KRC seeks rehearing of FERC approval of Kinder-Morgan's Pipeline "Abandonment."

UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION

Tennessee Gas Pipeline Company, L.L.C. Docket Nos. CP15-88-000
CP15-88-001

REQUEST FOR REHEARING AND MOTION FOR STAY OF ORDER APPROVING
ABANDONMENT, ISSUING CERTIFICATE, AND DENYING REHEARING

Pursuant to section 19(a) of the Natural Gas Act (?NGA”), 15 U.S.C. §717r(a) and Rule 713 of the Federal Regulatory Energy Commission’s (“FERC”) Rules of Practice and Procedure, 18 C.F.R. § 385.713, the Allegheny Defense Project (Allegheny); Kentucky Heartwood, Inc. and the Kentucky Resources Council, Inc.; (collectively, “Intervenors”) hereby request rehearing of
FERC’s Order Approving Abandonment, Issuing Certificate, and Denying Rehearing (“Certificate Order”), issued on September 29, 2017 in the above-captioned proceeding.

On February 13, 2015, Tennessee Gas Pipeline Company, L.L.C. (“Tennessee Gas”) filed an application under sections 7(b) and (c) of the Natural Gas Act (NGA)2 and Part 157 of the Commission’s regulations3 for authorization to (1) abandon by sale to its affiliate, Utica Marcellus Texas Pipeline LLC (UMTP), approximately 964 miles of pipeline facilities in Louisiana, Arkansas, Mississippi, Tennessee, Kentucky, and Ohio; and (2) construct and operate pipeline and compression facilities in Ohio and Kentucky to enable Tennessee to continue to provide firm transportation service to its existing customers following the proposed abandonment. On September 29, 2017, as discussed below, the Commission granted the requested authorizations for the Tennessee Abandonment and Capacity Restoration Project (ACRP), subject to certain conditions. See: Tennessee Gas Pipeline Company, L.L.C., 160 FERC ¶ 61,144 (September 29, 2017). FERC granted the Intervenors’ respective motions to intervene
in this proceeding. See Id. at pp. 6-7. Thus, the Intervenors are “parties” to this proceeding, 18 C.F.R. § 385.214(c), and have standing to file this request for rehearing. See 15 U.S.C. § 717r(a); 18 C.F.R. § 385.713(b).

Movants respectfully request that the Certificate Order and deficient final environmental assessment (“EA”) be withdrawn and the environmental analysis and public convenience and necessity analysis be redone in a manner that complies with FERC’s obligations pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Natural Gas Act
(“NGA”), 15 U.S.C. § 717 et seq. All communications regarding this request should be addressed to and served upon:

Ryan Talbott
Executive Director
Allegheny Defense Project
117 West Wood Lane
Kane, PA 16735
(503) 329-9162
rtalbott@alleghenydefense.org

I. STATEMENT OF ISSUES

Pursuant to Section 713(c) of FERC’s Rules of Practice and Procedure, Intervenors provide a statement of issues and alleged errors in the Certificate Order:

1. The Commission improperly segmented and limited its review of the impacts of the conversion, after abandonment of the pipeline, to the transportation of NGLs, thus dodging a complete, rigorous environmental study of the total project impacts under the
NEPA. “Under applicable NEPA regulations, FERC is required to include ‘connected actions,’ ‘cumulative actions,’ and ‘similar actions’ in a project EA. ‘Connected actions’ include actions that are ‘interdependent parts of a larger action and dependent on the
larger action for their justification.’” Cf: Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1308 (D.C. Cir. 2014) (citing 40 C.F.R. § 1508.25(a)) (holding that since there was a “clear physical, functional, and temporal nexus between the projects,” they should have been considered together under NEPA).

2. In segmenting its analysis, the Commission failed to work with the Army Corps of Engineers, and other federal, state, and local agencies, as joint lead agencies for the ACRP and UMTP Project. See 40 C.F.R. §§ 1501.5(a)(2); 1501.5(b).

3. The Commission violated NEPA by failing to take a hard look at the direct and indirect effects of the ACRP and the related announced action of repurposing the “abandoned” pipeline for the UMTP, despite the pervasive degree of federal involvement in the projects being sufficient to “federalize” both the abandonment in place and the repurposing of the pipeline for NGL service.

4. The Commission violated NEPA by failing to proper consider the controversial nature of a proposed conversion of this particular 70+ year-old natural gas pipeline to use in transporting natural gas liquids. Instead, the Commission “assumed” that the repurposed
facilities would have to be able to comply with the requirements of the Pipeline and Hazardous Materials Safety Administration (PHMSA), ignoring that neither PHMSA nor any federal agency except the Commission would be in a position to seek assurances in
advance of conversion and use, as to how those obligations would be met in this instance.

Conversion of this pipeline, reversal of flow, and product change, are all matters of controversy justifying a “hard look” that the Commission avoided through its conclusion that the approval of the abandonment and the subsequent, announced, repurposing, were
somehow “independent” and unconnected.

II. BACKGROUND AND SUMMARY OF ARGUMENT FOR REHEARING

The draft Environmental Assessment is inadequate in scope for failure to consider the direct effect of implementation of the alternative allowing abandonment-in-place, and the related action
of repurposing the pipeline once approval of abandonment-in-place occurs. NEPA, the CEQ regulations, and the Commission’s own policies, demand that a comprehensive Environmental Impact Statement be developed addressing the request of Tennessee Gas Pipeline Company, LLC under Sections 7(b) and (c) of the Natural Gas Act to abandon in place and the intended repurposing and operation of the pipeline for transportation of natural gas liquids (including pipeline flow reversal and product change). The Certificate Order should be withdrawn and pending development of an Environmental Impact Statement that analyzes the entire scope of the actions intended by the applicant, i.e. securing approval to abandon-in-place with the avowed purpose of “repurposing” the pipeline for transportation of natural gas liquids from the Marcellus and Utica shale plays to the Gulf Coast.

