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Following the Cowpasture Case in the Supreme Court

The arguments in the case of the Atlantic Coast Pipeline and the Forest Service vs the Cowpasture River Preservation et al, in which the ACP is appealing the Fourth Circuit Court’s vacating of the Forest Service’s permit for the ACP to cross the Appalachian Trail, will be heard at the Supreme Court beginning at 10 a.m. on Monday February 24, 2020. One hour has been allotted for the hearing, with another case to follow promptly at 11 a.m.

The U.S. Forest Service and Atlantic Coast Pipeline, LLC are the appellants in the case. The respondents are Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Association, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

All briefs that have been filed in the case are available here.

For additional background and commentary on the case, see the February 18 SCOTUSblog post here.

Information from SELC and their news feed is here.

Although there is no way to remotely stream oral arguments at the Supreme Court in real time, the transcript of the oral argument will be available in the afternoon on February 24. On Friday February 28, the audio recording of the argument will be published.

Anyone wishing to attend the argument in person should consult instructions on the Supreme Court website. Note that space in the courtroom is limited and there is no guarantee that all who wish to attend will be seated, so arrive very early if you hope to attend. The Supreme Court is at 1 First St., SE, Washington, DC, located 0.3 miles from the Capital South Metro Station. The closest parking garage is at Union Station, located 0.5 miles from the Court.


Pipeline Runs Through “News Deserts”

In their February 21, 2020 article, A pipeline runs through Southern news deserts, the Columbia Journalism Review discusses the ways in which the dearth of local news outlets means Dominion and Duke can “shape the pipeline narrative.”

The article points out that “”All three states crossed by the Atlantic Coast Pipeline have a dearth of local newspapers, according to the UNC report. The counties along the route are some of the most rural and economically depressed parts of the US, in a region that is historically reliant on extractive fossil fuels. In North Carolina, seven of the eight counties the proposed pipeline would run through are predominantly black. These places lack consistent, informative local coverage of energy, justice, and the environment because of the declining number and resources of print news outlets, shifting the balance of news sources toward expanding corporate media monopolies. The areas are also overlooked by national media, which mostly parachute in to cover major updates or catastrophes or if they need a tie-in to President Trump’s policies—a dynamic that can perpetuate inaccurate stereotypes about these places.”

The article continues, “The absence leaves ample space for powerful campaigns by Duke and Dominion, the pipeline’s developers and buyers of its natural gas, as well as industry-aligned lobbyists and politicians, to shape the pipeline narrative. Another result is misinformation and confusion about the status of a massive energy project that affects tens of thousands of people, several endangered species, and a variety of fragile ecosystems. The number of permanent jobs the pipeline is estimated to create varies, depending on whom you speak with. In some cases, property owners have been caught unaware of their rights or legal options when Dominion came knocking to claim eminent domain.”

And, “The weekly newspapers serving these counties have published dozens of stories pitting pipeline opponents against economic development officials. Many contain important project updates that readers wouldn’t find anywhere else, but others essentially serve as press releases for Dominion Energy without interrogating claims the company makes about job creation, environmental impacts, and legal challenges.”

Read the full article here.

Investigation Launched into Energy Company Use of Eminent Domain

The Committee on Oversight and Reform is the main investigative committee in the U.S. House of Representatives. It has authority to investigate the subjects within the Committee’s legislative jurisdiction as well as “any matter” within the jurisdiction of the other standing House Committees.

In a press release on February 19, 2020, the Oversight Committee’s Subcommittee on Civil Rights and Civil Liberties the announced the launch of an investigation into use of eminent domain by energy companies. The press release says:

Rep. Jamie Raskin, the Chairman of the Subcommittee on Civil Rights and Civil Liberties, sent a letter to the Federal Energy Regulatory Commission (FERC) about the use of eminent domain in the construction of natural gas pipelines. FERC routinely grants pipeline companies a “certificate of public convenience and necessity,” allowing them to take possession of private land under the right of eminent domain.

