Category Archives: Court cases

Dominion Delivers Response to FERC

On Tuesday May 22, 2018, Atlantic Coast Pipeline, LLC (ACP, LLC) hand-delivered to the Federal Energy Regulatory Commission (FERC) its response to the agency as to how it proposes to proceed with constructing the Atlantic Coast Pipeline in light of the May 15 order from the Fourth Circuit Court of Appeals vacating the U.S. Fish and Wildlife Service’s (FWS) biological opinion on the project as it relates to the Endangered Species Act (ESA). The documents, originally due on Monday May 21, were hand-delivered because of issues with FERC’s website on Monday.

In an email-press release, ACP said:

“We have filed our response, identifying by milepost the areas we are committing to avoid. Per (the Federal Energy Regulatory Commission) and (U.S. Fish and Wildlife Service), because this information contains the locations of sensitive species which are customarily treated as privileged and confidential, this information is not being released to the public.”

For more, see the WV Exponent Telegram story.

Little Pink House: Special Showing

WHERE: The Regal Stonefield, 1954 Swanson Dr, Charlottesville
WHEN: Thursday, June 28 at 7:30 p.m.
TICKETS: Tickets are $12 general admission, and proceeds from ticket sales will benefit Friends of Nelson. You must buy your tickets online; no tickets will be sold at the door. Purchase tickets here: https://www.tugg.com/events/little-pink-house-dauw

Based on a true story, a small-town paramedic named Susette Kelo leaves a bad marriage, and starts over in a new town. She buys a rundown cottage with a gorgeous water view. She fixes it up and paints it pink. Then she discovers powerful politicians want to bulldoze her blue-collar neighborhood for the benefit of a multi-billion dollar corporation. With the help of a young lawyer named Scott Bullock, Susette emerges as the reluctant leader of her neighbors in an epic battle that goes all the way to the U.S. Supreme Court, inspires a nation, and helps millions of Americans protect their homes.

In 2005, the nation was shocked by the Supreme Court’s ruling in Kelo vs. New London. In the judgment, the court said that a local government could forcibly seize people’s homes, through eminent domain, in order to transfer the property to a major corporation for development. The response was immediate. Across the country, states passed legislation and amended constitutions to curtail the power of eminent domain.  In 2012, the people of Virginia spoke out overwhelmingly when more than 2.6 million citizens (74.45% of votes cast) approved amending the state constitution to prohibit eminent domain from being invoked if the “primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue or economic development.”

Plaintiff Susette Kelo’s fight has been dramatized in this new film, Little Pink House, starring the brilliant, Oscar-nominated actress Catherine Keener as Kelo.

The film is being distributed in an unorthodox manner. Local people sign up to bring it to their town and, if enough tickets are sold, a screening proceeds at a selected local theater. We are pleased to announce that Doug Hornig has secured a showing of the film in Charlottesville:

WHERE: The Regal Stonefield, 1954 Swanson Dr, Charlottesville
WHEN: Thursday, June 28 at 7:30 p.m.
TICKETS: Tickets are $12 general admission, and proceeds from ticket sales will benefit Friends of Nelson. You must buy your tickets online; no tickets will be sold at the door. Purchase tickets here: https://www.tugg.com/events/little-pink-house-dauw

Eminent domain is a hot button topic here in central Virginia, as Dominion intends to use it to seize private property for the Atlantic Coast Pipeline. Many of us have been fighting them for several years now, and continue to do so.

We hope to use this event to help educate the public about the importance of fighting eminent domain abuse. Following the film, there will be a panel discussion and Q&A featuring: John Kramer – Institute for Justice, Chuck Lollar – Attorney specializing in eminent domain cases, Richard Averitt – Property owner impacted by Atlantic Coast Pipeline, Joyce Burton – Board member, Friends of Nelson, a nonprofit dedicated to stopping this unnecessary pipeline.

Join us – and bring family, friends, and neighbors! We’ll see you there!

Court Denies FERC Bid to Delay Suit Against MVP

On May 16 U.S. Court of Appeals for the District of Columbia Circuit denied the Federal Energy Regulatory Commission’s bid to delay a lawsuit brought by environmental groups against the Mountain Valley Pipeline. FERC had asked to delay the lawsuit until it concluded its own rehearing process. FERC made the motion to delay in February, asking that the case challenging the FERC certificate of public convenience and necessity for the MVP be held in abeyance, allowing FERC to address the “numerous and complex matters” raised by environmentalists and landowners in their requests for rehearing.  (The FERC process could take many months.)

“FERC should not be allowed to use tolling orders and other delay tactics to block court challenges even as it allows companies like Mountain Valley to move forward with pipeline construction,” Sierra Club attorney Elly Benson said in a statement. “The people and communities that would be affected by this fracked gas project deserve a comprehensive review process that fully examines the threats posed to them and the environment.”

Read more here.

Appeals Court Orders Halt to ACP Construction


Late in the day on May 15, 2018, the Richmond Times-Dispatch reported that, “A federal appeals court has ordered a halt to construction of the 600-mile Dominion Energy-led Atlantic Coast Pipeline, following a legal challenge by environmental opponents who argued a review by the U.S. Fish and Wildlife Service was inadequate. A three-judge panel at the U.S. Court of Appeals for the Fourth Circuit agreed, striking down the review, known as an incidental take statement, which is meant to set limits on harm to threatened or endangered species during construction.”

