coast (low-cost gas in the summer via Transco), the western Marcellus (via Columbia Gas – soon to expand by 1.3 Bcf/d and connected to Transco). The ACP provides gas only from the western Marcellus. The ACP needs to connect to existing pipelines to increase the reliability and security of their supply.

    “to provide access to a low cost supply hub 6 with a large volume of transactions characterized by multiple buyers and sellers willing to trade natural gas on a daily basis and into the futures market ”

    As stated above, this region already has access to three major supply zones, including hub 6. The ACP offers no new advantage in this regard.

    The real purpose of the ACP is to provide $135 million per year in profits to its utility holding company owners. If this could be accomplished without seizing property using eminent domain, or without an economic penalty to ratepayers, that would be one thing. But the property will not be given voluntarily. And the pipeline will only yield profits because it will be subsidized by higher charges to the ratepayers of the captive utilities of the holding companies. Nowhere is this mentioned in media reports or in the DEIS or in the information provided by Dominion (except in the tariff that was filed with FERC). The decision about this project should be made considering the whole story not just the Madison Avenue version of it.

  23. @TomH – I note a number of FERC / NEPA lawsuits on google searches..don’t know if any have been successful.

    “Need” ought to play a role if it requires damaging public resources. They should have to justify that without the pipeline – harm will result.

    ” While the no-action alternative would eliminate the short- and
    long-term environmental impacts identified in this EIS, the end-use markets would not receive the natural
    gas to the delivery points specified by the precedent agreements signed by Atlantic and DTI within a
    timeframe reasonably similar to the proposed projects. Because this alternative would not be able to meet
    the purpose of ACP and SHP, we conclude it is not preferable to the proposed action. We also conclude
    alternative energy sources, energy conservation, and efficiency are not within the scope of this analysis
    because the purpose of ACP and SHP is to transport natural gas.”

    that is one awful no-build statement.

    they’re bald-faced about it. no harm will happen to the public , just to their own ventures.

  24. There are two major river/rail crossings of both the Alleghany and Appalachian mountains – long used by rail to bring coal from West Virginia to power plants in the east but Dominion has chosen instead to go over high ridges instead of following the gradual slope of the rail crossing of the mountains. Both the James and New Rivers cut through the mountains and both have multiple tracks along those rivers..

    In my mind – that would be far less damaging to the environment and require far fewer takings of individual private property owners.

    I note also they need permits from the Army Corp.

    they note in the DEIS:

    ” As an element of its review, the USACE must consider whether the
    proposed projects represent the least environmentally damaging practicable alternative pursuant to the CWA section 404(b)(1) guidelines. The term practicable means available and capable of being done after
    taking into consideration cost, existing technology, and logistics in light of the overall purpose of ACP and SHP.”

    So that sounds like the Corp is going to require a least-damaging alternative in the mix and compare that one to ones with more impacts.

    You might find this interesting – it’s a doc from the Army Corp:

    ALTERNATIVES ANALYSIS

    http://www.saj.usace.army.mil/Portals/44/docs/regulatory/News/4_Alternatives%20Analysis.pdf

    it was the ACOE alternative analysis of US-460 that ultimately killed it when ACOE refused to issue permits for stream crossings.

  25. You are really digging into this! Yes, the U.S. Army Corps of Engineers (USACE) must issue a 404 permit for the construction of the pipeline to proceed. It is that permit that is currently holding up the Dakota Access pipeline.

    There are potentially serious impacts that can occur from pipeline activities; especially from the horizontal drilling activities where there is the possibility that the soil excavated from the pipeline tunnel could spill into waterways. This is one of many areas where the ACP plans are not adequately specified to accurately determine the impacts or suggest appropriate mitigation measures. There are several HDD operations in sensitive areas.

    What I am not certain about is how wide-ranging the USACE search for the “least environmentally damaging practicable alternative” will be. It might be limited to just those segments of the pipeline that are under their permit jurisdiction. It would be nice if they could broaden it to the project as a whole to get the ACP to provide data that actually supports the market need for the pipeline.

    I see that you have discovered the need case in the DEIS:

    It is essentially this:

    1. The applicants want to build a pipeline.

    2. Our pipeline is the only way to supply the necessary gas.

    This is the item that requires proof. I expected to see an analysis similar to the Department of Energy study or the Synapse report that assessed the peak demand of all of the Local Distribution Companies in Virginia and the Carolinas and the peak demand of the power plants and compared that to the total pipeline capacity in the area. Both of those studies concluded that existing pipelines and their planned expansions are sufficient to meet the needs of this region for decades.

    I suspect that supporting data was not provided by the applicant because it won’t prove their case. It is frustrating because NEPA requires that these alternatives be “rigorously explored and objectively evaluated”. FERC has been willing to ignore this aspect of federal law.

