Fact check: Ralph Northam on Virginia pipelines

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Ralph Northam

August 29, 2017
By Amée LaTour

Ralph Northam, the Democratic candidate for governor of Virginia, has faced criticism for not opposing the construction of natural gas pipelines in the state.[1] Referring to the proposed Atlantic Coast Pipeline (ACP) during a gubernatorial debate on July 22, Northam said, "At the end of the day, this is a federal project. It comes from West Virginia, goes through Virginia, into North Carolina so we can do everything that we can in Virginia to make it safe and transparent, but at the end of the day, FERC will make that final decision—the energy review commission—and so I support all of that process."[2]

Is Northam correct in claiming that the Federal Energy Regulatory Commission (FERC) makes the final decisions on interstate pipelines?

No. FERC's approval is necessary for interstate natural gas pipelines, but such projects also require permits from state regulatory agencies.[3][4] A permit denial from a state may be challenged in federal court by the applicant, but FERC cannot reverse a state’s permit decision or allow a project to move forward without permit approvals from the state.[5]

Background

Ralph Northam has served as the lieutenant governor of Virginia since 2014. He was previously a Virginia state senator (2008 to 2014). Northam said at the debate that he supports the pipelines if they are deemed safe by state regulatory agencies. "I'm for responsible placement of the pipelines that protects our environment, and if they are deemed safe and...environmentally responsible—and we do that through agencies that we have in place, the DEQ [Department of Environmental Quality] and the Corps of Engineers right here in Virginia—if they deem them safe...then I will support that."[2]

Republican gubernatorial candidate Ed Gillespie is the former chairman of the Virginia Republican Party and of the Republican National Committee. He said he supports the pipelines, citing increased construction and infrastructure jobs. Referencing FERC’s recent environmental impact statement, he said they can be done in an "environmentally sensitive manner," and that "we're going to comply with all the federal laws...but I think they're a good thing for the Commonwealth of Virginia."[2][6][7]

The proposed Atlantic Coast Pipeline, developed by Dominion Energy, Duke Energy, Piedmont Natural Gas, and Southern Company Gas, is expected to cost between $4.5 billion and $5 billion.[8] It would span approximately 600 miles, originating in Harrison County, West Virginia, traversing Virginia, and ending in Robeson County, North Carolina]].[9] FERC is expected to make a decision on whether to grant certification for the pipeline's construction and operation in the fall.[10]

Federal and state permitting overview

The Natural Gas Act (NGA) of 1938 required companies to obtain a certificate of public convenience and necessity from the Federal Power Commission (now FERC) to engage in the transportation or sale of natural gas.[11][12] In addition to processing permit applications, FERC conducts environmental impact studies of proposed natural gas pipeline projects and solicits public comment.[13]

Pipeline developers must also obtain federal permits under the Clean Water Act (CWA), Clean Air Act (CAA), and/or Coastal Zone Management Act (CZMA), if applicable, and obtain the approval of relevant state regulatory agencies (e.g., a state Department of Environmental Quality).[4][13][3]

The CWA states that qualifying for a CWA permit or license requires compliance with federal water quality standards "and with any other appropriate requirement of State law," thereby authorizing states to add permit requirements.[14]

State agencies are also responsible for issuing permits under the Clean Air Act.[15] Under the Act, states may enact and enforce stricter air quality standards than federal standards with which pipeline projects must comply.[16][3][5] If a project falls under the scope of the CZMA, developers must obtain a statement from the relevant state agency that the project will comply with the requirements of the state's federally approved coastal management plan. CZMA decisions can be overturned by the U.S. Secretary of Commerce.[17][3]

Ballotpedia asked FERC spokesperson Tamara Young-Allen if there is a situation in which FERC could override a permit denial from a state agency or approve a project without the developer having obtained a required permit from a state regulatory agency. She responded, "No. The Commission’s orders that authorize projects are conditioned upon an applicant obtaining federal permits (Clean Water Act, Clean Air Act, etc.) before construction may begin."[5]

