Category Archives: Court cases

Fourth Circuit Court Halts MVP Construction in WV


On October 2, 2018, the Fourth Circuit Court of Appeals issued an order that will significantly impede construction of the Mountain Valley Pipeline, halting MVP construction through rivers and streams in southern West Virginia for the foreseeable future. Last week, Appalachian Mountain Advocates, representing the Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Appalachian Voices, and the Chesapeake Climate Action Network, challenged the Army Corps of Engineers’ certification for the pipeline under a general permit, Clean Water Act Nationwide Permit 12. The Court agreed with their argument that the Corps improperly certified the MVP under the general permit.

The petitioners asserted that the Corps improperly imposed one condition requiring use of a “dry cut” method for constructing four river crossings “in lieu of” a special condition imposed by West Virginia which said “[i]ndividual stream crossings must be completed in a continuous, progressive manner within 72 hours.” Construction using the “dry cut” method was expected to take four-six weeks rather than 72 hours.

The Court vacated “in its entirety the Corps’ verification of the Pipeline’s compliance with NWP 12.” The order explained that if any part of the project requires an individual permit, then “the NWP does not apply and all portions of the project must be evaluated as part of the individual permit process.”

Appalachian Mountain Advocates expects the Corps will now be required to issue an individual permit for the project, requiring a significant environmental assessment, before it may proceed to construction.

Read the Court’s order here.

Press coverage in the Charleston Gazette-Mail is here.

Ivy Main and Rick Cornelius Speak at Public Meeting

The September 30, 2018, Friends of Nelson public meeting featured two excellent speakers, Ivy Main (Sierra Club and Power for the People) and Rick Cornelius (environmental lawyer).

Photo by Kathy Versluys

Ivy gave us an update on Virginia’s energy future and the effort to move toward renewable energy that would decrease the need for fossil fuels, including the Atlantic Coast and Mountain Valley Pipelines, which most economic studies show are not needed to meet either current or future energy needs. See her PowerPoint presentation here. She also discussed how to remove barriers to customer solar by supporting 8 reforms to open the market, create jobs, and save money:

Virginia law contains numerous restrictions on the ability of local governments, residents and businesses to install solar facilities for their own use. Legislation is required to remove barriers and create a stronger market for distributed solar.

The 2018 “grid mod” legislation supported utility solar, but did not address the barriers that hold back private investment in the distributed solar market.

Local governments and residents are coming together around legislation in 2019 that will support customer solar.

The “Easy 8” reforms include:

  • Lifting the 1% cap on the total amount of solar that can be net metered in a utility territory
  • Making third-party financing using power purchase agreements (PPAs) legal statewide for all customer classes
  • Allowing local government entities to install solar facilities of up to 5 MW on government-owned property and use the electricity for schools or other government-owned buildings located on nearby property, even if not contiguous
  • Allowing all customers to attribute output from a single solar array to multiple meters on the same or adjacent property of the same customer
  • Allowing the owner of a multi-family residential building to install a solar facility on the building or surrounding property and sell the electricity to tenants
  • Removing the restriction on customers installing a net-metered solar facility larger than required to meet their previous 12 months’ demand
  • Raising the size cap for net metered non-residential solar facilities from 1 MW to 2 MW
  • Removing standby charges on residential facilities sized between 10-20 kW

Enacting these reforms will give local governments more opportunities to install solar on government property as well as help residents and businesses invest in solar. This can create savings for taxpayers, decrease the need for fossil fuels, help meet local sustainability goals, and support local jobs and economic development.


Rick reviewed the salient points of a number of current cases before the Fourth

Photo by Kathy Versluys

Circuit Court of Appeals, including:

