This excellent update on the current legal challenges to the Atlantic Coast Pipeline comes from Allegheny-Blue Ridge Alliance (ABRA) Update #221
The lawsuit challenging the FERC certificate for the Atlantic Coast Pipeline (ACP) has finally been scheduled for briefs to be filed by April 5. The suit, which was filed August 16 with the 4th Circuit Court of Appeals but was re-assigned to the DC Circuit Court of Appeals, was brought on behalf of a group of ABRA member organizations and other plaintiffs. The plaintiffs are represented by Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates (Appalmad). Arguments before the court are not expected to be scheduled until sometime in the Fall. Here’s a brief status report on two other pending cases that challenge ACP permits:
Forest Service – The challenge to the U.S. Forest Service’s issuance of a Special Use Permit for the ACP on January 23 was filed February 5, 2018 with the 4th Circuit Court of Appeals. Plaintiffs are a group of ABRA members and others, represented by SELC and Appalmad. The Fourth Circuit vacated the permit in a December 13 decision, thus denying the ACP the right to cross the Appalachian National Scenic Trail (ANST), which the Court said the U.S. Forest Service lacked the legal authority to grant. An appeal of that ruling to the entire Fourth Circuit (an en banc hearing before all fifteen of the Court’s judges) was denied on February 25. Dominion Energy has said it will appeal the decision by late May to the U.S. Supreme Court. That appeal has not yet been made. It is worth noting that only about one percent of the cases that are appealed to the Supreme Court are heard. In the meantime, Dominion has been lobbying Congress since the Fourth Circuit’s December decision to have language added to pending legislation that would override the Court’s vacating of the Forest Service permit to cross the ANST. To date, those lobbying efforts have not succeeded. ABRA asks that contacts be made with Members of Congress to urge them to oppose such an action. For the Action Alert, click here.
Air Permit for Buckingham Compressor Station – The January 8 decision by the Virginia Air Pollution Control Board to grant an air permit for the proposed ACP compressor station in Buckingham County, VA was challenged in a lawsuit filed with the Fourth Circuit Court of Appeals by the Southern Environmental Law Center on behalf of Friends of Buckingham. A proposed briefing schedule for the case will be filed in early May, with arguments in the case not likely until sometime this Fall.
Around a thousand people gathered at Buckingham Middle School on February 19, 2019, for A Moral Call for Ecological Justice, which included as keynote speakers former Vice President Al Gore, and Rev. Dr. William Barber, co-chair of the Poor People’s Campaign.
Breaking Through News reporter Elaine Rackley was at the rally and has prepared a series of stories about the environmental justice event.
Rackley’s first story:
Part two in Breaking Through News Reporter Elaine Rackley’s series on the recent Moral Call to Ecological Justice rally in Buckingham County:
It is unfortunate you were unable to attend the February 19 meeting in Buckingham County, with keynote speakers Rev. William Barber and Al Gore addressing “The Moral Call for Ecological Justice”. The presentations were comprehensive in outlining the many injustices that would be visited on the Union Hill community if Dominion is allowed to build a huge compressor station there. You could have learned a lot had you been there, and we encourage you to take the time to review the video now available online.
At this point in your governorship, you have conveyed the message that you have no real concern about environmental justice or Union Hill. You first dismissed the report of your Advisory Council on Environmental Justice as a draft, and when council leaders made it clear that the report was, in fact, their final report, you simply ignored it. Late in the review process, after a secret meeting with Dominion’s CEO, you abruptly removed two members of the State Air Pollution Control Board who had raised concerns about the potential compressor station’s impacts on area residents. You have allowed the Director of the Department of Environmental Quality to carry out his duties in a way that indicates he supports building the pipeline rather than doing his job in a neutral way. You have shown no concern that the Air Pollution Control Board’s last hearing on the compressor station was a meaningless show leading to a pre-arranged permit approval. In all, your actions regarding the compressor station at Union Hill are a dereliction of your duty to citizens of the Commonwealth.
