USCA Case #21-1040 Document #1884197 Filed: 02/08/2021 Page 1 of 12

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Sierra Club, et al., )

)
Petitioners )
)
v. ) No. 20-1512 and
) 21-1040
Federal Energy Regulatory Commission, )
)
Respondent )
)

RESPONSE OF FEDERAL ENERGY REGULATORY

COMMISSION TO EMERGENCY MOTION FOR STAY

The Federal Energy Regulatory Commission (Commission) hereby

responds to the January 29, 2021 emergency motion of Appalachian

Voices, Chesapeake Climate Action Network, Indian Creek Watershed

Association, Preserve Craig, Save Monroe, Sierra Club, West Virginia

Rivers Coalition, and Wild Virginia (collectively, Movants), requesting

that this Court stay, pending judicial review, three post-certificate

pipeline construction orders. See Mountain Valley Pipeline, LLC, Order

Granting Requests for Extension of Time, 173 FERC ¶ 61,026 (Oct. 9,

2020) (Extension Order); Order Partially Lifting Stop Work Order and
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Allowing Certain Construction to Proceed, 173 FERC ¶ 61,027 (Oct. 9,

2020) (October 2020 Construction Order); and Order Partially Lifting

Stop Work Orders and Allowing Certain Construction to Resume, 173

FERC ¶ 61,252 (Dec. 17, 2020) (December 2020 Construction Order).

The Commission takes no position on the relief sought in that

motion. To understand why, some history and context are helpful.

BACKGROUND

I. Prior Proceedings in This Court

The Commission conditionally approved the Mountain Valley

Pipeline in October 2017. See Mountain Valley Pipeline, LLC, 161

FERC ¶ 61,043 (Oct. 13, 2017) (Certificate Order), order on reh’g, 163

FERC ¶ 61,197 (June 15, 2018) (Certificate Rehearing Order). This

Court affirmed the Commission in February 2019, denying petitions for

review raising sixteen issues. See Appalachian Voices v. FERC, No. 17-

1271, 2019 WL 847199 (D.C. Cir. Feb. 19, 2019) (unpublished).

Prior to ruling on the merits in Appalachian Voices, this Court

twice denied motions to stay pipeline construction pending judicial

review. See Order, No. 17-1271 (Feb. 2, 2018) (“Petitioners have not

satisfied the stringent requirements for a stay pending court review.”)

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(citing Nken v. Holder, 556 U.S. 418, 434 (2009)); Order, No. 17-1271

(Aug. 30, 2018) (same).

II. Extension Order and October 2020 Construction Order

Pipeline construction began in February 2018. See Extension

Order PP 4, 15; October 2020 Construction Order PP 2, 18. As

explained below, construction has at points been partially halted due to

litigation over other federal approvals. See October 2020 Construction

Order PP 3-7.

The Extension Order extended the deadline to complete

construction until October 13, 2022. See Extension Order P 32. The

Commission found that: (1) good cause exists for granting extension (id.

PP 10-15); (2) the Certificate Order’s public interest findings are still

valid (id. PP 16-19); (3) the Certificate Order’s environmental analysis

is still valid (id. PP 20-26); and (4) Mountain Valley’s compliance record

does not warrant denying its request for extension of time (id. PP 27-

30). Commissioner (now Chairman) Glick dissented in part, objecting to

the Commission’s denial of late intervention requests filed by certain

landowner and environmental groups. See Extension Order (Glick,

Comm’r, dissenting PP 2-3).

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The October 2020 Construction Order granted Mountain Valley’s

request for authorization to resume certain construction activities that

the Commission had halted in response to a series of court decisions

vacating or staying other federal authorizations for the project. See

October 2020 Construction Order PP 15-46. Commissioner (now

Chairman) Glick dissented, arguing that allowing Mountain Valley to

recommence construction before it possessed all authorizations needed

to complete the pipeline violated the Certificate Order. See October

2020 Construction Order (Glick, Comm’r, dissenting P 4); see Certificate

Order, Environmental Condition 9 (requiring Mountain Valley, “before

commencing construction,” to demonstrate that “it has received all

applicable authorizations required under federal law (or evidence of

waiver thereof)”).

