Category Archives: Certificates of Approval

2017 in Review

2017 was a busy year in the pipeline fight. Here are some highlights – there are a lot!

On December 30, 2016, FERC released the Draft Environmental Impact Statement (DEIS) for the proposed Atlantic Coast Pipeline. In response to requests from numerous elected officials and organizations, FERC extended the usual 45-day period for public comment so the deadline was April 6, 2017. Over January-March 2017 FERC held public hearings on the DEIS, where the majority of speakers (once beyond Dominion’s front-loaded supporters) pointed out omissions and inaccuracies in the DEIS, as well as numerous instances where Dominion had not provided required information. Thousands of groups and individuals, some property owners along the route and others not, filed comments with FERC.

On January 5, 2017, the Buckingham County Board of Supervisors ignored their constituents so thoroughly that after five hours of testimony almost totally opposed to the ACP compressor station in Buckingham County, they read a PREPARED statement approving the station, having obviously reached their decision well ahead of the meeting. On February 2 a complaint for declaratory relief was filed against the Supervisors and Dominion asking that the special use permit for the station be vacated.

FERC Commissioner Norman Bay resigned on February 3, and with only two remaining commissioners, FERC no longer had a quorum and could not issue decisions.

Judge Michael T. Garrett ruled in Nelson County Circuit Court on February 6, 2017, that Dominion may have access to survey for the proposed ACP on the property of landowners who had steadfastly denied access. The landowners filed a joint notice of appeal with the Virginia State Court of Appeals in early March.

On February 15 Oil Change International released two studies finding that if built, the controversial Mountain Valley and Atlantic Coast pipelines would together contribute as much greenhouse gas pollution as 45 coal-fired power plants — some 158 million metric tons a year. ACP basic facts: http://priceofoil.org/2017/02/15/atlantic-coast-pipeline-greenhouse-gas-emissions-briefing/ ACP full briefing: http://priceofoil.org/content/uploads/2017/02/atlantic_coast_pipeline_web_final_v3.pdf

In mid-March, Friends of Nelson released the Steep Slope Report by Blackburn Consulting Services, which concluded that “Dominion has not adequately identified those soils and landforms that are prone to debris flows (and) landslides.” The report also states that “the potential for debris flows in the very steep mountainous portions of Nelson County is underestimated by the reports submitted to FERC by Dominion.” Steep Slopes Study by Blackburn Consulting:
http://friendsofnelson.com/wp-content/uploads/2017/03/Final-Steep-Slope-Report-March-2017.pdf

On April 5 Friends of Nelson submitted comments to FERC on the DEIS – 96 pages including charts, diagrams, maps, and photos. Read it here: http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20170405-5161

On April 6, Virginia’s Department of Environmental Quality announced that both proposed Virginia pipelines, the ACP and the MVP, would be subject to DEQ water-quality review. This meant that DEQ would require water quality certifications under Section 401 of the federal Clean Water Act for each segment of both projects that crosses or potentially affects water bodies. But the next day, on April 7, 2017, DEQ provided water quality certification for the U.S. Army Corps of Engineers 2017 Nationwide Permits, thus issuing a blanket Clean Water Act section 401 certification for pipelines that are covered by the U.S. Army Corps of Engineers’ Nationwide Permit number 12. And in late May DEQ said they would not require specific water quality impact analysis for water crossings for the proposed ACP or MVP. On June 5, the Dominion Pipeline Monitoring Coalition (DPMC) filed suit against the DEQ in state Circuit Court for the City of Richmond, asking the court to rule that DEQ issued a Clean Water Act section 401 Water Quality Certification for construction of utility lines, including natural gas pipelines, in state waters without legal authority to do so and without ensuring water quality would be protected.

