From The Allegheny-Blue Ridge Alliance’s ABRA Update #248, October 10, 2019
Consideration of legal challenges to the certificate issued in December 2017 by the Federal Energy Regulatory Commission for construction of the Atlantic Coast Pipeline (ACP), which was to be argued before the DC Circuit Court of Appeals on October 16, has been deferred. The case before the Court consolidates several cases, including the challenge brought by several ABRA members asking that the FERC certificate for the ACP be invalidated. The Order deferring the argument of the case, issued by the DC Circuit late on October 4, explained that the reason for delaying the scheduled argument was the U.S. Supreme Court’s decision announced earlier that day to accept for argument United States Forest Service v. Cowpasture River Preservation Association case, in which the Fourth Circuit Court of Appeals decided that the Forest Service did not have the authority to grant the ACP the right to cross the Appalachian Scenic National Trail.
The DC Circuit will decide when to reschedule consideration of the FERC challenge after the Supreme Court hands down a decision on the Cowpasture case. No date has yet been set by the Supreme Court for the Cowpasture case to be argued, but it is believed that will occur sometime in February or March 2020, with a decision being made before the end of June. Initial briefs by parties in the Cowpasture case are to be filed with the Supreme Court by December 19.
In the meantime, construction on the ACP is still suspended as the company awaits issuance by the U.S. Fish and Wildlife Service (FWS) of a new biological opinion for the project, which is expected to occur sometime in coming weeks. The Southern Environmental Law Center submitted to FWS on October 1 an 88-page submission to the agency on how it should consider rewriting the new biological opinion, noting:
- As the agency well knows, this is the second time its approvals for this project have been vacated. Both vacaturs followed rushed, incomplete analysis unsupported by best available science. We urge the agency to resist pressure from the pipeline companies to fast-track yet another approval for this unnecessary project and to instead heed its mandate under the Endangered Species Act (“ESA”) to protect and conserve endangered and threatened species and their habitats. That requires avoiding inflicting further harm on species where that injury may jeopardize the species, as it would here for rusty-patched bumble bee, clubshell, and Roanoke logperch.
- In the year since the agency issued its last biological opinion and incidental take statement, facts regarding the impact of constructing this pipeline on protected species have changed. The agency must take these changes into account to issue a valid approval for this project. If the agency again seeks to expedite approvals, we are concerned these changes will be ignored. Therefore, on behalf of Defenders of Wildlife, Sierra Club, and the Virginia Wilderness Committee, we request that the agency consider the following in its re-evaluation of the pipeline.
Dominion buys pipeline support at Supreme Court through GOP Attorneys General – that was the headline for an article posted by the Energy and Policy Institute on October 3, 2019, the day before the Supreme Court announced that it would hear the appeal of the 4th U.S. Circuit Court of Appeals ruling that the Forest Service could not authorize the pipeline to cross the Appalachian Trail. The article was reposted on DeSmog Blog on October 5, the day after the announcement.
The article points out that “Dominion Energy has received support in its case from Republican state Attorneys General and the US Department of Justice. Both US Attorney General William Barr and the state Attorneys General have close financial ties to the utility – including through a GOP group that funneled millions to one key proponent.”
Barr was on Dominion’s Board of Directors from 2009 until February 2019 when he resigned and was confirmed as US Attorney General. US Solicitor General Noel Francisco, who reports to Barr, asked the SCOTUS to hear the appeal of the 4th Circuit ruling. Worth noting: “Between 2009 and 2018, Barr received $2.3 million from Dominion in cash and stock awards, according to a Forbes report based on SEC filings. Upon his resignation from the Board, he received 2,000 shares of common stock, as outlined in his Ethics Agreement, worth about $150,000 at Dominion’s stock price this past spring. Barr was supposed to divest that stock within three months, according to his Ethics Agreement. Barr has yet to recuse himself publicly from activities relating to the ACP Supreme Court appeal….”
In addition to the support from the US Attorney General, 16 State Attorneys General, backed by a Dominion-funded group, also supported Dominion’s appeal. “West Virginia Attorney General Patrick Morrisey led a group of 16 state attorneys general – all Republicans – in a filing this July urging the Supreme Court to take up the ACP appeal. The utility has given $60,725 to a key supporter of Morrisey and other signatories – the Republican Attorneys General Association (RAGA) – since 2014, according to Dominion’s political spending disclosures.” RAGA poured $6.8 million into Morrisey’s 2016 re-election campaign, and RAGA or Dominion may have channeled additional resources to Morrisey through other intermediaries not legally required to disclose all donors or recipients.
Follow the money….
On October 4, 2019, the Southern Environmental Law Centered issues the following press release:
Today, the U.S. Supreme Court agreed to review a lower court decision that revoked a U.S. Forest Service permit for the Atlantic Coast Pipeline (ACP). The ruling by the 4th Circuit Court of Appeals stated the Forest Service lacked authority to grant approval to Dominion and Duke Energy to cross the Appalachian Trail on federal land.
