The Mountain Valley Pipeline (MVP) project has been granted permission by the Federal Energy Regulatory Commission (FERC) to resume construction activity. In an August 29 letter from Tom Turpin, Director of the Office of Energy Projects at FERC to the Mountain Valley Pipeline, LLC, it was stated that FERC “has determined that the protection of the environment along the Project’s right-of-way is best served by modifying the Stop Work Order issued on August 3, 2018.” Turpin goes on to say that “in consultation with staff, I have determined that protection of the environment along the Project’s right-of-way across non-federal land is best served by completing construction and restoration activities as quickly as possible.” The authorization for resumed construction activity does not apply to not apply to federally owned lands for which MVP has not yet obtained appropriate authority to construct.
While the FERC action was staff-initiated, as was the original stop work order, the modification of the order prompted the two Democrat members of FERC – Commissioners Cheryl LaFleur and Richard Glick – to issue a statement, also on August 29, taking exception to the staff action:
We have significant concerns with today’s decision to allow construction to resume while required right-of-way and temporary use permits remain outstanding.
In response to recent court decisions, Commission staff has acted within its delegated authority to address the impact of those court decisions on post-certificate pipeline activities, as it did today. However, given the increasing complexity of such issues, we believe the Commission should revisit this practice. In the future, when a court remands or vacates a required federal authorization following the issuance of a notice to proceed, we believe the decision regarding whether and how to proceed with the pipeline should be made by the Commission rather than its staff. Ultimately, it is the Commission’s responsibility to ensure the project is in the public interest.
FERC currently has two Republicans and Democrats in the wake of Commissioner Powelson’s resignation earlier this month. Thus, a Commission action to either affirm or reject the staff action is unlikely.
In a related development late on August 29, the Fourth Circuit Court of Appeals issued an order lifting a stay of the U.S. Army Court of Engineers’ National Permit 12 for the MVP regarding four river crossings in West Virginia.