  • the challenge to the December 13, 2017, decision by the Virginia State Water Control Board to grant a water quality certificate for the ACP (pursuant to requirements of Section 401 of the federal Clean Water Act)
  • the challenge to the decisions of the U.S. Forest Service to amend the Forest Plans of the Monongahela National Forest and the George Washington National Forest and to accordingly issue a Special Use Permit for the ACP to cross the two forests
  • the challenge brought by landowners in Virginia and West Virginia to both the “quick-take” authority federal regulators granted to Mountain valley Pipeline and a lower court ruling saying MVP could go forward even though property owners have not been compensated
  • SELC’s recent challenge to the new permits issued by the Fish and Wildlife Service and National Park Service re: the “incidental take” of endangered species and the crossing of the Blue Ridge Parkway, respectively
  • the challenge in West Virginia brought on July 3, 2018, by Appalachian Mountain Advocates for the West Virginia Rivers Coalition and others regarding the time frame for crossing the Greenbrier River not following the stipulations of section 404 of the Clean Water Act re: discharges of sedimentation into waterways at stream crossings
  • the challenge recently filed by Appalachian Voices arguing that FERC didn’t adequately adhere to stipulations in the Natural Gas Act (including addressing the need for the project)

News coverage of the meeting and of the unveiling of The Defenders sculpture earlier in the afternoon:

Report on Sept. 28 Arguments Before 4th Circuit Court

Thanks to Lew Freeman of Allegheny-Blue Ridge Alliance for this report on the arguments in the Fourth Circuit Court of Appeals in September 28, 2018:

Yesterday, September 28, a three-judge panel of the Fourth Circuit of the U.S. Court of Appeals in Richmond heard arguments on two important cases challenging permits granted to the Atlantic Coast Pipeline (ACP). The first case challenged the December 13 [2017] decision by the Virginia State Water Control Board to grant a water quality certificate for the ACP (pursuant to requirements of Section 401 of the federal Clean Water Act). The second case challenged the decisions of the U.S. Forest Service to amend the Forest Plans of the Monongahela National Forest and the George Washington National Forest and to accordingly issue a Special Use Permit for the ACP to cross the two forests. The plaintiffs in both cases were a group of ABRA member organizations and others that were jointly represented by Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC). An article about the briefs filed in each case appeared in the September 21 [2018] ABRA Update (see https://www.abralliance.org/2018/09/21/court-to-hear-challenges-to-acp-forest-service-water-quality-permits/?highlight=court%20to%20hear%20challenges).

I attended Friday’s arguments. The lawyers representing our interests – Ben Luckett of Appalmad in the 401 case; D.J. Gerkin of SELC in the Forest Service case – were most effective. More about the oral arguments will appear in next week’s ABRA Update. For now, though, I want to highlight a particularly significant moment during the arguments presented in the Forest Service case. In the course of the argument presented by the U.S. Justice Department attorney representing the U.S. Forest Service, Chief Judge Roger Gregory, who was presiding over the panel, interrupted the attorney and noted that the U.S. Forest Service had been diligently asking Dominion Energy for more complete information on how the company would and could build the ACP through the steep forest lands in West Virginia and Virginia without causing environmental damage. The judge then observed that the Forest Service seemed to have suddenly changed its mind and proceeded to approve the requested Special Use Permit. Judge Gregory inquired of the attorney what the circumstances were that caused the Forest Service to change course. The attorney responded evasively, prompting the judge to interrupt him again and ask: “When?” The attorney tried to continue with his non-responsive response, and Judge Gregory again interrupted with: “When?” The judge’s “When?” question was asked twice more, but never received a response, prompting Judge Gregory to thunder: “Who’s running the train?” It was a riveting moment and one that also caught the attention of Michael Martz of the Richmond Times Dispatch [Martz’s article appears in both the Daily Progress and the Times Dispatch].

A recording of Friday’s oral arguments will be available on the Court’s website on Monday [October 1, 2018] at https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments.  The case numbers you will need to access the recordings are: 401 case – 18-1077; Forest Service case: 18-1144.


The Chesapeake Bay Foundation issued the following statement about the oral arguments challenging the ACP’s water quality certification:

“This year Virginians have seen firsthand the terrible damage that pipeline construction can do to communities and waterways. The Atlantic Coast Pipeline would cross Virginia waterways nearly 1,000 times from the mountains to the Chesapeake Bay, threatening them with erosion, mudslides, and polluted runoff. All of the evidence shows that the regulations in place cannot provide reasonable assurance that water quality will be protected from pipeline construction and operation. We are pleased that the federal appeals court is looking closely at this question.”

4th Circuit Chief Justice Questions Validity of Eminent Domain

At a hearing before the 4th Circuit Court on September 25, 2018, Chief U.S. Circuit Judge Roger Gregory questioned the validity of eminent domain laws, describing them as a holdover from the days when Americans were royal subjects.

