Category Archives: Court cases

SELC Asks FERC to Revoke ACP’s Certificate

Allegheny-Blue Ridge Alliance reports that in a filing late December 13, 2018, the Southern Environmental Law Center (SELC) asked the Federal Energy Regulatory Commission (FERC) to revoke the certificate for the Atlantic Coast Pipeline in light of the decision earlier in the day by the Fourth Circuit Court of Appeals to vacate the U.S. Forest Service’s approval for the pipeline to cross national forest lands and the Appalachian National Scenic Trail. In its 65-page letter to FERC, SELC stated:

Crucially, the court held that the Forest Service does not have statutory authority to authorize the pipeline to cross the Appalachian Trail. As a result, under federal law, Atlantic Coast Pipeline, LLC (“Atlantic”) cannot obtain authorization from federal agencies to cross the Trail as proposed. Thus, the Commission’s Certificate approves a project that cannot be constructed in compliance with federal law. Further, the proposed Appalachian Trail crossing is a linchpin in the Commission’s alternatives analysis—almost every alternative considered in the Final EIS includes this crossing point. See ACP Final EIS at 3-18 to 3-19. In light of the court’s decision, that analysis is not valid and cannot be used to approve a re-route of the project at this stage. The Commission must therefore revoke the Certificate of Public Convenience and Necessity. Further, the Commission must issue a formal stop-work order, effective immediately, halting all construction activities because the court’s decision means that Atlantic continues to be out of compliance with a mandatory condition of its Certificate of Public Convenience and Necessity.

 

Fourth Circuit Court Throws out ACP’s Forest Service Permit


On December 13, 2018, the Fourth Circuit Court of Appeals vacated a federal approval for the Atlantic Coast Pipeline to cross the Monongahela National Forest, George Washington National Forest, and Appalachian Trail.

The case was argued before the Court on September 28, 2018, with the Southern Environmental Law Canter and Appalachian Mountain Advocates representing the plaintiffs.

The Court found that the Forest Service “abdicated its responsibility to preserve national forest resources,” and noted the agency’s “serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.” The opinion says the Forest Service violated the National Environmental Policy Act, National Forest Management Act, and did not have authority under the Mineral Leasing Act to grant a right-of-way across the Appalachian Trail.

Read the Court’s opinion here.

See news coverage from Virginia Mercury here.

See news coverage from the Washington Post here.

See news coverage from the Richmond Times-Dispatch here.

Be aware: The Richmond Times-Dispatch points out that, “Dominion’s allies in Congress reportedly are considering an amendment to a pending appropriations bill for the Department of Interior that would permit the crossing of the Appalachian Trail and Blue Ridge Parkway near Reed’s Gap.”  Additional information hereContact your Senators and Representatives to urge them to oppose any legislative amendment that would give the National Park Service unchecked authority to allow pipeline construction.

December 7: Multiple Pipeline Barriers


December 7, 2018, saw multiple barriers placed in the way of both the ACP and the MVP.

Early in the morning NBC posted nationally a lengthy and very sympathetic article telling the story of the environmental racism at the heart of Dominion Energy’s push to build a massive compressor station for its Atlantic Coast Pipeline in the heart of Union Hill,an historic, predominantly African American community. In it, John and Ruby Laury, longtime residents of Union Hill told NBC News, “Dominion thought they can just come in and we’d all roll over….We have to stand up. We have no fear of Dominion.”

Then the Fourth Circuit Court of Appeals issued a stay of the Atlantic Coast Pipeline’s Fish and Wildlife Service permit regarding incidental take of endangered species. This action was in response to a petition filed on November 30 by the Southern Environmental Law Center, and said simply, “Upon consideration of the submissions relative to petitioners’ motion to stay, the court grants the motion and stays implementation of the Fish and Wildlife Service’s 2018 Biological Opinion and Incidental Take Statement pending review by the court.” The Fish and Wildlife Service approvals for the ACP must be in place before Dominion can harm threatened and endangered species. The Court threw out the original permit in May 2018. “The Fish and Wildlife Service scrambled to reissue this permit and its haste is evident in its analysis,” said Attorney Patrick Hunter of the Southern Environmental Law Center. “This is yet another instance of government agencies rushing out ill-considered permits for this project.” Because of the stayed permit, construction must stop on the entire 600-mile route. Dominion’s Aaron Ruby said, “We respectfully but strongly disagree with the court’s decision. We believe the stay is not only unwarranted, but overly broad. We are filing a motion for emergency clarification on the scope of the court’s decision. We do not believe there is any basis for the court to stay the entire Biological Opinion, which authorizes all 600 miles of the project.”

