Early approval sought for NEXUS pipeline

By Scott Mahoney - smahoney@civitasmedia.com

Approval for the NEXUS pipeline could come as soon as this week, but if it isn’t, any decision on the project could be delayed several weeks or even months.

Pipeline developers asked the Federal Energy Regulatory Commission via a letter last Friday to green-light the project before Feb. 3.

The request came as a response to the pending resignation of FERC commissioner Norman Bay. The five-member commission is down to just three members, and with the resignation of Bay it would not have the quorum required to approve projects such as NEXUS.

The proposed 36-inch pipeline would stretch 255 miles from Columbiana County to Ypsilanti Township in Michigan. The pipeline would run through Oberlin near the Reserve Avenue neighborhood.

Bay submitted his letter of resignation to President Donald Trump shortly after Trump named Cheryl LaFleur acting chairman of FERC.

Bay was appointed to the commission by President Barack Obama in August 2014 and served as the commission’s chair until Jan. 23.

Bay’s term expires June 30, 2018. He did not state a reason for resigning in the letter.

“I will always be grateful to President Obama for being given the opportunity to serve on the commission,” Bay said in the letter. “It has been the honor of a lifetime.”

LaFleur said FERC will attempt to make decisions on as many orders as it can before Friday.

“The commission is working to get as many orders out as we can in the time we have left with a quorum,” she said. “I am confident that, with the strong team we have here at the commission, we can continue to do our important work.”

John Elder, spokesman for Oberlin’s Communities for Safe and Sustainable Energy, urged FERC to deny the request for a pre-Feb. 3 ruling.

“The timeline that has been publicized since the beginning of the permitting process indicates that the earliest date at which FERC might issue a decision regarding NEXUS is Feb. 28, 2017,” Elder wrote in a formal protest. “NEXUS argues that it must have this expedited permit from FERC to complete construction in time to meet ‘the committed in-service date for contracted shippers.’”

In his letter, Elder expressed concern that the commission could be functioning simply as a “rubber stamp” agency.

“This argument assumes NEXUS knew that FERC’s approval was absolutely assured and told shippers and end-use customers that in no case would the issuing of a permit be delayed, much less denied,” Elder’s letter said. “If this were true, the permitting process would seem to be an elaborate charade. CSSE believes that the commissioners are eager to exercise their authority responsibly rather than to function as a ‘rubber stamp’ agency.”

If FERC does not decide on NEXUS by Friday, it is possible the project will be delayed several weeks or even months.

According to Baker Botts, an international law firm that specializes in energy cases, the lack of a quorum could mean a backlog of cases for FERC.

“The commission requires a quorum of three members to issue substantive orders, regulations, and policy initiatives,” said Jay Ryan, a partner with Baker Botts basked in Washington. “Given the backlog of Trump administration nominees currently pending before the Senate, it could take several weeks or months for a new FERC commissioner to be nominated and confirmed.”

Scott Mahoney can be reached at 440-775-1611 or @sm_mahoney on Twitter.

By Scott Mahoney