These are unprecedented times and Southern Environmental Law Center is working their way through them. They pulled together a short message from staff across their offices that we hope you’ll enjoy. We thank SELC for all their hard work to protect our environment from damaging and unnecessary pipelines.
From Allegheny-Blue Ridge Alliance ABRA Update #268, March 19, 2020:
The COVID-19 pandemic is having a decisive impact on the activities of regulatory agencies and courts who have jurisdiction over pipeline issues. Within the last few days, the following has occurred:
- The DC Circuit Court of Appeals indefinitely suspended in-person oral arguments. The Court was scheduled to hear on March 31 for a major case challenging the tolling order policy of the Federal Energy Regulatory Commission (FERC’s policy of delaying the consideration of appeals of its decisions). The Court will decide on a case-by-case basis whether to hear cases by teleconference, postpone arguments or decide cases based on briefs alone.
- The Federal Energy Regulatory Commission has cancelled its scheduled March 19 meeting and FERC staff began working from home, effective March 16. FERC offices are closed to outside visitors. The next scheduled Commission meeting is April 16. It is uncertain at this time whether that meeting will occur.
- The Virginia Department of Environmental Quality announced this week it is suspending routine field activities, including inspections and monitoring, for the next two weeks, though it will continue to “investigate significant pipeline concerns” during that period.
- The Virginia State Air Pollution Control Board will not hold a Spring meeting. The Board had not yet scheduled the meeting. Whenever the Board next meets a primary agenda item will likely be what to do about the air permit for the Buckingham compressor station for the Atlantic Coast Pipeline, which was vacated in January by the Fourth Circuit Court of Appeals
Click here for the newest update on the status of the principal legal challenges to the Atlantic Coast Pipeline, now available on the Allegheny-Blue Ridge Alliance (ABRA) Website. The two-page document, which is regularly updated, features a brief description of seven lawsuits that have been brought by ABRA members.
- Forest Service Permit
- Buckingham County Compressor Station Air Permit
- FERC Certificate
- Fish and Wildlife Service Take Statement
- National Park Service Permit
- Army Corps of Engineers Motion
- Virginia State Water Board 401 Certification
Senior U.S. District Judge Norman Moon issued an opinion on Monday March 9, 2020, finding that the Natural Gas Act preempts Nelson County’s floodplain ordinance, siding with the Atlantic Coast Pipeline and finding federal law superseded the county’s effort to block the project from crossing designated flood plains.
On December 3, 2018, on a 3-2 vote, the Nelson County Board of Zoning Appeals denied four of Dominion’s applications for the variances to the County’s flood plain ordinance needed to construct the Atlantic Coast Pipeline across flood plains in Nelson. The Nelson County Zoning Ordinance specifically includes “Structures or facilities that produce, use, store, or transport highly volatile, flammable, explosive, toxic, and/or water-reactive materials” in the list of “critical facilities [that] are prohibited from being constructed or operated within a SFHA [Special Floodplain Hazard Area] unless a Variance is granted.” (Article 10.15F on p. 87)
Three days after the Nelson BZA denial of variances, on December 6, 2018, Atlantic Coast Pipeline filed a lawsuit against the Nelson County Board of Supervisors in the Western District of Virginia’s Federal Court, asking the Court to enter judgement declaring that Nelson’s zoning ordinance and floodplain regulations are preempted by federal regulations and therefore null and void as applied to the ACP, and to enter an injunction enjoining Nelson County from enforcing any of its zoning ordinances and floodplain regulations that may affect ACP construction. The case was heard before Judge Moon on April 8, 2019.
In his opinion, Judge Moon wrote, “Nothing gives these floodplain regulations, as modified, the force of federal law now,” – referring to the county’s zoning ordinances. “Rather… because the floodplain regulations and their application through the [county] to deny Atlantic’s variance request stands as a clear obstacle to the meaning and purposes of the [Natural Gas Act], it is therefore preempted as applied to the Atlantic Coast Pipeline.”
Nelson County now must decide whether to appeal the ruling to the Fourth Circuit Court of Appeals in Richmond. The Fourth Circuit has vacated a number of permits that Dominion needs in order to construct and operate the Atlantic Coast Pipeline, finding repeatedly that Dominion and relevant Federal agencies have acted arbitrarily, capriciously and not in accordance with law.
In addition, Nelson County’s floodplain ordinances play a critical role in potentially stopping the Army Corps of Engineers from authorizing construction of the Pipeline, even if the ruling is upheld. On February 11, 2020, the Southern Environmental Law Center sent a letter to the United States Army Corps of Engineers, Norfolk District, stating that they cannot lawfully reinstate their suspended verification that the proposed Atlantic Coast Pipeline is authorized to be constructed using Nationwide Permit 12. The pipeline developer, Atlantic Coast Pipeline, LLC (Atlantic), expressly plans to violate at least one of the permit’s general conditions and has taken steps to do so, despite making contrary representations to the Corps and other regulators. The letter stated that the Norfolk District cannot reinstate its suspended verification because:
- General Condition 10 of Nationwide Permit 12 requires Atlantic to “comply with applicable FEMA-approved state or local floodplain management requirements.”
- Nelson County’s floodplain ordinance adopts a FEMA recommendation that critical facilities not be located within floodplains by mandating that any such facility proposed to be located in a special flood hazard area receive a variance.
- Atlantic will not satisfy General Condition 10 unless Atlantic complies with the variance requirement, regardless of the outcome of Atlantic’s separate lawsuit that is referred to above.
- The Corps cannot lawfully excuse Atlantic’s plan to violate General Condition 10 by failing to comply with the variance requirements.
The letter stated that, under the circumstances, reinstating the suspended verification would be arbitrary, capricious, and not in accordance with law.
From Allegheny-Blue Ridge Alliance’s ABRA Update #266, March 5, 2020:
The West Virginia Senate Judiciary Committee approved by a voice vote on March 4 a bill that would establish as a misdemeanor an action by “any person who willfully and knowingly trespasses or enters property containing a critical infrastructure without permission.” A similar measure passed the WV House of Delegates by a 65-30 vote on February 13. The bill defines “critical infrastructure” to include natural gas pipelines and compressor stations.
The Senate Judiciary’s version of the bill has somewhat lower fines applied to the cited offenses and exempts actions deemed to be exercises of free speech, including “protesting and picketing.” The full Senate is expected to take up the bill before the Legislature’s scheduled adjournment by Midnight, March 7.
Photographer Stephanie Gross, from Nelson County, calls our attention to the Southern Environmental Law Center news feed, which includes photos (some hers, some not) of the dedicated SELC law team at the Supreme Court on February 24, 2020. Her comment: “It’s not often that I get to shoot something with such personal relevance!”