U.S. Senator Tim Kaine wants a do-over.
The Virginia Democrat has asked the Federal Energy Regulatory Commission to reconsider its approval of the $5 billion Atlantic Coast Pipeline that will ferry fracked natural gas from West Virginia to Virginia and North Carolina.
Two of five commission seats were vacant when the panel approved the project by a 2-1 vote in October 2017. Noting the commission is back at full staff, Kaine wants a re-vote saying “there is a real concern about whether the divided rulings by a partial Commission fairly reflect the FERC position.”
A handful of environmental groups, property owners and even a North Carolina state agency also want FERC — for various reasons — to reconsider their approval of the project.
Along with issues related to greenhouse gasses, eminent domain and damage to wetlands and rivers, opponents also question whether a legitimate economic need exists for the ACP, and numerous other pipelines, that FERC has greenlighted to move natural gas from the Marcellus-Utica shale basin in Ohio, Pennsylvania, and West Virginia.
The project also reflects another growing dispute in America: Whether economic development projects have a disparate impact on communities of color.
So, despite FERC’s blessing, opposition to the Atlantic pipeline continues unabated. Earlier this week, the Southern Environmental Law Center asked a federal appeals court in Richmond, Va., to review FERC’s approval of the Atlantic pipeline.
“FERC demonstrated in its split decision to approve the pipeline that there is lingering doubt about the need for this destructive project in our region,” said a statement from Greg Buppert, senior attorney at SELC.
A spokesman for FERC, Craig Cano, said the commission could not respond to the specific objections raised by opponents “because the order is pending on rehearing” and officials “can’t discuss questions before the Commission.” Cano reiterated that FERC Chairman Kevin McIntyre has said there will be ample opportunity for comment by all interested parties.
More than 79 percent of Atlantic Coast Pipeline fuel would supply gas-fired power plants in Virginia and North Carolina that produce electricity mainly for Duke Energy and Dominion Energy, the lead partners in the Atlantic pipeline project.
A similar story is being repeated across much of the United States, from Texas to Kansas to Florida, where natural gas pipelines are fueling a transition from older coal- and oil-powered power plants to cleaner-burning, gas-fired plants that reduce harmful emissions.
In addition, pipeline supporters say the projects bring industry, jobs and tax revenue to underdeveloped areas and help cut U.S. dependence on oil imports from hostile countries.
The commission, having rejected just two of roughly 400 pipeline applications since 1999, has been a staunch and reliable ally in the push to transport cheaper natural gas from Appalachia and other areas.
But critics say the Southeast region’s ongoing pipeline buildout should have spurred greater oversight from FERC, a relatively unknown Washington agency that regulates the interstate transmission of natural gas, oil, and electricity.
Instead, they argue, the commission has provided insufficient scrutiny of actual economic need for and feasibility of the pipelines and often approves projects based largely on questionable “precedent agreements” that allow pipeline developers to sell capacity on the new line to their own subsidiary companies.
Duke subsidiaries alone have signed 20-year contracts to reserve 59 percent of the pipeline’s capacity. Critics say the arrangements can lead to unnecessary pipeline projects that artificially create demand for the fuel.
In her dissenting vote against the Atlantic pipeline, FERC commissioner Cheryl LaFleur said the panel should rethink its policy “that precedent agreements generally are the best evidence for determining market need” for gas pipelines.
“I believe that evidence of the specific end use of the delivered gas, is relevant evidence that should be considered as part of our overall needs determination,” LaFleur wrote.
Needed or not, the ACP project has again cast a focus on pipeline routes, their economic benefits for local regions and their impact on minority communities.
Last week, North Carolina issued a major water permit allowing pipeline construction through wetlands, streams and other waterways. Pipeline supporters like Durwood Stephenson, director of the I-70 Corridor Commission in North Carolina, were elated.
“I can’t tell you how excited people were and how many calls I got (last weekend) about the prospects this brings,” said Stephenson, of Smithfield, NC. “It’s a chance of a lifetime for eastern North Carolina.”
Pipeline construction is expected to start this spring and be finished by late 2019.
During its two-year construction phase, the pipeline is projected to generate $680 million in economic activity, create 4,400 jobs and provide more than $1 million in local tax revenue in North Carolina alone, said ACP spokesman Aaron Ruby.