Virginia's DEQ and the pipeline

Virginia's Department of Environmental Quality (DEQ) is responsible for issuing water, air, and waste permits in the state.[18] Permit applications for the Atlantic Coast Pipeline are currently pending with the DEQ for water quality and air quality. The state decided in June that the project complies with its coastal management plan.[19]

In April, the DEQ certified that U.S. Army Corps of Engineers Nationwide Permits, which regulate discharge into bodies of water, would be sufficient to ensure water quality standards under the CWA, expediting the permitting process as the Corps' permits do not require impact assessments for all bodies of water impacted by the pipeline. DEQ attached several conditions onto its certification of the Corps' permits.[20]

In response, three groups opposed to the pipeline — the Dominion Pipeline Monitoring Coalition, Bold Alliance, and Preserve Craig Inc. — filed a lawsuit against the DEQ, in part claiming that the department "acted arbitrarily and capriciously in finding that water quality protection requirements would be met without having conducted necessary analyses."[21]

In June, the DEQ announced that "[d]ue to the size and scope of proposed natural gas pipeline projects in Virginia," it would institute additional requirements that go "well beyond other regulatory requirements" which ACP (and another proposed pipeline, the Mountain Valley Pipeline) would need to meet in order to obtain certification under the Clean Water Act.[22]

States that have denied permits

At least two states have halted interstate natural gas pipeline projects by denying permits under the Clean Water Act, despite initial FERC approval.

The Connecticut Department of Environmental Protection denied a Water Quality Certificate for the proposed Islander East Pipeline in February 2004. The pipeline received initial FERC approval in September 2002. Following years of litigation challenging Connecticut's denial of the permit, the state’s decision was upheld.[23][24] The pipeline was not constructed.[25]

New York State's Department of Environmental Conservation (DEC) denied water quality permits to two proposed interstate pipelines, despite each having received initial FERC approval.[26] In response to one denial, Constitution Pipeline, LLC filed a lawsuit claiming the state’s denial of its permit was "arbitrary and capricious and constitute[d] an abuse of discretion."[27] The United States Court of Appeals upheld the state's permit denial on August 18, 2017.[28] On April 7, 2017, the New York DEC denied a water quality permit to the Northern Access Pipeline.[29]

Conclusion

Ralph Northam, the Democratic candidate for governor of Virginia, has faced criticism for not opposing construction of natural gas pipelines in the state.[1] Referring to the proposed Atlantic Coast Pipeline (ACP) during a recent debate, Northam said, "At the end of the day...FERC will make that final decision."[2]

Pipeline projects require a variety of permits and certificates from both state and federal regulatory agencies. While denials of such permits may be challenged in federal court, FERC cannot overrule the state to allow a pipeline project to proceed.[3][4][5]

