Category Archives: Court cases

Briefs Filed in Appeals Court Suit Against FERC and ACP

The following briefs have been filed (to date) in the suit against the Federal Energy Regulatory Commission (FERC) and Atlantic Coast Pipeline (ACP).

The Joint Opening Brief of Conservation Petitioners [including Friends of Nelson] and Landowner Petitioners, filed by the Southern Environmental Law Center (SELC) on April 5, 2019.

Briefs filed by parties that are challenging part or all of FERC’s certificate for the pipeline:

Amici curiae, or “friends of the court,” briefs in support of of the suit”

And one brief filed by ACP itself, challenging one element of FERC’s certificate:  Opening brief filed by Atlantic Coast Pipeline, LLC

(The addendum of statutes and regulations from several of these briefs was removed to make the file sizes more manageable.)

What happens next:  According to the SELC, FERC’s response brief is due on June 19, ACP’s response brief is due on June 26, and SELC’s reply brief is due on July 10, along with the reply briefs of their fellow petitioners. Oral argument will likely be scheduled for sometime in the fall.

Groups File Federal Appeals Court Brief Challenging ACP

On Friday April 12, 2019, a group of ten religious, social justice, and civil rights organizations filed a “friend of the court” brief urging the Federal Court of Appeals in DC to revoke the key federal permit for the Atlantic Coast Pipeline.

The ten groups are Center for Earth Ethics (headed by Karenna Gore); Kairos Center for Religions, Rights, and Social Justice; the Natural Resources Defense Council; the North Carolina Poor People’s Campaign, Repairers of the Breach (led by Rev. William Barber III); Satchidananda Ashram – Yogaville, Inc.; Union Grove Missionary Baptist Church; Virginia Interfaith Power & Light; Virginia State Conference NAACP; and WE ACT for Environmental Justice. All we reaffirming long-standing opposition to the ACP.

Jonathan Sokolow, writing in Blue Virginia on April 15, 2019, explains that, “The 50-plus-page court filing states that the Federal Energy Regulatory Commission (FERC) violated federal law and ‘ignored significant minority populations that live along the proposed route.’ It argues that the permit issued by FERC should be revoked because FERC ‘did not take a hard look at the health and environmental effects of the Atlantic Coast Pipeline’ on ‘environmental justice communities.’ It points in particular to FERC’s failure to consider the disproportionate effect that the pipeline would have on the historic African American community of Union Hill, in Buckingham County, as well as on Native American communities along the proposed route. As the brief points out, Dominion Energy seeks to build three compressor stations to transport fracked methane ‘natural’ gas along a 600-mile route from West Virginia through Virginia and North Carolina. ‘All three compressor stations would be located in census tracts where the minority population, or the population under the poverty level, is higher than the state average.'”

Martina Cole, writing for NRDC, cites examples of FERC’s flawed analysis:

  • Misguided use of census tract data masks communities of color
  • Failure to assess adverse, disproportionate impacts on communities of color

She notes that FERC’s actions are a model of environmental injustice. “In the first instance, FERC’s gerrymandered analysis led to the erasure of communities of color, which led to it not analyzing the ACP’s unique effect on these communities, which led to its faulty conclusion that the ACP would have no disproportionately high and adverse impacts on African American communities. Then when FERC did acknowledge the existence of a minority environmental justice community, its striking disregard of the clear health risks to the community amounted to the same erroneous conclusion of no impact. In each case, FERC’s flawed analysis helped produce FERC’s faulty approval of the project. This is what environmental injustice looks like.”

Cole finishes by saying, “It is soberingly clear how and why polluting fossil fuel infrastructure is disproportionately placed in communities of color, and FERC’s permissive and inappropriate approach to reviewing these projects facilitates this environmental injustice. The D.C. Circuit can prevent imminent harm to environmental justice communities along the ACP path by vacating FERC’s undue approval of the ACP. Alternatively, the court could remand the case back to FERC for a real analysis that is consistent with the law’s requirements. Such an analysis would not obscure the facts. It would recognize environmental justice communities and the threats they face. It would reveal the disproportionate burden the ACP would have on vulnerable communities. It would thoroughly review project alternatives. It would demonstrate that environmental justice communities matter. As part of a fulsome public interest analysis, a reasoned environmental justice review would further demonstrate what is already known: that the ACP is not needed, is environmentally unjust, would cause permanent environmental damage, and should be rejected.”

Read Jonathan Sololow’s full Blue Virginia column here.

Read Martina Cole’s full NRDC post here.

Read the full Amicus Brief here.

