The battle to STOP the pipeline, now in its 18^th month, came to a head in mid-December with the Transco and ANR/Independence applications prominent on the Federal Energy Regulatory Commission’s December 15, 1999 meeting agenda. What issued from that meeting was a surprise to all parties. In an unprecedented Interim Order, the Commission voted 3-2 against the issuance of Certificate of Public Convenience and Necessity at this time.

The pipeline companies had assured anyone who inquired that the go ahead from the Commission was in the bag. But in refusing to allow construction to begin, FERC found there was not sufficient proof that the 622 mile, $1.3 billion project was needed. Even if market need is eventually demonstrated to the Commission’s satisfaction, the companies were hammered with over 100 environmental conditions and restrictions. While this decision did indeed bring good tidings at Christmas, it did not signal the end of the fight for either side.

The most significant aspect of the Commission decision focuses on proof of market need and the failure of ANR/Independence to meet its burden of proof. Simply stated, a dummy corporation was created by the pipeline companies to purchase capacity as proof of market need. Three of the five commissioners rejected this as unreliable evidence and set strict conditions as to what will constitute a valid contract. Disappointingly, if this single condition, with no time limit to its completion, is met the Commission is prepared to approve the projects. However, this issue highlighted a deep division among the commissioners with the minority describing the vote as a "crushing blow to pipeline expansion" (oh darn it!) and a "pointless disruption of standard FERC policy" (is standard policy to issue Certificates without paying any attention to the issues?).

On balance, the FERC Interim Order was a battle won, but not the end of the war. One of the most critical restrictions imposed by the FERC is the requirement that no construction can begin until all local, state and other federal permits have been obtained. According to the FERC, "this is the first time the Commission has denied permission for construction to proceed on a piecemeal basis as permits are obtained." From the opposition point of view this is a crucial factor, as it will eliminate the typical domino effect where the issuance of one permit is used as evidence in support of the next permit the company is seeking.

One particularly unpleasant aspect of the Interim Order was the finding by the Commission that Transco had conclusively demonstrated a market need for its MarketLink Expansion, the segment of the project that runs through New Jersey and the Great Swamp National Wildlife Refuge. This leaves the door open for Transco to separate itself from the problems of ANR/Independence and go forward with its wholesale disruption of 34 parks, 174 acres of wetlands, and 555 individual properties. The safety risks associated with this project, which runs through residential neighborhoods, next to elementary schools and college dormitories, cannot be quantified.