See also

Sources and Notes

  1. ↑ 1.0 1.1 NBC29, "Ralph Northam Faces Pressure from Protesters for Pipeline Views," July 15, 2017
  2. ↑ 2.0 2.1 2.2 2.3 YouTube, "Virginia Gubernatorial Debate 2017," July 22, 2017 (47:50)
  3. ↑ 3.0 3.1 3.2 3.3 3.4 Congressional Research Service, "Pipeline Transportation of Natural Gas and Crude Oil: Federal and State Regulatory Authority," March 28, 2016
  4. ↑ 4.0 4.1 4.2 Energy.gov, "Title 15 - Commerce and Trade, Chapter 15B - Natural Gas," accessed August 14, 2017
  5. ↑ 5.0 5.1 5.2 5.3 Amee LaTour, "Email communication with FERC spokesperson Tamara Young-Allen," August 21, 2017
  6. ↑ Federal Energy Regulatory Commission, "FERC Staff Issues Final Environmental Impact Statement for the Atlantic Coast Pipeline and Supply Header Project," July 21, 2017
  7. ↑ Libertarian candidate Cliff Hyra is also running in the Virginia gubernatorial race. He was not at the debate.
  8. ↑ Securities and Exchange Commission, "XML 68 R20.htm IDEA: XBRL DOCUMENT," July 31, 2015
  9. ↑ Atlantic Coast Pipeline, “About ACP,” accessed August 14, 2017
  10. ↑ Atlantic Coast Pipeline, "Project Overview," November 2016
  11. ↑ Cornell Law School: Legal Information Institute, "15 U.S. Code § 717f - Construction, extension, or abandonment of facilities," accessed August 21, 2017
  12. ↑ The Federal Power Commission's function of granting certificates of public convenience and necessity was transferred to FERC in 1977 under the Department of Energy and Organization Act. Cornell Law School: Legal Information Institute, "42 U.S. Code § 7172 - Jurisdiction of Commission," accessed August 21, 2017
  13. ↑ 13.0 13.1 Federal Energy Regulatory Commission, "Processes for Natural Gas Certificates," accessed August 14, 2017
  14. ↑ United States Environmental Protection Agency, accessed August 21, 2017
  15. ↑ Cornell Law School - Legal Information Institute, "42 U.S. Code § 7410 - State implementation plans for national primary and secondary ambient air quality standards," accessed August 14, 2017
  16. ↑ ''Cornell Law School - Legal Information Institute, "42 U.S. Code § 7416 - Retention of State authority," accessed August 14, 2017
  17. ↑ Cornell Law School - Legal Information Institute, "16 U.S. Code § 1456 - Coordination and cooperation," accessed August 15, 2017
  18. ↑ Virginia Department of Environmental Quality, "Permits," accessed August 14, 2017
  19. ↑ Virginia Department of Environmental Quality, "Natural Gas Pipelines in Virginia," accessed August 14, 2017
  20. ↑ Virginia Department of Environmental Quality, "RE: Section 401 Water Quality Certification of the 2017 Nationwide Permits," April 7, 2017
  21. ↑ Richmond Times-Dispatch, "Group sues Virginia environmental agency over pipeline permitting," June 7, 2017
  22. ↑ In addition to CWA certification conditions, the DEQ is requiring the ACP to comply with several separate regulatory requirements, including the submission of a plan for erosion and sedimentation control for every land area disturbed during construction. Virginia Department of Environmental Quality, "Water Protection for Pipelines," August 14, 2017
  23. ↑ United States Court of Appeals for the 2nd Circuit, Islander East Pipeline Company, LLC, v. Gina McCARTHY, Commissioner of Connecticut Department of Environmental Protection, and State of Connecticut Department of Environmental Protection, May 8, 2008
  24. ↑ State of Connecticut Department of Energy & Environmental Protection, "Statement of Governor M. Jodi Rell on U.S. Supreme Court Action Concerning Islander East," December 1, 2008
  25. ↑ Hartford Courant, "Developer Gives Up On Islander East Pipeline, February 26, 2009
  26. ↑ New York Department of Environmental Conservation, "Re: Joint Application: DEC Permit# 0-9999-00181/00024 Water Quality Certification/Notice of Denial," April 22, 2016
  27. ↑ U.S. District Court for the Northern District of New York, Constitution Pipeline, LLC v. New York State Department of Environmental Conservation, filed May 16, 2016
  28. ↑ United States Court of Appeals for the 2nd Circuit, Constitution Pipeline Co. v. New York State Department of Environmental Conservation, August 18, 2017
  29. ↑ New York Department of Environmental Conservation, "RE: Joint Application: NYSDEC Permit Nos.: 9-9909-00123/00004 (Water Quality Certification), 9-9909-00123/00001 (Article 24 - Freshwater Wetlands) ,9-9909-00123/00002 (Article 15 - Protection of Waters) - Notice of Denial," April 7, 2017
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