The case before the court, brought by landowners in Virginia and West Virginia, challenges both the “quick-take” authority federal regulators granted to Mountain valley Pipeline and a lower court ruling saying MVP could go forward even though property owners have not been compensated.

As the hearing began, Gregory questioned East Tennessee Natural Gas Co. v. Sage, a 14 year old ruling from the Court establishing standing for natural gas companies to take land prior to paying compensation.

According to Courthouse News Service, “‘This is something extraordinary the courts have granted and the question is should it happen now before it’s done,’ Gregory said. ‘You want to abort the [normal and lengthy eminent domain] process and take it now. Maybe Sage is wrong.’ he said. Wade Massie, the Stuart and Eskridge attorney who is representing the developers, appeared stunned by the judge’s comments and referred back to the rights granted his clients by the permit, including the right to take the land prior to payment. ‘We have the right to it now,’ he said, stressing he believed the company had followed the letter of the law to date. ‘It was done with notice, these landowners had discovery and evidence hearings.’ Part of the urgency of the land claims comes from the nature of the FERC permit: it only lasts three years. And while parts of it have stalled in the courts, Sage allows the taking of land prior to all legal disputes being resolved. To do otherwise would expose the developers to economic harm, but the status quo harms property owners who may wish to challenge a taking, lawyers for the land owners said. Gregory appeared to agree.”

Read the full article here.

4th Circuit Issues Stay of Forest Service Permit for the ACP

Late on September 24, 2018, the Fourth Circuit for the U.S. Court of Appeals issued a stay in the case challenging the Special Use Permit (SPU) that had been issued by the U.S. Forest Service for the Atlantic Coast Pipeline. The case is scheduled to be argued before the Fourth Circuit this coming Friday, September 28. This means that the SPU allowing the project to cross national forest land is stayed pending the appeal. Imminently, the Federal Energy Regulatory Commission will be asked to issue a stop work order in light of today’s decision.

The plaintiff’s in the case, represented jointly by the Southern Environmental Law Center and Appalachian Mountain Advocates, are Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

SELC Challenges New Rushed Permits for Atlantic Coast Pipeline

September 19, 2018, press release from Southern Environmental Law Center:

The Southern Environmental Law Center (SELC), on behalf of Sierra Club, Defenders of Wildlife, and Virginia Wilderness Committee, filed legal challenges today in the U.S. Court of Appeals for the Fourth Circuit to new permits for the Atlantic Coast Pipeline issued by the National Park Service and the U.S. Fish and Wildlife Service last week.

After the Fourth Circuit struck down its permit for the pipeline, the National Park Service quickly reissued a nearly identical permit with no changes to the project. The U.S. Fish and Wildlife Service reauthorized the pipeline despite new data confirming that it would put critically endangered species in jeopardy of extinction.

“These agencies again ignored the law in their rush to give the Atlantic Coast Pipeline the approvals it wanted,” said SELC attorney DJ Gerken. “These agencies work for the public, not the developers of an unnecessary pipeline even two FERC Commissioners concluded is not in the public interest.”

“The agencies responsible for protections should be prioritizing a real review of the Atlantic Coast Pipeline, not abandoning a critical process to help developers,” said Jason Rylander, senior attorney at Defenders of Wildlife. “There is no justification for this unnecessary and dangerous project.”

“By turning a blind eye to the research that shows the Atlantic Coast Pipeline jeopardizes Virginia’s rivers, forests, plants, and animals, the National Park Service and the Fish and Wildlife Services are endangering our communities,” said Mark Miller, Executive Director of the Virginia Wilderness Committee. “We will fight to ensure our state’s natural resources are afforded the protections they deserve.”

“Letting polluting corporations build the ACP without considering the latest endangered species data is like letting a doctor operate without the diagnosis,” said Joan Walker, Senior Campaign Representative for the Sierra Club’s Beyond Dirty Fuels campaign. “The National Park Service has already said in official comments that the ACP’s route is inconsistent with its objectives to preserve the beauty of the Blue Ridge Parkway. If they don’t know what the effects of this fracked gas pipeline will be, they shouldn’t be allowed to build it.” 

Court Filing NPS

Court Filing FWS