A split FERC on Wednesday upheld a recent decision to allow Mountain Valley Pipeline LLC (MVP) to partially resume construction near national forest lands, denying a stay request filed by a coalition of environmental groups.


Divided three to two along party lines, the Federal Energy Regulatory Commission rebuffed efforts to overturn a December order allowing MVP, developers of a 303-mile, 2 million Dth/d Appalachia-to-Southeast natural gas conduit, to resume construction in part of an exclusion zone near the Jefferson National Forest.

Republican Commissioners James Danly, Neil Chatterjee and Mark Christie provided the support needed to pass the order over the dissent of the body’s two Democrats, Chairman Richard Glick and Commissioner Allison Clements.

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The debate centered on whether allowing MVP to partially resume construction violates Environmental Condition 9 of the pipeline’s FERC certificate. The condition stipulates that MVP have all necessary federal permits before starting construction.

In a joint dissenting statement, Glick and Clements argued that construction should not move forward at all while MVP still lacks permits needed to perform hundreds of planned waterbody crossings — a result of adverse court rulings vacating the Nationwide Permit 12 approvals previously issued to the project.

“Allowing MVP to proceed without having all of its federal authorizations is inconsistent with any reasonable reading of Environmental Condition 9 in MVP’s certificate,” Glick and Clements wrote. “…The governing principle behind Environmental Condition 9 is to ensure that people’s land and the environment are not bulldozed to make way for a pipeline project that might not be completed or might have to be re-routed. That principle remains relevant throughout construction every bit as much as it did at the outset.”

The majority, however, argued that the requirements of Environmental Condition 9 were met when FERC initially authorized MVP to start construction.

“Environmental Condition 9 applies to newly-certificated and unconstructed facilities. It does not apply to a scenario where applicable federal authorizations are vacated after a company has obtained necessary federal authorizations and commenced construction,” they wrote.

According to analysts at ClearView Energy Partners LLC, FERC’s latest MVP order “does not change the status quo for the project,” which is still seeking new waterbody crossing permitting needed to complete construction. MVP also lacks authorization to resume construction in part of the exclusion zone near its crossing of the Jefferson National Forest.

“We note that Chairman Glick declined to withhold action on this order to avoid being outvoted,” the ClearView analysts wrote in a note to clients. However, the order’s “release (and its dissents) now become part of the record in the pending appeal challenging this and two other related orders. We expect the Sierra Club to rely heavily on the dissents…in their appeal.”