The court’s order states, “Petitioners seek review of the U.S. Fish and Wildlife Service’s Incidental Take Statement, which authorized the Atlantic Coast Pipeline project to take certain threatened or endangered species. As to five of the affected species, Petitioners argue that the agency failed to set clear limits on take as required by the Endangered Species Act. Exercising jurisdiction pursuant to 15 U.S.C. § 717r(d)(1), we conclude, for reasons to be more fully explained in a forthcoming opinion, that the limits set by the agency are so indeterminate that they undermine the Incidental Take Statement’s enforcement and monitoring function under the Endangered Species Act. Accordingly, we VACATE the Fish and Wildlife Service’s Incidental Take Statement.  See 5 U.S.C. § 706(2). We reserve judgment on the parties’ remaining disputes until our forthcoming opinion.”

D.J. Gerten, the Southern Environmental Law Center attorney who argued the case for the Sierra Club, the Defenders of Wildlife, and the Virginia Wilderness Committee, said, “This puts a stop to any work that could threaten rare and endangered species and that’s much of the pipeline route.”

In the Washington Post report, Dominion talks about continuing construction [italics added].  “‘We remain confident in the project approvals and the ACP will continue to move forward with construction as scheduled,’ spokeswoman Jen Kostyniuk said via email. ‘We will fully comply as required while we continue to construct the project. Although we disagree with the outcome of the court’s decision, and are evaluating our options, we are committed to working with the agency to address the concerns raised by the court’s order.'”

In a statement to the press, Friends of Nelson said, “We are of course pleased with this decision from the 4th Circuit regarding the US Fish and Wildlife review of the ACP. Residents and groups fighting on behalf of impacted communities have long held that thousands of pages of documents do not necessarily end in a thorough review. Errors and omissions have been rife among agencies in charge, and political pressures have been glaringly obvious. We will wait for details of the court’s full opinion, but are most grateful for the Southern Environmental Law Center’s steadfast dedication to the communities all along the route of the Atlantic Coast Pipeline. It is indeed a pleasure to hear a court confirm the deficiencies in at least part of the review of this project. Given the opportunity for all of the many challenges to be heard by the courts before this pipe is laid, we are confident that this project will not be built.”

Summary of MVP Legal Actions

The Roanoke Times on May 8, 2018, published a summary of seven pending major civil cases and their status, all related to the Mountain Valley Pipeline.

  • Sierra Club (et al.) v. State Water Control Board, 4th U.S. Circuit Court of Appeals (oral arguments heard on May 8, 2018)
  • Sierra Club (et al.) v. U.S. Forest Service, 4th U.S. Circuit Court of Appeals (oral arguments heard on May 8, 2018)
  • Berkely (et al.) v. Mountain Valley Pipeline and Federal Energy Regulatory Commission, 4th U.S. Circuit Court of Appeals (oral arguments scheduled for May 10, 2018)
  • Mountain Valley Pipeline v. easements to construct, U.S. District Court in Roanoke (ongoing)
  • Appalachian Voices (et al) v. Federal Energy Regulatory Commission, U.S. Court of Appeals for the District of Columbia (no date set)
  • Bold Alliance v. Federal Energy Regulatory Commission, U.S. District Court for the District of Columbia (no date set)
  • Chancey (et al.) v. U.S. Forest Service, U.S. District Court in Roanoke (no date set)

Read the full article here.

Unequal Justice?


In his May 2, 2018, Letter to the Editor, Bill Limpert asks why court cases brought by pipeline builders move quickly through court, while those brought against pipeline builders move v e r y slowly.

“Red Terry and her daughter are on trial for sacrificing their life, liberty and pursuit of happiness by clinging to tree stands on their property for about a month now to prevent the Mountain Valley Pipeline from taking the land that has been in their family for seven generations. They are being charged with trespassing (on their own land), for obstruction of justice (for whom?) and perhaps a few other charges that authorities think might stick. This quick legal action stands in contrast to the slow pace mandated by the courts for challenges against the Mountain Valley Pipeline and Atlantic Coast Pipeline. These challenges are based on solid evidence that approvals for these pipelines by several government agencies were made illegally and without fully considering project need, alternatives and the numerous negative impacts these projects would bring, not only to those tens of thousands of persons on or near the pipelines, but to all of us. I question this rush to judgment against Red and her daughter, while leaving the lawsuits that would protect all of us from these unjust pipelines languishing in legal limbo. Red’s courageous action at most inconveniences the Mountain Valley Pipeline. They can wait on the legal outcome of this case while moving forward with the other 99.8 percent of their project. However, the tens of thousands of persons whose lives would be negatively impacted by this project must wait many months for a chance at justice, even while the pipeline companies proceed to take their property, reduce its value, cut down their trees, despoil their land, pollute their water and place a dangerous pipeline near them and their loved ones. Anyone can see the unjust disparity in these cases. Our legal system is supposed to be fair. How did we move so far away from the fundamental framework of freedom that our forefathers gave us?”

Why indeed?