Category Archives: Court cases

MVP Sued for Erosion Damage

The Roanoke Times reported on May 30, 2018, that “Six Franklin County landowners are suing Mountain Valley Pipeline“, claiming their property was damaged by the company’s failure to control storm water runoff from a construction site. “Mountain Valley has shown a ‘startling disregard’ for the impacts of building a natural gas pipeline on its neighbors, according to a lawsuit filed Tuesday in U.S. District Court in Roanoke. After heavy rains that started May 15, a swath of bare land that crews had cleared for the pipeline’s right of way became a channel for erosion, covering nearby Cahas Mountain Road with about 8 inches of mud.”

The plaintiffs’ suit states that inadequate erosion control caused a blanket of sediment and muddy water to swamp hay fields and make its way into nearby streams on their properties. “The landowners are asking a judge to do what they say state regulators have not: order a stop to construction until Mountain Valley has taken steps to ensure that the next heavy rain will not unleash another mudslide.”

Although the Virginia Department of Environmental Quality temporarily halted construction, there has been no formal stop-work order, and construction was allowed to resume on May 22.

MVP refused to comment on the lawsuit. DEQ and Mountain Valley officials have said none of the sediment had reached nearby Little Creek or other streams. However, the article reports, “That assertion was challenged by the lawsuit, which cited an email from DEQ employee Elizabeth Abe to one of her colleagues. Abe described a stream along nearby Brick Church Road ‘so choked with mud that no water was flowing,’ according to the lawsuit. The email also reported that Abe saw no erosion control devices installed at the worksite.”

Read the full article here.

Letter Filed with FERC on Why ACP Should Not Proceed

On May 22, 2018, the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates filed a letter with FERC, on behalf of its respective client groups (most of whom are Allegheny-Blue Ridge Alliance members), a letter setting forth the reasons why FERC should not allow construction of the ACP to proceed. The SELC filing noted that the Fourth Circuit has yet to issue an opinion explaining the parameters of its May 15 decision vacating the U.S. Fish and Wildlife Service’s (FWS) biological opinion on the project as it relates to the Endangered Species Act (ESA), and pointedly noted the liability FERC would be taking on if it allows ACP to continue with construction prior to the completion of the Section 7 consultation Fish and Wildlife Service (FWS).

Among the highlights of the filing:

  • Because FWS cannot develop the new incidental take statement until the 4th Circuit’s full opinion comes out there is no way to know if a re-route is going to be required:   “FWS may have to revisit its jeopardy analysis for some or all of these species. Its revisited jeopardy analysis could require route modifications as a reasonable and prudent alternative to affecting the species. Additionally, if FWS is unable to develop enforceable take limits for inclusion in an incidental take statement, it may require the pipeline to simply avoid certain species.”  (Of course this potential also will pertain to the Army Corps’ NWP12 and the USFS Special Use Permit.)
  • They caution FERC not to jump the gun:  “FERC also should not assume that it knows what remedy the court will order, nor FWS’s response to it. For instance, FERC cannot know if FWS will have to consider additional habitat areas not assessed in the original biological opinion and incidental take statement in order to comply with the court’s opinion. FERC puts itself at considerable risk by assuming it or Atlantic can predict what the court will order and how that will play out on the ground.
  • They also call FERC out on still not initiating a formal consultation for the yellow lance mussel, which might also result in the need for route changes:  “Allowing Atlantic to proceed with pipeline construction also risks running afoul of the Endangered Species Act’s prohibition on ‘any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures’ after initiation of consultation. 16 U.S.C. § 1536(d). FERC should not allow Atlantic to encroach upon the edge of habitat for endangered and threatened species in an effort to secure its preferred pipeline route, foreclosing alternative routes or other measures FWS determines necessary to protect those species.
  • Regarding ACP’s plan to continue construction in areas that do not contain the species in question: “Allowing pipeline construction to proceed outside areas Atlantic identified as used by endangered species could dangerously lock FERC and Atlantic into a pipeline route that FWS’s analysis may require it to change. That is part of the reason the ESA prohibits ‘any irreversible or irretrievable commitment of resources’ during consultation – to ensure the action agency does not wed itself to a proposal that it ultimately cannot complete.”
  • Additionally, SELC points out that it is ratepayers that will bear the financial risk if FERC allows ACP to continue construction at this time and an expensive re-route becomes necessary. They go on to pointedly drive home the “need” issue:  “There is no apparent reason to rush this project forward with one key approval invalidated and challenges to several others pending. Undoubtedly, Atlantic wants to move forward with construction because the fundamental problem with the pipeline – that it is not a public necessity – is becoming more obvious with time. The demand for new electric power generation in Virginia and North Carolina is not growing and existing pipelines and other existing gas infrastructure can meet the demand that does exist much more cost effectively than a new, greenfield project. FERC should not be concerned that a stay of pipeline construction will harm utility customers in Virginia and North Carolina. That alarmist message from Atlantic is unfounded. Allowing construction to proceed also risks exposing FERC and Atlantic to criminal and civil penalties under the Endangered Species Act.  When a federal agency such as FERC authorizes an action that results in take of species, that federal agency can be held liable for any unauthorized take.  Without a valid incidental take statement, pipeline construction cannot cause take of a single animal, anywhere along the pipeline route, without risking serious penalties.