If you are to fulfill your promise of leading Virginia forward you will need to do much more than apologize for past mistakes or make vague promises to ‘heal’ Virginia. You will need to take concrete action toward dismantling institutional racism. Your position gives you both the authority and the responsibility to lead on this.
The path you have laid out for yourself will be long and difficult. For the sake of all the citizens of Virginia and the country, we hope you persevere and succeed. We will be watching closely.
In a press release on February 8, 2019, the Southern Environmental Law Center announced their challenge of the Air Pollution Control Board on behalf of the Union Hill Community. The press release states:
Today the Southern Environmental Law Center, on behalf of its client the Friends of Buckingham, challenged the Virginia Air Pollution Control Board’s decision to approve Dominion’s Atlantic Coast Pipeline Buckingham County compressor station.
“The Air Board has refused to address the disproportionate harm that our community will have to bear as a result of the construction of this polluting compressor station,” said John W. Laury of Friends of Buckingham. “The members of our community should not have our health put at risk for a project that wasn’t properly vetted for environmental justice or air quality concerns.”
The Air Board and the Department of Environmental Quality did not meet their obligations under state and federal laws to consider less polluting alternatives and the best available pollution controls for minimizing pollution from the proposed compressor station.
“The backdrop to the board’s decision about the compressor station is the mounting evidence that customers in Virginia do not need the Atlantic Coast Pipeline to meet their energy needs,” said Southern Environmental Law Center Senior Attorney Greg Buppert. “When a project like this pipeline goes forward without a full and transparent evaluation of its public necessity, it unfairly puts communities like Union Hill in harm’s way.”
Dominion’s Atlantic Coast Pipeline project is already stymied because a federal court has vacated or put on hold multiple required permits for failing to comply with applicable law and federal agencies have themselves revoked other permits.
Building community to protect the environment and the people who are most impacted when it is degraded has never been more important. With growing threats to humanity and to the integrity of creation, new partnerships dedicated to environmental justice are essential. The new video, “We Won’t Back Down” is a portrait of the work of the Interfaith Alliance for Climate Justice (IACJ) to support those resisting the Atlantic Coast and Mountain Valley fracked gas pipelines.
Writing in the Washington Post on January 24, 2019, Sam Bleicher, a member and vice-chair of the Virginia Air Pollution Control Board until removed by Northam in November 2018, discusses the January 8 approval by a diminished Air Board of the air pollution permit for the Buckingham Compressor Station.
He says, “the decision sets important, undesirable precedents for environmental justice decisions and for the global ‘business in liquidation’ approach of continuing to invest in fossil fuel infrastructure. To undermine the environmental justice opposition, Dominion committed $5 million for improved health and safety facilities in Union Hill that the community certainly needs — but only if the permit is approved. This deal divided the public opposition. The Dominion commitment presented the Air Board with a Hobson’s choice: The board could protect this disadvantaged minority community from the risks emanating from the compressor station, but only by depriving it of funds that will improve the lives of the residents. The existing statutes and regulations on environmental justice in siting energy facilities do not address the existence or relevance of such compensatory ‘incentives’ (some would say ‘bribes’).”
Bleicher believes that, “the outcome tells major corporations that they can buy their way out of environmental justice embarrassments by spending a tiny fraction of the total project cost to benefit the poor minority residents who are inconveniently located in their way.”
He describes the outdated policy of “bridge technology” (natural gas as the “bridge” from coal to sustainable, emission-free technologies), still egregiously embodied in government policy, including in Federal Energy Regulatory Commission (FERC) rules that guarantee a 14 percent return on capital invested in fossil fuel pipelines, no matter if they are never used. That outdated policy explains why Dominion wants to build a pipeline that makes no sense except to guarantee return to shareholders and management.
Bleicher concludes, “Unless we change the obsolete policies that incentivize construction of unnecessary fossil fuel infrastructure, communities like Union Hill remain at risk and electricity monopolies will continue to profit, despite the suffering of affected communities, and the costs of climate change inaction multiply.”