What, you hit rock? OK, open trench away!

As we come down to the wire on a FERC decision on PennEast, I have been monitoring the FERC dockets daily.  Not just the PennEast one, but all the dockets, to have a better sense of what to come.

As you can imagine, the result is pretty awful.  The pain and suffering of pipeline proposals does not end with a FERC approval.  Or other permits and approvals, or even the start of construction.  Nope.  It often keeps on going well into the project construction.

Here’s one example of many.

I’m sure you’ve heard of the horrors of Leidy Southeast expansion, where the Horizontal Directional Drilling (HDD) attempt went into overdrive as they hit hard rock.  They were drilling constantly.  Broke a few drill bits.  Then they gave up and switched over to open trench.

Perhaps a few of you thought “oh, well, maybe this was an exceptional situation” and is a rare event.

As it turns out, it’s not.  It happens with depressing regularity.  Here’s the same drama happening in near real-time today with a Dominion Energy Project called the “TRANSCO TO CHARLESTON PROJECT” (I’ll call it T to CP).

T to CP is a project involving 55 miles of 12″ pipe that they’re running in South Carolina.  They’ve been given all approvals and have been in construction for awhile now.  The project involves quite a bit of HDD work.

On November 8th of this year, they filed a request to FERC (link here: https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=14752375):

Re: Variance Request for 24-hour Drilling Operations on HDD-021

DECG hereby requests written authorization from the Director of the Office of Energy Projects (OEP) to perform 24-hour drilling operations on HDD-021, HDD of Watkins and Mudlick Creeks, totaling 2,390’ in length. The drilling operations of HDD-021 have encountered hard rock, drastically slowing production down, requiring additional shifts in order to complete the drill by the landowner’s stipulated date of November 15th;

Here Dominion is saying “Hey, our HDD attempt hit hard rock and it’s slowing us down.  Let us drill 24 hours a day to keep our schedule!”.  Yes, 24 hours a day.  Through hard rock.

A day later the request was granted by FERC.  Not the commissioners, but just a regular staffer.

Five days later, Dominion filed another request with FERC (link here: https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=14756303):

Re: Variance Request for Modification to Construction Method

DECG hereby requests written authorization from the Director of the Office of Energy Projects (OEP) to modify the construction method from horizontal directional drill (HDD), for HDD-03 and HDD-04, to a combination of conventional bore and conventional open-cut. DECG has encountered solid rock on nearly all HDDs throughout this Project, drastically slowing production down, and proposes to modify the construction method with the intention to avoid further construction delays and complete the Project by the customer’s scheduled in-service date.

So Dominion is saying “Oh hey, we’re hitting this hard rock everywhere and it’s a real pain in our ass.  Request permission to chuck the whole idea and switch to boring and open trenching instead.

FERC said “sure” two days later, November 16th (link:https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=14758473):

Re: Variance Request for Modification to Construction Method

 I grant Dominion Energy Carolina Gas Transmission, LLC’s (Dominion) November 14, 2017 request to modify the construction method from horizontal directional drill (HDD) for HDD-03 and HDD-04, to a combination of conventional bore and conventional open-cut, along the Moore to Chappells Pipeline for the Transco to Charleston Project. Dominion has encountered solid rock in these locations. With this construction method modification, Dominion intends to avoid further construction delays and complete the project by the customer’s scheduled in-service date.

This variance will require an additional impact on 1.16 acres forested land, 0.78 acre silviculture (planted pine) land, 0.09 acre open land, and 0.83 acre agricultural (cropland, pasture, hay) land from open cutting the upland right-of-way. In addition, trees within 15 feet of the pipeline centerline would be selectively cut at ground level from the permanent right-of-way

This approval was made by a mere Project Manager within FERC.  Not a commissioner, a project manager.

