Category Archives: Certificates of Approval

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.

SELC Responds to DC Circuit Questions About FERC Case

From Allegheny-Blue Ridge Alliance’s ABRA Update #246 for September 26, 2019:

The DC Circuit Court of Appeals has asked all of the parties involved in the legal cases challenging the certificate of public convenience issued for the Atlantic Coast Pipeline by the Federal Energy Regulatory Commission (FERC) to response to several questions prior to the scheduled argument of the case before the Court on October 16. In a September 13 Order, the Court noted that the Fourth Circuit Court of Appeals in the Cowpasture River Preservation Association v. Forest Service case, which has been appealed to the U.S. Supreme Court, may render the FERC case “unfit for review at this time” (depending upon the Supreme Court’s decision on whether to accept the Cowpasture case for review). Given that, the DC Circuit asked the parties to the FERC case to respond to the following questions:

  1. Whether an alternative route would allow the ACP to proceed on the same certificate of public convenience and necessity;
  2. Whether the prospects of building the pipeline using the same certificate are so speculative that these petitions are unripe (i.e., not ready for consideration) on either constitutional or prudential grounds; and
  3. Assuming that the petitions are unripe, whether the appropriate remedy is to dismiss the petitions or to hold them in abeyance.

The Southern Environmental Law Center, representing the Cowpasture River Preservation Association and other petitioners challenging the FERC certificate, responded to the questions in the Order in a September 20 filing with the Court. Joining in the filing were Appalachian Mountain Advocates, Chesapeake Bay Foundation and Christopher Johns, a counsel for several landowner petitioners. The SELC, et. al. filing argues that:

  • While an alternative route should require a new or amended certificate, FERC has not acknowledged the implications of the Fourth Circuit’s Cowpasture decision for the ACP project;
  • Conservation and landowner petitioners’ claims are ripe for review; and
  • If the Court finds the petitions unripe, the Court should vacate or stay FERC’s certificate for the ACP.

50+ Groups and Delegates Demand Northam Deny Permits for Two New Pipelines & Gas Plant

A September 25, 2019, press release from Food and Water Watch:

50+ Groups and Delegates Demand Northam Deny Permits for Two New Pipelines & Gas Plant

Virginia cannot approve more dirty energy investment if it really wants to tackle climate change impacts

Contact: Jorja Rose, jrose@fwwatch.org, 202-683-2483

Richmond, VA — Today, Delegates Lee Carter, Del. Sam Rasoul, Food & Water Action, and a coalition of over 50 groups across Virginia officially released a letter urging Governor Ralph Northam to stop investing in new fossil fuel infrastructure. The letter specifically calls on the governor’s administration to deny state permits for two new pipelines in Northern Virginia and in Pittsylvania that will lead to more dependence on fossil fuels and the development of new dirty fuel infrastructure in the state.

“At a time when scientists are nearly unanimous in calling for the end of fossil fuel use, there can be no reasonable justification for building new natural gas pipelines,” said Delegate Lee Carter. “These two projects – one of which is in Manassas – will endanger those who live nearby, will directly damage the environment during construction, and will massively contribute to the ongoing climate crisis which we should instead be working to stop.”

Virginia is currently reviewing air and water permits that would allow the Southeastern Trail Expansion project to build out a new pipeline in Northern Virginia and expand several compressor stations. In Pittsylvania, the MVP Southgate Extension would also add 30 new miles of pipeline in Virginia.

“Virginia’s state agencies must thoroughly review the water and air permits being sought by these new projects. I believe that after weighing all of the risks associated with these projects, the agencies will reject these permits,” said Delegate Sam Rasoul. “We have a choice as a state now to head in the direction of a Green New Deal. Virginia does not need any more fracked gas pipelines nor fracked gas plants that will endanger the health and safety of Virginia communities.

The group letter criticizes past decisions to allow the controversial Mountain Valley Pipeline and Atlantic Coast Pipelines that will be transporting fracked gas across the state. Both of those pipelines have garnered strong opposition because of the negative health and safety impacts they will have on Virginia communities, in particular, vulnerable communities that already bear the disproportionate brunt of fossil fuel negative impacts.

