The date for From Pipelines to Progress – Staunton, originally scheduled for Monday December 10, 2018, has been changed to Wednesday December 12, 2018, so as not to conflict with the Air Control Board meeting in Richmond and the Buckingham Board of Supervisors hearing on Dominion’s requests for floodplain variances. Other details remain the same, see our events page for more information. Pipelines to Progress is organized by Chesapeake Climate Action Network.
On December 3, 2018, KPVI6 reported that “Legislation is pending in Congress that would give the National Park Service clear authority to allow construction of the Atlantic Coast Pipeline beneath the Appalachian Trail and Blue Ridge Parkway, both potentially critical obstacles under litigation pending in the 4th U.S. Circuit Court of Appeals. Dominion Energy, lead partner in the $7 billion project, confirmed the legislative proposal, which first surfaced in a blog post from an Alabama group that suggested aid for the 600-mile natural gas pipeline is ‘tucked into the omnibus spending bill’ being negotiated by Sen. Richard Shelby, R-Ala., chairman of the Senate Appropriations Committee.”
Dominion’s Aaron Ruby emailed the Richmond Times-Dispatch, saying that, “Congress is considering a legislative amendment that would explicitly authorize the park service to grant a permit for such a crossing.”
The Park Service has twice issued permits for the ACP to cross the Parkway. After the first permit was issued, the 4th Circuit Court of Appeals vacated it in early August as an “arbitrary and capricious” exercise of the agency’s powers. At the same time, the Court also issued a stay of the permit the Forest Service issued for the ACP to cross the Appalachian Trail. After the two agencies [minimally] revised their permits, FERC lifted the stay order, but appeals against the reissued permits are pending, and legal briefs to the Court are due at the end of this week.
In vacating the Park Service permit in early August, Judge Gregory did not rule decisively on whether the Park Service has authority to issue the permit under the Blue Ridge Parkway Organic Act, but he said it had failed to show how the project is consistent with the purposes of the parkway and National Park System. For example, the Park Service had conducted a visibility study and found that because the crossing at Reeds Gap near the Wintergreen entrance would be very visible, it would “thus significantly decreasing the park’s scenic value.”
In trying to get Congress to pass a bill (buried in the omnibus spending bill where they surely hoped no one would notice it) giving the Park Service authority to allow construction, Dominion is clearly trying to make an end run around pending Court rulings that might not be in their favor. Austin “DJ” Gerken, an attorney for the Southern Environmental Law Center, commented, “It’s disappointing but not surprising that Dominion would try to bend the law to its will. It’s already tried to bend the agencies to its will.” And he added, “The fact that Dominion is trying to work around [the law] before it even knows what the court has ruled is really shocking and bold.”
Take action! Contact your Senators and Representatives to urge them to oppose any legislative amendment that would give the National Park Service unchecked authority to allow pipeline construction. Contact Senator Shelby and other members of the Senate Appropriations Committee. Senator Kaine’s office says he does not support the measure, so thank Senator Kaine for protecting the land held in common for all of us to enjoy.
On December 3, 2018, on a 3-2 vote, the Nelson County Board of Zoning Appeals denied four of Dominion’s applications for the variances to the County’s flood plain ordinance needed to construct the Atlantic Coast Pipeline across flood plains in Nelson. The other seven of the original eleven applications were dismissed in January 2018, and ACP will have to submit new applications for them.
The Nelson County Zoning Ordinance specifically includes “Structures or facilities that produce, use, store, or transport highly volatile, flammable, explosive, toxic, and/or water-reactive materials” in the list of “critical facilities [that] are prohibited from being constructed or operated within a SFHA [Special Floodplain Hazard Area] unless a Variance is granted.” (Article 10.15F on p. 87)
Friends of Nelson issued the following press release on December 4, 2018:
Friends of Nelson commends the Nelson County Board of Zoning Appeals for its 3-2 vote to deny the applications for variances that would allow the Atlantic Coast Pipeline to cross four floodplains along its route through Nelson. These four applications were deferred by Dominion earlier this year. ACP had originally filed applications for 11 floodplain sites, but easement agreements at that time were only in place for the 4 sites applied for and heard by the BZA on Dec. 3.