Meanwhile, the original Environmental Assessment (EA) of the project is available here (https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=14379602).  The EA of course says that the project can be built with no permanent damage to the environment.  The assessment states that areas where there is “no change in land use” were not considered as in land use requirements and impacts – which included HDD sites.  When discussing things like wetlands impacts, the EA has this to say:

Impacts and Mitigation

The wetland crossing methods proposed for the Project include HDD and horizontal boring methodologies, and are described in detail in section A.7.2 and presented in appendix F. Construction activity in wetlands crossed by the HDD method would be limited to hand clearing of a small path to allow placement and surveying of an electric guide wire along the ground surface between the HDD entry and exit points, where necessary. Conventional bore methods would not require surface activity. The permanent right-of-way through forested wetlands would not require tree clearing per USDOT standards (49 CFR 192) because of the proposed depth of the pipeline. As such, no construction or operational- related impacts on wetlands are anticipated.

In this area, as well as others, FERC is stating that HDD methods are helping to mitigate impacts, and because of this the project is environmental acceptable.

But then they allow the project to arbitrarily switch from HDD if it is inconvenient to their schedule, which completely nullifies the HDD mitigation statements in the EA!

There are many other HDD adventures on this project, I’ve just highlighted a few.  The point is that FERC-generated Environmental Assessments and Environmental Impact Statements are pure, unadulterated bull shit.  They are completely arbitrary and the construction rules can be changed at will by FERC, meaning that the whole exercise is a pointless one just to file a lot of paper.

This pattern is repeated across nearly ever FERC pipeline docket.  FERC prepares a completely B.S. EIS or EA.  Allows construction.  And then if they pipeline company runs into difficulty, they let them change the construction methods and effectively violate the EIS/EA with no penalties at all.

Needless to say, all the people along the many HDD routes for the PennEast pipeline route should take note of this, and in particular should fight hard in eminent domain proceedings to not allow FERC to grant these variances on their land.

 

FERC Now Trying to Undermine State Rights under the Clean Water Act

While we’ve been fighting against PennEast, obviously many other pipeline battles are going on around the country.  A key player in many of these battles is the New York Department of Environmental Conservation (NYDEC).  NYDEC was key in denying the Constitution Pipeline by denying the pipeline company a Clean Water Act 401 Water Quality permit.  And they’ve been doing the same with other pipelines.

But the new FERC commissioners have been fighting back.  On a lateral project for the Millennium Pipeline in NY, NY DEC denied the pipeline company a CWA permit after FERC issued a Certificate of Public Convenience and Necessity.  But FERC nullified that denial in a recent ruling, and issued an order to proceed with construction for the pipeline.

NYDEC immediately asked for an Stay on that FERC Order and a Rehearing.

Yesterday, those requests were denied.  Which is of course expected – we are talking about FERC here.  But what wasn’t expected is the reasoning behind the denials.  The full FERC order is available here:

https://www.ferc.gov/CalendarFiles/20171115172233-CP16-17-003.pdf

Some of the FERC findings here are:

  1. The 1 year clock on CWA applications to agencies starts the minute they file them.  Even if they are woefully incomplete.
  2. NY DEC’s complaints that the pipeline will harm water quality in NY State are overruled by FERC.  FERC says their environmental assessment trumps the NYDEC’s evaluation.
  3. FERC argues that States opinions on these matters don’t count!  

See paragraphs 15, 16, 17, 18, and 27 in the FERC order for the details on these.

Obviously all of these issues are troubling, but the last one is the the most troubling for everyone fighting pipelines, including us with PennEast.  Here is what FERC says on the subject of State’s rights and the Clean Water Act:

“27. As a threshold matter, we disagree with the New York DEC’s contention that

New York DEC, as the certifying state agency, is the appropriate agency to interpret “any ambiguous terms of the CWA.”38 In general, courts do not afford deference to state agency interpretations of federal law even where state agencies are delegated substantial roles in cooperative federalist schemes.39 And while it is true that states are sometimes given deference by courts in interpreting federal law where a federal agency has approved a state agency’s plan or interpretation of federal law,40 that is not the case here. There is no evidence that the Environmental Protection Agency—the federal agency charged with primary federal oversight of the CWA41—has approved any of New York’s procedural regulations it purports to rely on, much less its interpretation of these regulations as applied to the CWA waiver provision.” (emphasis mine)

In this paragraph, FERC is arguing that States rulings on matters such as the CWA don’t matter if they are in conflict with a Federal authority (like FERC!).  This is a bald faced attempt to steal away States administrative rights under the CWA.

