Author Archives: Ellen Bouton

SELC Challenges Potential Army Corps and FWS Actions

On February 11, 2020, the Southern Environmental Law Center sent two letters, one to the the Army Corps of Engineers and one to the Fish and Wildlife Service, to challenge potential actions by them regarding the Atlantic Coast Pipeline. Both letters have been filed with FERC.

To the Army Corp of Engineers, SELC writes, “This letter is a notice that the United States Army Corps of Engineers, Norfolk District, cannot lawfully reinstate its suspended verification that the proposed Atlantic Coast Pipeline is authorized to be constructed using Nationwide Permit 12. The pipeline developer, Atlantic Coast Pipeline, LLC (Atlantic), expressly plans to violate at least one of the permit’s general conditions and has taken steps to do so, despite making contrary representations to the Corps and other regulators.” The letter then explains in detail that:

  • Atlantic must comply with FEMA-approved local floodplain management requirements to be eligible for Nationwide Permit 12.
  • Atlantic does not intend to comply with an applicable FEMA-approved floodplain management requirement in Nelson County.
  • The Corps cannot reinstate the Norfolk Verification unless Atlantic complies with Nelson County’s floodplain ordinance, regardless of Atlantic’s lawsuit.
  • The Norfolk Verification must be revoked unless Atlantic obtains variances or reroutes the pipeline.

The SELC letter notes that, “Unless Atlantic obtains variances or reroutes its proposed pipeline to avoid SFHAs [special flood hazard areas] in Nelson County, the Corps must revoke the Norfolk Verification and instruct Atlantic to seek an individual permit.”

Read SELC’s full letter to the Army Corps here.

Despite ongoing requests by citizen groups for FERC to issue a stop-work order for the ACP because so many key permits have been rejected, on February 10 FERC staff asked the U.S. Fish and Wildlife Service to reinitiate formal consultation so the proposed Atlantic Coast Pipeline project can resume construction. FERC is asking the FWS to develop a new Biological Opinion and Incidental Take Statement on the company’s proposed pipeline. Two previous Opinions and Take Statements have been vacated by the Fourth Circuit Court.

To the Fish and Wildlife Service, SELC writes, “Yesterday’s request for reinitiation of consultation, and discussion at the October 22, 2019, meeting as documented in the meeting minutes, suggest FWS is once again preparing to commit legal errors in an effort to approve this pipeline along Atlantic Coast Pipeline, LLC’s (Atlantic’s) preferred route.” The potential legal errors to which SELC refers are:

  • FWS Cannot Complete Consultation on the Atlantic Coast Pipeline Without a Final Route
  • FWS Must Fully Assess Impacts to Candy Darter and Its Critical Habitat
  • FWS May Not Authorize Further Impacts to the Clubshell

The letter concludes, “To be clear, FWS may not authorize further impacts to this population, which it has already put on the brink of extinction. ‘Congress foresaw that [consultation under the Endangered Species Act] would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.’ Tenn. Valley Auth. v. Hill, 437 U.S. 153, 186 (1978). This is one of those occasions.”

Read SELC’s full letter to the Fish and Wildlife Service here.

Report on Natural Gas Act Hearing


Fellow pipeline fighter Irene Leech attended the House Energy and Commerce Committee hearing on the Natural Gas Act hearing on February 5, 2020. With her permission, we are sharing her notes on her experience. Thank you, Irene!

I was at the hearing. I sent my comments to the record. My Montgomery Congressman, Morgan Griffith, is on the committee. He used his first 5 minutes to enter my statement into the record and to tell them I was there – affected by both pipelines. He told the industry that his constituents did not verify the good working relationship they claimed. He also told them FERC ignored the request by a group of Virginia federal elected officials for at least one more hearing. They also refused to consider the combined effect of the MVP and ACP. Griffith and Kaine have introduced similar bills that address a little of what we care about.

LaFleur did a masterful job of directly laying out the problems. She spoke only for herself. She was extremely tactful describing those opposed to her positions as genuinely viewing things differently but made clear change is needed.

Maury Johnson from WVA was invited and uninvited to speak as a landowner. There were three other affected landowners from the MVP there. I believe I was the only one from the ACP. Griffith clearly described my impact from the ACP. When Maury spoke to former chairman LaFleur she already knew we were there as landowners.

Griffith entered Karolyn Givens comments into the record with the second panel and asked the industry what can be done to incentivize industry to genuinely work with landowners – at my suggestion. The question was essentially ignored.

Hearing planners decided to displace landowners but we were there early to ensure seats (arriving around 7; at 9am we were told sitting in line outside the meeting room, not blocking any door, was considered protesting and we had to stand if we wanted to stay. They let us in at 9:50). We made sure the committee knew we were present. We shook our heads no when false things were said. We had scarves that said FERC doesn’t work but did not show them once the meeting was underway, being told that would get us thrown out – but folks saw them and pictures are on Facebook and Twitter. We also talked with staff after the hearing so we have their contact info and they have ours.

I think we made good use of our day. I did not widely share my comments but will get a copy to you. The ACP and MVP were referenced several times to point out problems with the Natural Gas Act.

We got things on the record – started the process to create change. I’m bummed we didn’t make the news – but they had a vaping hearing simultaneously along with a briefing on the coronavirus – plus State of the Union and impeachment.

P.S. Congressman Riggleman’s statement was announced as being put on the record but I have not seen/heard it.

[Note: Congressman Denver Riggleman’s statement is here.]

