Category Archives: Court cases

4th Circuit Hearing on ACP Not Expected Until May

On February 18, 2019, WVNews reported that the Fourth Circuit Court has moved from March until May its scheduled hearing of ACP arguments on the December decision which stayed an authorization previously issued by the U.S. Fish and Wildlife Service.

DJ Gerken, senior attorney with the Southern Environmental Law Center, says that, although lawyers have been told to hold availability in May, no date has yet been set for a May hearing, and if the court is unable to hold the hearing in May, the next available court week is in September.

Read the full article here.

Forest Service Joins Dominion to Challenge 4th Circuit Decision

ABRA Update 217 from Allegheny-Blue Ridge Alliance reports that on February 11, 2019, the US Forest Service (NFS) filed a petition for review of the Fourth Circuit Court of Appeals decision in December vacating the NFS permit for the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail. Atlantic Coast Pipeline, LLC (ACP, LLC) had previously filed a challenge to the decision, on January 28. The NFS petition states:

. . . the Forest Service seeks rehearing of the panel’s holding that National Forest System land traversed by the Appalachian National Scenic Trail “is land in the National Park System.” Slip op. 52. That holding presents “a question of exceptional importance,” Fed. R. App. P. 35(a)(2), because it may preclude the construction of infrastructure for any pipeline across all federal lands traversed by the 2100-mile Appalachian Trail in states within the jurisdiction of this Court, and because it contradicts the plain language of the National Trails System Act and the agencies’ consistent practice over eighty years of Appalachian Trail management. The panel’s holding also calls into question the validity of dozens of Forest Service permits for electrical transmission lines, telecommunications sites, municipal water facilities, roads, and grazing areas.

Reaching this issue was unnecessary to the judgment. The Forest Service seeks rehearing to preclude the above-described holding from having precedential effect— with disruptive consequences for the many operations of the Forest Service and the Park Service in this Circuit.

The NFS petition, like the previously one filed by ACP, LLC, requests that all fifteen members of the Fourth Circuit hear the appeal. At this writing, the Court has not yet acted on either petition.

Park Service to Vacate ACP Permit to Cross Parkway

On January 16, 2019, the US Park Service filed a motion (made public on January 18) with the Fourth Circuit Court of Appeals for a voluntarily remand of the construction and right-of-way permits for the Atlantic Coast Pipeline. The Park Service explains that upon the Court granting the request, the agency will vacate the previously issued permit for the ACP to cross the Blue Ridge Parkway and “consider whether issuance of a right-of-way permit for the pipeline to cross an adjacent segment of the Parkway is appropriate.”

The Fourth Circuit granted the Park Service’s request to remand the permit back to the agency for reconsideration on January 24, 2019.

Read a copy of the motion.

Read Platt S&P Global January 18 coverage of the motion and the Richmond Times-Dispatch coverage.

More Delays, Higher Costs for ACP

On Friday January 11, 2019, the Fourth Circuit Court of Appeals declined Dominion’s request to either narrow the scope of the Court’s December stay of Atlantic Coast Pipeline construction or to expedite the hearing on the case involving of the U.S. Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement. The oral arguments before the Court are scheduled for March 2019, and an opinion would likely not be issued until some weeks thereafter. Because of the timing of the court case, the legal window will have closed for the tree felling Dominion says is necessary for construction, thus delaying construction for as much as a year. An article in the Charlotte Business Journal on January 15, 2019, says, “Because of requirements in its Federal Energy Regulatory Commission license, the pipeline could be prevented from clearing timber for construction of the pipeline until November, even if the court rules in its favor after the hearing that starts March 19. If that were to happen, the delays could add up to a $1 billion cost increase.”

That’s a $1 billion increase beyond the already projected $7 billion. Dominion’s original cost estimate for the ACP was $4.5-5 billion, and the original in-service date was late 2018. Cost estimates are now $8 billion, with an in-service date for the proposed project of mid-2021.

Dominion Withdraws Quick Take Suits

Dominion has withdrawn the Quick Take suits they filed on November 16, 2018, against at least 20 Nelson landowners. Given the multiple existing court challenges, it seems likely that ACP feared the court might side with the landowners who are at risk of suffering irreparable harm at the hands of a project that may never even be built. The ACP has, however, reserved the right to re-file another “motion for partial summary judgement” or Quick Take at any time.

“Quick Take” is a formal process of the exercise of eminent domain in which the government (or in this case, a private for-profit company masquerading as a “public” utility) takes possession BEFORE any court ruling on compensation. In other words, Dominion wanted access to begin work on these landowners’ properties BEFORE paying the landowners any money, and BEFORE receiving all permits allowing the ACP to begin construction.

Rogues?

On January 8, 2019, the Charleston Gazette-Mail reported on the energy lobbyist, Bob Orndorff, state policy director for Dominion Energy, who, when speaking to Joint Committee on Natural Gas Development on behalf of the West Virginia Oil and Natural Gas Association, said construction on the Atlantic Coast Pipeline has been halted because “rogue environmental groups” are getting in the way. “It’s on hold because the 4th Circuit Court of Appeals allowed a rogue environmental group to contest various permits that we have on the project.” The Gazette-Mail said, “Orndorff urged lawmakers to ‘stand up to these rogue environmental groups’ and pass a resolution to condemn them.”

The article then quotes DJ Gerken, senior attorney for the Southern Environmental Law Center, which argued on behalf of conservation groups in legal challenges: “It’s the federal agencies who went rogue here. They ignored the law, they ignored warnings from their own experts to approve a destructive and unnecessary pipeline.”

In an editorial on January 11, the Gazette-Mail asks, “Who are the real rogues?” The editorial says, “In reality, Dominion Energy has halted construction after the Fourth Circuit Court of Appeals found environmental regulatory groups were bypassing rules meant to protect people, wildlife and the environment in the path of such large-scale projects. No doubt Dominion will continue to pursue the Atlantic Coast Pipeline once these legal hurdles are cleared, but for representatives of the industry to blame ‘rogue’ environmentalists is dishonest and simply wrong.”

The editorial continues, “Both state and federal agencies have gone out of their way to make the projects easier for the companies putting them together. Those are the types of actions that result in industrial disasters that harm the people and the environment these projects plow through. Unsurprisingly, some have already been cited numerous times for violations as they try to get the pipelines built. A joint investigative report from the Gazette-Mail and ProPublica found that government regulators bent over backwards to get these projects approved quickly, which is perhaps why they’re having so much trouble in court. It is not a ‘rogue’ action to hold companies and government agencies accountable to the minimal rules in place to protect quality of life. West Virginia has suffered enough of industry run amok.”

The editorial concludes, “The suggestion to the Legislature offered up by lobbyist Bob Orndorff that the body pass a resolution condemning the environmental groups pursuing litigation is insulting. These groups trying to protect their rights are made up of actual West Virginians who want to preserve what they have and avoid being steamrolled by big industry. Their government should be watching out for them, but it’s not, so the only way to stand up for themselves is through the courts. Remember it’s the people who are the David in this scenario, not the Goliath.”