An Environmental Impact Statement is required in this instance, and must consider the full range of direct, indirect, and cumulative actions and effects of the abandonment and of the
repurposing and operation of the “abandoned” line for transportation of natural gas liquids. The nominal proposal before the Federal Energy Regulatory Commission (“FERC” or “Commission”) is the proposal by Tennessee Gas Pipeline Company, LLC to abandon in-place one of its multiple-looped parallel pipelines that comprise approximately 964 miles of mainline pipeline facilities between Natchitoches Parish, Louisiana and Columbiana County, Ohio. Yet as the public notice published in the March 6, 2015 Federal Register, 80 F.R. 12167-8, the April 28, 2015 Federal Register notice, and the draft Environmental Assessment all acknowledge, the Commission is fully aware that the abandonment of the Tennessee Gas pipeline as a natural gas pipeline is but the first step in and an integral component of a larger project involving the “repurposing” or “conversion to service” of the abandoned Tennessee Gas Pipeline as a natural gas liquids pipeline, and that the abandonment has no utility to the applicant independent of the intended repurposing. The March 6, 2015 Notice of Application reflects this understanding where it notes that:

"Specifically, Tennessee requests authorization to abandon one of its multiple looped parallel pipelines that comprise approximately 964 miles of mainline pipeline facilities between Natchitoches Parish, Louisiana, and Columbiana County, Ohio (Abandoned Line) by sale to Utica Marcellus Texas Pipeline LLC (UMTP), its affiliate, UMTP intends to use this pipeline, in part, for conversion
to natural gas liquids service."

80 FR 12167 (March 6, 2015).

Similarly, the April 28, 2015 Federal Register notice announcing the opening of a comment period on the scope of environmental documentation under NEPA noted that:

"Following the abandonment of Tennessee’s pipeline facilities, if the Commission approves the Project, Tennessee indicates that it would complete necessary work to disconnect and transfer the Abandoned Line and associated facilities to Utica Marcellus Texas Pipeline, LLC (UMTP) who would convert the Abandoned Line
to natural gas liquids (NGL) products transportation service (UMTP Project). These activities involving future use of the Abandoned Line are not under the FERC’s jurisdiction, and therefore, are not subject to the FERC’s review procedures. In the EA, we will provide available descriptions of the future use and non-jurisdictional activities, including the UMTP Project, and discuss them in our analysis of cumulative impacts."

80 FR 23531 (April 28, 2015).

FERC approval of this abandonment request is the linchpin of the UMTP Pipeline project, without which none of the health, safety, and environmental consequences associated with the change of product, change of flow, and conversion to service as a NGL pipeline can occur and the involvement of FERC in the approval of the application to abandon in place the pipeline is sufficient to “federalize” the project under the Council on Environmental Quality’s regulations and applicable case law. And as reflected in the numerous comments received and the literature, the concerns with the repurposing of the pipeline for NGL service are neither speculative or trivial.

Throughout the Certificate Order, the Commission vainly attempts to create a “bright line” between the extent of its jurisdiction over the pipeline as a natural gas pipeline under the Natural
Gas Act, and the subsequent use of the pipeline once abandoned, for NGL transport. Exemplary of this is the Commission statement in Numerical Paragraph 66 (hereafter “Num. Para.”) of the
Certificate Order:

"66. Commenters contest this, insisting significant adverse impacts would result from our approval of Tennessee’s proposal. However, the potentially significant impacts commenters identify are associated primarily with UMTP’s activities, not Tennessee’s.
Our approval of Tennessee’s retirement of pipeline facilities from natural gas service, and abandonment by sale to UMTP, provides no authorization for UMTP to use the pipeline facilities for NGLs service. Because we have no jurisdiction over whether or not UMTP
can use Tennessee’s abandoned pipeline to transport NGLs, and because the project before us is independent of the UMTP Project, we will not undertake an EIS to assess UMTP Project impacts as if they were part of the ACRP."

This attempt to compartmentalize the approval of the abandonment-in-place with the already-announced repurposing, infects the analysis of land, air, and water impacts, as is reflected in
Num. Para. 67 immediately following.

The Commission decision to avoid in-depth evaluation of the impacts of the repurposing of the existing pipeline and use of the 70+ -year old pipeline as for transportation of natural gas
liquids under pressure is inconsistent with the scope of review dictated by NEPA. The scope of environmental analysis must include a thorough evaluation of the environmental impacts associated with the abandonment and all of the environmental impacts associated with those facilities that will be constructed or reconstructed in order to convert the existing natural gas pipeline to a pipeline for the transporting of natural gas liquids, and of the repurposing and operation of the pipeline for transportation of undifferentiated natural gas liquids.

The Commission is obligated to include all of these activities in the environmental analysis mandated under the National Environmental Policy Act, because these effects are directly related to and “flow from” the proposed agency action (i.e. approval of abandonment of the Tennessee Gas Pipeline) and because the degree of federal involvement is sufficient to “federalize” the nonfederal project, since none of the effects would occur but for the Commission approval of the pipeline abandonment. Whether viewed as a “connected action” within the meaning of 40 C.F.R. 1508.25 (since the repurposing of the pipeline for transportation of natural gas liquids cannot proceed unless FERC approves abandonment in place, and because the abandonment is part of a larger action and depends on that larger action for its justification); or as a “cumulative” action and effect, the repurposing and continued use as a natural gas liquids pipeline is entirely dependent on the FERC approval of abandonment in place, and thus must be evaluated under NEPA. Under applicable NEPA regulations, FERC is required to include “connected actions,”
“cumulative actions,” and “similar actions” in a project EA. 40 C.F.R. § 1508.25(a). As was the case in Delaware Riverkeeper Network, et al. v. Federal Energy Regulatory Commission, et al.,
753 F.3d 1304 (D.C. Cir. 2014), the abandonment in place and repurposing are connected actions that must be evaluated together in order to satisfy NEPA obligations.

In response to the comments received by Intervenor Kentucky Resources Council, Inc. providing case law regarding the degree of federal involvement being sufficient to federalize the connected ACRP and UMTP projects for purposes of environmental analysis, the Commission notes in passing in footnote 173, with no support either in statute, regulations, or case law, that “they disagree” because the projects are independent of each other:

"Kentucky Resources Council and Tom FitzGerald argue our abandonment approval is sufficient to “federalize” the UMTP Project, thereby obliging us to consider the impacts of the UMTP Project in our environmental review of the ACRP. We disagree, given that the ACRP is independent of the UMTP Project and that we will have no role in determining if the UMTP Project goes forward. The UMTP Project will require its own federal approvals, and the whether these approvals will federalize the UMTP Project, and
thereby subject it to NEPA review, will be determined by the agencies responsible for issuing the federal approvals."

