From Allegheny-Blue Ridge Alliance’s ABRA Update #255 for December 5, 2019:
The U.S. Supreme Court has announced that the appeal of the case vacating the Atlantic Coast Pipeline’s (ACP) permit from the U.S. Forest Service to build across Forest Service land is scheduled for oral argument on Monday, February 24, 2020 at 10 am. The Fourth Circuit Court of Appeals struck down the permit in a December 18, 2018 decision on the grounds that the Forest Service 1) was negligent in its analysis of environmental impacts on Forest lands, and 2) did not have the legal authority to grant permission for the project to cross the Appalachian National Scenic Trail.
The appellants in the case – Atlantic Coast Pipeline, LLC and the U.S. Forest Service – filed their briefs with the Court on December 2. Amicus briefs in support of the appellants are due to be filed by December 9.
The respondents in the case, all members of ABRA, are Cowpasture River Preservation Association, Highlands for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia. Their brief must be filed by the Southern Environmental Law Center (SELC) by January 15, 2020. Amicus briefs in support of the respondents’ position are due January 22.
For a copy of the brief filed by ACP, LLC, click here. For the Forest Service brief, click here.
Late last week we learned that Dominion Energy is putting a full-court press with members of the Virginia congressional delegation to urge their support for congressional action on overturning the Fourth Circuit Court of Appeals’ decision to vacate the Forest Service permit for the Atlantic Coast Pipeline which, among other things, would have permitted the pipeline to cross the Appalachian National Scenic Trail. The Court ruled that the Forest Service did not possess the legal authority to issue such a permit. This is notwithstanding the appeal of that decision that is due to be argued early next year before the U.S. Supreme Court.
We asked you this past summer and again in late September to contact your Congressional Representative and Senators Warner and Kaine to urge their opposition to any such rider or amendment. Hundreds of you responded. But, given this new development, renewed contact with your Representative and the two Senators is necessary, asking them: 1) to oppose any such legislation; and 2) to let their congressional leadership know they oppose it.
Here are documents to help you as you contact your legislators:
From the Allegheny-Blue Ridge Alliance ABRA Update #254, November 21, 2019:
Initial briefs in the Cowpasture River Preservation Association, et. al. v. Forest Service are due to be filed with the U.S. Supreme Court by the petitioners – U.S. Forest Service and Atlantic Coast Pipeline, LLC – on December 2. The Southern Environmental Law Center, representing the Cowpasture River Preservation Association and the other respondents in the case, is scheduled to file its response brief on January 15, 2020. The Supreme Court had announced on October 4 it would accept the case for review. At this writing, no date has been scheduled for oral arguments in the case, but it is anticipated to occur in early 2020.
The appeal before the Court is from a decision by the Fourth Circuit Court of Appeals on December 13, 2018 to vacate the permit the U.S. Forest Service had issued for the Atlantic Coast Pipeline (ACP) , which affects the project’s crossing of the Appalachian National Trail (AT). Among major points in the Fourth Circuit decision was the judgment that the Forest Service did not possess the legal right to authorize the ACP to cross the AT. Plaintiffs in the challenge to the Forest Serviced permit (and, thus, the respondents in the pending Supreme Court Appeal) are 7 members of ABRA: Cowpasture River Preservation Association; Highlanders for Responsible Development; Shenandoah Valley Battlefields Foundation; Shenandoah Valley Network; Sierra Club; Virginia Wilderness Committee; and Wild Virginia.
The Commonwealth of Virginia is proposing to enter into a judicial consent decree with Mountain Valley Pipeline LLC to settle certain alleged violations of the Commonwealth’s environmental laws and regulations related to construction activities in Craig, Franklin, Giles, Montgomery, Pittsylvania and Roanoke Counties, Virginia (Case No. CL18006874-00 in Henrico County Circuit Court). The consent decree will require the payment of $2.15 million penalty, put MVP under stricter court-ordered compliance, and enhance Virginia’s ability to detect any future violation, allowing for faster, more effective accountability and environmental restoration and protection.
Written comments on the proposed consent decree will be accepted from October 28, 2019, through November 27, 2019, and should be submitted to firstname.lastname@example.org or by postal mail to Room 2253-A, Department of Environmental Quality, P.O. Box 1105, Richmond, Virginia 23218, or hand-delivery by close of business to Department of Environmental Quality, 1111 East Main Street, Suite 1400, Richmond, Virginia 23219.
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.
The Allegheny-Blue Ridge Alliance now provides an updated review of the status of major legal challenges to the Atlantic Coast Pipeline. The listing currently includes the Forest Service permit, FERC certificate, Fish and Wildlife Service, National Park Service permit, Army Corps of Engineers, Buckingham County Compressor Station air permit, and the Virginia State Water Board 401 certification. See the link on the ABRA website homepage. Of note is the oral argument before the Fourth Circuit Court of Appeals of the challenge to the air permit issued for the Buckingham compressor station, scheduled for October 29, 2019.