Underground Construction - October 2021 - 10

WASHINGTONWATCH
Th e Mountain Valley Pipeline (MVP)
bringing fracked gas 300 miles from West
Virginia to Virginia, cleared its latest federal
regulatory hurdle when the Federal Energy
Regulatory Commission (FERC) said, in
an environmental assessment, that the
trenchless methods MVP plans to use when
crossing water bodies met with its approval.
Th e decision was not fi nal, however, and
could be infl uenced by public comments
that will be forthcoming. MVP had originally
planned to use open-cut dry crossings
for the streams and water bodies at issue.
" Th e issuance of MVP's EA was a signifi -
cant step towards achieving full permitting
and ultimate completion of this important
infrastructure project., " said Natalie Cox,
spokeswoman for Equitrans Midstream
Corporation, MVP operator and main partner.
Total project work on MVP is more
than 92-percent complete, including more
than 264 miles of pipe welded and in-place.
Jessica Sims, a spokeswoman for
Appalachian Voices, an environmental group
that has been the leading opponent of the
MVP, argues, " Trenchless methods of crossing
have resulted in major pollution events
during the construction of other pipelines,
such as inadvertent returns and frac-outs, so
FERC should be asking itself whether those
risks have been fully mitigated. "
MVP is also awaiting fi nal approval of
its Nationwide Permit 12, which the Army
Corps of Engineers grants for crossing
of wetlands. Th e Corps, in part, relies on
states to complete Clean Water Act evaluations
of any construction, as the base of
the Corps' NWP 12 decision.
Th e Corps did issue an NWP 12 for the
MVP in 2020. But that was called into question
by lawsuits and the change in administrations
from President Trump to President
Biden. Th at forced EQM and its partners
to reassess the water body crossings and
in early 2021, MVP fi led an amendment
to its earlier construction approval citing
revisions in the way it would cross the
10 OCTOBER 2021 | UCONonline.com
Stephen Barlas | Washington, D.C. Editor
FERC Blesses MVP's Use of
Trenchless Methods
water bodies at issue. FERC then performed
an environmental assessment of those
new crossing protections and approved the
changes based on trenchless technology.
Virginia has done the same, reviewing
its initial permit. On Aug. 25, the Virginia
DEQ issued its draft 401 permit, which is
a critical element in the regulatory process
and another important step forward for
the MVP project.
Th e MVP amendment pledged to change
the crossing method of specifi c waterbodies
and wetlands from open-cut dry
crossings to trenchless methods ,including
conventional bore, guided conventional
bore, or Direct Pipe. Specifi cally, Mountain
Valley proposed to use trenchless methods
at 120 locations to cross 136 streams and
47 wetlands that the Commission originally
authorized as open-cut crossings.
Top Federal Appeals Court
Raps FERC's Knuckles
Not that it needed encouragement, but the
Federal Energy Regulatory Commission
(FERC) received new legal leverage from
a top federal appeals court to do a more
thorough job calculating greenhouse
gas emissions and impacts on minority
communities, when performing environmental
impact statements and assessment
for liquid natural gas (LNG) and pipeline
construction applications. Th e U.S. Court
of Appeals for the District of Columbia
is the court that assesses federal agency
compliance with federal laws, in this case
the National Environmental Policy Act.
Among the projects at issue was
Enbridge's Rio Bravo Pipeline to be built in
south Texas to transport up to 4.5 billion
cubic feet per day of natural gas from the
Agua Dulce supply area to Next Decade's Rio
Grande LNG project in Brownsville, Texas.
In an August decision answering
environmental group complaints about
FERC approval of three LNG projects and
affi liated pipelines in Texas, the federal
court - which did not cancel the previously
awarded construction permits - told FERC
to go back and apply a more rigorous
counting of GHG emissions and calculate
the " signifi cance " of a project's contribution
to climate change.
Th e court also agreed with the environmental
groups that FERC's analysis of the
projects' impacts on minority communities
within only two miles of census blocks of
the project sites - which is as far as the
FERC analysis went - was arbitrary, given
the commission's determination that environmental
eff ects from the projects would
extend well beyond that distance.
It is unclear what FERC might do now
that the court dumped the case back into
FERC's lap, without negating the construction
approvals. Neither Nathan Matthews,
the Sierra Club lawyer who argued the case,
nor Jeff rey R. Holmstead, a Bracewell attorney
representing the Interstate Natural
Gas Association of America (INGAA),
responded to requests for comments on
what FERC was likely to do as a result of
the decision.
Neither did Enbridge respond to a query
about the potential impact of the decision
on its Rio Bravo Pipeline.
Th e Appeals Court decision revolved
around 2016 applications to FERC by
Texas LNG Brownsville LLC; Rio Grande
LNG, LLC; and Annova LNG Common
Infrastructure, LLC. Th e Commission
completed an EIS for each project in the
spring of 2019 and issued fi nal orders
approving the projects later that year. Th e
Commission denied environmental group
requests for rehearing in early 2020. Th e
groups then fi led their lawsuit arguing
FERC's noncompliance with the NEPA.
In its EIS for each project, the
Commission quantifi ed the greenhouse gas
emissions associated with the construction
and operation of the project, described
" existing and potential cumulative climate
change impacts in the project area, " and ex
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