Inasmuch as the second and related UMTP project (a) cannot occur absent approval of the abandonment in place of the Tennessee Gas Pipeline, and (b) is the announced and acknowledged basis for Tennessee Gas seeking abandonment approval and proposing the
measures intended to maintain service levels while freeing the “abandoned” pipeline for NGL transportation under the UMTP, the projects are integrally related and not “independent,” and the
entire scope of the impacts of both the abandonment and the repurposing and use are required to be assessed. The Commission should rehear these issues and withdraw the Certificate pending
proper compliance with NEPA.

The Commission’s efforts to facilitate Tennessee’s repurposing of this natural gas line while limiting its scope of environmental review is precisely why Justice Douglas cautioned that federal agencies “are notoriously under the control of the powerful interest who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity
with the agency which in time develops between the regulator and the regulated.” Sierra Club v. Morton, 405 U.S. 727, 745-46 (1972) (Douglas, J., dissenting). Just as Justice Douglas used the
example of the former Interstate Commerce Commission being overly sympathetic “to take the business and railroad view of things[,]” so too is the Federal Energy Regulatory Commission overly sympathetic “to take the business and [natural gas] view of things.” Id. at 747 (quoting M. Josephson, The Politicos 526 (1938)). As the shale gas and pipeline construction boom have
played out in the Marcellus and Utica shale formation over the last decade, there is no doubt that the Commission “is unduly oriented toward the interests of the industry it is designed to regulate, rather than the public interest it is designed to protect.” Id. (quoting Moss v. CAB, 430 F.2d 891, 893 (D.C. Cir. 1970)).

III. THE ACRP AND UMTP PROJECT ARE CONNECTED, CUMULATIVE, AND
SIMILAR ACTIONS THAT SHOULD HAVE BEEN COMPREHENSIVELY REVIEWED IN AN EIS WITH THE ARMY CORPS OF ENGINEERS AND OTHER FEDERAL, STATE, AND LOCAL AGENCIES.

FERC’s scope of review in an environmental analysis should encompass connected, cumulative, and similar actions. See 40 C.F.R. § 1508.25(a); Del. Riverkeeper, 753 F.3d at 1308.
Actions are connected if they automatically trigger other actions which may require an EIS, cannot or will not proceed unless other actions are taken previously or simultaneously, or are
interdependent parts of a larger action and depend on the larger action for their justification. Id. at § 1508.25(a)(1). “[A]n agency must discuss ‘[c]onnected actions’ – that is, ‘closely related’ actions – ‘in the same impact statement.’” Nevada v. Dep’t of Energy, 457 F.3d 78, 91 n 8 (D.C.Cir. 2006). Cumulative actions are those actions that, when viewed with other proposed actions, have cumulatively significant impacts and should therefore be discussed in the same EIS. Id. at § 1508.25(a)(2). Similar actions are those actions that, when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their
environmental consequences together, such as common timing or geography. Id. at §1508.25(a)(3). An agency should analyze similar actions in the same EIS when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single EIS. Id. Importantly, “significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.” 40 C.F.R. §
1508.27(b)(7).

“An agency impermissibly ‘segments’ NEPA review when it divides connected, cumulative, or similar federal actions into separate projects and thereby fails to address the true scope and impact of the activities that should be under consideration.” Del. Riverkeeper, 753 F.3d at 1313. In Delaware Riverkeeper, the court held that FERC improperly segmented four pipeline looping projects located along Tennessee’s 300 Line. Id. at 1304. The court stated that the four projects were “indisputably related and significantly ‘connected’” to each other. Id. at 1314. The court held that there were no logical termini for the projects and that they had no substantial independent utility because they were “inextricably intertwined.” Id. at 1315-17.

The court further emphasized the importance of the timing of the four projects, noting that they were “reviewed separately by FERC, approved, and then constructed in rapid succession between 2010 and 2013.” Id. at 1308, 1317-18. Instead of bringing its NEPA review policies into conformity with the court’s decision in
Delaware Riverkeeper, FERC continues to review connected, cumulative, and similar pipeline expansion projects independently, as though Delaware Riverkeeper was never decided. The same company (Tennessee) has proposed the ACRP and an affiliate is proposing to utilize the infrastructure abandoned in that project for the UMTP. Instead of addressing “the true scope and impact of the activities that should be under consideration,” as required by the D.C. Circuit Court of Appeals, FERC impermissibly segmented its NEPA review. Del. Riverkeeper, 753 F.3d 1313.

Therefore, FERC should rescind its issuance of the FONSI and Certificate and review the direct, indirect, and cumulative effects of the ACRP and UMTP Projects in a single, comprehensive
environmental analysis.

The ACRP and UMTP Projects are connected actions that must be
considered in a single environmental analysis. FERC should have considered the ACRP and UMTP Projects in the same environmental
analysis because they are connected actions. 40 C.F.R. §1508.25(a)(1). The two projects are connected because they are closely related and are interdependent parts of a larger action, namely, to increase the capacity of the 300 Line to transport shale gas. See 40 C.F.R. § 1508.25(a)(1)(iii). Moreover, the timing of the projects strongly indicates their connectedness. Id. at 1317-18. FERC does not deny that the ACRP and UMTP Projects are closely related connected actions. FERC even admits that its “authorization of Tennessee’s ACRP may be characterized as
a prerequisite to the UMTP Project[.]” Num. Para. 113. Yet FERC claims that because its “jurisdiction ends” with the authorization of the ACRP, that it “cannot be viewed as segmenting a larger action[.]” Id. Such an assertion is without merit. NEPA regulations require a lead agency to supervise preparation of environmental documents if more than one federal agency is “involved in a group of actions directly related to each other because of their functional interdependence or geographical proximity.” 40 C.F.R. §1501.5(a)(2). Where multiple federal, state, or local agencies are involved, they “may act as
joint lead agencies” in reviewing the project and preparing environmental documents. Id. §1501.5(b). Here, FERC acknowledges that Army Corps of Engineers will be “the lead federal
permitting agency . . . and would be responsible for soliciting and reviewing comments on” the UMTP Project. Num. Para. 78. See also Num. Para. 81 (“The Corps of Engineers and other federal and state agencies would be responsible for reviewing environmental impacts of the UMTP Project.”). FERC, the Corps of Engineers, and other federal and state agencies should have worked together as joint lead agencies in analyzing the ACRP and UMTP Projects comprehensively in a single EIS.4 FERC should, therefore, withdraw its FONSI and Certificate and prepare a draft EIS with the Corps of Engineers that considers the ACRP and UMTP Projects as connected actions. Only by considering connected projects in one environmental analysis can the federal government “address the true scope and impact of the activities that should be under consideration.” Del. Riverkeeper, 753 F.3d at 1313.

