Category Archives: Court cases

ABRA Members Sue Virginia Over ACP Approvals


From the ABRA Newsletter, January 18, 2018:

A coalition of environmental and conservation organizations, including 12 members of ABRA, filed a legal challenge to the Virginia State Water Control Board’s December 12 approval of a water quality certification for the Atlantic Coast Pipeline (ACP). The suit, filed with the Fourth Circuit Federal Court of Appeals late on January 18 by the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates on behalf of the client group, charges that the Board’s decision failed to consider the impacts of the project on water quality in Virginia sufficiently to meet the requirements of the Clean Water Act.

The plaintiffs include the following ABRA members: Appalachian Voices, Chesapeake Climate Action Network, Cowpasture River Preservation Association, Friends of Buckingham, Highlanders for Responsible Development, Jackson River Preservation Association, Shenandoah Riverkeeper, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, the Sierra Club, Virginia Wilderness Committee, and Wild Virginia. In separate legal actions, also taken on January 18, SELC on behalf of the Sierra Club, Defenders of Wildlife and Virginia Wilderness Committee filed a legal challenge to a decision by the U.S. Fish and Wildlife Service, and a legal challenge on behalf of the Sierra Club and The Virginia Wilderness Committee to a decision by the National Park Service. The agencies both issued permits for the pipeline. These decisions further highlight agency failures to adequately review crucial information in a process that is being driven by developers rather than regulators.

A copy of the lawsuit challenging the SWCB decision will be posted on the ABRA website on January 19, 2018.

Two Days of Hearings End in Roanoke

After two very long days of hearings in U.S. District Court in Roanoke (including an unusual Saturday session ending at 7:45 pm), Judge Elizabeth Dillon said she will decide later on Mountain Valley Pipeline’s federal lawsuit against hundreds of landowners in Virginia who have refused to discuss easement agreements that would allow the pipeline to cross their land. After receiving approval in October from the Federal Energy Regulatory Commission, the MVP invoked its power of eminent domain to seek easements on nearly 300 pieces of private property that lie in the pipeline’s path — over the objections of affected landowners in the Roanoke and New River Valleys.

FERC Denies Constitution Pipeline Petition

On January 11, 2018, the Federal Energy Regulatory Commission rejected Constitution Pipeline’s petition asking FERC to find that New York state wrongly denied the project a key permit.

In April 2016, the New York State Department of Environmental Conservation denied Constitution Pipeline a water quality permit, which is required for the project to progress. Constitution challenged the DEC denial and in August 2017, a U.S. Court of Appeals rejected the company’s argument that the DEC was “arbitrary and capricious” in denying a water quality permit. One of Constitution’s argument to FERC was that the NY DEC failed to give its decision within a reasonable amount of time, but FERC said New York had made its decision within a reasonable amount of time — within one year of the pipeline’s most recent appeal. Constitution Pipeline has 30 days from the January 11 FERC order to appeal and then FERC has 30 days from an appeal request to act.

Despite being repeatedly denied permits in New York, Constitution Pipeline has all its permits in Pennsylvania, and there, despite objections of property owners, trees have already been cleared in preparation for construction.  Here’s a re-post of an article from September 2017 that spells out the mess early tree-cutting has caused for Pennsylvania landowners on the Constitution pipeline route. Half the sugar maple trees (550 of them!) on one family’s maple sugar farm a few miles from the NY border were cut – and then the pipeline was blocked by neighboring New York. 

Read the news report from WAMC on the January 2018 decision.
Read the press release on the NY Attorney General’s filing in 2016.
Read about the August 2017 decision by the US Second Circuit U.S. Court of Appeals.

