Sens. Elizabeth Warren (D-MA) and Edward Markey (D-MA) are calling on FERC to reverse its recent approval of construction activities for Tennessee Gas Pipeline Co.'s (TGP) Connecticut Expansion, citing the agency's lack of a quorum.
In a letter dated Tuesday, the Massachusetts senators urged Federal Energy Regulatory Commission Chairman Cheryl LaFleur to revoke an April 12 notice to proceed with tree clearing and construction issued to TGP [CP14-592].
"If FERC cannot act on requests for rehearing because it is without a quorum, it should not allow FERC staff to authorize projects that are the subject of rehearing requests to go forward," the senators wrote. "...A rehearing should be heard, thereby granting a conclusion to the regulatory process, before any irreversible action, including tree clearing in Otis State Forest, is taken by Tennessee Gas. The people of western Massachusetts deserve nothing less."
FERC in March 2016 approved TGP's Connecticut Expansion, which is designed to add 72.1 MMcf/d to TGP's system to deliver Marcellus Shale gas to the Northeast. The project entails construction of three pipeline loops in New York, Massachusetts and Connecticut, totaling about 13 miles, on TGP's existing 200 and 300 Lines. The project also includes modifications to an existing compressor station in Hampden County, MA, and the installation of various other facilities along the mainline loops.
TGP parent Kinder Morgan Inc. in January reached an eminent domain deal with the state of Massachusetts, allowing the Connecticut Expansion to traverse the Otis State Forest in Sandisfield, MA, in Berkshire County.
After the project received FERC approval last year, challengers filed a request for rehearing at FERC, which is still pending. The Commission issued a tolling order last year, giving it more than the statutory 30 days to respond and preventing the request from being denied by operation of law.
FERC's use of tolling orders has come under fire recently from pipeline opponents, who allege that the practice obstructs their ability to legally challenge project approvals while allowing those projects to move forward with construction.
Having only two sitting Commissioners after the resignation of former Chairman Norman Bay earlier this year, FERC currently can issue tolling orders but cannot act on rehearing requests. Opponents of other FERC-approved projects, including Transcontinental Gas Pipe Line Co.'s Atlantic Sunrise expansion and Algonquin Gas Transmission's and Maritimes & Northeast Pipeline’s Atlantic Bridge project, have repeatedly pressed this issue in legal arguments, and in one case opted to head straight to appeals court rather than await an up-or-down action from FERC.
Warren and Markey, who have also written in opposition to Atlantic Bridge, echoed these pipeline challengers in their Tuesday letter to LaFleur.
"Nearly a year has lapsed since FERC granted the rehearing request, and no action has been taken to hear the concerns of the citizens of Sandisfield, effectively silencing them before the Commission and before the courts," the senators wrote. "For FERC to allow last week's issuance of a notice to proceed with construction when it lacks a quorum and, therefore, cannot act on the rehearing request, is profoundly troubling. If Tennessee Gas is allowed to proceed with tree clearing and construction there will be irreparable harm done to Otis State Forest, a natural treasure of Massachusetts."
The lack of a quorum at FERC has also provided fodder for officials opposing the Nexus Gas Transmission pipeline as it seeks regulatory approval for project-related contracts in Michigan. Michigan Attorney General Bill Schuette wrote recently that the lack of quorum would likely delay Nexus' planned startup from later this year to 2018, though project backers have challenged that assertion.