On April 27, a briefing paper released details on how Dominion intends to blast away, excavate, and partially remove entire mountaintops along 38 miles of Appalachian ridgelines as part of ACP construction, flattening them by anywhere from 10 to 60 feet. See http://friendsofnelson.com/press-release-acp-would-require-extensive-mountaintop-removal/

June 17-July 2: Walking the Line. Group walks the proposed ACP path for 150 miles, through Bath, Augusta and Nelson Counties, into the heart of Virginia, Buckingham County, where the walk ends at Union Hill, the site of the proposed compressor station.

On June 29, 2017, the Virginia Conservation Network, along with its partners Southern Environmental Law Center and Shenandoah Valley Network, sent a letter (signed by over 80 organizations) to Governor McAuliffe, DEQ Director David Paylor and the State Water Control Board asking them to use their full authority under the Clean Water Act to conduct a thorough and transparent review of stream and wetland crossings along the proposed ACP and MVP fracked gas pipeline routes and ensure that Virginia water quality standards are met.

And then there was one: Friday June 30, 2017, was FERC Commissioner Colette Honorable’s final day at FERC. Although a pair of Trump administration nominees remain on the sidelines awaiting Senate votes, Honorable’s a departure leaves the already quorumless panel with a single member.

At their meeting on July 4, members of Wintergreen Property Owners Association voted overwhelmingly for a new covenant prohibiting construction of “any lines, facilities, structures, or other appurtenances related to the transmission of utilities” if they do not provide services to the Association or its members.

The Federal Energy Regulatory Commission issued its final Environmental Impact Statement on the Atlantic Coast Pipeline on July 21, 2017. FERC has 90 days to make a decision on issuing a certificate of approval for the project. The full statement can be found here: https://ferc.gov/industries/gas/enviro/eis/2017/07-21-17-FEIS.asp. The summary statement from FERC staff said, “The FERC staff concludes that construction and operation of ACP and SHP would result in some adverse effects,” but that with adherence to mitigation measure and FERC staff recommendations “most, but not all of these impacts, would be reduced to less-than-significant levels.” FERC said their determinations were based on information provided by Dominion and ACP, with no mention of extensive contradictory information filed by a variety of experts.

Also on July 21, the U.S. Forest Service issued a draft Record of Decision to authorize the use and occupancy of National Forest System lands for the Atlantic Coast Pipeline. The Forest Service release statement is available at: https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd551404.pdf.

In July Friends of Nelson posted interactive maps showing the ACP route through Nelson County. See http://friendsofnelson.com/information-resources/maps/

Through August, DEQ held public hearings to receive comments on draft water quality certifications designed to protect water quality along the routes of the proposed ACP and MVP.

On August 3, 2017, the Senate voted to confirm Donald Trump’s nominees for the Federal Energy Regulatory Commission (FERC), Neil Chatterjee and Rob Powelson. They join Cheryl LaFleur, who had been the sole member of the five member commission, so FERC now has a quorum.

In mid-August, Friends of Nelson submitted extensive comments to DEQ on the proposed 401 Water Quality Certifications for the ACP. See http://friendsofnelson.com/friends-of-nelson-submits-comments-to-deq/ And a group of thirteen expert scientists and engineers submitted reports to the DEQ on August 22, finding that DEQ has failed in its duty to properly analyze and protect against the water quality damages the Mountain Valley Pipeline and Atlantic Coast Pipeline would cause to Virginia’s waters. See http://friendsofnelson.com/failure-to-meet-minimum-standards-of-scientific-proof/

On August 22, the Virginia Supreme Court agreed without argument to hear on appeal the survey suit against the ACP brought on behalf of six Nelson residents by Lollar Law. Briefings will take place in autumn 2017, and the oral arguments before the full seven-justice court will take place in late 2017 or early 2018. See http://friendsofnelson.com/virginia-supreme-court-to-hear-survey-case/

On August 22 in a 2-1 ruling, the Court of Appeals for the District of Columbia Circuit found that the Federal Energy Regulatory Commission (FERC) did not properly analyze the climate impact from burning the natural gas that a Florida pipeline project would deliver to power plants.

