[USA] FERC gives approval for construction on Mountain Valley Pipeline

On June 28, 2023, the Federal Energy Regulatory Commission authorized the resumption of construction for the Mountain Valley pipeline.[1] Mountain Valley Pipeline, which is set to run about 300 miles from northwestern West Virginia to southern Virginia, was initially approved by FERC in 2017. However, the project has faced several court decisions rejecting its federal permits due to environmental concerns. FERC’s recent order follows the passage of the debt ceiling bill earlier in June, which required federal agencies to approve the pipeline. In FERC’s unanimous order, the commission said that all work, including portions of the project that will run through the Jefferson National Forest, could proceed. The order authorizes FERC’s Office of Energy Projects to approve any future changes to the project as long as the director of the office finds them “to be needed to complete construction.”

[1] https://elibrary.ferc.gov/eLibrary/filelist?accession_number=20230628-3041&optimized=false

[USA] FERC approves extension for Mountain Valley pipeline

On August 18, 2022, the Federal Energy Regulatory Commission (FERC) extended the permit for the Mountain Valley natural gas pipeline project by four years.[1] The $6.6 billion project is being built by a joint venture of Equitrans Midstream, NextEra Energy, Consolidated Edison, AltaGas, and RGC Resources. The pipeline will run 304 miles from northwestern West Virginia to southern Virginia and deliver 2 billion cubic feet of gas daily to the Southeast. Construction on the project has been slowed by several court decisions rejecting federal permits. When FERC initially approved the pipeline in 2017, it said the project had to be operating by October 2020. However, in August 2020, FERC extended the permit deadline to October 13, 2022. With the most recent extension, the project must be completed by mid-October 2026. In its decision, FERC unanimously ruled that the basis for its findings in its initial 2017 approval remained the same. The commission rejected calls to conduct a supplemental environmental analysis. Equitrans now expects to complete the Mountain Valley project in the second half of 2023. Currently, the project is roughly 94% complete.

[1] https://elibrary.ferc.gov/eLibrary/filelist?accession_number=20220823-3076&optimized=false

[USA] FERC extends emergency certificate for Spire STL pipeline

On December 3, 2021, the Federal Energy Regulatory Commission (FERC) issued a temporary certificate allowing the Spire STL pipeline to continue operating through winter.[1] The 65-mile pipeline runs from Illinois to the St. Louis, Missouri area to serve Spire Missouri customers. Spire STL has been operational since 2019, but in June 2021, the D.C. Circuit vacated the pipeline’s certificate of public convenience and necessity. The court ruled that FERC had failed to adequately assess the need for the Spire pipeline. FERC issued a temporary certificate in September 2021, which was set to expire on December 13, 2021. Prior to FERC’s December decision, Spire had warned that shutting off the pipeline would lead to 400,000 St. Louis area customers experiencing extended loss of service this winter.  The new temporary certificate allows the pipeline to remain in service while FERC decides how to proceed. The temporary certificate bars the company from engaging in construction activities or expanding service but allows the pipeline to operate under the rates that are currently in effect.

FERC’s decision came right after Spire STL Pipeline LLC petitioned the Supreme Court to review the D.C. Circuit’s ruling.[2] In its appeal, the company argued that the D.C. Circuit should not have revoked the permit in light of the "dangerous, and potentially fatal, consequences" of the decision.

[1] https://www.ferc.gov/news-events/news/ferc-extends-temporary-operations-spire-stl-pipeline

[2] https://missouriindependent.com/2021/12/03/spire-stl-pipeline-appeals-to-u-s-supreme-court-to-overturn-self-dealing-ruling/

[USA] Spire asks Supreme Court to pause Missouri pipeline shut down

On October 4, 2021, Spire STL Pipeline LLC requested the Supreme Court stay an order from the U.S. Court of Appeals for the District of Columbia Circuit shutting down the Spire STL pipeline.[1] The 65-mile pipeline runs from Illinois to the St. Louis, Missouri area to serve Spire Missouri customers. The pipeline has been operational since 2019 and is a rare case of federal courts vacating a pipeline’s service after it is operational. In June 2021, the D.C. Circuit vacated the pipeline’s certificate of public convenience and necessity, which was issued by the Federal Energy Regulatory Commission (FERC) in 2018. The court ruled that FERC had failed to adequately assess the need for the Spire pipeline. Following this, Spire obtained a temporary certificate from FERC in September 2021 to operate the pipeline until December 13, 2021, while regulators consider the next steps for the pipeline. On October 1, 2021, the D.C. Circuit declined Spire's request to delay its issue of a formal shutdown mandate on Oct. 8.