Brief Filed in Lawsuit Challenging ACP’s FERC Certificate

From ABRA Update 225, April 11, 2019:

The opening brief in a lawsuit challenging the Federal Energy Regulatory Commission’s (FERC) certificate that allows construction of the Atlantic Coast Pipeline (ACP) was filed on April 5 with the U.S. Court of Appeals for the District of Columbia. Appalachian Voices, et. al. vs. FERC, which includes several ABRA members as plaintiffs, had originally been filed with the Fourth Circuit Court of Appeals. It was subsequently transferred to the DC Circuit Court where it was consolidated with several other pending cases that challenged the FERC certificate for the ACP.

The principal arguments made in the April 5 brief are:

  1. FERC’s exclusive reliance on precedent agreements with affiliated monopoly utilities to establish market need for the project was arbitrary and capricious. Such precedent agreements are unreliable evidence for market need.
  2. FERC’s Environmental Impact Statement on the ACP was seriously deficient and thus violated requirements of the National Environmental Protection Act (NEPA). Specifically:
     – FERC failed to adequately consider the adequacy of existing transmission systems and off-forest alternative routes;
    – The impacts to aquatic resources, including sedimentation impacts and impacts in karst terrain, were inadequately analyzed by FERC;
    – Analysis of environmental justice impacts by FERC was flawed;
    – Impacts of downstream greenhouse gas emissions were insufficiently considered; and 
    – FERC’s refusal to use the Social Cost of Carbon without an adequate explanation was arbitrary and capricious.
  3. Allowing the ACP, LLC to exercise eminent domain violates the Natural Gas Act and the Constitution because 1) several required permits and related conditions for the project have been vacated, thus removing the basis on which eminent domain authority should be exercised, 2) the use of eminent domain for the ACP thus violates the takings clause of the Constitution and also violates due process.

A copy of the complete brief is available here.

Dominion vs Nelson County in Federal Court: April 8


Dominion’s suit against Nelson County over the refusal of the Nelson Board of Zoning Appeals to grant a variance for the ACP to cross flood plains in the County will be heard on April 8, 2019, at 11:30 a.m. in the Federal Court in Charlottesville, 255 West Main Street. Respectful attendance at the hearing is encouraged – no signs, no t-shirts, no protesting.  Be aware that seating in the courtroom is limited to ~100.

Important Upcoming Events

In addition to the one-day Spruce Creek Camp (see above), there are two other forthcoming events of note:

Dominion vs Nelson County in Federal Court, April 8, 2019:

For background information see our post on March 14, 2019.


Pipeline Air Force Drone Meet-Up, March 30, 2019:

For details see our post on March 7, 2019.  See also the recent news article, Drones change the way advocates protect the environment

Round-up of Legal Challenges to the ACP

This excellent update on the current legal challenges to the Atlantic Coast Pipeline comes from Allegheny-Blue Ridge Alliance (ABRA) Update #221

The lawsuit challenging the FERC certificate for the Atlantic Coast Pipeline (ACP) has finally been scheduled for briefs to be filed by April 5. The suit, which was filed August 16 with the 4th Circuit Court of Appeals but was re-assigned to the DC Circuit Court of Appeals, was brought on behalf of a group of ABRA member organizations and other plaintiffs. The plaintiffs are represented by Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates (Appalmad). Arguments before the court are not expected to be scheduled until sometime in the Fall. Here’s a brief status report on two other pending cases that challenge ACP permits:

  • Forest Service – The challenge to the U.S. Forest Service’s issuance of a Special Use Permit for the ACP on January 23 was filed February 5, 2018 with the 4th Circuit Court of Appeals. Plaintiffs are a group of ABRA members and others, represented by SELC and Appalmad. The Fourth Circuit vacated the permit in a December 13 decision, thus denying the ACP the right to cross the Appalachian National Scenic Trail (ANST), which the Court said the U.S. Forest Service lacked the legal authority to grant. An appeal of that ruling to the entire Fourth Circuit (an en banc hearing before all fifteen of the Court’s judges) was denied on February 25. Dominion Energy has said it will appeal the decision by late May to the U.S. Supreme Court. That appeal has not yet been made. It is worth noting that only about one percent of the cases that are appealed to the Supreme Court are heard. In the meantime, Dominion has been lobbying Congress since the Fourth Circuit’s December decision to have language added to pending legislation that would override the Court’s vacating of the Forest Service permit to cross the ANST. To date, those lobbying efforts have not succeeded. ABRA asks that contacts be made with Members of Congress to urge them to oppose such an action. For the Action Alert, click here.
  • Air Permit for Buckingham Compressor Station – The January 8 decision by the Virginia Air Pollution Control Board to grant an air permit for the proposed ACP compressor station in Buckingham County, VA was challenged in a lawsuit filed with the Fourth Circuit Court of Appeals by the Southern Environmental Law Center on behalf of Friends of Buckingham. A proposed briefing schedule for the case will be filed in early May, with arguments in the case not likely until sometime this Fall.