Trump Weakens the Nation’s Clean Water Efforts

Writing in the New York Times on February 10, 2020, Chris Wood, Collin O’Mara, and Dale Hall discuss the presidents “deeply misguided” decision to roll back water protections. Wood is president of Trout Unlimited, O’Mara is president of the National Wildlife Federation, and Hall was director the United States Fish and Wildlife Service.

They write, “The Environmental Protection Agency made a startling admission last month when it announced that many of the nation’s streams and wetlands would no longer be protected under the Clean Water Act, perhaps the nation’s most successful antipollution law. The agency said it could not predict how many miles of streams and acres of wetlands would lose their protection because of ‘existing data and mapping limitations.’ In other words, the E.P.A. was sharply narrowing the reach of a landmark environmental law without understanding the consequences of its actions.”

They state “unequivocally that this ill-informed policy will reduce water protections to a level not seen in more than a generation.”

The authors did what EPA apparently did not do, and used best mapping resources to find out what would no longer be protected. They say, “Trout Unlimited’s research suggests that more than six million miles of streams — half the total in the United States — will now be unprotected by the Clean Water Act, because they flow only after rainfall. More than 42 million acres of wetlands — again, about half the country’s total — will no longer be protected because they are not immediately adjacent to larger waters.”

Under the new laws, for example:

  • In Arizona, 88% of streams and 99% of lakes will lose protection, meaning “98 percent of the permits that limit pollution discharges into waterways will simply no longer be in force.”
  • In New Mexico, invalidated permits will no longer control the levels of mercury and PCBs running off the heavily contaminated grounds of Los Alamos National Laboratory
  • “In West Virginia and Virginia, there will no longer be federal protections for some 82 small streams that are to be excavated if the 600-mile Atlantic Coast Pipeline is built, based on surveys by Dominion”

Wood, O’Mara, and Hall conclude, “You need only consider the name to recognize what’s happening here. What was the Waters of the United States Rule is now the Navigable Waters Protection Rule. This signals a narrow concern only for commerce but not, illogically, for the network of tributaries and wetlands that keep navigable waters healthy. It also completely misses the point of the Clean Water Act, which is to protect the health of all the nation’s waters.”

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).

Landowner Comments for Congressional Hearing


The House Energy and Commerce Committee hearing on the Natural Gas Act was held on Wednesday February 5, 2020. Included in the hearing was discussion on H.R.5454 – Fairness for Landowners Facing Eminent Domain Act.

Richard Averitt, on behalf of himself and 25 other ACP-impacted Nelson County landowners, submitted a powerful and impassioned letter to be entered into the record for hearing. In his covering letter, Averitt stated, “It is of critical importance that the voice and perspective of landowners affected by the current implementation of the Natural Gas Act be part of the record and a stakeholder to the process of reforming the NGA.”

His letter begins, “I write to you on behalf of Landowners in Nelson County, Virginia who are suffering greatly from gross abuse and misuse of the Natural Gas Act by a FERC that repeatedly slants every decision and ruling in favor of any new energy project regardless of the need, cost or environmental impacts.

“We are outraged citizens who have spent nearly six years fighting for our most basic and fundamental rights to due process and property in a country founded on these sacrosanct principles. Moreover, while our specific experience relates to the Atlantic Coast Pipeline (ACP), our grievances are representative of injustices perpetrated against thousands of families across the country at this very moment along dozens of new pipelines routes. We are the victims of a broken system, a truly feckless FERC, an energy economy that is wildly incentivized to build infrastructure at any cost, and the outrageous lie that the public need for gas is driven by domestic demand while our nation races to be the largest global exporter.”

He asks that “there be more thoughtful and detailed discussion allowing for adequate citizen comment to identify the right changes moving forward,” and notes that while there are many issues worth discussing, “There are at least five key issues which must be resolved in order to protect citizens’ basic rights to property and due process in the courts and to re-balance the NGA.”

Averitt continues by discussing in detail:

  1. Issues of Notice and Intervention
  2. Defining the metrics for determining NEED
  3. Tolling orders must be eliminated
  4. Conditional Permits must be eliminated
  5. Eminent Domain reform – eliminate Quick Take

He concludes, “In summary, while there are many details beyond these five core reforms, these changes to the NGA and the FERC process represent the bare minimum Congress must do in order to restore a semblance of fairness and balance to the process and ensure the most basic and primary protections to a citizen’s guaranteed right to due process and property are preserved.”

Read the full letter here.

Many thanks to Richard for so eloquently and articulately giving voice to landowners most impacted by the reforms in question!

Information on hearing is here, including the Committee Memorandum, witness list, testimony and a live webcast.

In opening remarks at the hearing, Congressman Frank Pallone (D-NJ), Chairman of the full committee, said that the Federal Energy Regulatory Commission (FERC) “must take a more holistic view of the pipeline infrastructure already serving particular regions in order to determine whether new infrastructure is truly needed.” He continued, “I am concerned FERC is simply approving duplicative pipelines, with 60-year lifespans, under the guise of ‘market need’ even when those pipelines are not really necessary. The Atlantic Coast and Mountain Valley pipeline projects clearly illustrate the need for regional review. Both pipelines cross roughly the same areas in the mid-Atlantic region and, in some instances, impact the same communities and landowners. Why do we need that duplication? And while work on both pipes has been halted, much of the land damage has already been done because FERC allowed these duplicative projects to begin construction.”