January 18, 2018 update from Kallanish Energy:  Constitution Pipeline files petition with U.S. Supreme Court. “Constitution Pipeline Co. is taking its fight with New York state to the U.S. Supreme Court, Kallanish Energy reports. The project sponsors, in a Tuesday statement, said, ‘We continue to believe that this federally-approved project has been unjustly prohibited from construction.’ The $1 billion, 121-mile natural gas pipeline is a joint project of Williams Cos., Cabot Oil and Gas, Piedmont Natural Gas and WGL Holdings. The company has petitioned the nation’s highest court to review the judgment of the U.S. Court of Appeals for the Second Circuit. Last Aug. 18, that court denied Constitution’s challenge after the New York State’s Department of Environmental Conservation denied the company’s application for water-quality certification. A rehearing request was denied by the appeals court on Oct. 19. On Jan. 11, the Federal Energy Regulatory Commission upheld the New York decision, even though FERC had approved the project.”

Groups File to Halt MVP Construction

Press release from Appalachian Voices, Sierra Club, and others on January 9, 2018: Coalition challenges FERC approval of Mountain Valley Pipeline

Late yesterday, a coalition of environmental groups took legal action in the U.S. Court of Appeals for the D.C. Circuit to halt start of construction of the fracked-gas Mountain Valley Pipeline, challenging the “certificate of public convenience and necessity” issued by the Federal Energy Regulatory Commission. Attorneys for Appalachian Mountain Advocates filed the litigation on behalf of the Appalachian Voices, Chesapeake Climate Action Network, Sierra Club, West Virginia Rivers Coalition, and Wild Virginia.

The groups also filed a motion to stay the start of construction given the tremendous harmful impacts posed by the 300-mile, 42-inch diameter pipeline.

FERC approved the pipeline in October in a 2-1 decision, despite the significant risks the Mountain Valley Pipeline poses to streams, rivers and drinking water sources and to treasured Appalachian landscapes, and despite evidence that existing pipeline capacity is sufficient. If built, the pipeline would cut through a 3.5-mile stretch of the Jefferson National Forest in Virginia and West Virginia, cross the Appalachian Trail at a previously undisturbed site, and cross waterways more than 1,000 times in the two states, posing a high risk of widespread water contamination. It would also significantly increase emissions that contribute to climate change, displacing public and private investments in energy efficiency, solar and other non-carbon based alternatives that cause far less environmental harm.

Read the full press release here (includes contact information)

2017 in Review

2017 was a busy year in the pipeline fight. Here are some highlights – there are a lot!

On December 30, 2016, FERC released the Draft Environmental Impact Statement (DEIS) for the proposed Atlantic Coast Pipeline. In response to requests from numerous elected officials and organizations, FERC extended the usual 45-day period for public comment so the deadline was April 6, 2017. Over January-March 2017 FERC held public hearings on the DEIS, where the majority of speakers (once beyond Dominion’s front-loaded supporters) pointed out omissions and inaccuracies in the DEIS, as well as numerous instances where Dominion had not provided required information. Thousands of groups and individuals, some property owners along the route and others not, filed comments with FERC.

On January 5, 2017, the Buckingham County Board of Supervisors ignored their constituents so thoroughly that after five hours of testimony almost totally opposed to the ACP compressor station in Buckingham County, they read a PREPARED statement approving the station, having obviously reached their decision well ahead of the meeting. On February 2 a complaint for declaratory relief was filed against the Supervisors and Dominion asking that the special use permit for the station be vacated.

FERC Commissioner Norman Bay resigned on February 3, and with only two remaining commissioners, FERC no longer had a quorum and could not issue decisions.

Judge Michael T. Garrett ruled in Nelson County Circuit Court on February 6, 2017, that Dominion may have access to survey for the proposed ACP on the property of landowners who had steadfastly denied access. The landowners filed a joint notice of appeal with the Virginia State Court of Appeals in early March.