A lawsuit, filed September 5 in Washington D.C. federal district court, on behalf of 57 Landowners, Bold Alliance and Friends of Nelson, challenged the constitutionality of the eminent domain provisions of the Natural Gas Act, and seeking to end the unconstitutional and unconscionable process of taking citizens’ private property via eminent domain for a corporation’s profits — and not for “the public good” as the Constitution intended.

September 15-17: No Pipeline Action Camp held in Nelson County, sponsored by Friends of Nelson, Greenpeace, and Blue Ridge Rapid Response.

In mid-September North Carolina delayed by three months its decision on certification of the proposed Atlantic Coast Pipeline under section 401 of the federal Clean Water Act. This followed West Virginia’s September 7 announcement that the state was vacating its water quality certification for the proposed MVP in order to reevaluate. Virginia’s DEQ pressed ahead, even as other states hit the brakes.

In late September, Dan Weekley, Dominion Energy’s vice president and general manager of Southern pipeline operations, told attendees at an energy conference ‘everybody knows’ the Atlantic Coast Pipeline — currently slated to pass through Virginia, West Virginia and North Carolina — is not going to stop there, despite what the current plans say, and that the ACP will be extended into South Carolina.

The NC DEQ disapproved the erosion and sedimentation control plan submitted to the agency by the ACP, Their September 26, 2017, letter of disapproval, cites 17 specific deficiencies in the submitted plan as grounds for disapproval.

Late on Friday evening October 13, FERC approved both the ACP and the MVP. Authorization had been widely expected by both supporters and opponents of the pipelines. The certificates granted by the commission came with dozens of conditions, and other necessary permits for both projects are still pending. The approval was issued with a highly unusual dissenting opinion by Commissioner Cheryl A. LaFleur. The FERC permit is not the final word on the projects. VA, NC and WV must still issue environmental permits.

Meeting in Richmond on October 16, the Virginia Outdoors Foundation (VOF) voted to approve Dominion’s application for 11 land conversions of open-space easements on the route of the proposed ACP through southern Highland, northern Bath, Augusta and Nelson counties, and approved a single swap for the proposed Mountain Valley Pipeline near Roanoke.

On October 18 Dominion released a proposed construction plan, see http://friendsofnelson.com/wp-content/uploads/2017/10/Dominion-construction-plan20171018-5002-32464467.pdf, When they sent their original “we want your land” letters in spring 2014, Dominion planned to start construction of the ACP in the Fall of 2016 and have the pipeline in service sometime early in 2018. But Dominion did not expect so many people and organizations to fight back!

On November 2, 2017, the Senate approved Trump’s final two nominees to FERC, giving the Commission the full five members for the first time in two years.

On November 13, a motion was filed with the Federal Energy Regulatory Commission (FERC) requesting a rehearing of the Commission’s order issuing a certificate for the Atlantic Coast Pipeline. The petition, filed on behalf of 22 organizations (including Friends of Nelson) and 10 individuals. See https://www.abralliance.org/wp-content/uploads/2017/11/Petition_for_Rehearing_to_FERC_20171113.pdf.

On November 14 Friends of Nelson filed a Request for Rehearing with the Federal Energy Regulatory Commission (FERC) on FERC’s decision to issue a Certificate of Convenience and Necessity for the Atlantic Coast Pipeline. The filing is on behalf of 63 property owners and citizens of Nelson County, and 4 community organizations.

The NAACP released a report on November 14, Fumes Across the Fence Line: The Health Impacts of Air Pollution from Oil & Gas Facilities on African American Communities. “The life-threatening burdens placed on communities of color near oil and gas facilities are the result of systemic oppression perpetuated by the traditional energy industry, which exposes communities to health, economic, and social hazards. Communities impacted by oil and gas facility operations remain affected due to energy companies’ heavy polluting, low wages for dangerous work, and government lobbying against local interests.”

