Category Archives: Certificates of Approval

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.

Both Fine and Stay for MVP

On Friday October 11, 2019, in a consent issued by Henrico Circuit Court, Mountain Valley Pipeline agreed to pay $2.15 million to resolve the lawsuit by Virginia regulators that accused it of repeatedly violating environmental standards during MVP construction. The suit was filed in December 2018 for “violations of the commonwealth’s environmental laws and regulations at sites in Craig, Franklin, Giles, Montgomery, and Roanoke Counties.”

The agreement requires the company to submit to court-ordered and supervised compliance with regulations meant to curb sediment and erosion and stipulates automatic fines for further violations. It further stipulates that “MVP, at its expense, shall retain a third-party Environmental Auditor to provide on-site monitoring of instream invertebrate and fisheries resources during all construction activity related to waterbody and wetland crossings and document instream conditions and any impacts to the resources.” Depending on the event, fines of anywhere from $500/day to $26,000 may be levied immediately for future violations.

Later the same day, the U.S. Court of Appeals for the Fourth Circuit put a hold on two permits, the Biological Opinion and Incidental Take Statement, permits the MVP needs to proceed with construction activities. According to the Sierra Club press release, the Court’s announcement effectively means construction must stop on the 300-mile project.  On October 15, FERC wrote to MVP, saying in part, “While next steps are determined, Mountain Valley is hereby notified that construction activity along all portions of the Project and in all work areas much cease immediately, with the exception of restoration and stabilization of the right-of-way and work areas, which Commission staff believes will be more protective of the environment, including listed species, than leaving these areas in an unstable condition.”

Speaking of the FERC order, David Sligh, Conservation Director for Wild Virginia said:  “The command that Mountain Valley cease all construction immediately is appropriate and necessary to meet the law. However, FERC has previously allowed work that is clearly construction to be done under the guise that it is ‘stabilization.’ The Commission must now act responsibly and clearly prohibit all activities that are not absolutely necessary to protect the environment. FERC must no longer play deceptive games that allow further destruction from a project that cannot protect our resources and may never be completed.”

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.