By way of background, Commission staff had initially halted

construction in response to the Fourth Circuit’s opinion vacating

authorization to cross the Jefferson National Forest, but then

subsequently allowed partial construction to resume. See Partial

Authorization to Resume Construction, FERC Docket No. CP16-10-000

(Aug. 29, 2018) (authorizing partial construction to resume, based on

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staff’s assessment that completing construction and restoration as

quickly as possible would best protect the environment, but excluding

construction in a 25-mile exclusion zone, an area encompassing the two

watersheds containing the 3.5 miles of pipeline right-of-way that

crosses the Jefferson National Forest); see also Sierra Club, Inc. v. U.S.

Forest Serv., 897 F.3d 582 (4th Cir. July 27, 2018) (vacating the

authorization for the pipeline to cross approximately 3.5 miles of the

Jefferson National Forest in West Virginia and Virginia).

Subsequently, in response to the Fourth Circuit’s staying the Fish

and Wildlife Service’s November 2017 Biological Opinion and Incidental

Take Statement, see Wild Virginia v. Department of the Interior, Order,

4th Cir. No. 19-1866 (Oct. 11, 2019) (order granting stay and holding

case in abeyance), Commission staff directed Mountain Valley to cease

most construction activity. Commission staff made an exception for

work necessary to restore and stabilize the right-of-way, which staff

believed would be more protective of the environment than leaving the

area in an unstable condition. See Cessation of Certain Activities

Order, FERC Docket No. CP16-10-000 (Oct. 15, 2019).

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In September 2020, Mountain Valley requested authorization to

resume certain construction activities. In the October 2020

Construction Order (see P 13), the Commission found that permitting

recommencement of construction was allowed (id. PP 15-27) and most

protective of the environment (id. PP 28-33); and that a supplemental

Environmental Impact Statement was not required (id. PP 34-46). But

the Commission declined to grant Mountain Valley’s request to permit

construction in or near the Jefferson National Forest (exclusion zone),

finding that Mountain Valley had failed, on that record, to demonstrate

that recommencing construction within the exclusion zone would not

adversely affect the Jefferson National Forest. See October 2020

Construction Order P 24.

Movants, with the exception of Save Monroe, sought rehearing of

the Extension Order and the October 2020 Construction Order, which

the Commission denied. See Mountain Valley Pipeline, LLC, 173 FERC

¶ 61,222 (Dec. 11, 2020) (December 2020 Rehearing Order).

Commissioner (now Chairman) Glick again dissented, arguing that

Mountain Valley should not be allowed to recommence construction

until it had possessed all authorizations needed to complete the

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pipeline. See December 2020 Rehearing Order (Glick, Comm’r,

dissenting PP 1-2).

III. December 2020 Construction Order

In response to the October 2020 Construction Order, Mountain

Valley renewed its request, along with supporting data, to reduce the

exclusion zone around Jefferson National Forest.

The Commission granted that request. See December 2020

Construction Order P 14. The Commission analyzed Mountain Valley’s

supporting data and agreed that certain project construction activities

would not contribute sediment to any portion of the Jefferson National

Forest or contribute sediment or turbidity to any waterbody that

subsequently flows into the Jefferson National Forest. Id. P 9. The

Commission found continued construction would be “best for the

environment and affected landowners” and that any environmental

impacts would be subject to existing environmental mitigation

measures that would “provide a framework to ensure the protection of

the environment during construction.” Id. P 11.

Commissioner (now Chairman) Glick again dissented, reiterating

his view that the Commission should not reauthorize pipeline

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construction until Mountain Valley obtained all federal authorizations

needed to complete the pipeline. See December 2020 Construction

Order (Glick, Comm’r, dissenting PP 1-6).