On November 17, the US Forest Service released a final Record of Decision (ROD) approving amendments to the Forest Plans for the Monongahela National Forest and the George Washington National Forest to accommodate the Atlantic Coast Pipeline (ACP).

Late in the afternoon on December 7, 2017, after two days of hearings, the Virginia State Water Control Board approved water quality certification for the Mountain Valley Pipeline. The vote was 5-2, with members Roberta Kellam and G. Nissa Dean dissenting.

On December 12, 2017, the Virginia State Water Control Board voted 4 to 3 to approve certification under Section 401 of the Clean Water Act the Atlantic Coast Pipeline. However, the approval does not immediately grant the 401 water permits requested by Dominion; it is subject to certain conditions and to information which must be provided by the ACP. The permit can’t take effect until several additional studies are reviewed and approved by DEQ, including soil and erosion control plans and stormwater management plans. Although this is not an outright denial of the permits, it does not allow Dominion to move forward at this time.

SO…. As we move into fourth year of the pipeline fight, we know the ACP is closer to receiving all final approvals, but we continue our work to stop this economically unnecessary and environmental damaging project. Legal challenges to some approvals have already been filed, more are being evaluated. No, the pipeline is NOT a done deal.

PA DEP Suspends Mariner East 2 Construction Permits

Another example – in Pennsylvania – of a pipeline infrastructure project failing to implement promised safeguards. The Pennsylvania Department of Environmental Protection (DEP) has issued an order suspending the construction permits associated with the Mariner East 2 pipeline in southern PA until the permittee, Sunoco Pipeline, L.P. (Sunoco) meets the requirements outlined in the order. Sunoco must cease all construction activity on the pipeline project, except for maintenance of erosion controls and limited maintenance of horizontal directional drilling equipment.

The DEP cited a series of spills and other “egregious and willful violations” of state law. “Until Sunoco can demonstrate that the permit conditions can and will be followed, DEP has no alternative but to suspend the permits,” said DEP Secretary Patrick McDonnell. “We are living up to our promise to hold this project accountable to the strong protections in the permits.”

Read the announcement from the PA DEP here. It includes a links to the full DEP order and to a list of the violations issued to Sunoco.  Press coverage on ABC6.com is here.

Second Court Challenge Against SWCB over MVP

On December 18, 2017, the Roanoke Times reported that a second court challenge had been filed against the Virginia State Water Control Board over water quality certification for Mountain Valley Pipeline. Petitioners “contend the board lacked adequate information on which to find a ‘reasonable assurance’ that the 303-mile long buried pipeline would not contaminate the waters of Western Virginia.” They point to the fact that the SWCB, when it gave approval for the Atlantic Coast Pipeline, took the unusual step of delaying the effective date until several environmental impact reports are completed, but they did not do that for the MVP.

“‘It makes no sense,’ said Mara Robbins, an organizer with the Blue Ridge Environmental Defense League, one of the petitioners in the second court challenge. They delayed the ACP permitting until erosion and sedimentation reports are complete. Many of the issues presented were identical. Yet the permits for the ACP were delayed and the ones for the MVP were not? They need to go back to the drawing board and get this right.'”

The article says that, “Shortly after the case was filed Monday, the court of appeals issued an order that consolidates it with the earlier challenge brought by the Sierra Club, Appalachian Voices, the Chesapeake Climate Action Network and Wild Virginia.”

Read the full article here, and read about the December 8, 2017, challenge to the SWCB’s MVP Approval here.

SWCB Votes 4-3 to Approve ACP – Subject to Delays and Conditions

On December 12, 2017, the Virginia State Water Control Board voted 4 to 3 to approve certification under Section 401 of the Clean Water Act the Atlantic Coast Pipeline. However, the approval does not immediately grant the 401 water permits requested by Dominion; it is subject to certain conditions and to information which must be provided by the ACP. The permit can’t take effect until several additional studies are reviewed and approved by DEQ, including soil and erosion control plans and stormwater management plans. Although this is not an outright denial of the permits, it does not allow Dominion to move forward at this time.