The ACRP and UMTP Projects are cumulative actions that must be
considered in a single environmental analysis. FERC should have considered the ACRP and UMTP Projects in the same environmental
analysis because they are cumulative actions. 40 C.F.R. § 1508.25(a)(2). Significance “cannot be avoided by terming an action temporary or by breaking it down into small component parts.” 40 C.F.R. § 1508.27(b)(7). “When several proposals . . . that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their
environmental consequences must be considered together.” Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976). “Only through comprehensive consideration of pending proposals can the agency evaluate different courses of action.” Id. There is a clear “potential to produce cumulatively significant impacts” if the Projects are
constructed. The repurposing of the gas line that can only occur with FERC’s abandonment.

FERC’s reliance on jurisdictional limitations has no legal basis and is belied by recent examples of other federal and state agencies addressing environmental impacts of projects in a
single EIS. See e.g., NorthMet Mining and Land Exchange Final Environmental Impact Statement, available at http://www.dnr.state.mn.us/input/environmentalreview/polymet/index.html.

FERC's authorization will result in construction of new pipeline in support of the repurposing and could substantially impact human life and property and sensitive wildlife habitat in the event of a leak or explosion. FERC should, therefore, withdraw its FONSI and Certificate and prepare a draft EIS with the Corps of Engineers that considers the ACRP and UMTP Projects as cumulative actions. That way, the federal government can “address the true scope and impact of the activities that should be under consideration.” Del. Riverkeeper, 753 F.3d at 1313.

The ACRP and UMTP Projects are similar actions that should be considered in a single environmental analysis. FERC should have considered the Projects in the same environmental analysis because
they are similar actions. 40 C.F.R. § 1508.25(a)(3). FERC admits that “portions of the UMTP Project will overlap geographically” with the ACRP. Num. Para. 141. However, FERC refused to consider the Projects as similar actions because the UMTP Project’s “timing remains uncertain[.]” Id. This misreads the similar action regulation to require that similar actions have both “common timing and common geography” when the regulation says “common timing or geography.” 40 C.F.R. § 1508.25(a)(3) (emphasis added). FERC never addresses why, after finding that the projects “will overlap geographically,” that they should not be reviewed in the
same NEPA analysis. Thus, FERC improperly read into 40 C.F.R. § 1508.25(a)(3) a requirement that multiple projects must share common timing and geography in order to be considered similar actions. No such requirement exists. Therefore, FERC should withdraw its FONSI and Certificate and prepare a draft EIS that with the Corps of Engineers that considers the ACRP and UMTP Projects as similar actions. That way, the federal government can
“address the true scope and impact of the activities that should be under consideration.” Del. Riverkeeper, 753 F.3d at 1313.

The requirement for undertaking an EIS arises under 42 U.S.C. 4332, which requires such analysis for every major federal action significantly affecting the quality of the human environment. The Council on Environmental Quality’s regulations define “major federal action” to include actions “with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. 1508.18. Such actions include “projects…entirely or partly…regulated, or approved by federal agencies[.]” 40 C.F.R. 1508.18(a).

While there are instances in which the degree of federal control or responsibility over an action contemplated by a nonfederal entity may be so limited or marginal as to allow the agency
to limit NEPA review to those consequences flowing directly from the requested federal action, such is not the case in this instance. The extent of federal agency involvement by the FERC in
the decision to allow a jurisdictional natural gas pipeline to be abandoned in order to facilitate the UMTP Project, is such that the environmental consequences of the combined and related
ACRP and UMTP Projects must be evaluated by the FERC and other agencies with jurisdiction as joint lead agencies. The FERC’s approval of the abandonment request is pivotal to the proposal to convert existing pipeline segments for the transportation of natural gas liquids. The degree of federal participation is sufficient to make the project a “major federal action” for purposes of NEPA analysis given that the FERC approval will enable the project to be undertaken. See e.g., Scientists’ Institute for Public Information Inc. v. AEC, 481 F.2d 1079 (D.C. Cir. 1973); City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975). As noted by the Court of Appeals for the Sixth Circuit in the case of Williamson County Community Association Inc. v. Slater, 243 F.3d 270 (6th Cir. 2001):

'There are two alternative bases for finding that a non-federal project constitutes a “major Federal action” such that NEPA requirements apply: (1) when the non federal project restricts or limits the statutorily prescribed federal decisionmakers’
choice of reasonable alternatives; or (2) when the federal decisionmakers have authority to exercise sufficient control or responsibility over the nonfederal project so as to influence the outcome of the project. If either test is satisfied, the non-federal project must be considered a major federal action.'

Id. at 281.

In this instance, the FERC’s degree of control and responsibility over the outcome of the project is not incidental but is absolute, inasmuch as a decision approving the abandonment of the pipeline in place will set in motion a series of activities involving both new pipeline construction in Kentucky to restore lost capacity from the “abandoned” line and the reworking of the existing pipeline and associated facilities that would not otherwise ensue. Likewise, a decision disapproving the abandonment or requiring abandonment and removal of the abandoned pipe would certainly influence the outcome of the project, since as proposed, the project proponents rely on the ability to abandon and repurpose the pipeline as integral to the project, and without that approval, the UMTP will not go forward and all of the potential adverse health and environmental quality impacts would be avoided. Moreover, as stated above, the CEQ regulations contemplate situations where multiple federal, state, and local agencies coordinate their review of interrelated projects. See 40 C.F.R. §§ 1501.5.

Both the Council on Environmental Quality regulations and applicable case law require that the full range of impacts associated with the entire ACRP and UMTP Project be assessed, and
the range of alternatives and mitigation explored in the environmental document (40 CFR 1508.10). The Commission should withdraw the Certificate Order and to move immediately to
notice and commencement of scoping for a comprehensive draft EIS.

