By John McFerrin

The developers of the Mountain Valley Pipeline have asked the Federal Energy Regulatory Commission (FERC) for an extension of its deadline to complete the project.  A collection of groups, including the West Virginia Highlands Conservancy, is opposing the extension.

A little background

            The Mountain Valley Pipeline is a proposed—and partially built—natural gas pipeline that would run south and west from Wetzel County, West Virginia, before ending in southwest Virginia.  Such a pipeline would have to be approved by the Federal Energy Regulatory Commission (FERC).  In its review, FERC would consider both the need for such a pipeline and whether or not the environmental impact of the pipeline was acceptable.

            In the review, FERC would for the most part evaluate the need for the pipeline itself.  While it would make the final decision, for the environmental assessment it would rely upon the expertise of such agencies as the United States Environmental Protection Agency, the United States Fish and Wildlife Service, and the United States Forest Service.

            FERC approved the pipeline in 2017.  At that time, the approval was valid until 2020; this was consistent with the developers’ estimate of the time it would need to finish the project.  By 2020 the project was not finished; FERC granted an extension until the fall of 2022.  Now the fall of 2022 is upon us; the project is still not finished.  The developers have asked for another four years to finish the project.

            The groups have opposed the extension.  

What the groups say

            The groups rely upon information that has arisen since the pipeline was first approved in 2017.  FERC has a policy of no do-overs.  When the project was approved in 2017, many people opposed it, including some of the same groups that now oppose the extension.  FERC has no interest in considering the same information that it considered in 2017.  Because of this policy, the groups rely upon new information and changed circumstances.          

            The first type of new information is environmental.  At the time of the approval in 2017, the pipeline existed only on paper.  All environmental impacts were projections.  Now we have had nearly five years of unpleasant, real world experience with the pipeline.

            What the experience has shown is that the adverse environmental impacts are dramatic.  The groups point to hundreds of violations of sedimentation laws that have been cited by state regulators.  While the original FERC approval assumed that construction would occur with minimal environmental impact, that hasn’t happened so far.  The groups suggest that FERC require further study of the environmental impact in light of the new information.

            The facts have changed so far as greenhouse gas emissions are concerned.  When the certificate was first issued in 2017, FERC specifically declined to consider the impact the project would have on greenhouse gas emissions.  At the time, it said it did not have the tools to make the evaluation.

            Since then, the United States has adopted nationwide emission reduction targets.  President Biden has issued an Executive Order calling for a government wide effort to reduce greenhouse gas emissions.  It is true, of course, that how and how fast the United States reduces greenhouse emissions is an enormous political question.  At the same time, FERC cannot continue to ignore climate change because it thinks it lacks the tools to evaluate it.  The groups argue that FERC cannot approve an extension until it fills in the gap in its knowledge brought about by its declining to consider greenhouse gas emissions.

            While lacking the drama of debates over global warming, there is another more mundane problem: the integrity of the pipes.  The pipes are designed to be installed.  If they sit around above ground the pipes and their protective coating deteriorate and can become unsafe.  Since the pipeline has not been constructed, the pipes are sitting above ground.  The groups suggest that before an extension is approved the safety of the pipes needs to be evaluated. 

            There have been changes on the other side of the need-environmental impact balancing as well.  When need for the pipeline was assessed in 2017, FERC relied heavily upon agreements between the developers and customers who would use the pipeline.  While the developers say that those agreements remain in place, it is no longer clear that the agreement reflect actual demand, or actual need for the pipeline.  It is known that the agreements have been transferred to other entities.  What is not known is whether those other entities are actual users of pipeline capacity or not.  They may not be customers but brokers, seeking to sell pipeline capacity.  They may also be affiliates of the Mountain Valley Pipeline’s developers. 

            These unknowns make it impossible for FERC to accurately evaluate the need for the pipeline.  The groups suggest that FERC closely examine the agreements.  Only be doing so can it figure out if the pipeline is really needed.  

What the developers say

            While the request for the extension uses considerably more words, the developers’ argument fits in a single sentence:  We’re almost finished with the pipeline and it’s not our fault we have been tied up in court.

            The groups’ take on this is different.  They acknowledge that legal challenges to the pipeline have resulted in delays.  They differ on the source of the source of the challenges.  The groups say the source of the challenges are the developers’ cutting corners and trying to skirt around the edges of the law.  In their view, the challenges only resulted in delays because courts called the developers on their corner cutting, demanding full compliance with the law.  Had it not been for the corner cutting, there could have been no successful challenges and no delay.

            The groups also have a different take on the “almost finished” part of the argument.  The developers have represented that the pipeline is 94% complete.  This is only true if one considers having done anything towards completion as being “complete.”  There are many steps to a completed section of pipeline: cut the trees, dig the ditch, plop in the pipe, cover it up, plant grass, etc.  If we count any stretch where the developers have done some of these steps as “complete,” the 94% complete figure may be accurate.  If we only count as complete the sections where all the steps have been finished, the pipeline is only 55.8% complete.

            The 94% figure is also misleading because the parts where everybody agrees the pipeline is not complete are the water crossings.  These are the hard parts.  No matter what definition of “complete” one uses, it is misleading to call a project almost complete when the uncompleted parts are some of the most difficult.

Now what?

            The Federal Energy Regulatory Commission just has to decide.  The deadline for public comments on the extension was July 15.  Everybody has said whatever they had to say.  The original extension expires this fall so FERC will probably decide quickly.