Category Archives: Certificates of Approval

President Signs Order Waiving Environmental Reviews for Key Projects

The Washington Post reports that on June 4, 2020, President Trump signed an Executive Order “instructing agencies to waive long-standing environmental laws to speed up federal approval for new mines, highways, pipelines and other projects given the current economic ’emergency.’ Declaring an economic emergency lets the president invoke a section of federal law allowing ‘action with significant environmental impact’ without observing normal requirements imposed by laws such as the Endangered Species Act and the National Environmental Policy Act. These laws require agencies to solicit public input on proposed projects and analyze in detail how federal decisions could harm the environment.”

The President maintains that waiving requirements will help the country recover from virus-related economic losses.

The Post notes that “It is unclear how the directive will affect individual projects, especially since developers are often wary of legal challenges they could face from environmental or public interest groups. Jason Bordoff, founding director of Columbia University’s Center on Global Energy Policy, said in an email that ‘companies would be reluctant to rely on such an executive order,’ knowing they would later have to prove that they were operating in an emergency.”

Additionally, the Post says, “Thomas Jensen, a partner at the firm Perkins Coie, said in an email that any decisions made in response to the executive order could be challenged in court. He noted that the National Environmental Policy Act was enacted 50 years ago partly to prevent arbitrary federal decisions such as building highways through parks and communities of color and that the current administration cannot simply set aside laws aimed at protecting vulnerable Americans or the environment. ‘I will not be surprised to see many observers comparing this move — declaring an emergency to shield agency decisions from the public — to the order to clear Lafayette Square on Monday evening,’ Jensen said, referring to actions in a Washington park this week. ‘It’s just one more face of authoritarian ideology, with a clear link to issues of race and equality and government accountability.'”

SELC Files Request with FERC for Supplemental EIS for ACP

On June 1, 2020, the Southern Environmental Law Center (SELC) filed a request with the Federal Energy Regulatory Commission (FERC) for a supplemental Environmental Impact Statement for the Atlantic Coast Pipeline “to address significant new information bearing on the ACP’s environmental impacts.” SELC filed the motion asking for the EIS supplement on behalf of 16 organizations, including Friends of Nelson.

The motion lists areas in which new information has arisen since FERC issued the EIS for the ACP in July 2017, and says that new information “presents a seriously different picture of the project’s available alternatives and environmental impacts than the one considered by the Commission.”

Issues considered in the motion include:

  • Alternatives. The region’s energy future has undergone a dramatic shift away from gas-fired power generation while the ACP’s projected cost has ballooned and its timeline has been pushed back, compelling the Commission to revisit its consideration of alternatives.
  • Vulnerable Species. Surveys have documented multiple new occurrences of the endangered rusty-patched bumble bee along the ACP route, and the U.S. Fish and Wildlife Service (“FWS”) has proposed critical habitat for the newly listed candy darter (endangered) and yellow lance (threatened) in streams that the pipeline would cross.
  • Water Quality. Well-documented landslides and sedimentation problems along the ACP’s steep terrain, combined with the rollback of federal water protections relied on by the Commission, indicate that the project’s impacts to water quality would be more substantial than previously analyzed.
  • Environmental Justice. The Commonwealth of Virginia and Atlantic Coast Pipeline, LLC (“Atlantic”) have now recognized the existence of a minority environmental justice population in Union Hill, Virginia, neighboring the ACP’s proposed Buckingham Compressor Station.
  • Climate Change. Scientific understanding about the anticipated impacts of climate change, both globally and in the area of the ACP, has expanded dramatically since the publication of the EIS.
  • Cumulative Impacts. The majority of the ACP’s construction is now anticipated to occur between 2020 and 2021 alongside newly proposed area projects whose cumulative impacts the Commission never considered.

The motion further states that “In light of this substantial new information, the Commission’s prior environmental review of the ACP is stale and fails to address significant effects of the project. The ACP is far from complete — less than 6% of the 604-mile pipeline has been installed — and cannot be completed without further action by the Commission, including a decision whether to extend the ACP’s construction and in-service deadline of October 2020. As such, the National Environmental Policy Act (“NEPA”) requires the Commission to analyze new information and to disclose its analysis for public review. With this motion, Conservation Groups request that the Commission supplement the EIS to address the new information, circulate the supplemental EIS for public comment, and stay its certificate of public convenience and necessity for the ACP pending finalization of the supplemental EIS.”

Our thanks to SELC for this massive and detailed filing!

Click here for the full motion. Links for the 56 exhibit documents filed with the motion are are included in the exhibit listing at the end of the motion.