The project would support about 1,000 long-term jobs and provide nearly $8 million in annual local tax revenue in North Carolina once it’s built, Ruby added.
The pipeline is backed by North Carolina’s business community and most of the state’s lawmakers. Legislative support extends beyond North Carolina, and political party affiliations. A bipartisan group of state legislative leaders from the three states the pipeline will cross have also expressed support. So have the North Carolina Development Association and more than a dozen local governments in eastern North Carolina where the pipeline will be located.
The region has suffered economically for decades, and officials see it as a long-needed economic engine.
“Textiles and tobacco went away and we haven’t had anything to replace it,” said Durwood Stephenson, of the I-70 Corridor Commission. “Manufacturing requires gas. We think the pipeline is another piece of the infrastructure puzzle that can help.
Stephenson said even farmers in the area suffer because of the limited access to natural gas. “Our farmers are at a disadvantage in eastern North Carolina because they’re curing tobacco with propane which runs their costs up and reduces their profit margins considerably,” he said.
In Southeast North Carolina, the situation is much the same, said Robert Van Geons, president of the Fayetteville-Cumberland County Economic Development Corporation.
“There’s a segment of very large-investment, good job-creating operations that simply cannot consider our corridor without it,” Van Geons said of the pipeline. “Whether it’s large manufacturing operations, food processing operations or power generation, all these things need substantial amounts of natural gas.”
Other segments of the population are much less enthusiastic, however.
The Atlantic Coast Pipeline will cut through territory belonging to four state-recognized Native American tribes in North Carolina: the Coharie, Haliwa-Saponi, Lumbee and Meherrin tribes.
Thirteen percent of people who live within a mile of the pipeline route in North Carolina are Native Americans — about 30,000 in all, said Ryan Emanuel, an associate professor of forestry and environmental resources at North Carolina State University.
Considering Native Americans make up only one percent of the state population, Emanuel said the pipeline route disproportionately targets the tribes and other low-income communities of color.
“There’s no other infrastructure project in the nation that would have as great an impact on Native Americans as the Atlantic pipeline,” Emanuel said. “I did my due diligence. I dug through FERC documentation. I looked at the numbers on Standing Rock Sioux. This is the biggest one.”
In Robeson County, N.C., where the 600-mile pipeline would end, a compressor station and 350-foot communications tower will be built in the middle of Lumbee tribal territory. “They’ve already fenced it in and grated the lot,” said Emanuel, who’s a member of the Lumbee Tribe.
The NAACP has also raised questions about a pipeline compressor station slated for Northampton County, a low-income community that’s about 55-percent African American.
Emanuel tried to get FERC’s Native American liaison, Elizabeth Molloy, to visit the tribes affected by the pipeline. But Molloy never responded to his e-mail request, Emanuel said.
By law, FERC isn’t obligated to consult with the North Carolina tribes, which haven’t been officially recognized by the federal government, Emanuel said. But the Advisory Council on Historic Preservation and the National Environmental Justice Advisory Council both recommend consulting non-federal tribes affected by infrastructure projects, Emanuel said.
After offering support for the project in January 2015, the Haliwa-Saponi tribe rescinded their backing in September 2016. In letters to FERC, the tribe cited concerns about environmental impacts, poor communication with tribal leaders and the potential “inadvertent discovery of ancestors of our Tribe” during construction.
In an October filing with FERC, pipeline developers said they reached out to all the tribes and met individually with several, including the Haliwa-Saponi. In August 2017, pipeline developers also sent the tribe a copy of the pipeline’s plan to notify stakeholders if a culturally significant find is made during construction.
As the project moves forward, opponents are settling in for a long fight at the state level where some project permit applications are still being evaluated.
In addition, preliminary tree-cutting and land preparation for pipeline construction is already underway in Virginia and West Virginia. And some fear the inevitable pipeline protests could spark heated clashes, similar to the Dakota Access Pipeline stand-off that led to hundreds of arrests and injuries.
The Dakota pipeline route came within a mile of the Standing Rock Sioux reservation in rural North Dakota, prompting months of protests over tribal sovereignty and environmental justice issues.
Law enforcement in North Carolina is monitoring social media for chatter about the Atlantic Pipeline and any possible protests, said Elliott Smith, acting special-agent-in-charge of the N.C. Information Sharing and Analysis Center at the State Bureau of Investigation.