Movants, with the exception of Chesapeake Climate Action

Network and West Virginia Rivers Coalition, sought rehearing and a

stay (December 2020 Rehearing Request). Movants argued to the

Commission that permitting construction violated the Certificate Order

because Mountain Valley does not have authorization from the Forest

Service or Bureau of Land Management to cross the Jefferson National

Forest or authorization from the U.S. Army Corps of Engineers to

engage in activity that would impact streams and wetlands. Id. 2-3; see

Certificate Order, Environmental Condition 9. Movants also argued

that narrowing the exclusion zone would create inappropriate

bureaucratic inertia. See December 2020 Rehearing Request at 3-6.

RESPONSE

The underlying case is still before the Commission. The

Commissioners discussed both the rehearing and stay requests

regarding the December 2020 Construction Order at the Commission’s

January 19, 2021 public meeting, but did not issue an order because the

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Commission was deadlocked 2-2 on the merits of those requests. See

Tr. 27-29, 46-47, 54-57 (action on rehearing of December 2020 Order not

approved by majority because two Commissioners would vote for the

proposed agency order and two Commissioners would vote against, with

one Commissioner not participating).1 As a result, Movants’ request for

rehearing and stay was neither granted nor denied, and no final agency

action regarding those requests occurred at the public meeting. See

Public Citizen v. FERC, 839 F.3d 1165 (D.C. Cir. 2016) (Commission,

deadlocked by 2-2 vote, did not issue an order or take an action that is

judicially reviewable); 42 U.S.C. § 7171(e) (Commission takes action by

majority vote of quorum of Commissioners).

Instead, the Commission’s Secretary issued a Notice of Denial of

Rehearing by Operation of Law and Providing for Further

Consideration. See Mountain Valley Pipeline, LLC, 174 FERC ¶ 62,036

(Jan. 19, 2021). The Commission—with a new Chairman and two new

Commissioners added to the agency since issuance of the construction

1The transcript of the January 19, 2021 meeting is on the Commission’s

webpage: https://www.ferc.gov/media/transcript-01-21-2021.

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orders—may, if a majority is obtained, address the issue at a future

date.

Because the Commission now is unable to take a position on

whether the agency should grant a stay of the construction orders, it is

similarly unable to take a position on whether the Court should grant a

stay.

Respectfully submitted,

Matthew R. Christiansen
General Counsel

Robert H. Solomon
Solicitor

/s/ Scott Ray Ediger

Scott Ray Ediger
Attorney

Federal Energy Regulatory Commission

Washington, DC 20426
TEL: (202) 502-8509
FAX: (202) 273-0901
scott.ediger@ferc.gov

February 8, 2021

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CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(g) and Circuit Rule 32(e), I certify

that this motion complies with the type-volume limitation of Fed. R.

App. P. 27(d)(2) because it contains 1,527 words, excluding the parts of

the motion exempted by Fed. R. App. P. 32(f) and Circuit Rule 32(e)(1).

I further certify that this motion complies with the type-face

requirements of Fed. R. App. P. 32(a)(5) and the type-style

requirements of Fed. R. App. P. 32(a)(6) because this motion has been

prepared in Century Schoolbook 14-point font using Word.

/s/ Scott Ray Ediger

Scott Ray Ediger
Attorney

Federal Energy Regulatory Commission

Washington, DC 20426
Tel: (202) 502-8509
Fax: (202) 273-0901
scott.ediger@ferc.gov

February 8, 2021
USCA Case #21-1040 Document #1884197 Filed: 02/08/2021 Page 12 of 12

CERTIFICATE OF SERVICE

I hereby certify that, on February 8, 2021, a copy of the foregoing

was filed electronically. Notice of this filing will be sent to all parties by

operation of the Court’s electronic filing system. Parties may access

this filing through the Court’s system.

/s/ Scott Ray Ediger

Scott Ray Ediger
Attorney

Federal Energy Regulatory Commission

Washington, DC 20426
Tel: (202) 502-8509
Fax: (202) 273-0901
scott.ediger@ferc.gov

February 8, 2021