Category Archives: Court cases

Both Fine and Stay for MVP

On Friday October 11, 2019, in a consent issued by Henrico Circuit Court, Mountain Valley Pipeline agreed to pay $2.15 million to resolve the lawsuit by Virginia regulators that accused it of repeatedly violating environmental standards during MVP construction. The suit was filed in December 2018 for “violations of the commonwealth’s environmental laws and regulations at sites in Craig, Franklin, Giles, Montgomery, and Roanoke Counties.”

The agreement requires the company to submit to court-ordered and supervised compliance with regulations meant to curb sediment and erosion and stipulates automatic fines for further violations. It further stipulates that “MVP, at its expense, shall retain a third-party Environmental Auditor to provide on-site monitoring of instream invertebrate and fisheries resources during all construction activity related to waterbody and wetland crossings and document instream conditions and any impacts to the resources.” Depending on the event, fines of anywhere from $500/day to $26,000 may be levied immediately for future violations.

Later the same day, the U.S. Court of Appeals for the Fourth Circuit put a hold on two permits, the Biological Opinion and Incidental Take Statement, permits the MVP needs to proceed with construction activities. According to the Sierra Club press release, the Court’s announcement effectively means construction must stop on the 300-mile project.  On October 15, FERC wrote to MVP, saying in part, “While next steps are determined, Mountain Valley is hereby notified that construction activity along all portions of the Project and in all work areas much cease immediately, with the exception of restoration and stabilization of the right-of-way and work areas, which Commission staff believes will be more protective of the environment, including listed species, than leaving these areas in an unstable condition.”

Speaking of the FERC order, David Sligh, Conservation Director for Wild Virginia said:  “The command that Mountain Valley cease all construction immediately is appropriate and necessary to meet the law. However, FERC has previously allowed work that is clearly construction to be done under the guise that it is ‘stabilization.’ The Commission must now act responsibly and clearly prohibit all activities that are not absolutely necessary to protect the environment. FERC must no longer play deceptive games that allow further destruction from a project that cannot protect our resources and may never be completed.”

Dominion Buys Pipeline Support at Supreme Court

Dominion buys pipeline support at Supreme Court through GOP Attorneys General – that was the headline for an article posted by the Energy and Policy Institute on October 3, 2019, the day before the Supreme Court announced that it would hear the appeal of the 4th U.S. Circuit Court of Appeals ruling that the Forest Service could not authorize the pipeline to cross the Appalachian Trail. The article was reposted on DeSmog Blog on October 5, the day after the announcement.

The article points out that “Dominion Energy has received support in its case from Republican state Attorneys General and the US Department of Justice. Both US Attorney General William Barr and the state Attorneys General have close financial ties to the utility – including through a GOP group that funneled millions to one key proponent.”

Barr was on Dominion’s Board of Directors from 2009 until February 2019 when he resigned and was confirmed as US Attorney General. US Solicitor General Noel Francisco, who reports to Barr, asked the SCOTUS to hear the appeal of the 4th Circuit ruling. Worth noting: “Between 2009 and 2018, Barr received $2.3 million from Dominion in cash and stock awards, according to a Forbes report based on SEC filings. Upon his resignation from the Board, he received 2,000 shares of common stock, as outlined in his Ethics Agreement, worth about $150,000 at Dominion’s stock price this past spring. Barr was supposed to divest that stock within three months, according to his Ethics Agreement. Barr has yet to recuse himself publicly from activities relating to the ACP Supreme Court appeal….”

In addition to the support from the US Attorney General, 16 State Attorneys General, backed by a Dominion-funded group, also supported Dominion’s appeal. “West Virginia Attorney General Patrick Morrisey led a group of 16 state attorneys general – all Republicans – in a filing this July urging the Supreme Court to take up the ACP appeal. The utility has given $60,725 to a key supporter of Morrisey and other signatories – the Republican Attorneys General Association (RAGA) – since 2014, according to Dominion’s political spending disclosures.” RAGA poured $6.8 million into Morrisey’s 2016 re-election campaign, and RAGA or Dominion may have channeled additional resources to Morrisey through other intermediaries not legally required to disclose all donors or recipients.

Follow the money….

SELC Press Release on SCOTUS Decision to Hear ACP Suit

On October 4, 2019, the Southern Environmental Law Centered issues the following press release:

Today, the U.S. Supreme Court agreed to review a lower court decision that revoked a U.S. Forest Service permit for the Atlantic Coast Pipeline (ACP). The ruling by the 4th Circuit Court of Appeals stated the Forest Service lacked authority to grant approval to Dominion and Duke Energy to cross the Appalachian Trail on federal land.

Since construction on the ACP began last year, seven crucial permits have been vacated, resulting in a halt to construction since December of 2018. Dominion Energy proposed this pipeline in 2014. In the years since, the energy landscape has changed dramatically and we now know that this $7.8 billion pipeline is costly, unneeded, dangerous, and will only add to our greenhouse gas emission problems and burden Duke and Dominion customers with the cost for decades to come.

In response to the decision, the Southern Environmental Law Center and the Sierra Club issued the following joint statement:

“We will defend the lower court’s decision in this case. The Atlantic Coast Pipeline is a dangerous, costly, and unnecessary project and we won’t stand by while Duke and Dominion Energy try to force it on our public lands, threatening people’s health, endangered species, iconic landscapes, and clean water along the way.”

