Category Archives: Appalachian Trail

Supreme Court Schedules Forest Service Case

From Allegheny-Blue Ridge Alliance’s ABRA Update #255 for December 5, 2019:

The U.S. Supreme Court has announced that the appeal of the case vacating the Atlantic Coast Pipeline’s (ACP) permit from the U.S. Forest Service to build across Forest Service land is scheduled for oral argument on Monday, February 24, 2020 at 10 am. The Fourth Circuit Court of Appeals struck down the permit in a December 18, 2018 decision on the grounds that the Forest Service 1) was negligent in its analysis of environmental impacts on Forest lands, and 2) did not have the legal authority to grant permission for the project to cross the Appalachian National Scenic Trail.

The appellants in the case – Atlantic Coast Pipeline, LLC and the U.S. Forest Service – filed their briefs with the Court on December 2. Amicus briefs in support of the appellants are due to be filed by December 9.

The respondents in the case, all members of ABRA, are Cowpasture River Preservation Association, Highlands for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia. Their brief must be filed by the Southern Environmental Law Center (SELC) by January 15, 2020. Amicus briefs in support of the respondents’ position are due January 22.

For a copy of the brief filed by ACP, LLC, click here. For the Forest Service brief, click here.

‘Everyday People’ vs. Corporate Goliath

Who.What.Why discusses the David vs Goliath battle of “everyday people” against Dominion in a November 25, 2019 article. “It seems like a David vs. Goliath battle. Since 2014, a coalition of environmental, civil rights, and community groups, along with some local businesses, has fought in court to block a massive $8 billion pipeline. The anti-pipeline coalition, which is represented by an environmental law firm, is up against a politically connected corporation with 7.5 million customers in 18 states, 21,000 employees, and 2018 earnings of $2.4 billion.”

In addition to eliminating “more than 6,800 acres of forest — an area the size of eight Central Parks” and upending the lives of people living on or near its route, the Atlantic Coast Pipeline “has implications for millions of ratepayers in both Virginia and North Carolina. It also raises concerns about a major utility’s investment in fossil fuels, at a time when carbon emissions are jeopardizing the way humans live in the future.”

The article discusses the Supreme Court’s agreement to hear Dominion’s appeal of the December 2018 Fourth Circuit ruling that “the US Forest Service does not have the authority to grant Dominion the right to build its pipeline across the Appalachian Trail ‘at its preferred crossing point,’ on federal lands,” and why a Dominion victory in the Supreme Court would not be the last word, how the pipeline could punish Dominion ratepayers, whether (or not) Dominion’s political clout will prevail, as well as the surge in grassroots political engagement to fight the ACP.

Lewis Freeman, executive director of the Allegheny–Blue Ridge Alliance (ABRA), a coalition of 51 community and environmental groups of which Friends of Nelson is one, says the ACP has energized average citizens.

“Pipeline construction will require ACP engineers to sheer the tops off some mountain ridges. When Freeman asked an engineer what they would do with all that rock and soil, the engineer responded that the materials would be ‘”carefully set aside” and then “put back the way it was.” Well, you don’t have to be an engineer to blink at that,’ Freeman said. ‘Are they gonna put it back with Gorilla glue?'”

Freeman continued, saying, “‘Notwithstanding the length of time this battle has gone, I marvel at the people and organizations that have, from the early stages, opposed this project. Most of our members are community groups, citizens groups, many of which were formed as a result of the pipeline proposal.’ These ‘involved activists had never been involved in a fight like this before,’ Freeman added. ‘So when Dominion talks about the “wild-eye environmentalists,” they’re mischaracterizing who their opposition is. They’re everyday people who just think this is a lousy project in the wrong place.'”

Who.What.Why notes that, “Dominion did not respond to two requests for comment on this story.”

Read the full article here.

Dominion and the AT: Contact Your Senators and Representative (Again)

Late last week we learned that Dominion Energy is putting a full-court press with members of the Virginia congressional delegation to urge their support for congressional action on overturning the Fourth Circuit Court of Appeals’ decision to vacate the Forest Service permit for the Atlantic Coast Pipeline which, among other things, would have permitted the pipeline to cross the Appalachian National Scenic Trail. The Court ruled that the Forest Service did not possess the legal authority to issue such a permit. This is notwithstanding the appeal of that decision that is due to be argued early next year before the U.S. Supreme Court.

We asked you this past summer and again in late September to contact your Congressional Representative and Senators Warner and Kaine to urge their opposition to any such rider or amendment. Hundreds of you responded. But, given this new development, renewed contact with your Representative and the two Senators is necessary, asking them: 1) to oppose any such legislation; and 2) to let their congressional leadership know they oppose it.

Here are documents to help you as you contact your legislators:

Briefing Schedule Set for Supreme Court Case

From the Allegheny-Blue Ridge Alliance ABRA Update #254, November 21, 2019:

Initial briefs in the Cowpasture River Preservation Association, et. al. v. Forest Service are due to be filed with the U.S. Supreme Court by the petitioners – U.S. Forest Service and Atlantic Coast Pipeline, LLC – on December 2. The Southern Environmental Law Center, representing the Cowpasture River Preservation Association and the other respondents in the case, is scheduled to file its response brief on January 15, 2020. The Supreme Court had announced on October 4 it would accept the case for review. At this writing, no date has been scheduled for oral arguments in the case, but it is anticipated to occur in early 2020.

The appeal before the Court is from a decision by the Fourth Circuit Court of Appeals on December 13, 2018 to vacate the permit the U.S. Forest Service had issued for the Atlantic Coast Pipeline (ACP) , which affects the project’s crossing of the Appalachian National Trail (AT). Among major points in the Fourth Circuit decision was the judgment that the Forest Service did not possess the legal right to authorize the ACP to cross the AT. Plaintiffs in the challenge to the Forest Serviced permit (and, thus, the respondents in the pending Supreme Court Appeal) are 7 members of ABRA: Cowpasture River Preservation Association; Highlanders for Responsible Development; Shenandoah Valley Battlefields Foundation; Shenandoah Valley Network; Sierra Club; Virginia Wilderness Committee; and Wild Virginia.

Legal Challenge to FERC Certificate Put on Hold

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

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….