“The Due Process Clause of the Fifth Amendment states: ‘No person shall be deprived of life, liberty, or property, without due process of law,’” wrote Chairman Raskin. “The Subcommittee is concerned that FERC’s process for handling challenges to pipeline construction, and its allowance of some construction-related activity before all state requirements have been met, denies individual landowners a meaningful opportunity to be heard before irrevocable harm is done to their property.”

“I fully support Chairman Raskin’s investigation into the FERC allowing private energy companies to assert eminent domain,” said Committee on Oversight and Reform Chairwoman Carolyn B. Maloney. “FERC may be prioritizing the desires of energy companies over the constitutional rights of hard-working Americans, potentially causing irreparable harm to their private property.”

FERC often grants certificates before companies receive permits from other federal and state agencies that are necessary for pipeline construction. Federal courts routinely grant preliminary injunctions that give companies immediate possession to rights-of-way across private land, long before construction begins.

“Though construction cannot begin until companies receive all their permits, FERC authorizes these companies to start preparing the rights-of-way through non-mechanized tree felling and other preparatory activities,” continued Chairman Raskin. “One particularly egregious example of this was the destruction of half of the 200 year-old trees that made up a maple syrup farm in New Milford Township in March 2016 for the Constitution pipeline, which still has yet to be built.”

Landowners are effectively barred from challenging these injunctions, because they must first exhaust their administrative remedies by appealing to FERC. Even though a resolution to the appeal within 30 days is mandated, FERC reportedly reflexively grants “tolling orders” to extend the appeal review time by months. While landowners await FERC’s review, FERC has issued orders authorizing pipeline construction to begin.

The letter requested documents and information related to this investigation by March 3, 2020.

Click here to read the letter sent to FERC Chair Neil Chatterjee.

Building Pipelines Is Unnecessary

An excellent compilation of information by Mothers Out Front!

From the vantage point of Norfolk and Hampton Roads, Mothers Out Front presents a full and fully documented case against the Atlantic Coast and Mountain Valley fracked gas pipelines and their effects.

They say, “We believe that the construction of the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) is unnecessary and will cause serious, lasting and expensive harm to America’s public health, economy, and environment. It seems shortsighted to build pipelines designed to carry fossil fuels, with a cost that customers will bear for over 40 years, when it is likely that 10 years from now those fossil fuels will no longer be used or wanted. This is akin to buying typewriters as computers were developed, or buying Blockbuster stock as Netflix took off.”

They document pipeline effects and explain in detail why Mothers Up Front opposes new local or intrastate natural gas pipelines. They provide a detailed timeline indicating ways “the affected states are starting to realize that these pipelines are not in their best interests”

They state, “One fundamental issue is that the ACP and MVP pipelines are not necessary — existing pipelines are adequate to serve customers for the projected future,” and provide an extensive listing of a wide variety of in-depth resources as background material.

Be sure to check out this new and excellent Web page!

“Perseverance Pays Off”

News media have announced that Williams has dropped plans for its Constitution Pipeline through Pennsylvania and New York.

On February 21, 2020, the Daily Star (Oneonta NY) reported, “Williams Companies, the Oklahoma energy giant, confirmed Friday that it has shelved the Constitution Pipeline, a proposed interstate natural gas pipeline that triggered a prolonged battle between environmental activists and pro-development advocates. ‘Williams — with support from its partners, Duke, Cabot and AltaGas — has halted investment in the proposed Constitution project,’ the company said in response to questions from CNHI. ‘While Constitution did receive positive outcomes in recent court proceedings and permit applications, the underlying risk adjusted return for this greenfield pipeline project has diminished in such a way that further development is no longer supported,’ Williams added. Anne Marie Garti, an environmental lawyer who helped form the opposition group Stop the Pipeline, said the group ‘fought this epic 8-year battle with courage, conviction and intelligence,’ adding: ‘Perseverance pays off.'”

News You May Have Missed

There’s been a lot going on – here are some news items from our In the News page you may have missed (many additional interesting news articles on that page).