The Allegheny-Blue Ridge Alliance’s weekly ABRA Update (December 14, 2017) describes the hearings as ” a two-day meeting that varied from moment to moment between serious presentations and deliberations and utter confusion exhibited by the staff of the Department of Environmental Quality. For those persons present for the proceedings, it was a regulatory roller coaster ride.”  The ABRA Update also says, “The final language of the Board’s action has at this writing not been posted on the DEQ webpage for the ACP project. But, according to information available at the meeting, the following appears to be the relevant operative language in the motion adopted by the Board:

This certificate shall be effective only following submission, review, and final approval as required by law of the Karst Mitigation Plan, Annual Standards and Specifications, Stormwater Plans, and Erosion and Sediment Control Plans, and a report to the Board and the public by DEQ on the adequacy of these materials. The Board may consider further actions on the Certification following the review of the DEQ report.” 

A statement from Chesapeake Climate Action Network says, “Bowing to unprecedented opposition from landowners and environmentalists, the Virginia State Water Control Board today threw a wrench in the plans of Governor Terry McAuliffe and Dominion Energy to build the Atlantic Coast Pipeline for fracked gas. The board voted 4-3 to approve the project under section 401 of the Clean Water Act, but dependent on a final review of several environmental studies. The vote delays Dominion’s plan to begin near-term construction of the 600-mile pipeline. The decision likely means this issue will be delayed into 2018 and into the administration of Governor-elect Ralph Northam, who has taken a less openly supportive stance on the pipeline due to environmental concerns.”

In the video below, Bill Hayden, spokesperson for the Virginia Dept. of Environmental Quality, struggles to answer questions from reporters on the status of the Atlantic Coast Pipeline after DEQ’s decision on December 12, 2017. When asked by reporters why the DEQ didn’t require full environmental studies from Dominion BEFORE the Water Control Board hearing today, he says, “I don’t know.” When asked how long the vote today could delay a start date for the ACP, he says at least “March or April.” That’s because the sedimentation study on the pipeline alone won’t be complete till then. He indicates that the SWCB left the door open to remand this permit for cause once the reports are completed. Dominion cannot start construction until all these reports are submitted and approved Obviously DEQ and Governor McAuliffe and Dominion were completely surprised by the delay vote today.

Groups File Suit to Challenge Virginia State Water Board MVP Permit Approval

On Friday December 8, 2017, Appalachian Mountain Advocates filed a petition for review with the US Court of Appeals for the Fourth Circuit to overturn Virginia’s unlawful approval of the fracked gas Mountain Valley Pipeline (MVP). The litigation was filed on behalf of the Sierra Club, Appalachian Voices, the Chesapeake Climate Action Network, and Wild Virginia. The filing came the day after contentious hearings that ended with the Virginia State Water Control Board issuing a certificate under the Clean Water Act needed by MVP to begin construction.

Download the filing here.

Wild Virginia’s press release says the filing “asserts that the Board has failed to base its decision on adequate and complete information and, therefore, lacks a rational basis for its action. All parties admit that vital information and analyses were missing at this time yet the Board endorsed DEQ’s recommendation to approve the rushed permit decision.”

The press release also highlights the fact that the the Board issued the permit regardless of seriously incomplete information from MVP. “‘The DEQ’s erosion and sediment control plans and stormwater control plans are incomplete and have not been presented to the Board,’ said David Sligh, Wild Virginia’s Conservation Director. ‘Karst analyses are incomplete. Data related to specific waterbody crossings is non-existent. The Nationwide 12 permit has not yet been authorized and determined to be applicable. The procedure is not based on sound science and is legally flawed. We cannot accept this betrayal of our trust and our rights without challenge,’ Sligh stated.”

Washington Post coverage of the filing is here.