Read the full filing here.

Dominion Delivers Response to FERC

On Tuesday May 22, 2018, Atlantic Coast Pipeline, LLC (ACP, LLC) hand-delivered to the Federal Energy Regulatory Commission (FERC) its response to the agency as to how it proposes to proceed with constructing the Atlantic Coast Pipeline in light of the May 15 order from the Fourth Circuit Court of Appeals vacating the U.S. Fish and Wildlife Service’s (FWS) biological opinion on the project as it relates to the Endangered Species Act (ESA). The documents, originally due on Monday May 21, were hand-delivered because of issues with FERC’s website on Monday.

In an email-press release, ACP said:

“We have filed our response, identifying by milepost the areas we are committing to avoid. Per (the Federal Energy Regulatory Commission) and (U.S. Fish and Wildlife Service), because this information contains the locations of sensitive species which are customarily treated as privileged and confidential, this information is not being released to the public.”

For more, see the WV Exponent Telegram story.

Little Pink House: Special Showing

WHERE: The Regal Stonefield, 1954 Swanson Dr, Charlottesville
WHEN: Thursday, June 28 at 7:30 p.m.
TICKETS: Tickets are $12 general admission, and proceeds from ticket sales will benefit Friends of Nelson. You must buy your tickets online; no tickets will be sold at the door. Purchase tickets here: https://www.tugg.com/events/little-pink-house-dauw

Based on a true story, a small-town paramedic named Susette Kelo leaves a bad marriage, and starts over in a new town. She buys a rundown cottage with a gorgeous water view. She fixes it up and paints it pink. Then she discovers powerful politicians want to bulldoze her blue-collar neighborhood for the benefit of a multi-billion dollar corporation. With the help of a young lawyer named Scott Bullock, Susette emerges as the reluctant leader of her neighbors in an epic battle that goes all the way to the U.S. Supreme Court, inspires a nation, and helps millions of Americans protect their homes.

In 2005, the nation was shocked by the Supreme Court’s ruling in Kelo vs. New London. In the judgment, the court said that a local government could forcibly seize people’s homes, through eminent domain, in order to transfer the property to a major corporation for development. The response was immediate. Across the country, states passed legislation and amended constitutions to curtail the power of eminent domain.  In 2012, the people of Virginia spoke out overwhelmingly when more than 2.6 million citizens (74.45% of votes cast) approved amending the state constitution to prohibit eminent domain from being invoked if the “primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue or economic development.”

Plaintiff Susette Kelo’s fight has been dramatized in this new film, Little Pink House, starring the brilliant, Oscar-nominated actress Catherine Keener as Kelo.

The film is being distributed in an unorthodox manner. Local people sign up to bring it to their town and, if enough tickets are sold, a screening proceeds at a selected local theater. We are pleased to announce that Doug Hornig has secured a showing of the film in Charlottesville:

WHERE: The Regal Stonefield, 1954 Swanson Dr, Charlottesville
WHEN: Thursday, June 28 at 7:30 p.m.
TICKETS: Tickets are $12 general admission, and proceeds from ticket sales will benefit Friends of Nelson. You must buy your tickets online; no tickets will be sold at the door. Purchase tickets here: https://www.tugg.com/events/little-pink-house-dauw

Eminent domain is a hot button topic here in central Virginia, as Dominion intends to use it to seize private property for the Atlantic Coast Pipeline. Many of us have been fighting them for several years now, and continue to do so.