FERC of course is not the final arbiter here.  This matter will almost certainly be taken to courts of appeal by NYDEC, and will be watched very closely.  Meanwhile, we have to watch FERC,  NJDEP, and the DRBC very closely as their PennEast FERC decision draws near.

We should alert Governor-Elect Murphy and his staff to this situation as well, along with our State and Federal legislators.  FERC attempting to undermine State’s administrative rights under the CWA is completely unacceptable and we must fight back against this.  NJ in particular has extraordinary administrative rights under the CWA where we administer not only the 401 Water Quality permits, but also 404 Wetlands permits (which are ordinarily administered by the Army Corps of Engineers).  If FERC approves PennEast (which is almost certain), we must make certain that none of this line of reasoning is attempted in the PennEast project should NJDEP do the right thing and deny PennEast’s CWA applications down the line.

Ditto with the DRBC application as well.

Given the scattershot and morally bankrupt policies of our current Presidential Administration, it up to the States and other agencies to fight back to preserve our rights.  But that’s not going to happen unless we all stand up and let our State governments and agencies what is happening here.

The Law of Unintended Consequences

Wikipedia says that “Unintended Consequences” are a social sciences term that describes “outcomes that are not the ones foreseen and intended by a purposeful action“.

That effect is in full-swing within the Trump Administration, and FERC is playing a big part in it.

In general terms, the impact of unintended consequences is that if that if you take a radical action in any given context, chances are there’s going to be results that you never dreamed of.  Part of the reason why is that you are often going from a known and possibly static situation into uncharted territory where you may unwittingly be unbalancing the system.  And I think it’s clear to most people that the the Trump Administration is turning into a Massive Experiment of Unintended Consequences writ large.  The President is promoting new and radical change, and the effects in many cases are not at all what the President was probably looking for.  Today we’re focusing on one – energy policy.

We now have a President who is pushing for coal in all conceivable areas – coal mining, coal burning, coal infrastructure, coal, coal, coal, bring him more coal!

But he’s doing this just as the coal  industry was ramping down into a slow slide towards oblivion.

The result is that “the system” is reacting in unintended ways.  I’ll bet when Trump was elected you figured projects like Natural Gas Pipelines would suddenly be approved in whole sale, right?  Well actually, no.  Instead, Trump’s coal push is putting natural gas into a tail spin, and leading agencies like the Federal Energy Regulatory Commission (FERC) to defend natural gas as a new status-quo (and not the wave of the future at all), and to increasingly look to renewables for growth.

The Administration’s stumbling on agency nominations have further thrown FERC into chaos.  The debacle with Norman Bay, the late nominees, and the two absences still on the commission have sowed confusion and opened cracks of bipartisan in-fighting.

The DOE 90-day fuel requirement NOPR

To help promote Trump’s “Coal, coal, coal, coal everywhere!” mantra, the Department of Energy recently issued a “Notice of Proposed Rulemaking” to FERC, available here:

https://energy.gov/sites/prod/files/2017/09/f37/Notice%20of%20Proposed%20Rulemaking%20.pdf

What this NOPR is saying is that coal and nuclear power represent “Fuel Secure” generation, and are keys to resiliency and reliability on the American power grid.  They are stating that many generation plants must have 90 days fuel supply on-hand in case of problems with things like Pipelines.  In effect, they are trying to de-emphasize natural gas and renewables on the grid, and instead use “fuel secure” plants like coal and nuclear instead.