Court Denies Request to Reinstate NWP 12

On May 28, 2020, the Ninth Circuit Court of Appeals denied the request by the Army Corps of Engineers, Transcanada Keystone Pipeline, and other pipeline companies to reinstate Nationwide Permit 12 (NWP12). This means NWP 12 will remain invalid while the Ninth Circuit considers whether the Montana district court correctly ruled that the Corps violated the Endangered Species Act.

The District Court’s April 15 ruling came in a case challenging the NWP12 permit for the Keystone project and was extended to affect permits for other new oil and natural gas pipelines. The ruling impacts the Atlantic Coast and Mountain Valley Pipelines, neither of which currently have valid NWP12 permits. At this point, the Corps cannot authorize either the MVP or the ACP to use NWP12 unless and until the Ninth Circuit reverses the Montana district court’s determination that the Corps violated the Endangered Species Act.

Appeals Court Urged to Keep Freeze on Army Corps’ NWP 12 for Pipelines

From Allegheny-Blue Ridge Alliance’s ABRA Update #277, May 22, 2020:

The Ninth Circuit Court of Appeals has been urged to uphold a Federal District Court in Montana’s ruling prohibiting the U.S. Army Corps of Engineers’ Nationwide Permit 12 (NWP12) program from issuing new permits for oil and natural gas pipelines. The District Court’s April 15 ruling came in a case challenging the NWP12 permit for the Keystone project and was extended to affect permits for other new oil and natural gas pipelines. The ruling impacts the Atlantic Coast and Mountain Valley Pipelines, neither of which currently have valid NWP12 permits.

In a May 20, 2020 brief filed with the Court, the Northern Plains Resource Council, a Montana-based conservation group, argued that Army Corps had failed to evaluate the cumulative impact on endangered species of all projects under the NWP12 and that the agency should have completed a programmatic review under the Endangered Species Act before reauthorizing the program for a five-year term beginning in 2017. The case is before the Ninth Circuit on appeal by the Army Corps and industry groups that are asking the Appeals Court to overturn the District Court’s freeze of the NWP12 program until the case is decided the issues. For a copy of the brief, click here.

Rockbridge Planning Commission Approves Goshen ACP Yard

From Allegheny-Blue Ridge Alliance’s ABRA Update #276, May 14, 2020

The Rockbridge County, VA Planning Commission approved on May 13 [2020] a site plan for a proposed construction storage yard for the Atlantic Coast Pipeline (ACP) in Goshen, VA. The 4-0 vote (with one abstention) came despite 95 of the 99 written comments received by the Commission expressing opposition to the yard plan. The County Board of Supervisors is scheduled to consider the issue on May 26.

Yet Another Blow to ACP and MVP

Writing in Blue Virginia on May 12, 2020, Jonathan Sokolow describes how the nationwide injunction by a judge in Montana brings construction on the Atlantic Coast and Mountain Valley Pipelines to a halt, since they no longer have a valid permit to cross the thousands of waterways along their routes.

“On April 15, the judge in Northern Plains Resource Council v. U.S. Army Corps of Engineers, issued a nationwide order vacating a key federal permit, known as Nationwide Permit 12 (NWP 12 for short). Chief District Court Judge Brian Morris ruled that the Corps failed to comply with key provisions of the Endangered Species Act when it issued NWP 12 in 2017.”

Although the case was about the Keystone XL pipeline, the vacated permit affects all pipeline construction. Both the MVP and the ACP decided to avoid applying for individual water crossing permits by asking for and receiving permission to use the now vacated blanket NWP 12.

Keystone XL and other and other industry powerhouses (including Dominion) asked Judge Morris “to reverse himself, or at least modify his April ruling to apply only to the Keystone XL pipeline. They also asked the judge to stay his own order pending appeal.” On May 11, Judge Morris said no to both requests.

When companies complained that the ruling left them unable to cross water bodies, the judge pointed out that they could still pursue individual permits: “Developers remain able to pursue individual permits for their new oil and gas pipeline construction….Intervenors possess no inherent right to maximize revenues by using a cheaper, quicker permitting process, particularly when their preferred process does not comply with the [Endangered Species Act].”

Sokolow says, “Keystone XL will no doubt appeal this ruling. And ACP and MVP will continue to spin repeated court losses as ‘temporary’ setbacks. But for now, the nationwide injunction represents another huge impediment to construction of two massive pipelines that together, would more than double Virginia’s production of green house gases from stationary sources.”

And Sokolow concludes with a statement we all heartily endorse: “It is long past time for the companies behind these projects to fold their tents and go home.”