On February 15 Oil Change International released two studies finding that if built, the controversial Mountain Valley and Atlantic Coast pipelines would together contribute as much greenhouse gas pollution as 45 coal-fired power plants — some 158 million metric tons a year. ACP basic facts: http://priceofoil.org/2017/02/15/atlantic-coast-pipeline-greenhouse-gas-emissions-briefing/ ACP full briefing: http://priceofoil.org/content/uploads/2017/02/atlantic_coast_pipeline_web_final_v3.pdf

In mid-March, Friends of Nelson released the Steep Slope Report by Blackburn Consulting Services, which concluded that “Dominion has not adequately identified those soils and landforms that are prone to debris flows (and) landslides.” The report also states that “the potential for debris flows in the very steep mountainous portions of Nelson County is underestimated by the reports submitted to FERC by Dominion.” Steep Slopes Study by Blackburn Consulting:
http://friendsofnelson.com/wp-content/uploads/2017/03/Final-Steep-Slope-Report-March-2017.pdf

On April 5 Friends of Nelson submitted comments to FERC on the DEIS – 96 pages including charts, diagrams, maps, and photos. Read it here: http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20170405-5161

On April 6, Virginia’s Department of Environmental Quality announced that both proposed Virginia pipelines, the ACP and the MVP, would be subject to DEQ water-quality review. This meant that DEQ would require water quality certifications under Section 401 of the federal Clean Water Act for each segment of both projects that crosses or potentially affects water bodies. But the next day, on April 7, 2017, DEQ provided water quality certification for the U.S. Army Corps of Engineers 2017 Nationwide Permits, thus issuing a blanket Clean Water Act section 401 certification for pipelines that are covered by the U.S. Army Corps of Engineers’ Nationwide Permit number 12. And in late May DEQ said they would not require specific water quality impact analysis for water crossings for the proposed ACP or MVP. On June 5, the Dominion Pipeline Monitoring Coalition (DPMC) filed suit against the DEQ in state Circuit Court for the City of Richmond, asking the court to rule that DEQ issued a Clean Water Act section 401 Water Quality Certification for construction of utility lines, including natural gas pipelines, in state waters without legal authority to do so and without ensuring water quality would be protected.

On April 27, a briefing paper released details on how Dominion intends to blast away, excavate, and partially remove entire mountaintops along 38 miles of Appalachian ridgelines as part of ACP construction, flattening them by anywhere from 10 to 60 feet. See http://friendsofnelson.com/press-release-acp-would-require-extensive-mountaintop-removal/

June 17-July 2: Walking the Line. Group walks the proposed ACP path for 150 miles, through Bath, Augusta and Nelson Counties, into the heart of Virginia, Buckingham County, where the walk ends at Union Hill, the site of the proposed compressor station.

On June 29, 2017, the Virginia Conservation Network, along with its partners Southern Environmental Law Center and Shenandoah Valley Network, sent a letter (signed by over 80 organizations) to Governor McAuliffe, DEQ Director David Paylor and the State Water Control Board asking them to use their full authority under the Clean Water Act to conduct a thorough and transparent review of stream and wetland crossings along the proposed ACP and MVP fracked gas pipeline routes and ensure that Virginia water quality standards are met.

And then there was one: Friday June 30, 2017, was FERC Commissioner Colette Honorable’s final day at FERC. Although a pair of Trump administration nominees remain on the sidelines awaiting Senate votes, Honorable’s a departure leaves the already quorumless panel with a single member.

At their meeting on July 4, members of Wintergreen Property Owners Association voted overwhelmingly for a new covenant prohibiting construction of “any lines, facilities, structures, or other appurtenances related to the transmission of utilities” if they do not provide services to the Association or its members.

The Federal Energy Regulatory Commission issued its final Environmental Impact Statement on the Atlantic Coast Pipeline on July 21, 2017. FERC has 90 days to make a decision on issuing a certificate of approval for the project. The full statement can be found here: https://ferc.gov/industries/gas/enviro/eis/2017/07-21-17-FEIS.asp. The summary statement from FERC staff said, “The FERC staff concludes that construction and operation of ACP and SHP would result in some adverse effects,” but that with adherence to mitigation measure and FERC staff recommendations “most, but not all of these impacts, would be reduced to less-than-significant levels.” FERC said their determinations were based on information provided by Dominion and ACP, with no mention of extensive contradictory information filed by a variety of experts.

Also on July 21, the U.S. Forest Service issued a draft Record of Decision to authorize the use and occupancy of National Forest System lands for the Atlantic Coast Pipeline. The Forest Service release statement is available at: https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd551404.pdf.