As part of its rationale, the NOPR points to the 2013/2014 “polar vortex” winter, and uses the arguments that sky-high power prices showed strains in the system, and that we were near the breaking point, and the problem was too much natural gas and renewables, and not enough nuclear and coal.  Bring on more coal and we’re all good people!

The response?  The coal and nuclear industries love it.

Everyone else hates it.  Literally – everyone else.

Including FERC.

8 former FERC commissioners, including 5 ex-chairpersons, sounded off against the proposed rule making:

https://www.washingtonpost.com/news/energy-environment/wp/2017/10/19/former-ferc-commissioners-reject-energy-secretary-perrys-bid-to-help-coal-plants/?utm_term=.6193973ec3a2

One ex-Commissioner was quoted saying “To me he’s effectively proposing to subsidize them and put a tax on consumers in doing so. It’s a tax in different clothing. It’s going to cost customers more money to run dirty old coal plants”.

Current commissioners agree.  Commissioner Powelson spoke at a conference recently on this topic, debunking the polar-vortex angle:

http://www.utilitydive.com/news/powelson-rejects-polar-vortex-arguments-underpinning-doe-cost-recovery-plan/507436/

In his talk, Powelson said:

“There’s a dirty little secret going around that the gas guys didn’t perform during the Jan. 6 and 7 timeline,” he said. “I am here to tell you unequivocally that is not the case, and I can’t stand here and represent what we call a mistruth that the gas industry caused the interruptions of the Polar Vortex.”

The industry agrees.  The final North American Electrical Reliability Corporation (NERC) issued a report talking about the real causes of price spikes during the polar vortex winter:

http://www.nerc.com/pa/rrm/January%202014%20Polar%20Vortex%20Review/Polar_Vortex_Review_29_Sept_2014_Final.pdf

They indicated that poor maintenance, lack of cold-weather readiness, and poor pipeline scheduling were the true culprits.  As one example, at many coal plants coal supplies were frozen solid and unable to be used during the coldest days when power was needed the most.  In other cases whole plants were full of frozen equipment.

Meanwhile pipelines were flowing just fine with no outages.  The only problem on the pipeline side was scheduling – effectively gas was going to people who didn’t need it all that badly at the time (like industrial users), and meanwhile electrical generators were turned away.

“More Coal” won’t fix this problem.  Better maintenance and preparedness will.

What is interesting here for us is that multiple agencies and pseudo agencies are all saying the same thing: there were no natural gas shortages during the Polar vortex winter, and pipelines were not a problem.  Which complete neuters the arguments of companies like PennEast using the polar vortex price spikes to justify their pipelines.

The FERC 2017/2018 winter outlook

Meanwhile, FERC issued its annual Winter Outlook report last week on October 19th.  This is a regular report which talks about the state of the Electric and Natural Gas markets in the country, and make projections on potential issues to look for throughout the winter months.

The full report is available here:

https://www.ferc.gov/market-oversight/reports-analyses/mkt-views/2017/10-19-17-A-3.pdf

The report is summed in its first slide, recreated below:

Screen Shot 2017-10-24 at 2.34.08 PM

In a nutshell, it says that power markets and natural gas markets are in very good shape.  The only “growth” in natural gas is from exports (surprise, surprise!).  The report specifically mentions that changes in the markets from the “extreme winter events of 2014” have largely fixed systematic problems, and as a result we are in excellent shape going into the winter (all without PennEast).

They do mention pipeline additions which are further stabilizing markets, stating:

“Since 2016, nearly 2.5 Bcfd of new field-to-market capacity has been added and another 3.4 Bcfd is expected to come online between now and April. Collectively, these additions provide consumers in markets from New York City to Chicago with cheaper supply from which to feed winter needs.”

Again, all without PennEast.  They are too little, too late.