“Governor Northam should direct state agencies to deny permits for any new fossil fuel infrastructure if he’s truly committed to the 100% renewable energy future he announced last week,” said Jorge Aguilar, the southern region director for Food & Water Action. “The governor’s commitment to addressing climate change will mean nothing if his agencies are still approving pipelines and gas plants behind the scenes.”

“People of faith know that more pipelines endanger our neighbors both near and far,” said Jonathan Lacock-Nisly, Director of Faithful Advocacy for Interfaith Power & Light, which engages congregations in addressing climate change. “We urge the governor to instead join caring congregations across Virginia in shifting to cleaner power.”

This release comes on the heels of Northam issuing Executive Order 43 last week, which failed to make any mention of halting current fossil fuel infrastructure projects like the Chickahominy gas plant in Charles City and other pipelines, which will also wreak havoc on the environment and communities of Virginia.

“The fight against Chickahominy Power gas plant demonstrates what is at stake for all of us, starting with the frontline community whose well water is directly under threat and who will be near to the 6.5 million tons of greenhouse gases emitted annually from the plant,” said Dr. Mary Finley-Brook, PhD, Virginia Environmental Justice Collaborative. “After stealing our water and poisoning our air, this gas plant will become a stranded asset when we move to truly clean renewables.”

Full letter here: https://www.foodandwaterwatch.org/sites/default/files/govnorthamopposeffpermitsgroupsignonletter.pdf

Important Action Alert from Wild Virginia

An action alert from David Sligh, Wild Virginia’s Conservation Director:

We’ve just received word that a special deal may soon be attached to a bill in Congress to allow Dominion to change the rules in their favor so they can fast track the Atlantic Coast Pipeline. We need your help today to send a strong message to our elected representatives.  We need them to know to watch for tricks like this from Dominion and to be ready to vote in opposition to any legislation like this.

The time is NOW to contact your senators and representative in Congress today and urge them to oppose any legislation that makes way for the Atlantic Coast Pipeline.   Don’t know your senators or representative? No problem!  Find out here.

Note: We don’t currently have a bill number or specific information about the measure that is circulating in Congress but don’t let that deter you from making the contacts. Time could be of the essence and you shouldn’t wait – it is important that our legislators be looking for these attempts whenever they arise and act quickly.

Background:
The proposed route for Dominion’s 600-mile Atlantic Coast Pipeline has been a mess from the beginning. It carves through family farms, steep mountain ridges, and public water supplies, and it is slated to cross the Appalachian Trail on U.S. Forest Service land, a move that federal judges say is not legal. Rather than reconsider their poorly-planned project, Dominion is asking the U.S. Congress to change laws to make way for its unneeded gas pipeline.

We will oppose Dominion’s efforts and call on you to do the same – TODAY!  Tell your senators and your representative in Congress that you oppose legislation that would change the rules to make way for Dominion’s unneeded and destructive pipeline.

Thank you again for stepping up and taking action to protect the mountain streams, family farms, private property, water supplies, and Appalachian Trail.

Sincerely,

David Sligh 
Wild Virginia
Conservation Director

 

SELC Files Opposition Brief

The Southern Environmental Law Center filed an opposition brief in the US Supreme Court on August 28, 2019, arguing that the Court should not agree to review the Fourth Circuit opinion as requested by the petitioners, US Forest Service and Atlantic Coast Pipeline. The Fourth Circuit decision blocked the ACP from coming across Reid’s Gap.

The question is “Whether the United States Forest Service has statutory authority under the Mineral Leasing Act to grant a gas pipeline right-of-way across the Appalachian National Scenic Trail.”

The brief discusses the Mineral Leasing Act, and argues that:

  • This case is not a suitable vehicle to address the question presented because petitioners seek review of just one of the Fourth Circuit’s four independent bases for its judgment, and the decision does not conflict with other Circuits
  • The question presented does not warrant review because it does not present an issue of national importance, since the ACP and other pipelines can still cross the Appalachian Trail, and other Forest Service authorities and rights of way are unaffected
  • The Fourth Circuit’s decision is correct and supported by the record, namely that the entire Appalachian Trail is a unit of the National Park System, the Mineral Leasing Act excludes all federal land in the National Park System owned by any federal agency, the ACP argument that the Appalachian Trail is merely a “Footpath” or “Right-of-Way” has no legal basis, and the Park Service administers the entire Appalachian Trail

Read the full brief here.