    3. The No Action alternative is not acceptable because it does not allow the applicants to build a pipeline.

    No recognition of the lower cost and far lower impact options of using existing pipelines is allowed to enter the discussion. Again, NEPA requires this evaluation to determine if the overall need of the project, supplying natural gas to the region, can be accomplished in some other way that does not require the construction of the project.

    4. “We also conclude alternative energy sources, energy conservation, and efficiency are not within the scope of this analysis because the purpose of ACP and SHP is to transport natural gas.”

    NEPA requires an evaluation of alternatives outside of the normal scope of the issuing agency. In this case – can the energy needs of Virginia and the Carolinas be met without the pipeline. An objective analysis of the declining cost of solar and storage, plus the rapid implementation and very low cost of energy efficiency measures would show that these choices would displace the need for more natural gas plants at a significantly lower cost with greater benefits to the environment. No new gas-fired plants, no need for a pipeline. Whether FERC supports this argument or not, NEPA requires it as part of the evaluation.

  26. Indeed, it is rare to find a pipeline that FERC has denied.

    But, here’s a big one in Oregon. Note: rejection based on lack of need.

    http://www.oregonlive.com/environment/index.ssf/2016/03/feds_deny_jordan_cove_lng_term.html

    • This one was so flagrantly bad even FERC had to deny the permit.

      The LNG plant had no customers and the LNG plant was the only customer for the pipeline, and most of the landowners refused to grant easements to the pipeline. But FERC left the door open for them to try again.

      But this is not that far removed from the two big Virginia pipelines.

      The ACP case:
      We own our customers. Even though some are already getting a steady supply of lower priced gas using existing pipelines we can force them to use our pipeline and pass on the higher cost of our to pipeline to their utility customers.

      The MVP case:
      We are all natural gas producers and own our customers too. We don’t have any real customers (except 1% of capacity for Roanoke Gas). We just want to build a pipeline to connect to Transco so that we have a chance to find customers somewhere in the eastern United States.

      If you were a venture capitalist would you give money to firms with such a weak business case and no documentation of the market need for their project; especially if you were aware that lower cost options already exist? FERC has no such qualms about granting permits for projects with flimsy evidence of market need. That is why it is possible that we will build 40% more pipeline capacity than is needed to carry the maximum output of the Marcellus.

  27. re: ” “We also conclude alternative energy sources, energy conservation, and efficiency are not within the scope of this analysis because the purpose of ACP and SHP is to transport natural gas.””

    translation – we won’t consider other things because that’s not what we want to do! Other alternatives are not allowed!

  28. Rick Webb, a contributor to BR and an environmental scientist at UVA, wanted to make the following comment but was unable to log in:

    “FERC goes well beyond simply accepting that there is an actual need for the ACP project. It evidently assumes that there is a really urgent need for the project. In the DEIS document FERC considers the alternative of collocating the ACP and the MVP projects. It rejects the idea in-part because “implementation of the alternative would require significant planning and design, which would significantly delay the delivery of gas to Atlantic’s [ACP’s] customers. (ACP DEIS, Vol 1, page 3-10).”

    I would add that the recent hearings by the SCC on Dominion’s IRP showed that lacking movement regarding the CPP and the need for Dominion to adjust its load forecasting methods to better reflect trends in efficiency and the decoupling of electricity demand from increases in GDP and population growth, there is no urgency in Virginia to approve new power plants. Although, the sense of urgency is still communicated by the applicants to FERC.

  29. re: from the same page: ” a portion of MVP route in northern West Virginia follows narrow ridgelines. Based on our review of data, aerial photography, and topography, we conclude that there is insufficient space along the majority of ridgelines in West Virginia to accommodate two parallel 42-inch-diameter pipelines. ”

    this and other passages demonstrate the bogus nature of the analysis and responses. They act like if there is a place – on a narrow ridgeline of all places where they cannot sit side by side -it becomes an impossible thing – like they can’t change it! the map actually shows a connection between the two pipelines at one place…

    in terms of slowing things down – where does that come from unless Dominion thinks they’ve already got the route they want to build approved but even then they cannot turn dirt until the ROD is certified and if the DEIS gets challenged and delays ensue – it may well take far longer than any co-location “planning” might.

    this is all going to come down to how much financial staying power the opponents have – not for obstruction – but to force FERC and Dominion to do an honest process that seriously considers co-location and other less damaging alternatives. They’re certainly not about to actually try to find and use less damaging path – only to justify and rationalize the one they chose. I’d be surprised if the Army Corp does not look at BOTH pipelines in terms of damage to stream crossings.. essentially twice as many crossings … and for what? because two companies don’t want to co-locate and one doesn’t want to because of “delay”? Potentially the Army Corp could well introduce delay on the co-location issue and it has a very different mission than FERC.

    It looks like the MVP actually goes through the New River gap near Blacksburg and the next gap north is the James River in Buchanan and both of them would be far, far less damaging that taking pipelines up and down steep ridges and ridge tops… .

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