Board of Zoning Appeals’ member Gifford Childs, made the motion to deny, expressing concerns that the ACP’s application did not offer sufficient detail and assurances that these areas would be protected during construction.
Friends of Nelson agrees and remains very concerned about the inevitable negative impacts to our water, to surrounding properties, and the long-term damage to the fragile ecosystems that exist naturally in floodplain areas. We are convinced that the ACP’s plans do not meet the standards required by Nelson County’s current floodplain ordinance. The preferred route chosen by the ACP through 11 floodplain areas in Nelson is the highest number in any jurisdiction in Virginia, and begs the question of any earnest effort on the ACP’s part to avoid areas that will increase risks associated with large natural gas transmission pipelines. One of the major causes of pipeline “failures” is soil movement and the industry, as well as key agencies, recommend avoiding areas prone to flooding when selecting pipeline routes.
Friends of Nelson will continue to monitor the ACP’s applications on the remaining floodplain sites and is most grateful to the residents who commented during the public hearing.
See press coverage by the Lynchburg News & Advance.
Members of the Virginia Student Environmental Coalition visited the office of Dr. Kajal Kapur, one of the proposed replacement members on the State Air Pollution Control Board to deliver a letter asking her to refrain from completing the swearing-in process for the Board before the December 10th vote on the Atlantic Coast Pipeline Buckingham Compressor Station.
Their letter described the detailed testimony at the Board’s public hearing on November 8-9, 2018, described Northam’s removal of two members who questioned the legal and technical bases for the permit proposed by the Department of Environmental Quality.
The letter says Northam “seems to be trying to prevent these members of an independent citizens board from acting on their deliberations and valid concerns, in order to attain a favorable vote for Dominion Energy and the advancement of the Atlantic Coast Pipeline project.
“The Governor’s office has stated that you will not be seated on the Board before the upcoming meeting but will be sworn in ‘shortly’ (See Virginia Mercury article), meaning you will not be able to vote on the permit but also blocking current members from voting. Legal precedents indicate that Board members retain their powers to act until replaced by new members. It appears the Governor is manipulating this process specifically to block Ms. Rubin and Mr. Bleicher from voting on December 10. We encourage you to help preserve the independence of this citizen board and the integrity of this regulatory process.
“Your power lies in your ability to refrain from being sworn in before the December 10th vote. We strongly encourage you to exercise that power in the interest of a just and fair process for the people of Buckingham., The former board members must be given the opportunity to serve on December 10th; to vote in accordance with their professional opinions informed by hours of testimony from impacted community members, lawyers, and scientists. We, the Virginia Student Environmental Coalition, believe that you must refrain from completing the swearing-in process for the State Air Pollution Control Board before the December 10th vote on the Atlantic Coast Pipeline Buckingham Compressor Station.”
The letter was signed by, “The Virginia Student Environmental Coalition on behalf of young people from Northern Virginia Community College, University of Mary Washington, University of Virginia, College of William & Mary, Virginia Commonwealth University, Piedmont Valley Community College, Hollins University, Roanoke College, Virginia Tech and George Mason University.”
First, on November 15, 2018, he removed Air Pollution Control Board members Rebecca Rubin and Sam Bleicher after they questioned the permit for the compressor station at the November 8-9 Board meeting, the meeting at which the Board voted to postpone their decision until their December 10 meeting.
Then, on November 16, he announced two new appointments to the Board.
Northam’s office continues to maintain what is clearly unbelievable, saying the timing of the dismissals and new appointments had nothing to do with matters pending for the Air Board, because Rubin’s and Bleicher’s terms expired in June. However, so did those of 235 other appointees, none of whom have been summarily replaced. The hole is a little deeper.
Writing in the Roanoke Times on December 6, Jacob Hileman says, “”If we assume each board and commission member serving beyond his or her term has an equal chance of being removed on any given day by the governor, the odds of the two board members in question being randomly selected are 1 in 27,966.”