IV. THE CONTROVERSIAL NATURE OF THE PROPOSED ABANDONMENT AND REPURPOSING, CHANGE IN PRODUCT, AND FLOW REVERSAL OF THIS PARTICULAR PIPELINE, DEMANDS THOROUGH REVIEW IN AN EIS

In comments submitted on the draft EA, KRC noted that it was unaware of any prior project that has proposed to “repurpose” a pipeline of this age and prior use, for transportation of natural
gas liquids. KRC noted that the Guidance for Pipeline Flow Reversals, Product Changes, and Conversion to Service issued by the U.S. Department of Transportation’s Pipeline and Hazardous
Materials Safety Administration in September 2014, recognized that the reversal of flows, change of products, and conversion of natural gas pipelines to NGL service, present unique safety risks that must be carefully assessed. KRC argued that absent FERC assessment of these potential impacts and effects of its’ decision to approve abandonment in place and the conversion of the pipeline that such abandonment will facilitate, there will be no advance public or official scrutiny of whether the considerations outlined in that Guidance have been adequately evaluated by Tennessee Gas or the acquiring company. KRC argued that the proposed repurposing is “controversial,” within the meaning of the CEQ regulations, since it is unprecedented and presents numerous engineering, operational, and emergency response challenges.

The Commission response downplays and sidesteps these important safety and environmental concerns, noting in Num. Para. 81 that such conversions are not unusual. Once again hiding behind the supposed “independent” nature of the abandonment approval and the plainly foreseeable announced conversion, change in product, and flow reversal, the Commission notes that:

"We reiterate: our jurisdiction over the subject pipeline ends once it is abandoned in accord with the conditions we specify herein. If the abandoned pipeline is later repurposed to transport anything other than natural gas in interstate commerce, the
Commission will play no role in that resurrection. The Corps of Engineers and other federal and state agencies would be responsible for reviewing environmental impacts of the UMTP Project, and UMTP would be responsible for complying with DOT’s
Minimum Federal Safety Standards to ensure that the facilities may be safely returned to service to carry NGLs. Although we would play no part in this review process, in response to comments, we observe that pipelines of a similar vintage continue to be used
for the safe transport of various products, as it is not age per se, but the condition of a pipeline that determines whether it remains fit for service. We clarify that whether an easement obtained to install, operate, and maintain a pipeline to transport natural gas would terminate if the pipeline ceased to transport gas would depend upon the terms of the easement itself. We note that modifying pipelines to be able to flow gas bidirectionally is a commonplace alteration. Less common, but not unusual, is the
conversion of a pipeline to carry another commodity. Thus, there is nothing unprecedented in the ACRP and UMTP Project proposals."

Certificate Order, Num. Para. 81.

Reliance on the Corps of Engineers to conduct the comprehensive environmental review that NEPA demands of the Commission is disingenuous, since the Commission must be fully aware that through Nationwide Permits, the applicant might avoid project-specific environmental review by the Corps, and further that the jurisdiction of the Corps under the Clean Water Act is constrained to waters of the United States.

The Commission completely failed to address the concerns raised regarding this particular “vintage” of pipeline; instead noting that other pipelines have been modified to flow gas bidirectionally and have occasionally been converted to “carry another commodity.” Yet in the same breath, the Commission acknowledges that the condition of a pipeline determines whether it is fit for service. In failing to conduct an assessment of that fitness, despite knowing both the intended use that the “abandonment in place” approval sets in motion and enables, and knowing further that PHMSA conducts no advance review of that fitness nor of compliance with its regulations, the Commission fails to give a “hard look” at what its approval will set in motion.

While the Commission may be aware of other projects that have reversed flow of gas, or have changed product, the unique risks presented here involve nor only one or the other, but a change
in product and in flow and in pressure gradients after conversion. The combination of these proposed activities deserved though assessment by the Commission, for as noted by PHMSA:

"Flow reversals, product changes and conversions to service may impact various aspects of a pipeline’s operation, maintenance, monitoring, integrity management, and emergency response. Pressure gradient, velocity, and the location, magnitude, and frequency of pressure surges and cycles may change. . . . increasing throughput may also impact the pressure profile and pressure transients. Certain product changes will warrant a material compatibility and corrosion susceptibility review…. Leak detection and monitoring systems may be affected."

Guidance for Pipeline Flow Reversals, Product Changes, and Conversion to Service, US DOT PHMSA, September 2014, at p. 2. (The Guidance is incorporated herein by reference as if fully set forth below, and FERC is requested on rehearing to evaluate each of the concerns identified in the Guidance as part of the assessment of this project under NEPA).

In the Guidance for Pipeline Flow Reversals, Product Changes, and Conversion to Service, PHMSA cautioned that:

"Certain high risk pipelines merit a greater level of due
diligence. While a new hydrostatic pressure test with a spike test is an important part of confirming the integrity of a pipeline, it may not be advisable to perform flow reversals, product changes, or conversion to service under the following conditions:

* Grandfathered pipelines that operate without a Part 1992, Subpart J pressure test; or where sufficient historical test or material strength records are not available;

* LF-ERW pipe, lap welded, unknown seam types, and with seam factors less than 1.0 as defined in [Sections] 192.113 and 195.106;

* Pipelines that have had a history of failures and leaks especially those due to SCC, internal/external corrosion, SSC, or manufacturing defects;

* Pipelines that operate above Part 192 design factors (above 72% SMYS); and

* Product change from unrefined products to highly volatile liquids."

Id., p. 4.

As reflected in An Analysis of 1940s Welded Gas Pipeline Quality by Charles S. Ferguson (May 19, 2015), which is filed with these comments and incorporated herein by reference, this particular vintage of pipeline falls squarely within those categories identified by PHMSA as being poor candidates for flow reversal, product change, and conversion to service – all of which are proposed once FERC approves abandonment in place, and none of which could occur if the Commission denied the request to abandon, or approved abandonment but required removal of the pipeline. The Commission cannot artificially wall itself off from the effects that will flow directly from the Certificate Order approving abandonment in place, and having proposed to do so, has violated the letter and spirit of NEPA, and done a grave disservice to the health and welfare of individuals and communities that will be placed in harm’s way due entirely by the approval of the requested abandonment-in-place.

Regardless of whether the intended repurposing of the pipeline for use in transporting natural gas liquids is not part of the criteria upon which the Commission will decide whether it is
consistent with the public interest to approve abandonment, or whether the future use and impacts of such use after abandonment is under the Commission’s jurisdiction, the scope of environmental analysis under NEPA cannot be compartmentalized or segmented in the manner that the Commission has done, looking only at the effects of the abandonment decision while ignoring the effects of the repurposing that is the raison de’ etre for the UMTP and is driving the request for abandonment. The abandonment is not merely a condition precedent to the UMTP and all of the potential adverse consequences associated with reuse of a pipeline of that type of
construction, welding, and age, but is the linchpin of the UMTP Project, and any effects that result flow directly from and would not occur but for the Commission’s approval of the abandonment. The Commission is not limited under NEPA to evaluation of those matters within its regulatory jurisdiction, but must assess the full range of foreseeable impacts that the decision will allow to occur. Rehearing is justified on this issue.

