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As filings pile up, pipeline watchdogs call for supplemental draft environmental impact statement

As filings pile up, pipeline watchdogs call for supplemental draft environmental impact statement

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Andrew Downs likens the experience to struggling to maintain solid footing while standing in a relentless, pounding surf.

Just as soon as one towering wave of information crests and breaks, another looms behind it, he said.

Downs is a regional director for the Appalachian Trail Conservancy, a nonprofit organization focused on protecting and enhancing the famous footpath. His surf analogy reflects a surge of frustration shared by many others who have attempted to monitor and respond to the environmental review of the proposed and deeply controversial Mountain Valley Pipeline, which would cross the Appalachian Trail in Giles County.

As an interstate natural gas pipeline, the 303-mile, $3.5 billion project needs approval from the Federal Energy Regulatory Commission. In September, FERC issued a related draft environmental impact statement and set Dec. 22 as the deadline for public comment.

Yet in the weeks and months following that deadline — and on the deadline date itself — Mountain Valley has filed tens of thousands of pages of material with FERC about the project, which would cross the Virginia counties of Giles, Montgomery, Craig, Roanoke, Franklin and Pittsylvania.

The filings provide additional details about pipeline routes, construction practices, threatened and endangered species, forest fragmentation, water quality, strategies for building in karst landscapes and on steep slopes, impacts on historic and cultural resources and much more.

An exasperated Downs recently piled atop his desk a stack of three-ring binders of material submitted since Dec. 22 to provide a visual portrait of what feels to him like a three-ring circus in which the public’s role is as bewildered spectator of a process that he and others believe favors pipeline companies.

“It seems like part of the strategy is to just drown the public in filings,” he said.

Now, Downs and other watchdogs trying to track the Mountain Valley Pipeline are calling on FERC to do something it has apparently never done for a pipeline project: issue a revised or supplemental draft environmental impact statement that would provide another period of formal public comment before the release of a final environmental impact statement, currently scheduled for June 23.

“I don’t see how this process can go forward in a responsible, reasonable way without providing a supplemental draft EIS that the public can digest,” he said. “I’m bewildered FERC is even talking about a final EIS.”

Tamara Young-Allen, a spokeswoman for FERC, said that final environmental impact statements are, in fact, revised draft environmental statements, updated documents that reflect filings by project backers as well as by others submitting comments.

She said that even though a final environmental impact statement does not trigger a formal public comment period, the staff at FERC continues to accept and review comments up until the time of a commission decision.

Diana Christopulos, president of the Roanoke Valley Cool Cities Coalition and Roanoke Appalachian Trail Club and a member of the Roanoke Group of the Sierra Club, expressed concerns similar to those voiced by Downs.

“In 30 years of volunteer work on environmental issues, I have never seen a situation that was so complicated and unfair to the public,” she said. “FERC issued an extremely incomplete and often inaccurate draft environmental impact statement in September 2016, and we all had 90 days to comment on it.”

On Dec. 22, Roanoke County’s comments on the draft environmental impact statement called on FERC to issue a revised or supplemental statement:

“The county and others have objected that by publishing the [draft] EIS in advance of Mountain Valley’s route changes and responses to environmental information requests, they have been denied a meaningful opportunity for review and comment on the environmental consequences of the MVP project.”

If FERC approves the project, the pipeline company will have access to federal eminent domain to acquire easements across private properties.

Christopulos and Downs estimate that from Dec. 22 to the week of May 26, the pipeline company submitted to FERC nearly 20,000 pages of information.

“This is completely unfair to the public, especially to landowners whose property can be violated using the power of federal eminent domain, but also to everyone else who cares about our water, property and environment in this region,” Christopulos said.

She said a properly indexed supplemental draft environmental impact statement, with an additional comment period, offers the only fair course.

“The public should have a chance to see exactly what has been proposed, organized in a manner that the average person can navigate and understand,” Christopulos said.

As proposed, the Mountain Valley project would bury a 42-inch diameter steel pipe that would transport natural gas at high pressure from Wetzel County, West Virginia, to Pittsylvania County. Pipeline foes contend the project would do irreparable environmental damage. Project backers say the pipeline would boost economic development.

‘Dynamic exchange’

Natalie Cox, a spokeswoman for Mountain Valley, declined to comment about the number of pages submitted after the public comment period ended. A recent commentary by Shawn Posey of Mountain Valley reported “tens of thousands of project-related pages have been filed” with FERC.

Cox said in a May 23 email that since Dec. 22, Mountain Valley has received four requests from FERC for more data and has submitted 16 separate filings of responses and supplemental materials. She said the filings reflect the normal exchange of information during the commission’s regulatory review process for a complex infrastructure project.