Later on in the slide deck, they explicitly talk about energy trends as shown below:

Screen Shot 2017-10-24 at 2.38.57 PM

This shows a massive decline in coal-powered plants.  And that while natural gas remains huge in the power market, the real growth stories are Solar and Wind. Together solar and wind are growing at a ferocious rate.  The story is simple: coal is on the way out, natural gas is our present, and renewables are our future.

The FERC Partisan Split

As if this wasn’t enough going on in FERC and the industry, Trumpian stumbles in agency nominations have roiled things even farther.  When Trump assumed the Presidency, he elevated Cheryl LaFleur over Norman Bay (Despite Bay warning that he’d resign if that happened).  In response, Bay did in fact resign, and on his way out the door he issued a blistering critique of how FERC operates, and changes that must be made to fix it:

http://www.roanoke.com/opinion/editorials/editorial-norman-bay-s-curious-farewell-address/article_0464f186-2fc6-5488-bd79-4343d20fa9da.html

Note that Bay and LaFleur are democrats.

As a result of Bay resigning, FERC was without a quorum for 6 months and unable to do much of anything.  Finally a quorum was resumed, but instead of cleanly installing a new set of Commissioners, the Trump Administration and the Senate instead installed a temporary new Chairman as a Republican representative, plus one more Republican to the commission, barely meeting a quorum of 3.  Meanwhile the presumptive chairman has yet to be officially brought to the Senate, so the current Chairman pro-tem is seen as a lame duck from day one.

Amongst all this, FERC recently approved the Mountain Valley Pipeline, but, in a surprise move, Cheryl LaFleur dissented.  Just as Norman Bay (a Democrat) called for reforms and better looks at true public need for pipeline projects, LaFleur said much the same, indicating that the Mountain Valley Pipeline looked an awful lot like another pipeline being approved at the same time, and maybe it was time FERC stood back and looked at more than just self-dealing precedent agreements and actually looked at the market conditions themselves (heaven forbid!).

Conclusion

The net result of this coal-push from Trump is that there has been a radical shift in how agencies are presenting the energy industry.  Under Obama natural gas was the focus and there was massive growth there.

Now, under Trump, things are different.  Trump has gotten behind Zombie Coal.  Meanwhile, natural gas is starting to become the New Coal – it’s taken on most of the generation load, but there is more emphasis on the “transition” aspect of it.  Renewables are where the future and growth is at.

And while this is happening, FERC is for the first time cracking along partisan lines, and the minority party is calling for new looks at public purpose and need behind pipelines, and saying the self-dealing agreements may not be a good indicator of actual need.

And while all this is going on, PennEast is falling behind as a “me, too!” natural gas pipeline proposal that appears to have missed the market, missed its opportunity, and faces as massive a set of protests as any.

To gauge just how screwed PennEast is, let’s circle back and look at this NOPR 90-day fuel issue.  It’s been reported that FERC’s systems are melting down from the massive commenting on the FERC docket on this issue.  See the below for details:

https://www.rtoinsider.com/ferc-doe-nopr-coal-rick-perry-78274/

The article indicates that they received “over 300 comments”.  Looking at the docket there are now 589 comments.

By way of comparison, the PennEast application docket has seven thousand, eight hundred and eighteen comments on it, including thousands of intervenors (and the pre-filing docket has another 2,856).

 

PennEast Shipper Enerplus Pushes PennEast Forecasted In-Service Date Back Another Year

Oil & Gas company Enerplus recently made a presentation at an industry conference about their corporate outlook and the state of the markets from their point of view, in particular the situation with various shale deposits, drilling, and take away capacity.

They are also a “shipper” on the PennEast pipeline, they have engaged in long term precedent agreements to transport gas along it.

Their presentation included this slide highlighting upcoming Pennsylvania Shale projects:

Screen Shot 2017-10-04 at 11.51.39 AM

I’ve annotated the slide in red to show the portion on PennEast.