V. THE CERTIFICATE ORDER SHOULD BE REHEARD DUE TO THE
COMMISSION’S FAILURE TO EVALUATE ALL DIRECT, INDIRECT, AND
CUMULATIVE EFFECTS OF THE PROPOSED ACTION AND CONNECTED ACTION

The scope of the environmental documentation for the proposed ACRP and UMTP projects should have evaluated the impacts associated with the abandonment process, as well as the repurposing and operation of the pipeline as a natural gas liquids pipeline. Among the specific considerations that deserve particular attention but which the Commission failed to evaluate in any meaningful manner include:

(1) The risks posed to land and water resources, and in particular groundwater resources, from the conversion and operation of the pipeline as a natural gas liquids pipeline. The September, 2014, the U.S. Department of Transportation’s Pipeline and Hazardous
Materials Safety Administration Guidance for Pipeline Flow Reversals, Product Changes, and Conversion to Service, describes the potential system impacts from flow reversal, changes in product transported, and conversion to service, all of which are
proposed in this instance. For purposes of NEPA review, the full range of the considerations outlined in the Guidance should be evaluated, in order to determine the potential effects of the operation of the “abandoned” pipeline as a natural gas liquids
pipeline on human health, safety, and the environment. In scoping the EIS, the Guidance identifies the scope of safety considerations that should be evaluated.

(2) The potential impact on air, land, and water resources (including groundwater) of leaks and failures of pipeline integrity should be assessed. Contrary to the assumption of
the Bureau of Land Management’s Overland Pipeline EIS Risk Assessment, all natural gas liquids released from a pipeline leak or rupture do not volatilize. Instead, as is evident from the natural gas liquid pipeline leak that occurred in Parachute, Colorado between December and early January, 2013, some 20% of the natural gas liquids that were released can be expected to enter the soil and contaminate land and water resources. According to the Williams company, this is what happened at the Parachute Gas Plant in Colorado:

"Based on analysis of meter data, we concluded that a failed pressure gauge was the source of the hydrocarbon fluids we found in March near our Parachute Gas Plant in Colorado. The leak was
stopped on January 3, 2013, at 12:33 a.m. The gauge was part of a valve set on a 4-inch natural gas liquids pipeline that belongs to Williams Partners. Our evaluation of data from two flow meters on the 4-inch natural gas liquids pipeline showed that the pressure-gauge leak started on December 20, 2012. Based on our analysis that employed Environmental Protection Agency methodology regarding the evaporative properties of natural gas liquids, we estimated that about 80 percent of the leaked volumes vaporized before entering the soil. By the time the leak was stopped on January 3, 2013, the company estimates up to 241 barrels of natural gas liquids entered the soil at the valve location.” A news article reported that millions of gallons of groundwater were expected to need treatment, and that thousands of cubic yards of contaminated soil would be removed.

The possibility of and the effects of releases from the repurposed pipeline must be evaluated, including an assessment of the impacts on air, land, water, public health, and public safety associated with both catastrophic and non-catastrophic releases.

Pipeline transportation of natural gas liquids pose a different and additional set of environmental risks than natural gas, and those new risks must be evaluated for the entire length of the existing pipeline and for new construction associated with the repurposing.

(3) The limitations of detection and monitoring capability should be evaluated, in terms of alternatives to the use of the pipeline for transporting the NGLs, and in identifying mitigation measures that should be incorporated into the project. Given the limitations of current technology in detecting potential pipeline integrity problems, and the age of the pipeline proposed to be repurposed, the location of the pipeline relative to sensitive
human and environmental resources should be evaluated. As noted by Charles Ferguson in his comments, “a one-time pressure test (125% for liquids) would not necessarily find wall thinning or a weaker weld when backed by the ground. In soft ground areas or other
unprotected areas the pipe could fail by constantly having more pressure than it was designed for.”

(4) The particular vulnerabilities presented by the propose repurposing of pipe of this vintage must be scrutinized. As noted by Charles Ferguson, an Engineer (retired) with a degree in Metallurgical Engineering from the University of Cincinnati,

"The pipeline 100-1 was laid in the 1940s making it 70 plus years old. The weld seam in the plate formed into a pipe in the 1940s would be longitudinal welds or s ub-arc welds developed by National Tube Company. The welds are submerged in a welding flux powder which can get into the weld and/orcontaminate it. These welds and the coating of the pipe would be considered unacceptable in welded pipe construction today. The pipe would be subject to
thinning caused by exterior corrosion in the ground because of the coating. Additionally the interior wall could be embrittled by contaminants such as sulphur or hydrogen during the years of natural gas submission."

(5) The potential impact on both current and potential land uses of properties along the pipeline corridor must be evaluated. The conversion to service of a natural gas to a natural gas liquids pipeline presents qualitative and quantitative differences in the
potential for explosion, contamination of land and water resources, and risk of exposure to leaked product. The impact on current land uses, particular community facilities such as schools, churches, health care and retirement homes and other institutional buildings, as well as commercial, residential, and industrial land uses, must be assessed before a more hazardous use is made of a natural gas pipeline.

Each of these issues was presented to the Commission, and the Commission failed to address or meaningfully respond to the concerns, including the Ferguson expert report, and the potential for groundwater contamination. On rehearing, the EIS must evaluate these direct, indirect, and connected impacts.

VI. FERC’S ISSUANCE OF AN ORDER GRANTING REHEARING FOR FURTHER
CONSIDERATION WILL BE DEEMED A DENIAL OF INTERVENORS’ REQUEST FOR REHEARING

Under the NGA, unless FERC “acts upon” a request for rehearing “within thirty days after it is filed,” the request for rehearing “may be deemed to have been denied.” 15 U.S.C. §717r(a). Congress expressly defined the “acts” that FERC may take upon a request for rehearing – FERC “shall have power to grant or deny rehearing or to abrogate or modify its order without further hearing.” Id. If FERC does not take one of these enumerated actions upon a request for rehearing within 30 days, an aggrieved party may file a petition for review in the appropriate Court of Appeals. See 15 U.S.C. § 717r(b).