In its application for an emergency stay from the Supreme Court, Spire warned that shutting off the pipeline will lead to 400,000 St. Louis area customers experiencing extended loss of service when FERC's temporary permission expires this winter. Spire argued that there is no guarantee that FERC will keep the temporary certificate in place or offer an extension. The company’s application comes as it prepares for a broader Supreme Court challenge of the D.C. Circuit’s decision.

[1] https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public%5C21a56.html

[USA] Keystone XL developer launches $15B NAFTA challenge

On July 2, 2021, TC Energy Corporation, the Canadian developer of the Keystone XL pipeline, announced that it had filed a Notice of Intent to initiate a legacy North American Free Trade Agreement (NAFTA) claim under the United-States-Mexico-Canada Agreement to recover damages resulting from the revocation of the pipeline’s presidential permit.[1] The 1,210-mile pipeline project, located in central North America and running north to south, was slated to carry 830,000 barrels of heavy crude per day from Alberta, Canada, to Nebraska, U.S. However, in January 2021, President Biden issued an executive order rescinding the pipeline’s border crossing permit amid concerns that burning oil sands crude would worsen climate change.[2] As a result, TC Energy announced in June 2021 that it was canceling the project.  The developer is seeking to recover more than $15 billion in damages that it has suffered as a result of the Biden administration’s decision.

This is not the first time TC Energy has challenged the U.S. government under NAFTA. In 2016, TC Energy, then known as TransCanada Corp., filed a notice of NAFTA arbitration after President Obama denied the pipeline a border-crossing permit.[3] The company dropped its $15 billion claim when President Trump signed an executive order approving the pipeline and granting TC Energy the border-crossing permit in 2017.

[1] https://www.tcenergy.com/announcements/2021-07-02-tc-energy-commences-nafta-claim-following-revocation-of-keystone-xl-presidential-permit/

[2] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/

[3] https://www.tcenergy.com/announcements/2016/2016-01-06transcanada-commences-legal-actions-following-keystone-xl-denial/

[USA] 14 states call for Biden to reinstate Keystone XL permit

In a letter sent on February 9, 2021, a coalition of 14 Republican attorneys general led by Montana Attorney General Austin Knudsen urged President Biden to reinstate the Keystone XL pipeline’s permit to cross the Canadian border.[1] The letter was also signed by attorneys general from Alabama, Arkansas, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, North Dakota, South Carolina, South Dakota, Texas, and West Virginia. In their letter to the president, the coalition hinted at possible legal action over Biden’s January 20, 2021 executive order that rescinded the permit for the pipeline, stating, “Please be aware that the states are reviewing available legal options to protect our residents and sovereign interests.” The Republican coalition emphasized the economic harm that the permit cancellation will bring. According to the state attorneys, states had relied on the expected tax revenue from the pipeline. In Montana, for instance, the state will lose approximately $58 million in annual tax revenue due to Biden’s decisions. The coalition also noted that more than 1,000 pipeline workers were laid off after the executive order.

[1] https://dojmt.gov/attorney-general-knudsen-leads-coalition-calling-on-biden-to-reinstate-keystone-xl-permit/

[USA] Supreme court to hear PennEast pipeline case on eminent domain

On February 3, 2021, the U.S. Supreme Court agreed to review a 2019 ruling from the 3rd U.S. Circuit Court of Appeals that prevented PennEast Pipeline Co. LLC from suing New Jersey to seize 42 parcels of state-owned land to build a 116-mile natural gas pipeline between Pennsylvania and New Jersey.[1] Under a provision in the U.S. Natural Gas Act (NGA), pipeline companies can use the federal government’s eminent domain power. After gaining approval for the pipeline from the Federal Energy Regulatory Commission (FERC) in 2018, PennEast sued to gain access to land that is either owned or partially controlled by New Jersey. The 3rd Circuit, which is based in Philadelphia, found that while the AGA lets companies use eminent domain, it does not allow them to sue states to enforce that power. The panel cited the 11th Amendment of the Constitution, which limits the situations in which private entities can sue states without their consent. In recent friend of the court briefs, PennEast and other industry groups claim that the 3rd Circuit decision overturned precedent and would be disruptive to the energy industry.[2] The Supreme court will hear arguments in April 2021, with a ruling likely by late June 2021.