“We don’t have any indication of any planned protest at this time. However, we always want to be prepared should any kind of incident arise,” Smith said. “Terrorism can happen anywhere. Any crime can happen anywhere. Our focus is to deter any kind of criminal activity.”
Further muddling the cost-benefit analysis for the project are questions about whether the ACP is really a good deal for consumers.
Pipeline opponents question Duke and Dominion’s claims about the project’s positive economic, employment and tax benefits. A December report by the Applied Economics Clinic at Tufts University found that previous assumptions by Dominion consultants’ that the pipeline would bring lower gas prices were “no longer supported” by current data.
The report, commissioned by the Natural Resources Defense Council, also found no support for claims that a new pipeline brings “lower industrial electricity prices or an increase in the number of manufacturing jobs in that state.”
“When the pipeline-affiliated customer is a monopoly utility with customers who cannot choose their energy provider, customers pay the costs of the pipeline — even if the pipeline is unneeded,” said recent blog by Montina Cole, a senior attorney at the Natural Resources Defense Council.
Those critiques are short-sighted, proponents say. Even after factoring in the cost to build the project, ACP’s Ruby said North Carolina consumers can expect more than $130 million in energy-cost savings every year that the pipeline is in service because of the cheaper cost for gas from Appalachia.
Another concern focuses on profitability. FERC, citing previous cases, approved Duke and Dominion’s request for up to a 14-percent return on their $5 million investment in the pipeline. The North Carolina Utilities Commission — which supports the project — says that’s excessive.
The NCUC has asked FERC to reconsider the rate, calling it “the epitome of arbitrary and capricious decision-making.”
The utility commission claims FERC approved the rate, which determines the project’s profits, only because they’ve approved the same rate in earlier projects. But critics say the disputed rate has been used since 1997 when interest rates were much higher.
In their decision backing the project, FERC said the rate approval was not “reflexive,” but was “in response to the risk Atlantic faces as a new market entrant.”
Ruby said the 14-percent rate is “established precedent” for FERC on projects with a similar capital structure.
“We think it’s fair to expect that our shareholders can get a reasonable return on their investment,” Ruby said. “This is $5 billion of private capital that's being invested to build a project for the public good.”
Opponents say the FERC-approved rate lowers utilities’ financial exposure in pipeline development, which can lead to overbuilding and a glut of projects that may not be necessary based on current and future demand projections.
Since the Atlantic Coast Pipeline was first proposed in 2014, Duke and Dominion have both lowered their projections for future electricity demand, said Kathy Kunkel, an energy analyst at the Institute for Energy Economics and Financial Analysis, which supports a move away from fossil fuel development.
“By 2025, Duke’s forecast is lower by 10,800 gigawatt-hours (GWh) and Dominion’s by 7,700,” Kunkel wrote in a recent analysis. That’s a decline of roughly 400 million cubic feet of natural gas per day on a pipeline with a daily capacity of 1,500-million cubic feet.
“Nearly one-third of the capacity of the pipeline is sort of eliminated by the drop in demand forecast by Duke and Dominion,” Kunkel said. “And both utilities have delayed or cancelled new gas plants that they were planning to bring online," because of it.
Ruby countered that a decline in electricity demand doesn’t diminish the need for the pipeline.
From 2015 to 2035, pipeline developers expect a 165 percent increase in demand for natural gas in Virginia and North Carolina due to population growth, the shift to gas-fired power plants and both states’ diversifying economies, Ruby said.
Under pressure for regulatory change, FERC is reassessing its pipeline approval process, which was first implemented in 1999.
“Much has changed in the energy world since 1999, and it is incumbent upon us to take another look at the way in which we assess the value and the viability of our pipeline applications,” said a recent statement from FERC Chairman McIntyre.
But the agency’s new makeup — four out of five commissioners appointed by pro-business President Donald Trump — suggests their support for the Atlantic Coast Pipeline isn’t likely to change.
In Tuesday’s State of the Union address, Trump didn’t mention FERC or gas pipelines. But he made clear he’s for unleashing U.S. energy production boasting, “We have ended the war on American Energy.”
Either way, the path to that do-over vote for the pipeline appears to be a heavy lift.
Tony Pugh: 202-383-6013, @TonyPughDC