According to Enerplus’s internal projections, they think at best PennEast is going to be delayed all the way back into the second quarter of 2019. Note that this is not PennEast’s estimate, but Enerplus’ own internal estimate based on their knowledge of the project and permitting headwinds.

This is of course good news for PennEast opponents, and is another in a very long string of delays.  Remember, according to PennEast’s original timelines, they would already be in service right now!  And now we are seeing it being pushed out yet again.

It Was the Best of Times, It Was the Worst of Times…..

The Trump Administration has thrown many government agencies and long standing patterns and practices into utter chaos, and we live now in a time of great uncertainty.  I think this fact itself is uncontroversial, and can be acknowledged whether you support or dislike the current President.

On the environment, we know the Administration thinks environmental regulation is holding the country back, and that it inhibits corporate growth.  As a result, we see the leader of the EPA blatantly trying to destroy his own agency from within, and dismantle decades of environmental law and regulation.  Some of you may cheer this, others recoil in horror, but the end result is chaos and uncertainty.  There is no perfect counter this, but at the same time there has been no “clean kill” of environmental laws either.  It’s a snarling cloud of a knife fight, where everybody loses.

There is a heavy push to accelerate fossil fuel exploitation from “fast” to “ludicrous speed”, including a head-shaking attempt to revive the coal industry of all things.  Attempts to revive coal have many industry experts shaking their head, and is putting question marks on many plans (like around natural gas, which has been perceived as a slam-dunk for some time now).

Other departments like the State Department is facing even bigger issues, such as 40% of slots laying unfilled within the agency.

And then there’s Health Care – no, I won’t go there, but let’s just put in a mention as another destabilizing effect.

So as I said, there is a lot of uncertainty, confusion, and not a little panic in many areas.

At the same time, many of these Administration policy goals are being clumsily stated, and even more clumsily executed.    FERC is a prime example.  While the Trump Administration has pushed infrastructure and fossil fuel industries as keys to job growth and America’s overall success, his administration’s own incompetence ended up taking FERC from a pipeline-approving machine to being an utterly impotent agency with no quorum and no ability to advance fossil fuel interests like natural gas pipelines.  The result was six months of no FERC quorum, six months of projects piling up a mile high within the FERC offices.

Again, this should not be controversial to anyone, pro- or anti- Trump.

Months later, the quorum has been restored, but even that was done in a ham-handed way.  Seats were filled, but the to-be Chairman wasn’t one of them (he’s still in the queue), and the current Chair has been put into a holding pattern.  As a result of this confusion, FERC’s first open meeting on September 20th contained no major items, only cursory decisions of little import.  The commissioners barely went through the motions before adjourning, accomplishing bupkis for the past month.

And while this has been going on, States have not been sitting still, and neither have the courts.  Even FERC has managed to get some punches in of their own.  Here are some of the key decisions and actions that have happened in the past several months around natural gas pipelines and environmental law.

Important Energy and Environmental Actions in the Past Few Months

FERC found to have inadequate analysis of Green House Gas emissions resulting from pipeline build out

In the U.S. Court of Appeals for Washington, DC recently found FERC’s Final Environmental Impact Statement (FEIS) for the Southeast Market Pipelines Project to be inadequate, stating “We agree that FERC’s environmental impact statement did not contain enough information on the greenhouse-gas emissions that will result from burning the gas that the pipelines will carry…We thus grant Sierra Club’s petition for review and remand for preparation of a conforming environmental impact statement.”

https://www.cadc.uscourts.gov/internet/opinions.nsf/2747D72C97BE12E285258184004D1D5F/$file/16-1329-1689670.pdf

NY DEC denies Clean Water Act permit for pipeline, FERC overrules it saying decision came too late