We hope to use this event to help educate the public about the importance of fighting eminent domain abuse. Following the film, there will be a panel discussion and Q&A featuring: John Kramer – Institute for Justice, Chuck Lollar – Attorney specializing in eminent domain cases, Richard Averitt – Property owner impacted by Atlantic Coast Pipeline, Joyce Burton – Board member, Friends of Nelson, a nonprofit dedicated to stopping this unnecessary pipeline.

Join us – and bring family, friends, and neighbors! We’ll see you there!

Court Denies FERC Bid to Delay Suit Against MVP

On May 16 U.S. Court of Appeals for the District of Columbia Circuit denied the Federal Energy Regulatory Commission’s bid to delay a lawsuit brought by environmental groups against the Mountain Valley Pipeline. FERC had asked to delay the lawsuit until it concluded its own rehearing process. FERC made the motion to delay in February, asking that the case challenging the FERC certificate of public convenience and necessity for the MVP be held in abeyance, allowing FERC to address the “numerous and complex matters” raised by environmentalists and landowners in their requests for rehearing.  (The FERC process could take many months.)

“FERC should not be allowed to use tolling orders and other delay tactics to block court challenges even as it allows companies like Mountain Valley to move forward with pipeline construction,” Sierra Club attorney Elly Benson said in a statement. “The people and communities that would be affected by this fracked gas project deserve a comprehensive review process that fully examines the threats posed to them and the environment.”

Read more here.

Appeals Court Orders Halt to ACP Construction


Late in the day on May 15, 2018, the Richmond Times-Dispatch reported that, “A federal appeals court has ordered a halt to construction of the 600-mile Dominion Energy-led Atlantic Coast Pipeline, following a legal challenge by environmental opponents who argued a review by the U.S. Fish and Wildlife Service was inadequate. A three-judge panel at the U.S. Court of Appeals for the Fourth Circuit agreed, striking down the review, known as an incidental take statement, which is meant to set limits on harm to threatened or endangered species during construction.”

The court’s order states, “Petitioners seek review of the U.S. Fish and Wildlife Service’s Incidental Take Statement, which authorized the Atlantic Coast Pipeline project to take certain threatened or endangered species. As to five of the affected species, Petitioners argue that the agency failed to set clear limits on take as required by the Endangered Species Act. Exercising jurisdiction pursuant to 15 U.S.C. § 717r(d)(1), we conclude, for reasons to be more fully explained in a forthcoming opinion, that the limits set by the agency are so indeterminate that they undermine the Incidental Take Statement’s enforcement and monitoring function under the Endangered Species Act. Accordingly, we VACATE the Fish and Wildlife Service’s Incidental Take Statement.  See 5 U.S.C. § 706(2). We reserve judgment on the parties’ remaining disputes until our forthcoming opinion.”

D.J. Gerten, the Southern Environmental Law Center attorney who argued the case for the Sierra Club, the Defenders of Wildlife, and the Virginia Wilderness Committee, said, “This puts a stop to any work that could threaten rare and endangered species and that’s much of the pipeline route.”

In the Washington Post report, Dominion talks about continuing construction [italics added].  “‘We remain confident in the project approvals and the ACP will continue to move forward with construction as scheduled,’ spokeswoman Jen Kostyniuk said via email. ‘We will fully comply as required while we continue to construct the project. Although we disagree with the outcome of the court’s decision, and are evaluating our options, we are committed to working with the agency to address the concerns raised by the court’s order.'”

In a statement to the press, Friends of Nelson said, “We are of course pleased with this decision from the 4th Circuit regarding the US Fish and Wildlife review of the ACP. Residents and groups fighting on behalf of impacted communities have long held that thousands of pages of documents do not necessarily end in a thorough review. Errors and omissions have been rife among agencies in charge, and political pressures have been glaringly obvious. We will wait for details of the court’s full opinion, but are most grateful for the Southern Environmental Law Center’s steadfast dedication to the communities all along the route of the Atlantic Coast Pipeline. It is indeed a pleasure to hear a court confirm the deficiencies in at least part of the review of this project. Given the opportunity for all of the many challenges to be heard by the courts before this pipe is laid, we are confident that this project will not be built.”