Northam made the hole he’d dug a bit deeper when he said in his November 28 appearance on WTOP that he expected the Board to vote in November and did not expect the new appointees to vote on the compressor statement permit. But we all know if that were really true, he could easily have waited to appoint the new members until after December 10 (instead of five days after the November hearing).
Then, on November 26, Northam announced he would not seat the two newly appointed members members until after December 10. Since one of the normally seven-person Board’s members has recused himself, that leaves only four Board members to vote on December 10. Quoted in the Washington Post on November 27, Walton Shepherd of the Natural Resources Defense Council, told the Washington Post that “The awkward lurch to now yank Northam’s new board members does not right the original wrong.”
In that same Washington Post article, “Greg Buppert, a lawyer with the Virginia office of the Southern Environmental Law Center, said Northam’s action could leave the door open for the two removed board members to attend the meeting and vote. State law says that appointees serve until they are replaced, and these replacements haven’t come on board yet, Buppert said. Either way, the outcome does not make the Northam administration look good, he said. ‘I don’t know if this was intentional or just a remarkable stumble on the part of the administration,’ Buppert said. ‘But I think the message that the public heard was that the governor is facilitating a permit for Dominion.'”
But the hole Northam seems still to be digging for himself gets even deeper. On November 30, The Virginia Mercury reported, Governor won’t ‘seat’ new air board members, but still plans to swear them in, precluding participation of former members. According to the article, some argue that “under state law the current members serve until the moment their replacements are sworn in, meaning they could still potentially participate in the meeting barring further action by Northam — an interpretation backed by a 2013 attorney general’s opinion.” Since it would seem members could serve (and vote) until the new members are sworn in, that could have been a graceful out for Northam from his beleaguered position. But no, Dominion certainly doesn’t want the ousted members to vote, so Northam dug his hole deeper by saying he would swear in the new members, but that they would not take their seats on the Board until after the vote.
A Daily Progress editorial on December 5, quotes the Governor’s excuse, emailed to the Richmond Times-Dispatch, for not seating the new members (“Given the compressed timeline the governor’s new appointees face, as well as the level of attention trained on their willingness to serve the commonwealth, they will not be seated until after the upcoming meeting of the air board on Dec. 10.”). The editorial then says, “The obvious retort: Mr. Northam’s decision created ‘the compressed timelime.’ Mr. Northam’s decision created the unfavorable ‘level of attention’ — which was to some degree trained on the new members, but more accurately trained on the governor himself. …. Surely it would have been better to have left the board intact for a while longer, preserving a breadth and diversity of opinion in deciding an issue that will affect the residents of Buckingham for a long — a very long — time.”
Robert Zullo, writing in The Virginia Mercury on December 5, asks, “Can Gov. Ralph Northam’s decision to yank two members off the State Air Pollution Control Board as it weighs a permit for the compressor station Dominion Energy plans for Buckingham County be seen as anything other than what it appears to be: a clumsy attempt to tip the scale for the influential utility?” He says Northam has “sunken deeper into this mess of his own making by preventing his handpicked replacements from voting on the contentious air permit next week.” And Zullo concludes, “‘It just was,’ is evidently the best answer the administration can muster for why it has now cast a deep shadow of illegitimacy over a vote on an ultra-contentious project already seen as a dubious power grab by an energy giant mainly focused on shareholder profit.”
The Washington Post refers to all this as an “ugly episode.” Many groups and individuals continue to speak out against a governor who seems to have forgotten that he promised to be a different kind of politician, one who would never lie and always operate aboveboard. The editorial board of the Staunton News Leader describes what is really happening: “There just aren’t enough people to make Northam or others in the state government care about them more than they care about Dominion. Dominion’s influence is pervasive, and it’s people like Northam who reliably do their bidding. We can be disappointed, but shouldn’t be surprised.”
How deep a hole, disappointing but not surprising, will Northam dig?