Category Archives: Appalachian Trail

Crossing the Appalachian Trail

Many have worried that Dominion Energy would make a concerted effort to convince Congress to grant permission for the Atlantic Coast Pipeline to cross the Appalachian Trail after the Fourth Circuit Court of Appeals found the Forest Service did not possess the right to allow the crossing. At this time (February 11, 2019), there is no Dominion amendment attached to any piece of pending legislation in the Congress. However, it now appears it would be useful and important to express concerns to relevant members of Congress.

If you are worried about this unwarranted attempt by Dominion, we urge you to contact your Representative within the next several days. Ask the Representative to contact Congressional leadership to make clear their ACP concerns and opposition, including opposition to the idea of Congress stepping in to help the ACP sidestep fundamental permitting problems that are currently being sorted out in the normal regulatory process and in the courts, and opposition to and concerns about ACP in general. Many of these members have voiced concerns about or outright opposition to ACP in the past; others are new to Congress.

This congressional “fix” is a problem because it would:

  • Imply a congressional endorsement for the ACP, stacking the deck for building the ACP as proposed, on its current route.
  • Set the wrong example for special congressional exceptions to the federal law that otherwise disallows pipelines across national parks.
  • Limit the otherwise-required further analysis of alternatives to the ACP.
  • Leave decisions about key ACP permits entirely in the hands of federal agencies, which already have short-changed public and environmental review of ACP permits.

As a resource for your communication, see this set of talking points, with supporting citations, with detailed information about the fundamental lack of need for the ACP, and about the Fourth Circuit’s Forest Service decision and the Appalachian Trail.

Call or Write Your Senators!

The Richmond Times-Dispatch reported on December 3, 2018, 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…. 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.”

The Fourth Circuit Court of Appeals has vacated a federal approval for the Atlantic Coast Pipeline to cross the Monongahela National Forest, George Washington National Forest, and Appalachian Trail.

Having been thwarted by the court in efforts to bend the National Forest and the National Parks Services to its will, Dominion is trying circumvent the court ruling by sneaking a last-minute amendment into a pending appropriations bill for the Department of Interior that would permit the Atlantic Coast Pipeline to cross the Appalachian Trail and Blue Ridge Parkway near Wintergreen and Reed’s Gap.

Although we understand that (at this moment) the amendment has been pulled, we should assume that Dominion is pulling out all the stops to get something from Congress to sidestep the court’s ruling.

Write or call (or better yet, do both!) your Senators and tell them that you are upset about any possible legislative “slight of hand,” that you oppose any last minute amendments to the budget reconciliation bill, especially one that would allow gas pipelines to cross our national forests and the Appalachian Trail, and that you oppose Dominion’s efforts to make an end run around the clear and carefully considered ruling of the Fourth Circuit Court.

Tim Kaine
https://www.kaine.senate.gov/contact/share-your-opinion
Phone: 202-224-4024

Mark Warner
https://www.warner.senate.gov/public/index.cfm?p=ContactPage
Phone: 202-224-2023

SELC Asks FERC to Revoke ACP’s Certificate

Allegheny-Blue Ridge Alliance reports that in a filing late December 13, 2018, the Southern Environmental Law Center (SELC) asked the Federal Energy Regulatory Commission (FERC) to revoke the certificate for the Atlantic Coast Pipeline in light of the decision earlier in the day by the Fourth Circuit Court of Appeals to vacate the U.S. Forest Service’s approval for the pipeline to cross national forest lands and the Appalachian National Scenic Trail. In its 65-page letter to FERC, SELC stated:

Crucially, the court held that the Forest Service does not have statutory authority to authorize the pipeline to cross the Appalachian Trail. As a result, under federal law, Atlantic Coast Pipeline, LLC (“Atlantic”) cannot obtain authorization from federal agencies to cross the Trail as proposed. Thus, the Commission’s Certificate approves a project that cannot be constructed in compliance with federal law. Further, the proposed Appalachian Trail crossing is a linchpin in the Commission’s alternatives analysis—almost every alternative considered in the Final EIS includes this crossing point. See ACP Final EIS at 3-18 to 3-19. In light of the court’s decision, that analysis is not valid and cannot be used to approve a re-route of the project at this stage. The Commission must therefore revoke the Certificate of Public Convenience and Necessity. Further, the Commission must issue a formal stop-work order, effective immediately, halting all construction activities because the court’s decision means that Atlantic continues to be out of compliance with a mandatory condition of its Certificate of Public Convenience and Necessity.