In July Friends of Nelson posted interactive maps showing the ACP route through Nelson County. See http://friendsofnelson.com/information-resources/maps/

Through August, DEQ held public hearings to receive comments on draft water quality certifications designed to protect water quality along the routes of the proposed ACP and MVP.

On August 3, 2017, the Senate voted to confirm Donald Trump’s nominees for the Federal Energy Regulatory Commission (FERC), Neil Chatterjee and Rob Powelson. They join Cheryl LaFleur, who had been the sole member of the five member commission, so FERC now has a quorum.

In mid-August, Friends of Nelson submitted extensive comments to DEQ on the proposed 401 Water Quality Certifications for the ACP. See http://friendsofnelson.com/friends-of-nelson-submits-comments-to-deq/ And a group of thirteen expert scientists and engineers submitted reports to the DEQ on August 22, finding that DEQ has failed in its duty to properly analyze and protect against the water quality damages the Mountain Valley Pipeline and Atlantic Coast Pipeline would cause to Virginia’s waters. See http://friendsofnelson.com/failure-to-meet-minimum-standards-of-scientific-proof/

On August 22, the Virginia Supreme Court agreed without argument to hear on appeal the survey suit against the ACP brought on behalf of six Nelson residents by Lollar Law. Briefings will take place in autumn 2017, and the oral arguments before the full seven-justice court will take place in late 2017 or early 2018. See http://friendsofnelson.com/virginia-supreme-court-to-hear-survey-case/

On August 22 in a 2-1 ruling, the Court of Appeals for the District of Columbia Circuit found that the Federal Energy Regulatory Commission (FERC) did not properly analyze the climate impact from burning the natural gas that a Florida pipeline project would deliver to power plants.

A lawsuit, filed September 5 in Washington D.C. federal district court, on behalf of 57 Landowners, Bold Alliance and Friends of Nelson, challenged the constitutionality of the eminent domain provisions of the Natural Gas Act, and seeking to end the unconstitutional and unconscionable process of taking citizens’ private property via eminent domain for a corporation’s profits — and not for “the public good” as the Constitution intended.

September 15-17: No Pipeline Action Camp held in Nelson County, sponsored by Friends of Nelson, Greenpeace, and Blue Ridge Rapid Response.

In mid-September North Carolina delayed by three months its decision on certification of the proposed Atlantic Coast Pipeline under section 401 of the federal Clean Water Act. This followed West Virginia’s September 7 announcement that the state was vacating its water quality certification for the proposed MVP in order to reevaluate. Virginia’s DEQ pressed ahead, even as other states hit the brakes.

In late September, Dan Weekley, Dominion Energy’s vice president and general manager of Southern pipeline operations, told attendees at an energy conference ‘everybody knows’ the Atlantic Coast Pipeline — currently slated to pass through Virginia, West Virginia and North Carolina — is not going to stop there, despite what the current plans say, and that the ACP will be extended into South Carolina.

The NC DEQ disapproved the erosion and sedimentation control plan submitted to the agency by the ACP, Their September 26, 2017, letter of disapproval, cites 17 specific deficiencies in the submitted plan as grounds for disapproval.

Late on Friday evening October 13, FERC approved both the ACP and the MVP. Authorization had been widely expected by both supporters and opponents of the pipelines. The certificates granted by the commission came with dozens of conditions, and other necessary permits for both projects are still pending. The approval was issued with a highly unusual dissenting opinion by Commissioner Cheryl A. LaFleur. The FERC permit is not the final word on the projects. VA, NC and WV must still issue environmental permits.

Meeting in Richmond on October 16, the Virginia Outdoors Foundation (VOF) voted to approve Dominion’s application for 11 land conversions of open-space easements on the route of the proposed ACP through southern Highland, northern Bath, Augusta and Nelson counties, and approved a single swap for the proposed Mountain Valley Pipeline near Roanoke.