Instead of “act[ing] upon” a request for rehearing as Congress intended, FERC often issues an “order granting rehearing for further consideration,” commonly referred to as a “tolling
order.” Although tolling orders purportedly “grant” rehearing, no such rehearing is actually granted. Rather, tolling orders simply “afford [FERC] additional time” to consider requests for
rehearing beyond the statute’s 30-day time period. See e.g., National Fuel Gas Supply Corp., Order Granting Rehearing For Further Consideration (Docket No. CP14-70-000, Accession No.
20150416-3002). FERC’s use of tolling orders in NGA certificate proceedings has allowed project proponents to engage in extensive construction activities (and in some cases place facilities into service) before FERC addresses the issues raised in timely filed rehearing requests, thus effectively depriving parties of judicial review. See Ex. 2.

The issuance of a tolling order in response to Intervenors’ request for rehearing in this proceeding will be considered a denial of rehearing. Intervenors’ members will suffer irreparable
harm from implementation of the ACRP and UMTP. Intervenors must have an opportunity for judicial review of FERC’s Certificate Order in a timely manner, as Congress intended. Therefore, if FERC issues a tolling order in response to Intervenors’ request for rehearing, it will be deemed a denial of rehearing and intervenors will seek immediate review of the Certificate Order in the Court of Appeals.

VII. MOTION FOR STAY OF CERTIFICATE AND CONSTRUCTION PENDING
DECISION ON THE MERITS

The standard that the Commission uses for granting a stay is whether “justice so requires.” 5 U.S.C. § 705. Here, the interests of justice require that the Certificate and any potential construction be stayed pending the Commission’s decision on this request for rehearing. In addressing a motion for stay, the Commission considers “(1) whether the moving party will suffer irreparable injury without the stay; (2) whether issuing the stay will substantially harm other parties; and (3) whether the stay is in the public interest.” 98 FERC ¶ 61,086. Furthermore, “[t]he key element in the inquiry is irreparable injury to the moving party.” Id. Courts also take into account the availability of a legal remedy for the harm caused, as well as the likelihood of success on the merits.

Here, justice requires the granting of Intervenors’ request for a stay. Absent such a stay, Intervenors will be left without an adequate remedy at law to address the irreparable harms inflicted by the construction. In addition, the public will permanently lose important environmental resources. If Intervenors prevail on rehearing, or prevail on judicial review, they will have already suffered irreversible harms relating to construction if such activities are permitted to proceed, and the reviewing court would be unable to afford meaningful relief for the harms so inflicted. Thus, absent a stay by the Commission, meaningful judicial review could be hindered if not foreclosed.

A. A stay is necessary to avoid irreparable injury

Absent a stay, and if construction of the project is allowed to move forward, this will cause immediate and irreparable injury to Intervenors and their members, including harm to the public from the repurposing of 60-70-year old pipe for a new purpose for which it was not designed or constructed, as well as potential damage to land, air, and water resources from leakage or failures of the integrity of the pipeline and related facilities. These environmental harms, and subsequent harms to the recreational and aesthetic interests of Intervenors’ members, warrant the requested relief because they are imminent, certain, and irreparable. An injury is “irreparable” if damages are not adequate to compensate the injury. Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003); “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.” Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 545 (1987); see also Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 25 (D.D.C. 2009) (“[E]nvironmental and aesthetic injuries are irreparable.”)

I. The project impacts would cause irreparable injury

As set forth in the Certificate Order, the abandonment and repurposing of the pipeline in question will result in direct surface and subsurface impacts, and will alter the landscape as new compression capacity is developed, new pipeline is laid, and existing customers are disconnected from the line to be “abandoned” and are in turn connected to one of the other pipelines.

Beyond these physical impacts associated directly with the “abandonment” and “repurposing,” the flow reversal, product change, and conversion to use of the pipeline raises a distinct possibility of leakage and of catastrophic failure along the longitudinal weld or of a “guillotine” variety. As was the case in the 4” line leak at the Williams Company facility at Parachute Creek, which was referenced in Intervenor comments, the conversion of a natural gas to NGL pipeline presents new risks of adverse environmental impact not present when a natural gas pipeline leaks or otherwise loses integrity. Those risks include explosion of a more volatile array of hydrocarbons, as well as asphyxiation, and soil, surface water and groundwater contamination. To the extent that the failure of the Commission to consider carefully and to
analyze thoroughly these potential impacts associated with the approval and subsequent reuse of the pipeline in question, the risks are heightened and the resulting injury would be irreparable.

The first that anyone would know that the conversion, reversal of flow and product, of this pipeline was imprudent would be after-the-fact. A slight delay of construction for a proposed project that has no firm customers of which the Commission is aware, in order to allow fo reasoned assessment of these risks is, on balance, prudent and responsible.

2. Absent a Stay, Intervenors and Their Members Will Suffer Irreparable Injury.

Intervenors have members who live, work and recreate along the proposed pipeline route. Intervenors members’ have also been active in community meetings and protests against the abandonment and repurposing of the pipeline. Given the nature of this project as set forth in the deficient EA and in comments received onb the EA, Intervenors’ injury would be “likely” to occur. See, e.g., Moussa I. Kourouma d/b/a Quntum Energy, LLC, 137 FERC ¶ 61,205, 62,142 (Nov. 16, 2011); see also Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).

B. A stay will not substantially harm other parties.

The injury to Intervenors, the public, and the environment outweighs any harm that a stay may cause the applicants or the Commission. If Intervenors’ Request is granted, and the Certificate is revoked, applicants obviously could not possibly suffer any harm by a stay pending a final decision in this matter. And to the extent that Intervenors’ Request is granted, but
construction is merely delayed until applicants comply with all environmental laws and other Commission requirements, any injury from such delay would not be “damages” in a legal sense. Given that the Commission has acknowledged that no subscribers have committed to take capacity from the UMTP despite the “open season” for such commitments, there is no imminence regarding the need to commence construction, nor manifest harm if that construction
is delayed in order to assure proper consideration of and mitigation of potential adverse effects on the human and natural environment. Economic harm is not irreparable and does not provide an adequate basis for denying a stay. See e.g., Sampson v. Murray, 415 U.S. 61, 90 (1974) (potential monetary injury is not irreparable). To the extent that pipeline construction is allowed once compliance with all environmental laws has been achieved, any delays in pipeline operations would be purely temporary economic harms while the undisputed environmental harms in this case are permanent and irreversible. See, e.g., OVEC v. U.S. Army Corps of Eng’s, 528 F. Supp. 2d 625, 632 (S.D. W. Va., 2007) (“Money can be earned, lost, and earned again; a valley once filled is gone.”); San Louis Valley Ecosystem Council v. U.S. Fish & Wildlife Serv., 657 F. Supp. 2d 1233, 1242 (D. Colo. 2009) (“delay in drilling the exploratory wells is not irreparable. . . .”); Alaska Center for
the Env’t v. West, 31 F. Supp. 2d 714, 723 (D. Alaska 1998) (longer permit processing time was “not of consequence sufficient to outweigh irreversible harm to the environment”); Citizen’s
Alert Regarding the Env’t v. U.S. Dep’t of Justice, 1995 WL 748246, *11 (D.D.C. Apr. 15, 1995) (potential loss of revenue, jobs, and monetary investment that would be caused by project delay did not outweigh “permanent destruction of environmental values that, once lost, may neve again be replicated.”)

