Author Archives: Ellen Bouton

SELC Files Brief with Supreme Court


On January 15, 2020, the Southern Environmental Law Center (SELC) and the Sierra Club Environmental Law Program filed a brief with the U.S. Supreme Court in response to the briefs filed in December by the U.S. Forest Service and the Atlantic Coast Pipeline, LLC. The Forest Service and the ACP are challenging the Fourth Circuit Court of Appeals decision in the Cowpasture River Preservation Association v. U.S. Forest Service that vacated the Atlantic Coast Pipeline’s permit from the Forest Service. That permit included the right to cross the Appalachian National Scenic Trail. The SELC/Sierra brief urges the Supreme Court to uphold the Fourth Circuit decision on the grounds that: 1) the Forest Service lacks authority to grant a pipeline right-of-way because the Appalachian Trail is land in the National Park System; and 2) the petitioners cannot separate the “Trail” from the Federal “lands” dedicated to the Trail. The latter argument was set forth in the briefs filed by the Forest Service and ACP, LLC.

Click here for a copy of the SELC/Sierra brief.

SELC represents the Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network and Virginia Wilderness Committee. Sierra Club Environmental Law Program is representing itself and Wild Virginia. Amicus briefs in support of the SELC/Sierra brief must be filed by January 22. The case is scheduled to be argued before the Supreme Court on February 24, 2020.

Ten Reasons to Oppose the ACP

Here are 10 reasons why Friends of Nelson opposes the Atlantic Coast Pipeline. In the coming weeks we will be posting expanded information on each of the 10 reasons. We hope this information will help clarify your thinking and help you to explain to family, friends, neighbors, and legislators why you oppose the ACP. (Click here to download a printable version of the list.)

1. No Demand or Need
With evidence of reduced future demand and with recent upgrades to existing pipelines, energy analysts argue that there is no need domestically for the Atlantic Coast Pipeline. Additionally, foreign demand for this gas is better satisfied by nearer sources which can be produced and delivered at a lower cost.

2. Climate Change Implications
Gas pipelines leak methane gas and their compressor and metering stations regularly release methane and other harmful pollutants. The ACP will therefore significantly contribute to climate change.

3. Cost Burden on Ratepayers
The pipeline’s almost $8 billion construction cost will eventually mean rate increases for all Dominion customers as they will have to foot a large part of the ACP cost, regardless of whether it is put into service or not.

4. Discourages Utility Investment in Alternatives
The ACP’s possible construction and its huge capital investment cost will discourage utilities from promoting and developing non-fossil fuel, increasingly cost-effective alternatives such as wind and solar.

5. Eminent Domain Seizures of Private Property
Through the imposition of Eminent Domain, the proposed route confiscates and restricts Nelson landowners’ property rights, lowering their own and adjoining neighbors’ property values.

6. Landslide Danger on Steep Slopes
The proposed construction and placement of the pipeline endangers Nelson citizens’ lives and property, especially on steep slopes which are highly susceptible to landslide failures. Note that ruptured pipelines are likely to explode.

7. Disproportionate Harm to Minority Communities
The ACP will specifically harm the historic African American community of Union Hill by locating a dangerous and polluting compressor station in its midst.

8. Containment Failures Impact on Streams and Drinking Water
As recently demonstrated with the Mountain Valley Pipeline, construction of the ACP will, despite promised containment safeguards, silt up mountain and valley streams, affecting local drinking water and aquatic life.

9. Forest Fragmentation and Effects on Endangered Species
The ACP’s construction will further fragment our vulnerable eastern forests, reducing the habitat and population of Federally-listed endangered species. Such activity could potentially cause their extinction.

10. Detracts from Scenic Views on Public Lands
The pipeline corridor will detract from scenic views on the Blue Ridge Parkway, the Appalachian Trail and National Forest Lands. One of the most prominent viewing locations is at the Parkway’s Raven’s Roost overlook.