[1] https://www.bloomberg.com/news/articles/2021-02-03/supreme-court-agrees-to-hear-appeal-from-penneast-pipeline

[2] https://www.eenews.net/stories/1062692321/

[USA] Supreme Court to hear PennEast pipeline case on eminent domain

On February 3, 2021, the U.S. Supreme Court agreed to review a 2019 ruling from the 3rd U.S. Circuit Court of Appeals that prevented PennEast Pipeline Co. LLC from suing New Jersey to seize 42 parcels of state-owned land to build a 116-mile natural gas pipeline between Pennsylvania and New Jersey.[1] Under a provision in the U.S. Natural Gas Act (NGA), pipeline companies can use the federal government’s eminent domain power. After gaining approval for the pipeline from the Federal Energy Regulatory Commission (FERC) in 2018, PennEast sued to gain access to land that is either owned or partially controlled by New Jersey. The 3rd Circuit, which is based in Philadelphia, found that while the AGA lets companies use eminent domain, it does not allow them to sue states to enforce that power. The panel cited the 11th Amendment of the Constitution, which limits the situations in which private entities can sue states without their consent. In recent friend of the court briefs, PennEast and other industry groups claim that the 3rd Circuit decision overturned precedent and would be disruptive to the energy industry.[2] The Supreme court will hear arguments in April 2021, with a ruling likely by late June 2021.

[1] https://www.bloomberg.com/news/articles/2021-02-03/supreme-court-agrees-to-hear-appeal-from-penneast-pipeline

[2] https://www.eenews.net/stories/1062692321/

[USA] Dominion and Duke release plan to dismantle cancelled Atlantic Coast Pipeline

In a filing dated December 16, 2020 but made public on January 5, 2020, developers of the now canceled Atlantic Coast Pipeline—Dominion Energy and Duke Energy—proposed a plan to the Federal Energy Regulatory Commission (FERC) for dismantling the project.[1] The Atlantic Coast Pipeline was an $8 billion natural gas project that would have crossed West Virginia, Virginia, and North Carolina, but was cancelled in July 2020 due to delays from legal proceedings. The plan outlines a two-year timeline for decommissioning parts of the pipeline that were nearly complete and restoring effected land. It also defines where the developers intend on clearing felled trees and where they plan to leave the area alone. The plan includes abandoning roughly 31 miles of pipe that has already been placed in the ground. The developers noted that an additional 83-mile stretch of terrain has been cleared but have no pipe laid. According to spokesperson Aaron Ruby, Dominion will not release easement agreements with landowners to use their property.[2] Land seized through eminent domain also remains in Dominion and Duke’s possession despite landowners fighting the eminent domain proceedings in court.

[1] https://atlanticcoastpipeline.com/resources/docs/public_acp%20disposition%20and%20restoration%20plan.pdf

[2]https://www.eenews.net/energywire/2021/01/06/stories/1063721877?utm_campaign=edition&utm_medium=email&utm_source=eenews%3Aenergywire

[USA] FERC approves Mountain Valley Pipeline construction

In a 2-1 decision on October 9, 2020, the Federal Energy Regulatory Commission (FERC) granted developers of the Mountain Valley Pipeline, which runs from West Virginia to southern Virginia and aims to be in service in 2021, permission to resume construction on the 303-mile natural gas project.[1] In a separate order filed the same day, FERC lifted an October 2019 stop-work order which allows construction to move forward on all but a 25-mile exclusion zone that includes the Jefferson National Forest. The project lacks the necessary authorizations to pass through the national forest, although two permits that were set aside by legal challenges have since been reissued. In its decision, FERC found that a supplemental environmental impact statement (EIS) is not required for construction to move forward. In his dissent, Glick said FERC’s responsibility is to balance all stakeholder interests “not just the desire to complete the pipeline in the shortest time possible." Additionally, Glick argued that the order does not address “the uncertainty created by the outstanding permits, not to mention the litigation that is likely to follow, and instead rushes to recommence construction."