On October 18 Dominion released a proposed construction plan, see http://friendsofnelson.com/wp-content/uploads/2017/10/Dominion-construction-plan20171018-5002-32464467.pdf, When they sent their original “we want your land” letters in spring 2014, Dominion planned to start construction of the ACP in the Fall of 2016 and have the pipeline in service sometime early in 2018. But Dominion did not expect so many people and organizations to fight back!

On November 2, 2017, the Senate approved Trump’s final two nominees to FERC, giving the Commission the full five members for the first time in two years.

On November 13, a motion was filed with the Federal Energy Regulatory Commission (FERC) requesting a rehearing of the Commission’s order issuing a certificate for the Atlantic Coast Pipeline. The petition, filed on behalf of 22 organizations (including Friends of Nelson) and 10 individuals. See https://www.abralliance.org/wp-content/uploads/2017/11/Petition_for_Rehearing_to_FERC_20171113.pdf.

On November 14 Friends of Nelson filed a Request for Rehearing with the Federal Energy Regulatory Commission (FERC) on FERC’s decision to issue a Certificate of Convenience and Necessity for the Atlantic Coast Pipeline. The filing is on behalf of 63 property owners and citizens of Nelson County, and 4 community organizations.

The NAACP released a report on November 14, Fumes Across the Fence Line: The Health Impacts of Air Pollution from Oil & Gas Facilities on African American Communities. “The life-threatening burdens placed on communities of color near oil and gas facilities are the result of systemic oppression perpetuated by the traditional energy industry, which exposes communities to health, economic, and social hazards. Communities impacted by oil and gas facility operations remain affected due to energy companies’ heavy polluting, low wages for dangerous work, and government lobbying against local interests.”

On November 17, the US Forest Service released a final Record of Decision (ROD) approving amendments to the Forest Plans for the Monongahela National Forest and the George Washington National Forest to accommodate the Atlantic Coast Pipeline (ACP).

Late in the afternoon on December 7, 2017, after two days of hearings, the Virginia State Water Control Board approved water quality certification for the Mountain Valley Pipeline. The vote was 5-2, with members Roberta Kellam and G. Nissa Dean dissenting.

On December 12, 2017, the Virginia State Water Control Board voted 4 to 3 to approve certification under Section 401 of the Clean Water Act the Atlantic Coast Pipeline. However, the approval does not immediately grant the 401 water permits requested by Dominion; it is subject to certain conditions and to information which must be provided by the ACP. The permit can’t take effect until several additional studies are reviewed and approved by DEQ, including soil and erosion control plans and stormwater management plans. Although this is not an outright denial of the permits, it does not allow Dominion to move forward at this time.

SO…. As we move into fourth year of the pipeline fight, we know the ACP is closer to receiving all final approvals, but we continue our work to stop this economically unnecessary and environmental damaging project. Legal challenges to some approvals have already been filed, more are being evaluated. No, the pipeline is NOT a done deal.

A Law Suit Worth Watching


A December 3, 2017 article in NJ.com reports on a suit filed in November 2017 against FERC that could have national implications.

12-3-17 NJ.com. N.J. environmentalists use new legal strategy to fight pipelines. “Garden State environmental advocates think they’ve found a way to stop pipeline companies from acquiring the land they need in the first place, and a pipeline project in New Jersey may serve as the legal battleground. The New Jersey Conservation Foundation has sued the Federal Energy Regulatory Commission on the grounds that the agency’s use of eminent domain to take over land for the construction of interstate natural gas pipelines is often unconstitutional.  …. The lawsuit, filed in federal court in November, cites the Fifth Amendment requirement that any eminent domain action be made for ‘public use.’ Environmentalists claim that FERC has consistently failed to prove that pipeline projects are necessary, and thus, the eminent domain land seizures further private profits rather than the public good. ‘We’ve taken this action because it’s become abundantly clear that the way that [FERC] is approaching their review of proposed pipelines really is at odds with the Fifth Amendment of the Constitution,’ said Tom Gilbert, a campaign director for the New Jersey Conservation Foundation.”