Supreme Court Will Hear Forest Service Case

Breaking news – The U.S. Supreme Court announced on Friday morning, October 4, 2019, that it will hear the appeal by the Atlantic Coast Pipeline, LLC of the Fourth Circuit Court of Appeals decision on the Cowpasture River, et. al. vs. Forest Service case. No date for oral argument has been set.

This case  will consider the Forest Service’s authority to permit the Atlantic Coast pipeline to cross the Appalachian Trail.  We’ll post more on the ramifications of the Supreme Court’s decision as information becomes available.

Supreme Court: Pipeline Fights to Watch

In an article published on September 30, 2019, E&E News considers “4 pipeline fights to watch this term.” The justices have the opportunity to consider:

  1. The Forest Service’s authority to permit the Atlantic Coast pipeline to cross the Appalachian Trail. “In Atlantic Coast v. Cowpasture River Preservation Association, Dominion Energy Inc. and other Atlantic Coast developers are fighting a 4th U.S. Circuit Court of Appeals decision that the Forest Service cannot authorize a path for the pipeline below the Appalachian Trail. The solicitor general filed a companion brief on behalf of the Forest Service. Environmental groups, meanwhile, have urged the justices not to take the case.”
  2. Whether developers of the Mountain Valley project can lawfully seize private property before paying. “Givens v. Mountain Valley Pipeline LLC challenges developers’ ability to immediately take private property for constructing the pipeline before providing payment, an approach known as ‘quick take.’ Their petition aims to overturn precedent set by the 2004 4th Circuit case East Tennessee Natural Gas Co. v. Sage, which allowed pipeline developers to begin construction on private property before paying, provided they had a preliminary injunction. The case is different from typical eminent domain disputes because it doesn’t challenge the legality of the practice, but rather when pipeline developers can take and build on the land.”
  3. A case involving state lands takings for the PennEast pipeline. “Energy lawyers are also closely watching whether a recent decision by the 3rd Circuit on condemning state-owned lands for pipeline development will eventually land in front of the Supreme Court. This month, the court ruled that the developer of the 120-mile PennEast pipeline through Pennsylvania and New Jersey could not use condemnation orders to build significant portions of the line through land owned by the Garden State. The case raises issues of sovereign immunity under the 11th Amendment to the U.S. Constitution and could have important implications for the expansion of pipeline projects in states that oppose oil and gas development. Judges for the 3rd Circuit said that pipeline developers can’t take a state to court for not selling an easement to build a pipeline.”
  4. Challenges over gas exports because the Federal Energy Regulatory Commission’s authority to delegate eminent domain power to pipeline builders is limited to projects in service of interstate commerce. “The U.S. Court of Appeals for the District of Columbia Circuit recently highlighted the issue in a decision over the use of eminent domain to build the Nexus natural gas pipeline through Ohio and Michigan. Those opposed to the pipeline argued that FERC improperly issued a certificate for the project based in part on commitments made by Canadian shippers. That raises the question of whether it is possible to justify that a project designed to supply energy to citizens of foreign countries will serve the public good. The case not only could affect pipelines that cross into Canada and Mexico, but also could have implications for pipelines feeding liquefied natural gas facilities.”

Read the full article here.

SELC Responds to DC Circuit Questions About FERC Case

From Allegheny-Blue Ridge Alliance’s ABRA Update #246 for September 26, 2019:

The DC Circuit Court of Appeals has asked all of the parties involved in the legal cases challenging the certificate of public convenience issued for the Atlantic Coast Pipeline by the Federal Energy Regulatory Commission (FERC) to response to several questions prior to the scheduled argument of the case before the Court on October 16. In a September 13 Order, the Court noted that the Fourth Circuit Court of Appeals in the Cowpasture River Preservation Association v. Forest Service case, which has been appealed to the U.S. Supreme Court, may render the FERC case “unfit for review at this time” (depending upon the Supreme Court’s decision on whether to accept the Cowpasture case for review). Given that, the DC Circuit asked the parties to the FERC case to respond to the following questions:

  1. Whether an alternative route would allow the ACP to proceed on the same certificate of public convenience and necessity;
  2. Whether the prospects of building the pipeline using the same certificate are so speculative that these petitions are unripe (i.e., not ready for consideration) on either constitutional or prudential grounds; and
  3. Assuming that the petitions are unripe, whether the appropriate remedy is to dismiss the petitions or to hold them in abeyance.

The Southern Environmental Law Center, representing the Cowpasture River Preservation Association and other petitioners challenging the FERC certificate, responded to the questions in the Order in a September 20 filing with the Court. Joining in the filing were Appalachian Mountain Advocates, Chesapeake Bay Foundation and Christopher Johns, a counsel for several landowner petitioners. The SELC, et. al. filing argues that:

  • While an alternative route should require a new or amended certificate, FERC has not acknowledged the implications of the Fourth Circuit’s Cowpasture decision for the ACP project;
  • Conservation and landowner petitioners’ claims are ripe for review; and
  • If the Court finds the petitions unripe, the Court should vacate or stay FERC’s certificate for the ACP.