Category Archives: Court cases

Actions to Halt ACP Stream Crossings Filed

A coalition of five Allegheny-Blue Ridge Alliance (ABRA) members filed a petition on July 3, 2018, with the Fourth Circuit Court of Appeals for review of stream-crossing activities for the Atlantic Coast Pipeline. The coalition, which includes the West Virginia Rivers Coalition, the West Virginia Highlands Conservancy, Appalachian Voices, Chesapeake Climate Action Network and the Sierra Club is represented by Appalachian Mountain Advocates. A similar legal action was taken by the coalition regarding the Mountain Valley Pipeline, resulting in a favorable ruling. At this time, ACP construction is only authorized in West Virginia and North Carolina, as Virginia’s water qualification certification is not yet in effect.

The organizations also formally asked today that the United States Army Corps of Engineers stay the stream construction permit during litigation. If the Corps refuses to stay the permit, the coalition will ask the Court to do so.

For more information, see the July 3, 2018, press release from Chesapeake Climate Action Network.

US 4th Circuit Issues Stay on MVP’s WV Stream Crossings


A report on June 21, 2018, from Protect Our Water, Heritage, Rights (POWHR):

The U.S. 4th Circuit Court of Appeals granted a motion for stay on all stream crossing construction in the Huntington District of West Virginia June 21. The order was issued as part of the challenge to the use of the Army Corps of Engineers Nationwide 12 Permit along the Mountain Valley Pipeline. The original Motion for Stay was filed May 22.

In the lawsuit, environmental organizations are asserting that the Army Corps Nationwide 12 permit cannot be applied to the Elk, Greenbrier, Gauley, and Meadow Rivers in West Virginia because the pipeline cannot cross those streams within the WV required limit of 72 hours. The Corps conceded that fact and partially suspended the permit for just those four crossings. Attorneys with Appalachian Mountain Advocates, who are working on behalf of the environmental groups, are arguing that because the permit cannot be applied to four crossings along the route, the entire permit must be suspended until the court reviews it.

The press release from Sierra Club says, “The effect of today’s court order is to prohibit MVP from construction activities in 591 streams and wetlands in West Virginia and it may affect construction along the entire route of the pipeline. Under its Federal Energy Regulatory Commission authorization, pipeline construction is allowed only if MVP has secured all federal authorizations.”

Sierra Club et al. v. U.S. Army Corps of Engineers — May 22 Motion for Stay

Sierra Club et al. v. U.S. Army Corps of Engineers — Order Granting Motion for Stay

MVP Sued for Erosion Damage

The Roanoke Times reported on May 30, 2018, that “Six Franklin County landowners are suing Mountain Valley Pipeline“, claiming their property was damaged by the company’s failure to control storm water runoff from a construction site. “Mountain Valley has shown a ‘startling disregard’ for the impacts of building a natural gas pipeline on its neighbors, according to a lawsuit filed Tuesday in U.S. District Court in Roanoke. After heavy rains that started May 15, a swath of bare land that crews had cleared for the pipeline’s right of way became a channel for erosion, covering nearby Cahas Mountain Road with about 8 inches of mud.”

The plaintiffs’ suit states that inadequate erosion control caused a blanket of sediment and muddy water to swamp hay fields and make its way into nearby streams on their properties. “The landowners are asking a judge to do what they say state regulators have not: order a stop to construction until Mountain Valley has taken steps to ensure that the next heavy rain will not unleash another mudslide.”

Although the Virginia Department of Environmental Quality temporarily halted construction, there has been no formal stop-work order, and construction was allowed to resume on May 22.

MVP refused to comment on the lawsuit. DEQ and Mountain Valley officials have said none of the sediment had reached nearby Little Creek or other streams. However, the article reports, “That assertion was challenged by the lawsuit, which cited an email from DEQ employee Elizabeth Abe to one of her colleagues. Abe described a stream along nearby Brick Church Road ‘so choked with mud that no water was flowing,’ according to the lawsuit. The email also reported that Abe saw no erosion control devices installed at the worksite.”