In this case, a pipeline company got a FERC Certificate, applied for a 401 CWA permit to NY State DEC, and then the DEC issued several notices that the application was incomplete.  Ultimately, NYDEC denied the 401 permit, but it did so several months beyond the CWA 1-year deadline.  There was disagreement here on when the 1 year “clock” begins, complicated by the incomplete application.  The lesson here, at least to me, is that states should simply deny incomplete applications, rather than risking exceeding the CWA regulatory clock and losing their power entirely.

http://www.utilitydive.com/news/ferc-overrules-new-york-permit-denial-for-millennium-gas-pipeline/505099/

NYDEC Denial of Constitution Pipeline CWA Permit Upheld by Second Circuit Court

On the flip side, the Second Circuit upheld NYDEC’s denial of the Constitution Pipeline’s CWA permit (which was done in under a year).

https://www.pipelinelaw.com/2017/08/31/second-circuit-upholds-state-veto-constitution-pipeline-project-via-denial-water-quality-certification/

NJDEP Denies PennEast Pipeline CWA permit due to incomplete application

Our own DEP in NJ has followed NYDEC’s example, and denied the PennEast pipeline it’s CWA application on the grounds that the application was exceptionally incomplete. If PennEast receives a Certificate of Public Convenience and Necessity from FERC, it is widely expected that PennEast will then reapply for its CWA 401 and 404 permits once it gets eminent domain and survey access to properties that have denied them so far to date (which includes the vast majority of properties in NJ, something in excess of 65%).

http://www.nj.com/mercer/index.ssf/2017/06/nj_dep_denies_permits_needed_for_penneast_pipeline.html

West Virginia revokes CWA 401 permit in wake of Hurricanes Harvey and Irma

In a surprise move, in early September, 2017, West Virginia changed their mind and withdrew their CWA certificate fo rthe Moutain Valley Pipeline. The withdrawal was done in a very terse two sentence letter from the West Virginia DEP “This is to advise you that the West Virginia [DEP]…hereby vacates and remands the Section 401 Water Quality Certification issued on March 23, 2017, relating to the Mountain Valley Pipeline to construct a natural gas pipeline in West Virginia”.  No reason was given for vacating the decision, though many suspect Hurricanes Harvey and Irma’s unprecedented size and damage may have played a role in the decision.

http://www.huffingtonpost.com/entry/pipelines-bombshell-west-virginia-revokes-approval_us_59bb2c3ae4b06b71800c380c

http://www.documentcloud.org/documents/3989670-DEP-MVP-Vacate-Letter.html

Trump Wants to Reverse Clean Water Rule

Not directly on point, but strongly related, Trump has issued executive orders about weakening Environmental protections, and the head of the EPA is now examining getting rid of regulations such as the Clean Water Rule.  This is not quite the same as the CWA 401 and 404 sections, but it shows the danger environmental regulations are in in the Trump era.

http://www.sightline.org/2017/09/20/trumps-epa-wants-to-reverse-clean-water-protections/

Republicans pass bill to streamline Natural Gas Pipeline Permitting and Change cross-border permitting

In July, the Republican-lead congress voted 248-179 to pass a bill giving FERC more authority over natural gas pipelines.  In a nutshell, this bill allows FERC to put its own arbitrary deadlines on other agencies for pipeline-related permits.  If those agencies are late, the permit is issued automatically. This is a transparent attempt by the fossil fuel industry to make it cheaper and easier to get pipeline permits, and to give them much more certainty that their applications will succeed, while ignoring legitimate concerns of climate and other impacts.

https://www.congress.gov/congressional-report/115th-congress/house-report/223/1

http://thehill.com/policy/energy-environment/342793-house-votes-to-streamline-pipeline-reviews

Delaware River Basin Commission considering permanent Fracking Ban in Delaware Watershed.