ACP permits from the Fish and Wildlife Service, Forest Service, and Army Corps of Engineers are all now on hold.

By the end of the day, Dominion had notified FERC that work will stop along the entire ACP route, saying, “In response to a stay of implementation of the U.S. Fish and Wildlife Service’s 2018 Biological Opinion and Incidental Take Statement granted today by the U.S. Court of Appeals for the Fourth Circuit, Dominion Energy, on behalf of Atlantic and itself, has stopped construction on the entire Projects, except for stand-down activities needed for safety and that are necessary to prevent detriment to the environment.”

Meanwhile, the Roanoke Times broke the news that Attorney General Mark Herring had filed suit against Mountain Valley Pipeline, citing more than 300 violations of Virginia environmental regulations, and seeking “the maximum allowable civil penalties and a court order to force MVP to comply with environmental laws and regulations.” The suit was filed in Henrico County Circuit Court, and does not state an exact monetary amount being sought by the state.

Fourth Circuit Asked to Stay ACP’s Fish and Wildlife Permit

From ABRA Update 206, December 6, 2018:

A motion to stay the US Fish and Wildlife’s (FWS) latest Biological Opinion and Incidental Take Statement for the Atlantic Coast Pipeline (ACP) was filed November 30, 2018, with the Fourth Circuit Court of Appeals by the Southern Environmental Law Center (SELC) on behalf of its clients: Defenders of Wildlife, Sierra Club and The Virginia Wilderness Committee. The FWS’s original Opinion and Take Statement on the project was struck down by the Fourth Circuit in an opinion issued August 6, 2018. FWS issued a revised Opinion and Take Statement was issued September 11 and a stop work order that had been in effect since the Fourth Circuit’s decision was lifted by the Federal Energy Regulatory Commission on September 17.

In its petition to the Court, SELC pointed out that four endangered species would be adversely affected by ACP construction: 1) Indiana bats habitats in several designated Appalachian Recovery Units along the route; 2) clubshell mussels adversely impacted by sedimentation-inducing activities in their watershed; 3) the Rusty-patched bumble bee as the result of tree felling in Bath County, VA; and the Madison cave isopd due to access road construction in Bath County. The petition further argues that the FWS, as it did in approving the first Biological Opinion and Incidental Take Statement for the ACP rushed to judgment as the result of political pressure from the Department of Interior to accommodate the project, without conducting a thorough analysis as required by law regarding the impacts upon the cited endangered species.

Concluding, the petition proclaims: “The public interest is not harmed by a delay in construction. Even if Atlantic can make a showing of economic harm, that economic harm does not equate to harm to the public interest.”

Appeals Court Vacates MVP Nationwide Permit


On November 27, 2018, the US Fourth Circuit Court of Appeals ruled that the Army Corps of Engineers violated the Clean Water Act when it verified that construction of the Mountain Valley Pipeline project could proceed under Nationwide Permit 12 in West Virginia. The Court vacated the Corps’ verification in its entirety, leaving the project with no authorization under the Clean Water Act. The Court’s November 27, 2018, decision supports and expands upon their October 2, 2018, decision to vacate the Corps’ verification on more limited grounds.

A copy of the Court’s opinion is here.

A detailed explanation and interpretation from the Policy Resolution Group is here.

Coverage in the Charleston Gazette-Mail is here.

Quick Take


On Friday, November 16th, the Atlantic Coast Pipeline and Dominion filed for Quick Take in the US Western District of Virginia Federal Court in Lynchburg. Quick Take takes away the constitutional right to due process for every defendant. It also usurps Congressional authority to make and change laws. Call your Senator and Congressional Representative and tell them to issue a statement telling the courts to stand down!

The video is a crash course explanation of Quick Take and Eminent Domain as it relates to gas pipelines and to the Atlantic Coast Pipeline specifically. Richard Averitt, Nelson County landowner, explains Quick Take in lay terms.