Friends of Nelson Annual Meeting


A crowd at the Friends of Nelson annual public meeting at Rockfish Valley Community Center on January 12, 2020, enjoyed an extensive and varied potluck, along with great music by local favorites Kim and Jimbo Carey, as we celebrated 5.5 years and counting of our fight against the Atlantic Coast Pipeline. And we celebrated the fact that, because of the hard work of committed citizens and the Southern Environmental Law Center, which has resulted in numerous obstacles and denied permits, pipeline builders Dominion and Duke shut down all construction more than a year ago – with less than 6% of the project in the ground so far – and are now struggling to find a way to retool their plans.

We elected Friends of Nelson Officers and Board: Doug Wellman (President), Connie Brennan (Vice-President), Julie Burns (Secretary), and Cheryl Klueh (Treasurer), Jim Bolton, Ellen Bouton, Ron Enders, Woody Greenberg, Charlie Hickox, David Schwiesow, Marilyn Shifflett, and Kathy Versluys. And we gave outgoing President Helen Kimble a standing ovation for her two years of exemplary leadership and incredibly hard work!

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).

4th Circuit Court Vacates ACP Buckingham Compressor Station Permit

On January 7, 2020, the Fourth Circuit Court of Appeals vacated the air permit for the Atlantic Coast Pipeline’s Buckingham compressor station located in Virginia’s historic, predominantly African-American Union Hill community. The air permit was granted last January by the Virginia Air Pollution Control Board. The suit challenging the permit had been brought by Friends of Buckingham (represented by the Southern Environmental Law Center) and the Chesapeake Bay Foundation. In the 3-0 opinion written by Judge Thacker, the Court remanded the permit to the Air Board for further deliberation on two grounds, as noted in these excerpts from the opinion:

  • “The Board’s decision was arbitrary and capricious and unsupported by substantial evidence. As Petitioners point out, ACP’s and Respondents’ arguments on appeal read as ‘convenient litigation position[s].’ . Nothing more. We vacate and remand for further explanation of reliance on the redefining the source doctrine, and/or why electric turbines are not required to be considered in Virginia’s BACT analysis of the Compressor Station.”
  • “We conclude that the Board failed in its statutory duty to determine the character and degree of injury to the health of the Union Hill residents, and the suitability of the activity to the area. We vacate and remand for the Board to make findings with regard to conflicting evidence in the record, the particular stud(ies) it relied on, and the corresponding local character and degree of injury from particulate matter and toxic substances threatened by construction and operation of the Compressor Station.  To be clear, if true, it is admirable that the Compressor Station ‘has more stringent requirements than any similar compressor station anywhere in the United States,’ and that residents of Union Hill ‘will be breathing cleaner air than the vast majority of Virginia residents even after the Compressor Station goes into operation,’ But these mantras do not carry the day. What matters is whether the Board has performed its statutory duty to determine whether this facility is suitable for this site, in light of EJ and potential health risks for the people of Union Hill. It has not.”

We congratulate Friends of Buckingham, the Southern Environmental Law Center (SELC) which represented them, and the Chesapeake Bay Foundation on the years of hard work which brought about this favorable ruling.

A copy of the Fourth Circuit’s full opinion is here.

A press release from SELC says in part, “The decision marks the eighth time since May 2018 that a federal court or the federal agencies themselves have revoked or suspended Atlantic Coast Pipeline permits. As a result, pipeline builders Dominion and Duke shut down all construction more than a year ago with less than 6% of the project in the ground.  The future of this risky and highly controversial pipeline is uncertain. Developers must evaluate alternative routes that avoid two national forests—potentially redrawing significant portions of their proposal—in order to comply with an earlier court decision. And more than five years after the pipeline was first announced, new evidence makes it apparent that the project is excessively costly and unnecessary.  ‘For the Atlantic Coast Pipeline, it’s the same story again and again,’ said Greg Buppert, senior attorney at the Southern Environmental Law Center. ‘Dominion tried to force a pipeline compressor station into a community where it didn’t belong, just like it has tried to force the pipeline through a national park, national forests, and steep mountains. But the people of Union Hill never backed down. Today they’ve won an important victory, not just for themselves, but for every community in Virginia facing the unjust burden of industry and pollution.'”