Read the full article here.

Letter Filed with FERC on Why ACP Should Not Proceed

On May 22, 2018, the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates filed a letter with FERC, on behalf of its respective client groups (most of whom are Allegheny-Blue Ridge Alliance members), a letter setting forth the reasons why FERC should not allow construction of the ACP to proceed. The SELC filing noted that the Fourth Circuit has yet to issue an opinion explaining the parameters of its May 15 decision vacating the U.S. Fish and Wildlife Service’s (FWS) biological opinion on the project as it relates to the Endangered Species Act (ESA), and pointedly noted the liability FERC would be taking on if it allows ACP to continue with construction prior to the completion of the Section 7 consultation Fish and Wildlife Service (FWS).

Among the highlights of the filing:

  • Because FWS cannot develop the new incidental take statement until the 4th Circuit’s full opinion comes out there is no way to know if a re-route is going to be required:   “FWS may have to revisit its jeopardy analysis for some or all of these species. Its revisited jeopardy analysis could require route modifications as a reasonable and prudent alternative to affecting the species. Additionally, if FWS is unable to develop enforceable take limits for inclusion in an incidental take statement, it may require the pipeline to simply avoid certain species.”  (Of course this potential also will pertain to the Army Corps’ NWP12 and the USFS Special Use Permit.)
  • They caution FERC not to jump the gun:  “FERC also should not assume that it knows what remedy the court will order, nor FWS’s response to it. For instance, FERC cannot know if FWS will have to consider additional habitat areas not assessed in the original biological opinion and incidental take statement in order to comply with the court’s opinion. FERC puts itself at considerable risk by assuming it or Atlantic can predict what the court will order and how that will play out on the ground.
  • They also call FERC out on still not initiating a formal consultation for the yellow lance mussel, which might also result in the need for route changes:  “Allowing Atlantic to proceed with pipeline construction also risks running afoul of the Endangered Species Act’s prohibition on ‘any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures’ after initiation of consultation. 16 U.S.C. § 1536(d). FERC should not allow Atlantic to encroach upon the edge of habitat for endangered and threatened species in an effort to secure its preferred pipeline route, foreclosing alternative routes or other measures FWS determines necessary to protect those species.
  • Regarding ACP’s plan to continue construction in areas that do not contain the species in question: “Allowing pipeline construction to proceed outside areas Atlantic identified as used by endangered species could dangerously lock FERC and Atlantic into a pipeline route that FWS’s analysis may require it to change. That is part of the reason the ESA prohibits ‘any irreversible or irretrievable commitment of resources’ during consultation – to ensure the action agency does not wed itself to a proposal that it ultimately cannot complete.”
  • Additionally, SELC points out that it is ratepayers that will bear the financial risk if FERC allows ACP to continue construction at this time and an expensive re-route becomes necessary. They go on to pointedly drive home the “need” issue:  “There is no apparent reason to rush this project forward with one key approval invalidated and challenges to several others pending. Undoubtedly, Atlantic wants to move forward with construction because the fundamental problem with the pipeline – that it is not a public necessity – is becoming more obvious with time. The demand for new electric power generation in Virginia and North Carolina is not growing and existing pipelines and other existing gas infrastructure can meet the demand that does exist much more cost effectively than a new, greenfield project. FERC should not be concerned that a stay of pipeline construction will harm utility customers in Virginia and North Carolina. That alarmist message from Atlantic is unfounded. Allowing construction to proceed also risks exposing FERC and Atlantic to criminal and civil penalties under the Endangered Species Act.  When a federal agency such as FERC authorizes an action that results in take of species, that federal agency can be held liable for any unauthorized take.  Without a valid incidental take statement, pipeline construction cannot cause take of a single animal, anywhere along the pipeline route, without risking serious penalties.

Read the full filing here.

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!