Friends of Buckingham, et al. v. State Air Pollution Control Board, et al., is a case pending in the United States Court of Appeals for the Fourth Circuit involving the potential harms facing Union Hill, an African American community in Buckingham County, from the proposed Atlantic Coast Pipeline compressor station. The suit was filed on February 8, 2019, by the Southern Environmental Law Center (SELC). Read the February suit here and the related SELC press release here. The court has now scheduled the case for argument between October 29 and November 1, 2019. A specific date and time will be announced when the date is closer.
On June 7, 2019, three amicus briefs were filed in the case:
from the Virginia NAACP; 28 members of Virginia’s General Assembly; and the Center for Earth Ethics; prepared by the Georgetown University Law Center – Civil Rights Clinic (read the brief here; the press coverage here)
from the Sierra Club on behalf of the Virginia NAACP; Union Grove Missionary Baptist Church; Sierra Club; Virginia Interfaith Power & Light; and Kairos Center for Religions, Rights, and Social Justice (read the brief here)
An amicus curiae (literally, “friend of the court”) is someone who is not a party to a case, but who assists a court by offering information, or brief, that bears on the case. The decision on whether to admit the information lies at the discretion of the court.
On June 8, 2019, Bridging the Gap kicked off a week-long solar installation and environmental health training in Buckingham County. In this video from the kick-off event, Richard Walker, CEO of Bridging the Gap, introduces Basil Gooden, Jon Sokolow and Karen Campblin Jon Sokolow, writer, attorney, activist, fighting the Atlantic Coast & Mountain Valley Pipelines speaks about 3 Amicus Briefs filed June 7, 2019 in support of Southern Environmental Law Center’s filing on May 31 on behalf of the Union Hill Community. Karen Campblin, VA NAACP Environmental Justice Chair speaks about their recent meeting with AG Mark Herring and specifically about the woes of the Southside Connector, another environmental justice disaster.
Bridging the Gap In Virginia has received a grant from Mertz Gilmore Foundation to sponsor a solar installation and environmental health training program in the Union Hill area of Buckingham County, for the benefit of the African-American community, where Union Hill struggles economically and many leave in search of work. Their vision is to provide good jobs for the residents of Union Hill while starting a green workforce development program that mentors formerly incarcerated individuals and at-risk youth in the areas of solar installation, energy audits and conservation (i.e., weatherization, efficiency) and in-door environmental health (i.e., lead testing and encapsulation, mold remediation, and air quality monitoring).
The following update on legal cases comes from David Sligh, Conservation Director at Wild Virginia. He prefaced his update by saying, “Pipeline Damages Have Been Stopped or Slowed and We’re Not Done Yet!”
Through lawsuits by Wild Virginia and our allies, the Atlantic Coast Pipeline has been forced to stop construction and there is serious doubt that either the ACP or the Mountain Valley Pipeline will ever be completed. We will continue these fights to the end and it is your support that allows us to do so.
We know it’s been hard to keep track of the status of the many court cases and of work on the projects, so here’s an update on the major actions still underway:
We won suits against the U.S. Forest Service last year, striking approvals for both ACP and MVP that would severely damage our public lands. The federal appeals court agreed with us that the agency had failed in its duties to protect our natural treasures and betrayed the public it is supposed to serve. So, the Forest Service has to go back to the drawing board – a process in which we are prepared, with your help, to continue to insist on adequate reviews and rejection of crossings of the national forests. Crucially, the courts said the Forest Service cannot permit crossings of the Appalachian Trail on the land it manages; a possible dead-end for both proposals.
All approvals by the Army Corps of Engineers for crossing wetlands and streams by both ACP and MVP are invalid or suspended, because of court rulings. Therefore, the companies are currently unable to dig and blast through our waterways. We are awaiting further action by the Corps, and citizens will again challenge bad decisions that endanger our waters.
In response to a citizen challenge against the U.S. Fish and Wildlife Service over potential harm to endangered and threatened species, the federal court struck that agency’s permit and, in a second try, the Service again failed to properly analyze the impacts and ensure adequate protections. The 4th Circuit Court of Appeals issued a stay of that permit and is currently considering whether Fish & Wildlife has failed in its duty again.
MVP has been allowed to continue its destruction of so-called “upland” areas, even though work on other parts of the route are prohibited. Wild Virginia has led coordinated efforts by attorneys from nearly a dozen organizations to push for strong enforcement actions to stop MVP’s blatant violations of the law and halt the project.
On May 22, 2019, Reuters reported that U.S. asks Supreme Court for more time on Atlantic Coast natgas pipe appeal. “The U.S. Solicitor General asked the Supreme Court on Wednesday to extend the time the government has to file a petition in an appeal of a circuit court decision preventing Dominion Energy Inc from building the Atlantic Coast natural gas pipeline across the Appalachian Trail in Virginia. Solicitor General Noel Francisco is seeking a one-month extension until June 25. Without the extension, the time expires on May 28. Some analysts think Dominion could cancel the pipeline if the Supreme Court does not hear the case because the project’s costs have ballooned due to legal and regulatory delays.”
Dominion welcomed the news that the U.S. Solicitor General would join the case, believing it would increase the chances the court will hear the case. The Reuters article states, however, that “Analysts at Height Capital Markets in Washington, DC, said they expect the Supreme Court to grant the extension but do not expect the court to take up the case. The court will likely make a decision in the fourth quarter. ‘If the court declines to hear the case, we anticipate Dominion and Duke will decide to terminate the project as rerouting the pipeline would likely be cost prohibitive,’ the Height Capital Markets analysts said, noting it will be “extremely difficult” for the utilities to pass on additional costs to ratepayers.”
In a 5-minute feature story airing on April 30, 2019, WMRA’s Andrew Jenner brings us up to speed on the complicated landscape of environmental challenges to the Atlantic Coast Pipeline. The story includes interviews with Patrick Hunter (Southern Environmental Law Center), Lewis Freeman (Allegheny-Blue Ridge Alliance) and Karl Neddenien (Dominion spokesperson).
From Allegheney-Blue Ridge Alliance’s ABRA Update #227:
The lawsuit challenging the U.S. Fish and Wildlife Service’s (FWS) biological opinion and incidental take statement for the Atlantic Coast (ACP) that led to work stopping on the project is scheduled for oral argument on Thursday, May 9 before a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit. The original FWS permit was voided by the Fourth Circuit in May 2018 in response to a lawsuit filed by the Southern Environmental Law Center (SELC) on behalf of Defenders of Wildlife, Sierra Club and the Virginia Wilderness Committee. A new FWS permit was issued on September 11, 2018 and is being challenged in this case.
SELC argues that the FWS’s reissued permit relied on a series of irrational assumptions that mischaracterized the potential impact of the ACP route on the Rusty Patch Bumble Bee and erred in its analysis of the project’s impact on three other endangered species: the clubshell mussel, Indiana bat and Madison Cave isopod. The petitioners are requesting that the Court vacate the reissued biological opinion and incidental take statement