“A large portion of these submissions were in response to requests for additional data from the FERC and other permitting agencies — such as the U.S. Forest Service — many of which were a result of questions and concerns raised by landowners, community members and local officials,” Cox said.

She said a comprehensive FERC review requires a fluid, dynamic exchange of information.

Christopulos said Mountain Valley’s explanation rings hollow.

“Their excuse is that the FERC requested it,” she said.

If the original draft environmental impact was so deficient that tens of thousands of pages of filings were required in its wake, Christopulos said, then “its release in September 2016 was obviously premature.”

Aaron Ruby is a spokesman for the Atlantic Coast Pipeline, a separate but similar pipeline proposal under FERC review. The public comment period for the draft environmental impact statement for that project ended April 6.

“We’ve submitted about 10,000 pages since the close of the comment period,” Ruby said. “About half were responses to data requests FERC sent to us just after the comment period closed, and the other half were mostly species and archeological survey reports.”

Carolyn Elefant once worked as a lawyer for FERC. Now, her law firm in Washington, D.C., frequently represents pipeline opponents. Clients include Montgomery County.

In an email, Elefant said substantial filings with FERC after the release of a draft environmental impact statement are not uncommon and are sometimes warranted.

“For example, the draft EIS may find that a particular route is inappropriate and instruct the company to adopt an alternative that was never considered previously,” she said. “In this situation, the company will need to submit additional information on the new alternative, including impacts on new landowners and different resources.”

Yet Elefant said her experience suggests the bulk of supplemental filings relate to requests by FERC for more information about known impacts.

“Often, companies will wait until after the draft EIS deadline to file these materials to prevent landowners from commenting — and that is unfair,” she said.

She said that even though pipeline companies sometimes blame federal and state agencies and the public for project delays, the companies themselves often delay submission of information.

Young-Allen said she does not recall FERC issuing a supplemental draft environmental impact statement for a pipeline project. She said staff research identified a hydroelectric project that in 2002 required both supplemental draft and final statements because the project proposal changed dramatically after the final statement was completed.

Young-Allen said the commission’s order for the Mountain Valley project will likely address the debate about a supplemental draft statement, “since some commenters have raised it in the record.”

Larger study sought

Meanwhile, more than a few commenters have identified and advocated for an overarching alternative to the draft environmental impact statements prepared by FERC for the Mountain Valley Pipeline, Atlantic Coast Pipeline and other recent interstate natural gas pipeline projects.

They have called for a programmatic environmental impact statement, which would provide, they say, a more comprehensive review of the environmental and other cumulative impacts of several interstate pipelines designed to transport natural gas extracted from the Marcellus and Utica shale formations in the Appalachian Basin.

Roberta Bondurant, a member of Roanoke County’s pipeline advisory committee who is active in several anti-pipeline groups, said a programmatic statement is needed to adequately assess whether there is a true need for the pipelines, what the projects’ cumulative climate impacts will be, and much more.

She noted that a statement by Norman Bay on Feb. 3, the day of his resignation as FERC chairman, noted that “the commission has never conducted a comprehensive study of the environmental consequences of increased production [from the Appalachian Basin].”

Bay added that even if federal law did not require such a review, he believed “the commission should analyze the environmental effects of increased regional gas production from the Marcellus and Utica.”

Bondurant said, “This upfront needs analysis must be at the heart of any supposedly democratic process that takes private property by eminent domain.”

She described FERC’s methods for garnering public comment as “a perversion of due process” and said the tens of thousands of pages filed by Mountain Valley since September and available online are “effectively as inaccessible to the tech savvy as [they are] to those elderly or impoverished rural families without access to technology.”

She added, “A supplemental EIS is the least of the documents the FERC should produce — in order to give it any meaning, the public should have real and thorough comment.”

On May 25, U.S. Sen. Mark Warner, D-Virginia, said he is co-sponsoring legislation that would create an Office of Public Participation and Consumer Advocacy at FERC.

“Dialogue with local communities should be an important part of the FERC process,” Warner said in a news release. “But as it stands now, citizens often find it confusing and difficult to get their questions answered and provide input on proposed pipelines.”

He said establishing the new office would “ensure that the public has a stronger voice at FERC as it considers pending projects.”

David Seriff of Montgomery County, who has been active in pipeline opposition, noted that the U.S. Environmental Protection Agency, the Forest Service and others have characterized the draft environmental impact statement for the Mountain Valley Pipeline as incomplete.

“The old country expression ‘That boat don’t float’ applies to the draft EIS,” Seriff said. “The document is absolutely full of holes. But this is no rowboat. If this high-pressure gas pipeline springs a leak anywhere on its 300-mile course there will be deaths and mass devastation. The public deserves more consideration in protecting our precious environmental resources.”

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