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.”
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.
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.
Dominion has just filed petitions for “quick take” against at least 21 Nelson landowners, who will now have to deal with making court filings and appearances during the holidays. Petitions were filed in the US Western District of Virginia Federal Court in Lynchburg.
“Quick take” is a formal process of the exercise of eminent domain in which the government (or in this case, a private for-profit company masquerading as a “public” utility) takes possession BEFORE any court ruling on compensation. In other words, Dominion wants access to begin work on these landowners’ properties BEFORE paying the landowners any money, and BEFORE all permits are in place to allow the ACP to begin construction. Some of the 21 landowners were completely unaware that Dominion had filed against them until the Friends of Nelson Landowner Liaison called them with the information. And some landowners had never even been served with notice of the ORIGINAL condemnation lawsuit, even though it had been filed with the court over a month ago!
Dominion loves filing lawsuits as holiday gifts. In the week before Christmas 2014 they began suing landowners who had refused permission for Dominion to survey their property. Dominion filed lawsuits against 27 Augusta County residents and 20 in Nelson County, requesting the court’s permission to enter the properties and survey potential Atlantic Coast Pipeline routes. Reporting on the filings, the Richmond Times Dispatch quoted Dominion officials, who, by the end of December 2014, expected “to file suit against 56 landowners in Augusta and 122 in Nelson. The court would then start serving notices during the first week of January, and those property owners would have three weeks to answer the complaint. A court date would then be set for hearings in each case.”
It is worth noting that a federal court in North Carolina has issued a stay against ACP’s attempt to acquire rights to a NC property by eminent domain, citing the fact that there are pending legal challenges to the ACP that could result in reexaminiation of the project (see story below). Further, last week in New York a state court ruled that a different pipeline company could not use eminent domain proceedings to cross a landowner’s property because the NY State Water Control had denied the permit for the project.
A Federal Court has issued a 90-day stay in an attempt by Atlantic Coast Pipeline, LLC to acquire by eminent domain rights to an 11-acre property in Nash County, NC, citing as a major reason the fact that there are legal challenges to the Atlantic Coast Pipeline project pending in the Fourth Circuit Court of Appeals that could result in a re-examination of the project. In its stay order in the case of Atlantic Coast Pipeline v. Winstead, the U.S. District Court of Appeals for the Eastern District of North Carolina stated:
[T]here are considerable challenges to plaintiff’s pipeline project ongoing in the court of appeals, and plaintiff has not sufficiently rebutted Winstead’s argument that, although the current pipeline challenges do not concern the pipeline route in North Carolina, the outcome of one or more of the challenges could cause or require the currently permitted pipeline route to be reexamined, potentially obviating any need to secure an easement on Winstead’s property. In light of all of these circumstances, the Court in its discretion finds that the factors considered tip in favor of granting a temporary stay of these proceedings.
At noon on Tuesday December 4, 2018, the Virginia Supreme Court (100 North 9th Street, Richmond) will hear the Petition for Appeal in Record # 180933, Blue Ridge Environmental Defense League, Inc. et al, v. Robert C. “Bobby” Jones, Chairman, Buckingham County Board of Supervisors.
The challenge is to the Buckingham Board of Supervisors for their approval of a Special Use Permit for the proposed Buckingham Compressor Station in an agricultural zone, and says that the SUP ordinance allows for exceptions for utilities, but the ACP is a transmission line rather than a utility.
Chuck Lollar, BREDL’s attorney, encourages attendance by the public. The appeal asks the court to hear the case on its merits as it was previously dismissed due to technical omissions. If the court grants the appeal, it will be sent to the Circuit Court.