Since construction on the ACP began last year, seven crucial permits have been vacated, resulting in a halt to construction since December of 2018. Dominion Energy proposed this pipeline in 2014. In the years since, the energy landscape has changed dramatically and we now know that this $7.8 billion pipeline is costly, unneeded, dangerous, and will only add to our greenhouse gas emission problems and burden Duke and Dominion customers with the cost for decades to come.
In response to the decision, the Southern Environmental Law Center and the Sierra Club issued the following joint statement:
“We will defend the lower court’s decision in this case. The Atlantic Coast Pipeline is a dangerous, costly, and unnecessary project and we won’t stand by while Duke and Dominion Energy try to force it on our public lands, threatening people’s health, endangered species, iconic landscapes, and clean water along the way.”
Here’s your opportunity to increase efforts to conserve land in Nelson and Amherst counties in the Appalachian Trail landscape … just by voting online!
For the past several years, the Blue Ridge Land Conservancy and the Appalachian Trail Conservancy (ATC) have been partners in saving land in Virginia. The board president of the Blue Ridge Land Conservancy, Dr. Diana Christopulos, is one of nine national finalists for the Cox Conserves Heroes Award. Diana won the competition for Virginia and is now competing against eight other finalists from Arizona, California, Florida, Georgia, Idaho, Louisiana, Massachusetts and Washington state. If Diana wins the national competition, she’ll receive $50,000, which will go to the Southwest and Central Virginia Regional Office of the Appalachian Trail Conservancy.
Here is why this is important to our area. The ATC is now providing grant funding to the Blue Ridge Land Conservancy to hire a staff person in order to increase conservation of land in Nelson and Amherst counties in the broader Appalachian Trail landscape. Two volunteer members of the Blue Ridge Land Conservancy board who live in Nelson (Susan McSwain) and Amherst (Wendy Kendrick) – would like to encourage you to vote for Diana in order to put the prize money to work here in our own back yard.
To see a video on Dr. Christopulos and vote for her, click here. You can vote once per email address, so feel free to vote with both work and personal accounts. Deadline to cast your vote is October 15.
Breaking news – The U.S. Supreme Court announced on Friday morning, October 4, 2019, that it will hear the appeal by the Atlantic Coast Pipeline, LLC of the Fourth Circuit Court of Appeals decision on the Cowpasture River, et. al. vs. Forest Service case. No date for oral argument has been set.
This case will consider the Forest Service’s authority to permit the Atlantic Coast pipeline to cross the Appalachian Trail. We’ll post more on the ramifications of the Supreme Court’s decision as information becomes available.
In an article published on September 30, 2019, E&E News considers “4 pipeline fights to watch this term.” The justices have the opportunity to consider:
- The Forest Service’s authority to permit the Atlantic Coast pipeline to cross the Appalachian Trail. “In Atlantic Coast v. Cowpasture River Preservation Association, Dominion Energy Inc. and other Atlantic Coast developers are fighting a 4th U.S. Circuit Court of Appeals decision that the Forest Service cannot authorize a path for the pipeline below the Appalachian Trail. The solicitor general filed a companion brief on behalf of the Forest Service. Environmental groups, meanwhile, have urged the justices not to take the case.”
- Whether developers of the Mountain Valley project can lawfully seize private property before paying. “Givens v. Mountain Valley Pipeline LLC challenges developers’ ability to immediately take private property for constructing the pipeline before providing payment, an approach known as ‘quick take.’ Their petition aims to overturn precedent set by the 2004 4th Circuit case East Tennessee Natural Gas Co. v. Sage, which allowed pipeline developers to begin construction on private property before paying, provided they had a preliminary injunction. The case is different from typical eminent domain disputes because it doesn’t challenge the legality of the practice, but rather when pipeline developers can take and build on the land.”
- A case involving state lands takings for the PennEast pipeline. “Energy lawyers are also closely watching whether a recent decision by the 3rd Circuit on condemning state-owned lands for pipeline development will eventually land in front of the Supreme Court. This month, the court ruled that the developer of the 120-mile PennEast pipeline through Pennsylvania and New Jersey could not use condemnation orders to build significant portions of the line through land owned by the Garden State. The case raises issues of sovereign immunity under the 11th Amendment to the U.S. Constitution and could have important implications for the expansion of pipeline projects in states that oppose oil and gas development. Judges for the 3rd Circuit said that pipeline developers can’t take a state to court for not selling an easement to build a pipeline.”
- Challenges over gas exports because the Federal Energy Regulatory Commission’s authority to delegate eminent domain power to pipeline builders is limited to projects in service of interstate commerce. “The U.S. Court of Appeals for the District of Columbia Circuit recently highlighted the issue in a decision over the use of eminent domain to build the Nexus natural gas pipeline through Ohio and Michigan. Those opposed to the pipeline argued that FERC improperly issued a certificate for the project based in part on commitments made by Canadian shippers. That raises the question of whether it is possible to justify that a project designed to supply energy to citizens of foreign countries will serve the public good. The case not only could affect pipelines that cross into Canada and Mexico, but also could have implications for pipelines feeding liquefied natural gas facilities.”
Read the full article here.