[1] https://www.eenews.net/assets/2020/10/12/document_ew_03.pdf

[USA] Duke and Dominion cancel Atlantic Coast Pipeline amid ongoing legal battles

On July 5, 2020, Duke Energy and Dominion Energy announced that they are cancelling the Atlantic Coast Pipeline—originally slated to run 600 miles from West Virginia to eastern North Carolina to provide additional natural gas capacity in the region—due to ongoing delays and cost uncertainty.[1][2] The Atlantic Coast Pipeline project has run into several legal challenges which has increased cost estimates from $4.5 billion to $8 billion. In June 2020, the Supreme Court ruled 7-2 overturning a lower court’s decision to block the pipeline from crossing beneath the Appalachian Trail, a protected national scenic trail overseen by the U.S. Forest Service. Despite this win, Duke and Dominion pointed to other legal battles as barriers to the project. In particular, the U.S. District Court for the District of Montana decision to overturn federal permit authority for waterbody and wetland crossings and a Ninth Circuit ruling on May 28, 2020 are stated as major concerns.

In addition to the announcement regarding the Atlantic Coast Pipeline, Dominion announced the sale of its natural gas transmission and storage assets to a Berkshire Hathaway affiliate for $9.7 billion.[3] However, this sale does not include Dominion's interest in the Atlantic Coast Pipeline.

[1] https://news.duke-energy.com/releases/dominion-energy-and-duke-energy-cancel-the-atlantic-coast-pipeline

[2] https://news.dominionenergy.com/2020-07-05-Dominion-Energy-and-Duke-Energy-Cancel-the-Atlantic-Coast-Pipeline

[3] https://news.dominionenergy.com/2020-07-05-Dominion-Energy-Agrees-to-Sell-Gas-Transmission-Storage-Assets-to-Berkshire-Hathaway-Energy-Strategic-Repositioning-Toward-Pure-Play-State-Regulated-Sustainability-Focused-Utility-Operations

[USA] Supreme Court reverses lower court decision, allows construction on Atlantic Coast Pipeline

On June 15, 2020, the Supreme Court issued a 7-2 ruling reversing a lower court decision on Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association which stopped construction on the $7.4 billion, 600-mile Atlantic Coast Pipeline (ACP) owned by Duke Energy and Dominion Energy.[1] The Supreme Court ruling gives the U.S. Forest Service, an agency of the U.S. Department of Agriculture that administers U.S. national forests and grasslands, the authority to grant the ACP developers right of way on the project because it goes over 600 feet underground across a portion of the Appalachian Trail, which is part of the National Park System. This does not necessarily mean that the U.S. Forest Service will approve the project. Critics of the pipeline say that the pipeline still has other hurdles in its path and the decision is not a definitive greenlight for the project. However, both utilities issued statements that the ruling is "an affirmation for the Atlantic Coast Pipeline."

The Supreme Court ruling will also affect the Mountain Valley Pipeline, a 303-mile project running from West Virginia to southern Virginia by crossing the Jefferson National Forest.[2] Construction on the nearly completed project was previously halted due to the Atlantic Coast Pipeline case.

[1] https://www.scotusblog.com/case-files/cases/atlantic-coast-pipeline-llc-v-cowpasture-river-preservation-association/

[2] https://www.mountainvalleypipeline.info/

[USA] FERC prohibits pipeline construction until legal issues are resolved

On June 10, 2020, the Federal Energy Regulatory Commission (FERC) issued an order prohibiting natural gas pipeline developers from beginning construction on a project until regulators act on rehearing requests.[1] The order partly addresses the issues raised during the D.C. Circuit Court of Appeals’ April 2020 en banc hearing, a hearing held in front all the judges in court, in Allegheny Defense Project v. FERC, which regards the Atlantic Sunrise Pipeline project to expand existing pipelines.[2] Under the Natural Gas Act (NGA), litigation is prevented until FERC makes a ruling on requests for rehearing, but FERC is capable of delaying those requests through tolling orders. Petitioners argued that the commission has been delaying requests for rehearing indefinitely while also allowing construction on pipeline projects to proceed. Critics say this practice has led to a legal purgatory of opposition to critical orders on wholesale markets which favors pipeline developers. FERC Commissioner Richard Glick dissented in part to the order, stating that although the order is a good first move, it does not address concerns that pipeline developers can still begin to condemn private land through eminent domain before the landowner is able to challenge the developer's ability to do so.[3]

[1] https://www.ferc.gov/CalendarFiles/20200609181333-RM20-15-000.pdf

[2] https://www.ferc.gov/legal/court-cases/briefs/2020/DC17-1098etalAlleghenyDefenseProject.pdf

[3] https://www.ferc.gov/media/statements-speeches/glick/2020/06-09-20-glick.asp#.XuKfvjpKg2y