 

Fourth Circuit Court Throws out ACP’s Forest Service Permit


On December 13, 2018, the Fourth Circuit Court of Appeals vacated a federal approval for the Atlantic Coast Pipeline to cross the Monongahela National Forest, George Washington National Forest, and Appalachian Trail.

The case was argued before the Court on September 28, 2018, with the Southern Environmental Law Canter and Appalachian Mountain Advocates representing the plaintiffs.

The Court found that the Forest Service “abdicated its responsibility to preserve national forest resources,” and noted the agency’s “serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.” The opinion says the Forest Service violated the National Environmental Policy Act, National Forest Management Act, and did not have authority under the Mineral Leasing Act to grant a right-of-way across the Appalachian Trail.

Read the Court’s opinion here.

See news coverage from Virginia Mercury here.

See news coverage from the Washington Post here.

See news coverage from the Richmond Times-Dispatch here.

Be aware: The Richmond Times-Dispatch points out that, “Dominion’s allies in Congress reportedly are considering an amendment to a pending appropriations bill for the Department of Interior that would permit the crossing of the Appalachian Trail and Blue Ridge Parkway near Reed’s Gap.”  Additional information hereContact 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.

Congressional Act to Allow Pipelines to Cross Appalachian Trail and Blue Ridge Parkway?


Say “NO!”

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.

Coalition Voices Concern about Atlantic Coast Pipeline

The Coalition to Protect America’s National Parks is a non-profit organization composed of retired, former, or current employees of the National Park Service that studies, educates, speaks, and acts for the preservation of our National Park System. On November 12, 2018, Philip A. Francis, Jr., Chair of the Coalition and a former superintendent of the Blue Ridge Parkway, wrote to the Acting Director of the National Park Service on behalf of the Coalition “to express our concern about the Atlantic Coast Pipeline and the permit that the National Park Service has granted to allow a natural gas pipeline to cross the Appalachian Trail and the Blue Ridge Parkway.”

In his letter, Mr. Francis says, “There is no evidence that impacts to the critical views enjoyed by millions of Parkway visitors were considered in this decision. There also is no indication that the Service considered the cumulative effects of this action on visitors’ enjoyment of Parkway resources, the impact to the hundreds of businesses that benefit from the millions of visitors with an economic impact exceeding $1 billion annually, or the precedent that this decision would create that could lead to further deterioration of Parkway views. This decision is contrary to decades of past decisions made by superintendents of the Parkway, and the National Park Service.”

The NPS Organic Act requires the Park Service to “provide for the enjoyment of the same by such means and in such manner as to leave them unimpaired for future generations,” and Francis cites numerous examples of ways in which Parkway staff have worked over time to protect the Parkway for current and future visitors.

“Nothing should be done in derogation of park values. Decisions that adversely affect Parkway scenic views are actions that result in derogation of park values, which impact visitor experiences and potentially have an adverse effect to the economies of at least the 29 counties in Virginia and North Carolina. The Park Service has failed to properly administer the requirements provided by NPS policy and law, and the use of a categorical exclusion under the National Environmental Policy Act to authorize this permit for the pipeline is inappropriate and appears to have been made to accomplish political goals instead.”

On behalf of the Coalition, Francis “respectfully requests that the National Park Service reconsider its decision on the Atlantic Coast Pipeline by, as an initial matter, holding a scoping procedure to consider what level of NEPA compliance is necessary and obtaining the input of the public.”

Read the full letter here.