The opinion specifies a number of difficult issues the Air Board must resolve before reissuing the permit.  Wild Virginia’s David Sligh commented, “The court found that the Virginia Department of Environmental Quality and the State Air Pollution Control Board failed to do their jobs. Officials in these agencies refused to adequately analyze whether the compressor station would have disproportionate impacts on the largely minority community around it (it would). As the court stated: “environmental justice is not merely a box to be checked.” Agency officials refused to acknowledge reliable demographic information supplied by citizens or to collect their own. Instead, they relied on flawed sources that even they admitted were unreliable. Our public officials also refused to look at whether the station should be powered by electric motors versus gas and, therefore, create less pollution and risk to residents’ health. The officials tried to explain this failure by citing a federal rule that clearly does not apply and then a state rule that the court said does not exist.”

Richmond Times Dispatch coverage of the story is here (including a photo at the January 2019 Air Board hearing with Friends of Nelson Board members in the audience).  The Court’s ruling was widely covered in local, regional, and national media outlets, including the Washington Post and the New York Times.

Virginia Landowners File Constitutional Case Against FERC

Two press statements on January 3, 2020, one from Protect Our Water, Heritage Rights (POWHR) and the other from Gentry Locke attorneys, announced the filing by landowners of a constitutional challenge against FERC and Mountain Valley Pipeline under the federal non-delegation doctrine.

The POWHR statement says in part, “Plaintiffs have brought a facial constitutional challenge under three counts, alleging that any and all certificates already issued under the Natural Gas Act are void. Plaintiffs are seeking a declaratory judgment from the U.S. District Court in Washington, D.C., asking the Court to declare that Congress’s overly broad delegation of legislative powers to FERC was and is facially unconstitutional; that any delegation of eminent domain power to any and all private actors, including MVP, is facially unconstitutional; that FERC has no authority to issue certificates to applicants seeking to invoke the power of eminent domain to take property; and that all such certificates already issued are void ab initio.”

The Gentry Locke statement says, “The case centers around three constitutional principles involving delegations of Congressional power: 1. A broad delegation of power is unconstitutional; 2. Delegating delegated power is unconstitutional; 3. Delegating legislative power to a private entity is unconstitutional.”

The Gentry Locke statement continues:

“The Complaint is a facial constitutional challenge, which raises three Counts.

  • Count I is about an overly broad delegation of power by Congress to FERC. When it enacted the Natural Gas Act, Congress delegated to FERC the legislative power to decide who can exercise eminent domain without providing FERC with a test to use when making its decisions. Instead, Congress told FERC to make its own test. In doing so, Congress violated the non-delegation doctrine.
  • Counts II and III both involve delegations of eminent domain power to a private entity. Count II is premised on the idea that the power went from Congress to FERC and then to the private entity. This violates the prohibition on the sub-delegation of powers.
  • Alternatively, Count III is premised on a direct delegation from Congress to the private entity. Because eminent domain power is legislative in nature, it cannot be delegated directly to a private entity. This violates the private non-delegation doctrine. The private non-delegation doctrine says that Congress cannot delegate legislative power to a private entity. (“When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with ‘legislative Powers.’ Art. I, §1.”) (Alito, J., concurring).

As a result, Plaintiffs are seeking a declaratory judgment declaring that FERC has no authority to issue certificates and that all such certificates already issued are void.”

Russell Chisolm, Co-Chair of Protect Our Water, Heritage, Rights, commented, “We are encouraged that landowners may have a real opportunity for judicial consideration of their claims challenging the constitutionality of delegating Congressional powers to separate entities. The process as it stands has allowed FERC and private corporations to use the extraordinary power of eminent domain to seize property by force from landowners—a process that has continued even in the face of a multitude of missing permits, several pending lawsuits, and the absence of true public need for the Mountain Valley Pipeline.”

See Roanoke Times coverage of the filing here.