Category Archives: Certificates of Approval

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.

SELC Asks FERC to Formally Halt ACP

Following the 4th District Court’s January 7, 2020 ruling vacating the Clean Air Act permit for the Buckingham compressor station issued by the Virginia State Air Pollution Control Board, the Southern Environmental Law Center wrote on January 14, 2020, to the Federal Energy Regulatory Commission asking that they formally “issue an order halting all construction of the ACP.”

The letter says, “Allowing continued construction would violate the condition of the Commission’s certificate of public convenience and necessity requiring that Atlantic Coast Pipeline, LLC (“Atlantic”) obtain all applicable authorizations required under federal law before commencing construction. The Commission cannot merely rely on Atlantic’s temporary work stoppage to address this issue. It should issue a stop-work order. ”

Noting that the certificate order mandates that the ACP must have all required authorizations before it can “receive written authorization” to start construction, the SELC letter states, ” At this time, the ACP is a largely unpermitted pipeline—it is missing eight required authorizations.”  The letter lists the missing eight authorizations.

Read the full letter here.

Fish and Wildlife Service Redrafting New Permit

From Allegheny-Blue Ridge Alliance’s ABRA Update #256 for December 12, 2019:

The biological opinion and taking statement issued for the Atlantic Coast Pipeline (ACP) by the U.S. Fish and Wildlife Service (FWS), and twice struck down by the Fourth Circuit Court of Appeals (most recently in July of this year), is once again on the drawing boards. Dominion Energy and FWS have begun consultations required under Section 7 of the Endangered Species Act (ESA). According to minutes released this week of an October 22 meeting between officials with Dominion, Duke Energy, FWS staff and the Federal Energy Regulatory Commission (FERC), the status of recent surveys that have been conducted on endangered species that would be affected by the ACP was reviewed. It was indicated that two species that were listed under the ESA since FERC’s approval of the ACP – the yellow land and candy darter – will be included in the new assessment.

Construction on the ACP was halted in December of last year because of questions raised in the Fourth Circuit decision vacating the latest FWS biological opinion. FERC has indicated that it will not approve the resumption of ACP construction until there is a valid biological opinion.

‘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.

Oral Arguments in 4th Circuit Court on Buckingham Compressor Station

Oral arguments before the Fourth Circuit Court of Appeals on the challenge to the air permit issued in January 2019 for the Buckingham compressor station took place in Richmond on October 29, 2019. Chief Judge Roger Gregory, who headed the three-judge panel, repeatedly pushed attorneys representing the Virginia Department of Environmental Quality, the State Air Pollution Control Board, and the Atlantic Coast Pipeline about why they compared Union Hill air quality to air quality around the state rather than to the surrounding Buckingham area.

Under questioning from Gregory, Deputy Solicitor General Martine Cicconi conceded that Union Hill is populated overwhelmingly by African Americans. Dominion had long disputed findings of an extensive door-to-door survey to document who lives around the proposed compressor station site, begun four years ago by anthropologist Lakshmi Fjord.

The Southern Environmental Law Center (SELC) and the Chesapeake Bay Foundation led the appeal.  In a press release from SELC, Senior Attorney Greg Buppert said, “Union Hill is a historic African-American community that traces its roots to the end of the Civil War. The siting of the compressor station and its harmful air pollution in this community is not consistent with the Commonwealth’s commitment to protect the health of all Virginians.  After five years, it remains a mystery why the pipeline’s lead partner, Dominion Energy, has never once proposed moving this facility.”

An announcement of the court’s decision is expected in early 2020.

Read the Richmond Times-Dispatch coverage here.

Read the Daily Progress coverage here.

Read the Virginia Mercury coverage here.

Read the SELC press release here.

Read the SELC opening brief here.

And finally, audio recording of the oral arguments made before the Court (57-minutes) is available by clicking here.

Hampton Roads Planners Sideline ACP Endorsement

From Allegheny-Blue Ridge Alliance ABRA Update #249, October 18, 2019:

A proposal for the Hampton Roads Planning District Commission to endorse the Atlantic Coast Pipeline was set aside for further consideration on Thursday, October 17, 2019. According to the meeting agenda, the proposal had been the result of a briefing received by officials of local communities in the Planning District from Dominion Energy regarding “the critical importance of this project to ensure that the Hampton Roads region has available natural gas to support economic growth.” At the beginning of the Thursday meeting, the Commission chair noted the large number of communications that had been received in opposition to the proposal. The Commission then agreed to defer action on the endorsement proposal and refer the matter to a committee for further consideration. ABRA sent out an action alert on the proposal on October 13, as did several other groups. Thanks to all who generated communications to the Planning District Commission.