Category Archives: Court cases

Federal Court Dismisses Challenges to FERC Decision on ACP

From the ABRA Update for March 22, 2018:

Legal challenges to the October 13, 2017 the approval and permits for the Atlantic Coast Pipeline (ACP) by the Federal Energy Regulatory Commission (FERC) were dismissed on March 21 by the U.S. District Court of Appeals for the 4th Circuit.

On January 29, Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC) sued FERC on behalf of 11 groups (most of them ABRA members) challenging the agency’s decision to approve the ACP. On March 8, a second lawsuit was filed by SELC and Appalmad against FERC under the All Writs Act to stop pipeline construction. The All Writs petition was filed as an alternative basis on which the Court could stop the project, if it determined that the direct challenge to the FERC approval was premature.

The panel rejected the All Writs argument and apparently accepted FERC’s position that it could indefinitely postpone a decision on the merits of our rehearing request to the agency even though the pipeline goes forward (known as a “tolling order”). Thus, in the Court’s view, it does not have jurisdiction to hear the case now, and the plaintiffs must wait until FERC issues an order on the rehearing request. It is unclear when the agency will act. The FERC certificate can still be challenged once the agency makes its final decision. Until then, other pipeline permits will be subjected to litigation.

Court Ruling Stops ACP Timbering of “The Wilderness”

On March 1, 2018, Judge Norman Moon, of the US Western District of Virginia Federal Court in Lynchburg, granted ‘immediate access’ for tree-felling on 16 of 27 Virginia properties for which Dominion requested access. Acting on an appeal by Appalachian Mountain Advocates for one of the properties, “The Wilderness,” a 1,000-acre farm listed on the National Register of Historic Places, the United States Court of Appeals for the Fourth Circuit issued an order on March 13, 2018, preventing imminent tree cutting by the Atlantic Coast Pipeline. The “stay pending appeal” overruled Judge Moon’s March 1 decision, thus providing temporary relief from tree cutting until the court could fully consider the issue.

On March 20, Appalachian Mountain Advocates attorneys and the ACP’s attorneys presented oral arguments on the issue before the judicial panel.

On March 21, 2018, a unanimous judicial panel of the Fourth Circuit vacated the lower court’s injunction. The Fourth Circuit’s order will prevent tree cutting on the property until the Federal Energy Regulatory Commission fully completes the required state and federal historical review process. This review is necessary because “The Wilderness” is listed on the National Register of Historic Places and the Virginia Landmarks Register, and been deemed by the Virginia Department of Historic Resources to be a “Virginia Treasure.”

Read more on Appalachian Mountain Advocates Web page.

NC Judge Rules in Favor of Two Landowners

On Wednesday March 14, 2018, Atlantic Coast Pipeline’s motion asking a federal judge in US District Court in Elizabeth City NC to force Marvin Winstead Jr., Ronald Locke, and 11 other hold-outs to allow contractors to immediately begin tree-cutting on their land. Standard practice for eminent domain is to pay up front, but since they had been unable to reach any agreement with landowners, ACP asked to use “quick-take,” agreeing to a bond that supposedly guarantees landowners will be paid after a jury determines an appropriate amount.

ACP argued that they would suffer “irreparable harm” if they couldn’t proceed. According to NC Policy Watch, “the landowners will suffer no such harm from allowing construction to begin now, ACP lawyers claim. ‘What is the harm in giving us access now or later?’ Richard D. Holzheimer, Jr., an attorney with McGuireWoods, the firm representing the ACP, asked the court. He acknowledged the project would inflict ‘irreparable harm’ but ‘not from early access.'” [Note the admission by the ACP lawyer that the pipeline would cause “irreparable harm” to landowners.]

On Friday March 16, 2018, US District Court Judge Terrance Boyle ruled that Winstead and Locke do not have to allow Atlantic Coast Pipeline contractors on their property to begin tree-cutting – at least for now – because neither had been given a reasonable opportunity to negotiate with ACP, LLC. Although Winstead received an offer from the ACP in January 2016, a surveyor later told him his property was not on the route. Locke tried to communicate with ACP LLC, but they never responded.

However, Boyle ruled in favor of the ACP in the cases of the other 11 landowners, saying the ACP may invoke eminent domain on their properties. As a security, the ACP must deposit with a federal district court clerk an amount three times the appraised value of each parcel it plans to condemn, and must also obtain a bond twice the appraised value of the parcels.

Read a fuller report on the March 14, 2018, hearing here, and a fuller report on the judge’s March 16 decision here.

Court Stops ACP Timbering of “The Wilderness” (for now)

On March 13, 2018, the Fourth Circuit issued an order preventing imminent tree cutting by the Atlantic Coast Pipeline on “The Wilderness,” a 1,000-acre farm listed on the National Register of Historic Places. The court issued a “stay pending appeal” overruling an earlier decision from Judge Norman Moon of the United States District Court for the Western District of Virginia, which would have allowed the Atlantic Coast Pipeline to begin cutting trees on the property immediately. Appalachian Mountain Advocates represented The Wilderness; read more on their Web page.

Groups Ask Court to Halt Pipeline Construction

Roberts Mountain is one of several mountain ridges that will be flattened to create a 125′ work area under ACP construction plans.

On March 9, 2018, the Southern Environmental Law Center and Appalachian Mountain Advocates, on behalf of their clients, filed a request asking the Fourth Circuit Court of Appeals in Richmond to halt construction of the Atlantic Coast Pipeline until the court decides whether the Federal Energy Regulatory Commission’s permit is valid.

The challenge to the permit is based on the lack of evidence demonstrating the pipeline is needed in Virginia or North Carolina, as well as data and analysis showing the region already has sufficient pipeline capacity to meet future needs.

This filing comes as the cost of the pipeline has ballooned to $6.5 billion and when there are growing questions about Dominion’s plans for the natural gas as it eyes South Carolina for a possible expansion of the pipeline. The groups contend that the overwhelming evidence shows the true purpose of the ACP is to provide profits for the shareholders of the pipeline’s financial backers, Duke and Dominion, at the expense of those utilities’ ratepayers. The effect of the filings would be a halt to the construction of the ACP until the court considers the coalition’s existing challenges to the FERC certificate that authorizes construction. FERC and ACP have ten days to respond.

On the same day, the U.S. Forest Service and FERC gave pipeline developers the right to begin cutting down trees in the George Washington National Forest. If the court grants SELC’s request to stay the project, developers will be required to stop all work, including tree cutting, in George Washington National Forest and other federal properties.

Press release from SELC is here.  Press release from Appalachian Mountain Advocates is here.

Fences and Neighbors

A message from Irene Leech, Buckingham County VA, March 3, 2018

How many of you think it’s only fair for the ACP to make the route adjustment we’ve asked for within our property?

These friendly, curious yearlings will check out everything new in their pasture, including people (they were coming to check me out when I snapped this picture). You can tell from the facilities in the background that we often bring cattle through this area. ACP wants to bisect our entire property and especially, this central field.

We have lots of evidence that pipeline folks do not understand cattle, farming, or the needs of our 100+ year old business. ACP wants to start construction in about a month, but so far, there’s been no discussion of fences to keep these animals or others who come through this field regularly, out of the construction area. I’m not sure the judge who said we’ve got plenty of time to build fence understands that a quick electric fence won’t do the job.

In 2014 we began asking for the pipeline to be moved within OUR property so that it will create fewer problems for our business during construction, reduce the frequency with which we must cross it from now on, and give us a little more safety by moving our buildings to the edge of the incineration zone instead of the middle of it. We are only 4 miles after the compression station so the gas will be at highest pressure. Because we are rural, we only get the lowest safety standards allowed, thinnest pipe, cut off valves 20 miles apart instead of 3 miles apart, last century remote monitoring. We’ve been told that our air is so clean we can afford the new pollution load.

Our multiple requests to move the pipeline within our property are well documented – and ignored by all involved. No written offer for an easement addressed any of our business or safety concerns/ requests. Ultimately, that’s why we never accepted an offer and why they took us to court this week.

Property rights have always been central values of our country and greatly impact the ability of people to achieve their American Dream. While many decry any hint of ANY limitation on what they call Second Amendment Rights, few seem to be willing to fight for property rights that I’d argue are even more central to our ability to succeed in our markets and to our very freedom as citizens.

The ACP is taking a strip of our property for a mile literally through the middle of our business.This will negatively impact us from this point on. It is a government sanctioned way of transferring our asset to a for profit company that is set up as an LLC so it has ultimate protections while granting us no protection (in fact putting extra obligations on us). From now on, the ACP’s interest in our property is legally higher than ours, even though we continue paying property taxes but get no annual income from this infrastructure, only a small one time payment (don’t know what it will be, but when we do, divide it by 70 years and see if it’ll even cover the taxes, much less compensate us for lost value, compensate us for the additional risk and daily hassle of respecting this unsafe infrastructure placed in the middle of our property).

Just curious, how many of you think it’s only fair for the ACP to make the route adjustment we’ve asked for within our property?