For many years, there has been a de-facto fracking ban around the Delaware.  Not explicit, there simply has been no rule enforced by the DRBC, but the net result is that without a rule about fracking, fracking has not been allowed.  That could be codified into DRBC regulations soon though, as the DRBC is now officially considering to draft regulations to ban fracking in our water shed.  While not directly impacting pipelines like PennEast, it sends a clear message that fracking is harmful to water resources, and adds impetus to anti-fracking causes.  This matters to PennEast, because PennEast is being sourced entirely from fracked gas from wells in PA.

https://stateimpact.npr.org/pennsylvania/2017/09/07/ap-drbc-planning-to-propose-permanent-fracking-ban/

Conclusion

The gist of all this is to point out that we’re in a roiled, chaotic mish-mash of a political climate, and that this is a time of great confusion and also great change.  We need people to be aware of it, and guard against “the other side” sneaking stuff in, while at the same time “our side” should be alert for opportunities for US to make unexpected pushes and get wins that the other side never anticipated.  This is a time when “norms” no longer exist, and you can’t rely on old patterns of behavior to guide you through treacherous waters.  This is both good and bad.

When looking at complex and controversial projects like Penn East, we can no longer take the same-old, same-old approach to resistance.  “The States” and agencies like the NJ DEP have power today, but that power could vanish with remarkable speed if we are not careful.

We can’t assume the Clean Water Act will save us in perpetuity, because the EPA and the CWA are under attack and may cease to exist at some time in the near future.  At the same time, FERC is not omnipotent, and has weak points, as recent court decisions against it have demonstrated.  FERC can be beaten, and the rules can be changed.  The NJDEP was seen for years as pro-pipeline, pro-industry.  But in 2016-2017 there seems to have been a sea-change in the agency, culminating with the NJDEP rejection of PennEast’s CWA application.  And that swing may continue assuming NJ elects a Democratic Governor in November.

Related to that election, the DRBC’s composition would also change if a Democrat wins the NJ Governorship, and they are already moving to be more aggressive against the fossil fuel industry.

I know when Trump was elected President, many environmentalists despaired, and the fossil fuel industry cheered.  But things are not always as they seem, and there is no certainty on either side anymore.  The Trump Administration has sent mixed-signals to many industries, and totally botched up the government on many levels, with a result that the Federal Government is now tripping over its feet more often than not.  So despite his pro-fossil fuel ideas, we have not seen the total dismantling of regulation that everyone feared.  At least not yet.

At the same time, we see States and other agencies waking and reacting against the new Administration.  We see more state DEP and related agencies standing up and wading in where they fear the Feds are stepping away.  But they are using fundamental powers, such as the CWA, which are in jeopardy.

Then there are Congresscritters trying to hamstring environmental agencies, by allowing FERC to force them to arbitrary and short permit deadlines.

This is a time of great danger, and of great hope.  In volatile times, you can lose your shirt for sure, but there are also once-in-a-lifetime opportunities lurking in the most unlikely of places.  For those who despaired at Trump’s Election, take hope.  Out of this chaos there are still many chances for us to defeat the PennEast Pipeline.

And remember, in troubled times help sometimes comes from the most unlikely of places.  Keep the faith people, and keep that hope alive and well.

Market reacts to NJDEP news, look at that NJ Resources stock graph

As everyone knows by now, on Wednesday the NJDEP rejected PennEast’s 401/404 water quality and wetland permits as being incomplete, and through out their request for an extension for good measure.

The markets noticed, particular those trading around beleaguered New Jersey Resources.  Here’s the Wednesday trading day graph for NJR:

Screen Shot 2017-06-30 at 4.12.25 PM

The stock peaked intra-day at 41.95 as shown in the graph above.

Around 12:00pm, Politico reported that NJDEP had rejected the PennEast application.  You can see the quick downward slide leading from exactly that point.

The close was at 40, by the end of the week it was down to 39.75.

That’s a loss of almost 5% of value in a few hours and nearly 6% for the week.

About $140 million in market cap was shaved off the company.

NJDEP rejecting the PennEast application is what they call a negative surprise and markets don’t like those.  And it looks like the market doesn’t believe Pat Kornick “this was all expected” excuse.