U.S. Sen. Tim Kaine, D-Va., has joined the call for the Federal Energy Regulatory Commission to reconsider its approval in October of a pair of controversial natural gas pipelines that are planned to cut through Virginia.
In a letter Friday, Kaine asked the commission to grant new hearings for the Mountain Valley and Atlantic Coast pipeline projects, which have cleared most regulatory hurdles and could be headed for tree-clearing and construction soon.
“The commission approved the MVP and ACP on 2-1 votes when two of the five commissioner slots were vacant,” Kaine wrote. “The split decisions were most unusual — 98 percent of FERC orders in 2016 were unanimous. Given that the commission now has a full complement of five members, there is real concern about whether the divided rulings by a partial commission fairly reflect the FERC position.”
Kaine’s letter comes amid mounting criticism of how FERC evaluates the need for such projects, which come with a sizeable rate of return baked in for the developers, and concerns about the use of eminent domain to take private property in the absence of a compelling public need. The agency largely relies on capacity contracts, in some cases with the pipeline developers’ own subsidiaries, to demonstrate market demand for the gas.
The new FERC chairman, Kevin J. McIntyre, announced last month that the agency will review its nearly 20-year-old policies for certifying natural gas pipelines. There is no indication, however, that the review would affect the Mountain Valley or Atlantic Coast pipeline projects. In an unusual dissent, FERC Commissioner Cheryl A. LaFleur said she could not conclude that either pipeline was in the public interest.
Kaine’s letter is not an official request for rehearing. Those have been filed by a range of groups opposed to the pipelines, including the Southern Environmental Law Center in Charlottesville.
But the letter raises another important deficiency in the FERC process, said Greg Buppert, an attorney with the law center. That, he said, is FERC’s practice of using a tactic known as “tolling orders” to delay decisions on requests for rehearing, preventing plaintiffs from getting into a courtroom to challenge FERC decisions.
“FERC uses this process all the time. It might sit on a rehearing request for six months,” Buppert said. “While FERC is sitting on the rehearing request, the developer is out building the pipeline.”
Kaine asked the commission to provide “fuller understanding” of the tolling orders.
“This suggests that even if an original FERC decision changes upon either rehearing or judicial order, it could be moot if the project is already built,” Kaine wrote. “I would like to know whether this is your interpretation as well and, if so, whether you believe this is consistent with the intent of the rehearing option.”
Kaine added that he does not endorse or oppose “the views of these petitioners on the substantive merits of these projects.”
“It is appropriate that a technical agency consider projects according to a robust public input process laid out in federal law,” Kaine wrote. “It is important for the public to have confidence in the integrity of FERC’s process. All I request is for every step of that process to be followed to the fullest extent of the law.”
Mary O’Driscoll, a FERC spokeswoman, said she couldn’t predict when the agency might make a decision on the requests to reconsider the pipelines.
Aaron Ruby, a spokesman for Dominion Energy, which is spearheading the roughly $5.5 billion, 600-mile Atlantic Coast Pipeline, said the project has received “one of the most thorough regulatory reviews in history.”
“The commission addressed every issue raised during the process and left no stone unturned. Opponents have given FERC no reason to change course or allow unnecessary delay,” Ruby said. “We agree with Senator Kaine that FERC should follow the process to the fullest extent of the law. We believe FERC has done so. The law requires a quorum of three commissioners to make permitting decisions, and FERC had such a quorum when it approved the ACP.”
Missing from Kaine’s letter was the signature of Sen. Mark Warner, his Democratic colleague and, like Kaine, a former Virginia governor.
Asked why, a Warner spokeswoman said “while Senator Warner has no formal role in the FERC approval process, he has represented the concerns of affected Virginians in his capacity as a legislator.”
She said Warner has criticized the FERC process and “believes it is important to balance our country’s energy infrastructure needs with the safety of our environment and respect for our local communities, which is why he will remain vigilant as these projects move forward to ensure constituent concerns are being heard.”
Warner and Kaine introduced legislation this past summer aimed at making the FERC process more transparent, requiring more cumulative analysis of environmental effects and reining in the use of eminent domain, among other provisions. The bill has been referred to committee, and, Kaine’s staff said, the senators hope it will be included in the Senate’s bipartisan energy bill.
Stephen Farnsworth, a political science professor at the University of Mary Washington in Fredericksburg, said Kaine’s request for reconsideration “makes a lot of sense” for the senator. Kaine was former Democratic presidential nominee Hillary Clinton’s running mate and is up for re-election to his second term in the Senate this year. He faces an unsettled GOP field and the pipelines could figure in the race, Farnsworth said.
“A lot of Democrats are angry about the pipeline and urging a reconsideration is a low-cost way to respond to that anger,” he said. “The environmentalists are a key part of the Democratic coalition. And there seems to be little political downside to requesting a reconsideration.”
Though Kaine doesn’t appear likely to face a primary challenge, “keeping activists happy helps ensure people are willing to work on a general election campaign,” Farnsworth said.