VA State Water Control Board Grants 401 Certification to MVP

Late in the afternoon on December 7, 2017, after two days of hearings, the Virginia State Water Control Board approved water quality certification for the Mountain Valley Pipeline. The vote was 5-2, with members Roberta Kellam and G. Nissa Dean dissenting. The action came late Tuesday afternoon (December 7). On Monday, nearly 100 persons spoke before the Board. Over 90% of the speakers were in opposition to certification. Modifications to the draft certification document were made, including an amendment that attempts to preserve its right to examine stream crossings at a later date. More on this will follow.

Members of the Allegheny-Blue Ridge alliance (of which Friends of Nelson is a part) reacted swiftly:

  • Southern Environmental Law Center, Greg Buppert, Senior Attorney: “After hearing from numerous citizens and officials that the Water Board did not have the information it needed to approve the Mountain Valley Pipeline, the Board failed to insist on a thorough, science-based review of this project. Their decision to move this pipeline project forward reflects the political pressure that Governor McAuliffe has put on his agencies to approve gas pipelines before he leaves office. But the Board still has the chance to acknowledge and remedy this broken process by sending plans back to Dominion next week at the Atlantic Coast Pipeline hearings and reversing today’s decision on the Mountain Valley Pipeline. As Virginia’s watchdog for water quality, the Board must ensure that Dominion doesn’t abuse its political power to push through a risky and unnecessary project like the Atlantic Coast Pipeline.”
  • Chesapeake Climate Action Network, Statement from Mike Tidwell, Executive Director: “Terry McAuliffe has harmed farmers, consumers, drinking water, and the climate by pushing the Virginia Water Control Board to give final approval today of the Mountain Valley Pipeline. The 301-mile pipeline for fracked gas constitutes a colossal misallocation of resources and will permanently harm the Governor’s economic and environmental legacies. “Even as the on-the-ground evidence shows guaranteed harm to Virginia’s watersheds, and even as scientists sound the loudest possible warning bells on climate change, the Water Control Board gave the Governor what he asked for: a final build recommendation. This decision paves the way for the literal obliteration of mountain ridgetops, the clear-cutting of forests, and for massive trenching and tunneling across valleys for a pipeline that is not even needed and that serves only to enrich energy companies while hurting ratepayers. “Governor McAuliffe made construction of the MVP pipeline a top priority of his term and his administration testified vigorously in support of the pipeline during the Water Board’s final two-day hearing this week. “Our hope is that the Water Board, next week, will ignore the Governor’s similarly misguided support of a second gas pipeline – the Atlantic Coast Pipeline favored by controversial political donor Dominion Energy – when the Board votes on that pipeline next Tuesday.”
  • Appalachian Voices, Tom Cormons, Executive Director: “We are thoroughly disappointed by the board’s decision. Thousands voiced their opposition to this pipeline based on evidence that it cannot be built without violating the federal Clean Water Act and the board’s obligation under Virginia law. DEQ created a rushed, haphazard process, limited the scope of the board’s review, and abdicated the state’s authority to the Corps of Engineers for oversight of pipeline construction at almost 400 water crossings. “We applaud the efforts of several members who expressed concern that the draft permit would not provide reasonable assurance, as required by law, that water quality would be protected, and particularly we applaud members Nissa Dean and Roberta Kellam who cast the two dissenting votes. “The board should have rejected the permit today because they lacked enough information to make a reasoned decision. Instead, it approved an utterly deficient permit. “The record demonstrates this project would ultimately violate the law. We are considering all options and expect the outcome will be determined in the courts. If the company breaks ground on the project, citizens along the entire route are prepared to watchdog every action, along every mile, every day of construction and afterwards, and compel agencies to act when violations inevitably occur. “Next week, the board will be presented with an equally deficient permit for the proposed Atlantic Coast Pipeline, and should exercise its full authority to reject the permit.”

Reaction and press release from the Sierra Club is here.

Initial press coverage of the decision is in the Washington Post and Richmond Times-Dispatch, and on WHSV3.