In any event, any injury to applicants due to prematurely proceeding with construction would be “self-inflicted” because they assumed the risk that Intervenors’ request for rehearing
might be granted. Such self-inflicted harm caused by “jump[ing] the gun” or “anticipat[ing] a proforma result” in permitting applications makes the pipeline companies “largely responsible for
their own harm.” Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978, 997 (8th Cir. 2011); see also Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir. 2002). Under such circumstances, the pipeline companies’ assumption of the risk weighs heavily against any harm they might claim based on the issuance of a stay. Id.
Thus, in contrast to the irreparable injury that Intervenors and their members would suffer in the absence of a stay, any potential harm to the applicants from delaying construction to ensure compliance with the law is minimal. Granting a stay that prohibits the construction activities authorized by the Certificate Order would only serve to preserve the status quo until the parties have fully resolved their claims.

C. A stay is in the public interest.

Because Intervenors seek to compel compliance with federal laws designed by Congress to protect the environment, and because a stay would prevent permanent environmental damage, the public interest weighs heavily in favor of granting a stay. The public interest is protected by preventing irreparable harm to the environment that will result from the construction activities.
See Nat’l Wildlife Fed’n v. Burford, 676 F. Supp. 271, 279 (D.D.C. 1985) (“a preliminary injunction would serve the public by protecting the environment from any threat of permanent damage”). Moreover, the public interest is served by ensuring that federal agencies scrupulously comply with their statutory duties. See Fund for Animals v. Espy, 814 F. Supp. at 152 (finding “meticulous compliance with the law by public officials” as relevant to the public interest); Citizen’s Alert, 1995 WL 748246, *11 (compliance with law “is especially appropriate in light of the strong public policy expressed in the nation’s environmental laws” (citation omitted)). The public “has a strong interest in maintaining the balance Congress sought to establish between economic gain and environmental protection.” OVEC, 528 F. Supp. 2d at 633.For example, there is a strong public interest in avoiding unnecessary destruction of wetlands. See, e.g., Utahns For Better Transp. v. U.S. Dept. of Transp., 2001 WL 1739458 (10th Cir. Nov. 16, 2001) (“The concern for wetlands expressed by the Clean Water Act and its implementing regulations demonstrates a strong public interest in their preservation and maintenance…. [and] the public has an interest in ensuring that all alternatives to the destruction
of wetlands have been considered and that unavoidable impacts on such areas are minimized.”); Rapanos v. United States, 547 U.S. 715, 777 (2006) (“Important public interests are served by
the [CWA]… and by the protection of wetlands in particular.”); 33 C.F.R. § 320.4(b)(1) (“Most wetlands constitute a productive and valuable public resource, the unnecessary alteration or
destruction of which should be discouraged as contrary to the public interest.”).

Additionally, as noted by PMHSA, the conversion of pipeline by flow reversal and product change raises significant safety concerns regarding the integrity of the pipeline system
and adequacy of monitoring and of emergency response. In this instance, aging pipe is proposed to be used for transportation of volatile NGLs for which the pipeline was neither designed nor
constructed, as well as changes in product and flow reversal, all of which will occur without prior federal analysis or review absent the Commission expanding its NEPA analysis to review
and require mitigation for those related effects of the approval of abandonment in place. There is a strong interest in protecting the public from those effects. Given the high stakes, a stay of the Certificate and construction pending a final decision on the merits is clearly in the public interest. A stay will help ensure that that a full and complete analysis of the impacts, and potential mitigation, occurs before alternatives are foreclosed by the construction. Furthermore, given the level of interest demonstrated by the public in this controversial pipeline project, the public interest lies in maintaining the status quo until the
pending request is considered fully on the merits. See San Luis Valley Ecosystem Council v. U.S. Fish & Wildlife Serv., 657 F. Supp. 2d 1233, 1242 (D. Colo. 2009) (large volume of public
comments submitted indicates a public interest in maintaining the status quo pending proper review).

D. Justice requires that the Certificate and construction and conversion of use be stayed pending rehearing and judicial review.

Consideration of the elements described above strongly favors the granting of a stay. Furthermore, where, as here, the parties requesting a stay are likely to succeed on the merits, justice requires granting a stay. The Commission has noted in previous orders that the factors it examines when considering whether to grant a stay do not include the likelihood of success on the merits. However, this inquiry is intertwined with the inquiry regarding whether justice requires a stay. If the party requesting a stay is likely to prevail, this tips the balance in favor of granting the stay. It would be unjust to allow the project proponents to move forward with construction activities that would cause irreversible environmental harm even though Intervenors are likely to succeed on the merits. See Found. on Econ. Trends v. Heckler, 756 F.2d 143, 157 (D.C. Cir. 1985) (“If plaintiffs succeed on the merits, then the lack of an adequate environmental consideration looms as a serious, immediate, and irreparable injury.”).

VIII. CONCLUSION

For the reasons stated above, FERC should grant Intervenors’ request for rehearing and withdraw its September 29, 2017 Certificate Order. FERC should also withdraw the deficient EA
and prepare a draft EIS with the Corps of Engineers and other federal, state, and local agencies that fully considers the direct, indirect, and cumulative impacts of the ACRP and the UMTP
Project.

Dated: October 30, 2017

Respectfully submitted,

/s/ Ryan Talbott
Ryan Talbott
Executive Director
Allegheny Defense Project
117 West Wood Lane
Kane, PA 16735
(503) 329-9162
rtalbott@alleghenydefense.org

/s/ Tom FitzGerald
Kentucky Resources Council, Inc.
Post Office Box 1070
213 St. Clair Street Suite 200
Frankfort, Kentucky 40602
(502) 875-2428
KyBar ID 22370
fitzkrc@aol.com

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