Author Archives: Ellen Bouton

Wagner Introduces Utiity Right of Way Bill

On January 14, 2019, State Senator Frank Wagner introduced legislation authorizing utilities to acquire rights of way.  [We wonder what help he had from Dominion in crafting the bill.]

Summary as introduced:
Public utilities; acquisition of rights-of-way for economic development sites. Authorizes a public utility providing water, sewer, electric, or natural gas service to conduct an Economic Development Program (Program). Under such a Program, the utility is authorized to acquire utility right-of-way for one or more qualified economic development sites. The measure establishes criteria for the Virginia Economic Development Partnership Authority to certify that a site is a qualified economic development site. The State Corporation Commission (SCC) is authorized to approve a proposal for a Program that satisfies certain conditions, including a finding that implementation of the Program will provide significant economic development benefits that might not otherwise be attained absent its approval. A utility’s capital investment is capped at one percent of gross plant investment in the aggregate of all of the utility’s Programs and at $5 million for any specific qualified economic development site.

The full text (pdf): 01/14/19 Senate: Presented and ordered printed 19104356D

History: 01/14/19 Senate: Presented and ordered printed 19104356D,
01/14/19 Senate: Referred to Committee on Commerce and Labor

FERC Approves ACP Stabilization Measures

From ABRA Update #213 for January 17, 2019:  “A plan for stabilization measures on the Atlantic Coast Pipeline route during cessation of construction activity on the project was approved January 10 by the Federal Energy Regulatory Commission. The plan had been submitted to the agency in the wake of the Fourth Circuit Court of Appeals December 7 decision to stay the U.S. Fish and Wildlife’s Biological Opinion and Incidental Take Statement for the project. The Southern Environmental Law Center, Appalachian Mountain Advocates and Chesapeake Bay Foundation had written FERC on December 21 asking that the agency to require the company to remove strung pipe from the right-of-way rather than allow it to continue to install pipe along a route that is not authorized by law, but the request was ignored.”

Here’s Dominion’s approach to ground stabilization:  putting new pipe into the ground on January 15, 2019. Note the right angle bend, something to remember when Dominion tells a landowner the ACP can’t divert around some important feature of property. Thanks to the Pamlico-Tar Riverkeeper [NC] for the photo.

More Delays, Higher Costs for ACP

On Friday January 11, 2019, the Fourth Circuit Court of Appeals declined Dominion’s request to either narrow the scope of the Court’s December stay of Atlantic Coast Pipeline construction or to expedite the hearing on the case involving of the U.S. Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement. The oral arguments before the Court are scheduled for March 2019, and an opinion would likely not be issued until some weeks thereafter. Because of the timing of the court case, the legal window will have closed for the tree felling Dominion says is necessary for construction, thus delaying construction for as much as a year. An article in the Charlotte Business Journal on January 15, 2019, says, “Because of requirements in its Federal Energy Regulatory Commission license, the pipeline could be prevented from clearing timber for construction of the pipeline until November, even if the court rules in its favor after the hearing that starts March 19. If that were to happen, the delays could add up to a $1 billion cost increase.”

That’s a $1 billion increase beyond the already projected $7 billion. Dominion’s original cost estimate for the ACP was $4.5-5 billion, and the original in-service date was late 2018. Cost estimates are now $8 billion, with an in-service date for the proposed project of mid-2021.

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):

Dominion Withdraws Quick Take Suits

Dominion has withdrawn the Quick Take suits they filed on November 16, 2018, against at least 20 Nelson landowners. Given the multiple existing court challenges, it seems likely that ACP feared the court might side with the landowners who are at risk of suffering irreparable harm at the hands of a project that may never even be built. The ACP has, however, reserved the right to re-file another “motion for partial summary judgement” or Quick Take at any time.

“Quick Take” is a formal process of the exercise of eminent domain in which the government (or in this case, a private for-profit company masquerading as a “public” utility) takes possession BEFORE any court ruling on compensation. In other words, Dominion wanted access to begin work on these landowners’ properties BEFORE paying the landowners any money, and BEFORE receiving all permits allowing the ACP to begin construction.

Rogues?

On January 8, 2019, the Charleston Gazette-Mail reported on the energy lobbyist, Bob Orndorff, state policy director for Dominion Energy, who, when speaking to Joint Committee on Natural Gas Development on behalf of the West Virginia Oil and Natural Gas Association, said construction on the Atlantic Coast Pipeline has been halted because “rogue environmental groups” are getting in the way. “It’s on hold because the 4th Circuit Court of Appeals allowed a rogue environmental group to contest various permits that we have on the project.” The Gazette-Mail said, “Orndorff urged lawmakers to ‘stand up to these rogue environmental groups’ and pass a resolution to condemn them.”

The article then quotes DJ Gerken, senior attorney for the Southern Environmental Law Center, which argued on behalf of conservation groups in legal challenges: “It’s the federal agencies who went rogue here. They ignored the law, they ignored warnings from their own experts to approve a destructive and unnecessary pipeline.”

In an editorial on January 11, the Gazette-Mail asks, “Who are the real rogues?” The editorial says, “In reality, Dominion Energy has halted construction after the Fourth Circuit Court of Appeals found environmental regulatory groups were bypassing rules meant to protect people, wildlife and the environment in the path of such large-scale projects. No doubt Dominion will continue to pursue the Atlantic Coast Pipeline once these legal hurdles are cleared, but for representatives of the industry to blame ‘rogue’ environmentalists is dishonest and simply wrong.”

The editorial continues, “Both state and federal agencies have gone out of their way to make the projects easier for the companies putting them together. Those are the types of actions that result in industrial disasters that harm the people and the environment these projects plow through. Unsurprisingly, some have already been cited numerous times for violations as they try to get the pipelines built. A joint investigative report from the Gazette-Mail and ProPublica found that government regulators bent over backwards to get these projects approved quickly, which is perhaps why they’re having so much trouble in court. It is not a ‘rogue’ action to hold companies and government agencies accountable to the minimal rules in place to protect quality of life. West Virginia has suffered enough of industry run amok.”

The editorial concludes, “The suggestion to the Legislature offered up by lobbyist Bob Orndorff that the body pass a resolution condemning the environmental groups pursuing litigation is insulting. These groups trying to protect their rights are made up of actual West Virginians who want to preserve what they have and avoid being steamrolled by big industry. Their government should be watching out for them, but it’s not, so the only way to stand up for themselves is through the courts. Remember it’s the people who are the David in this scenario, not the Goliath.”