Category Archives: Court cases

4th Circuit Court Vacates Two ACP Permits


On August 6, 2018, the three-judge panel of the 4th Circuit Court of Appeals released a unanimous opinion on its May 15 Order that vacated the Fish and Wildlife Service’s biological opinion for the Atlantic Coast Pipeline. The long-awaited opinion, written by Chief Judge Roger L. Gregory, also vacated the Right-of-Way permit issued by the National Park Service for drilling under the Blue Ridge Parkway.

The Court said the Fish and Wildlife’s “taking order,” authorizing the pipeline to “‘take’ — i.e. kill, harm, or harass — five species that are listed as threatened or endangered” is “arbitrary and capricious” because the so-called “take limit” is unenforceable.

The Court also said that because the National Park Service failed to explain how the ACP crossing of the Blue Ridge Parkway “is not inconsistent with the purposes of the Parkway and the overall National Park System,” that permit is also “arbitrary and capricious.”

Defenders of Wildlife, the Sierra Club, and the Virginia Wilderness Committee, represented by the Southern Environmental Law Center, had challenged both the Fish and Wildlife Service and the National Park Service decisions.

Read the full opinion here.

The Court’s decision to vacate the National Park Service permit for the ACP to cross the Blue Ridge Parkway was unexpected. Thanks to Friends of Nelson’s Marilyn Shifflett, who has provided the following summary quotes from the decision:

“A visual impact study conducted by ACP and overseen by NPS concluded that the corridor would be visible from at least one key observation point along the Parkway, thus significantly decreasing the park’s scenic value. J.A. 1020. Specifically, the analysis concluded that ‘[v]iews of the ACP corridor from the Three Ridges overlook . . . would likely be inconsistent with NPS management objectives, given the proximity to the viewer, the axial nature of the view, and the corridor’s contrast with the surrounding forest.’

In other words, NPS enabled and virtually ensured the alleged harm to the Parkway’s aesthetic value.”

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“In this case, if this Court were to invalidate the NPS permit as requested, the pipeline cannot exist in its proposed form with its current authorizations and would have to be re-authorized with a new permit or possibly a new route to proceed.”

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“Even assuming that either § 460a-3 or § 460a-8 confers general authority on NPS to grant oil and gas rights-of-way through Blue Ridge Parkway property, we conclude that NPS has acted arbitrarily and capriciously by failing to explain why ACP’s pipeline is not inconsistent with parkway purposes.”

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“The Blue Ridge Parkway also has its own conservation and preservation purpose, according to NPS’s General Management Plan for the Parkway. Under the Plan, the Parkway’s specific purposes are to “connect . . . national parks by way of a ‘national rural parkway’—a destination and recreational road that passes through a variety of scenic ridge, mountainside, and pastoral farm landscapes”; “conserve the scenery and preserve the natural and cultural resources of the parkway’s designed and natural areas”; “provide for public enjoyment and understanding of the natural resources and cultural heritage of the central and southern Appalachian Mountains”; and “provide opportunities for high quality scenic and recreational experiences along the parkway and in the corridor through which it passes.” The Blue Ridge Parkway Organic Act then forbids NPS from authorizing any right-of-way that is not consistent with those parkway purposes. See 16 U.S.C. §§ 460a-3, 460a-8. Thus, the right-of-way permit in this case would violate statutory requirements if not accompanied by a valid agency determination that the pipeline is not inconsistent with the Parkway’s scenic value and the public’s enjoyment thereof. ”

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“Having concluded that both FWS and NPS erred in issuing their respective authorizations, we turn to the final question of remedy. Respondents argue that this Court lacks authority to vacate the agency actions under the Natural Gas Act. However, Respondents’ position is contrary to the plain text of the Natural Gas Act. The judicial review provision at issue provides, If the Court finds that such order or action is inconsistent with the Federal law governing such permit and would prevent the construction, expansion, or operation of the facility subject to section 717b of this title or section 717f of this title, the Court shall remand the proceeding to the agency to take appropriate action consistent with the order of the Court.

Because FWS and NPS have both granted authorizations in contravention of their respective statutory requirements, we conclude that the correct remedy is to vacate the ITS and the right-of-way permit, respectively.”

According to Reuters news coverage, Dominion’s Aaron Ruby says, “We believe the court’s concerns can be promptly addressed … without causing unnecessary delay.”

Court Upholds VA Water Quality Review for MVP

The U.S. Court of Appeals for the 4th Circuit in Richmond has upheld Virginia’s much-criticized water quality review for Mountain Valley Pipeline. According to press coverage of the decision in the Roanoke Times and the Virginia Mercury, “The panel of judges rejected arguments from the Sierra Club and other organizations that the State Water Control Board incorrectly found there was a ‘reasonable assurance’ that state water quality standards would be upheld when it issued a certification under the federal Clean Water Act for the project.” The ruling applies to the 500 or more waterbody crossings on the MVP route in Southwest Virginia.

“The construction of the project was exactly that, a large construction project, and the State Agencies very reasonably undertook to protect their waters with the ‘tried and true’ methods developed for just this purpose,” Judge William Traxler wrote for a three-judge panel. “We see no purpose we would serve by stepping in and second-guessing the analytical methods Virginia deemed appropriate to provide it with reasonable assurance that its water quality would be protected,” the 47-page opinion stated.

“We are disappointed in today’s ruling,” the conservation group Wild Virginia said in a statement. “The court relied in large part on the state’s assurances that the requirements in the certification and the enforcement of those requirements would uphold our water quality standards. The facts on the ground in the MVP construction areas in Virginia show all too clearly that those assurances were untrue and unsupportable.”

To date, Virginia’s DEQ has issued six notices of violation against MVP, finding that measures to control muddy runoff were inadequate at construction sites in Giles, Craig, Montgomery, Roanoke, Franklin and Pittsylvania counties, and five similar notices of violation have been issued in West Virginia.

Read the full 47-page opinion here.

Standing Rock Updates

First, a communication from Lakota People’s Law Project on July 28, 2018:  “As you are likely aware, on February 1, 2017, Dakota Access LLC called in law enforcement to arrest Chase Iron Eyes and other water protectors on land the company claimed to own. This supposed ‘ownership’ is a point of contention that our Lakota People’s Law Project legal team will address at Chase’s trial this November.

“Now, in a huge development for the case, the North Dakota attorney general has sued Dakota Access LLC, charging that it never acquired legal ownership of that land. A North Dakota state statute expressly prohibits a corporation like Dakota Access from acquiring or owning North Dakota farm or ranch land.

“We Lakota know that the land belongs to us (under the Fort Laramie Treaties of 1851 and 1868). In our latest video update, Lakota Law Chief Counsel Daniel Sheehan talks about the AG’s suit and the impact on Chase’s legal defense. Please watch and share it on Facebook and Twitter.

“A recent article by the Associated Press’s Blake Nicholson quotes our notice to the court: ‘Given that Dakota Access can’t legally own the land under state law, the company had no legal authority whatsoever to direct law enforcement authorities to forcibly remove’ Chase and the others participating in ceremony at Last Child Camp.”

Please watch and share our video with your networks.

Second, a July 30, 2018, article from ShadowProof, Dakota Access Pipeline Company’s Lawsuit Against BankTrack For Sending Letters Dismissed By Federal Judge, says, “A federal judge dismissed a lawsuit filed by Energy Transfer Partners against an environmental and human rights organization, BankTrack, for its advocacy against their Dakota Access Pipeline project. BankTrack is based in Nijmegen, