Category Archives: Court cases

Sierra Club Sends Request for Supplemental ACP EIS to FERC


In light of the recent decision by the D.C. Circuit Court of Appeals in Sierra Club v. FERC, No. 16-1329 (August 22, 2017), the Sierra Club wrote to FERC on September 18, 2017, submitting a new authority and request for FERC to revisit its impact analysis in the Environmental Impact Statement (EIS) for the Atlantic Coast Pipeline (ACP). The Sierra Club writes that FERC should reopen the evidentiary record for the purpose of taking additional evidence regarding greenhouse gas emissions and climate impacts, and issue a Supplemental EIS. In the course of that process, FERC should also address previously identified deficiencies in the EIS, as well as new information received after the close of the comment period for the Draft EIS.

The 9-page Sierra Club letter, written on behalf of a number of organizations including Friends of Nelson, describes in detail the reasons why a Supplemental EIS is required and why it must also address new information and previously identified EIS deficiencies.

Appended to the letter is a copy of the August 22 decision issued by the D.C. Circuit Court of Appeals.

Read the full submission from the Sierra Club here.

Judge’s Ruling Permits MVP Surveying

At a hearing on September 11, 2017, Franklin County Circuit Court Judge William Alexander granted the injunction sought by Mountain Valley to prohibit interference with their surveying of Four Corners Farm in Franklin County. The family that owns and operates the farm, David and Betty Werner, their daughter, Carolyn Reilly, and her husband, Ian Reilly, have been repelling surveyors since May of 2016.

The judge said, “I think this whole statute is a legislative failure, frankly,” but that he felt compelled to enforce it.

Surveying will likely be over three days next week.

“The bottom line for me is that money talks,” Carolyn Reilly said. “It’s another win for money.”

Read the full Roanoke Times article about the hearing.

Landowners Sue FERC to Stop Eminent Domain by ACP and MVP


FOR IMMEDIATE RELEASE

Contact:
Carolyn Reilly, Bold Alliance, 540-488-4358, carolyn@boldalliance.org
Ernie Reed, Friends of Nelson, 434-249-8330, lec@wildvirginia.org
Carolyn Elefant (landowners’ attorney), 202-297-6100, carolyn@carolynelefant.com

Landowners Sue Federal Energy Regulatory Commission to Stop Eminent Domain by Atlantic Coast and Mountain Valley Pipelines

Press conference Wednesday morning outside FERC offices to feature landowner-plaintiffs and their attorney, and regional organizers

Washington, D.C. — Landowners whose farms and homes are in the path of the proposed Atlantic Coast and Mountain Valley fracked gas pipelines will hold a press conference on Wednesday outside the D.C. offices of the Federal Energy Regulatory Commission (FERC), to announce their filing of a lawsuit against FERC to end the abuse of eminent domain for private gain for fracked gas pipelines.

The lawsuit, filed Tuesday in Washington D.C. federal district court, on behalf of 57 Landowners, Bold Alliance and Friends of Nelson, challenges the constitutionality of the eminent domain provisions of the Natural Gas Act, and seeks 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.

The lawsuit targets FERC’s encouragement of pipeline companies to negotiate easement agreements with landowners in advance of the agency’s issuance of a “certificate of need,” which results in “irretrievable commitment of resources” to a particular route prior to a formal decision, and absolves the Commission of its responsibility to actually determine whether a proposed project is needed.

“FERC’s policy of encouraging pre-certificate easement negotiations between impacted landowners and the pipeline impermissibly biases the outcome of the certificate approval process, because FERC views pipeline proposals more favorably when the company has acquired most of the easements by negotiation,” the lawsuit states. “In so doing, FERC emboldens private companies to abuse eminent domain rights by duping landowners into signing an easement agreement by threatening them with eminent domain powers that the company does not have, or by refusing to agree to any protective measures in advance of construction until the landowner agrees to sign an easement, often for constitutionally inadequate compensation.”

The lawsuit also specifically challenges FERC’s issuance of “conditioned certificates” — which authorize a taking of property rights that are not, and may never be, necessary to construct the proposed project; and “blanket certificates” — which inappropriately grant a private company eminent domain power coextensive with that of the state, and strip future aggrieved landowners of their rights to formal administrative procedures.

Under the current regulatory regime, landowners are left without a forum to challenge eminent domain abuses. Meanwhile, virtually anything goes — with certificates conferring eminent domain issued by FERC to pipelines that do not serve a public use, but instead, facilitate gas for export or create opportunities for pipelines to monopolize the market for input to gas and electricity utilities, to be distributed in markets controlled by the pipeline’s affiliates.

Plaintiffs in the lawsuit include Bold Alliance, Friends of Nelson, 26 individual landowners on the proposed Mountain Valley Pipeline route and 31 landowners on the proposed Atlantic Coast Pipeline route in West Virginia, Virginia and North Carolina. Plaintiffs include 14 Nelson County landowners and others in Augusta and Bath Counties. Defendants include FERC, and, respectively, Atlantic Coast Pipeline backers Dominion Resources, Duke Energy, Piedmont Natural Gas and AGL Resources; and Mountain Valley Pipeline backers EQT Midstream Partners, LP; NextEra US Gas Assets, LLC; Con Edison Transmission, Inc.; WGL Midstream; and RGC Midstream, LLC.

View the full text of landowners’ lawsuit online at: https://www.scribd.com/document/358098979/Landowners-vs-FERC

WHAT: Press Conference With Landowners Suing FERC Over Eminent Domain
WHO: Landowners’ attorney Carolyn Elefant; Bold Alliance’s Carolyn Reilly (also a landowner on the proposed MVP route); Ernie Reed (Friends of Nelson) and landowners on the proposed ACP and MVP routes.
WHEN: Wednesday, September 6, 11:00 a.m. – 12:00 p.m.
WHERE: Federal Energy Regulatory Commission (FERC), 888 1st St NE, Washington D.C.

Virginia Supreme Court to Hear Survey Case

On August 22, 2017, the Virginia Supreme Court agreed without argument to hear on appeal the survey suit against Atlantic Coast Pipeline LLC brought on behalf of six Nelson residents by Lollar Law.

Chuck Lollar says, “We believe the Virginia Supreme Court granted our Petition for Appeal without oral argument from us (replying to the opponent’s brief in opposition) because they feel that a significant issue of first impression under Virginia law has been presented, which the full court needs to address. The survey statute has been directly challenged as authorizing an unconstitutional taking, along with its interpretation by the trial court reading ‘and’ as ‘or’. The granting of our petition without argument when less than 10% of cases argued have writs granted by the Virginia Supreme Court is very encouraging. The ultimate decision by the full Court on the unconstitutional taking issue presented by the survey statute will have a major impact upon Virginia private property rights, which the appeals in two recent Supreme Court opinions failed to address.”

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.

Appeals Court Rejects Florida Pipeline Project on Environmental Concerns

In a 2-1 ruling the Court of Appeals for the District of Columbia Circuit found on August 22, 2017, that the Federal Energy Regulatory Commission (FERC) did not properly analyze the climate impact from burning the natural gas that the project would deliver to power plants.

Judge Thomas Griffin, appointed to the court by President George W. Bush, wrote that the project’s environmental impact statement “should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so. As we have noted, greenhouse-gas emissions are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate.”

The ruling said, “Quantification would permit the agency to compare the emissions from this project to emissions from other projects, to total emissions from the state or the region, or to regional or national emissions-control goals. Without such comparisons, it is difficult to see how FERC could engage in ‘informed decision making’ with respect to the greenhouse-gas effects of this project, or how ‘informed public comment’ could be possible.”

The Sierra Club had sued FERC, saying that under the National Environmental Policy Act, the law governing all environmental reviews of federal decisions, FERC must consider climate change and greenhouse gas emissions.

The decision overturns the project’s approval and returns it to FERC to complete the necessary greenhouse gas analysis.

Read the full article here.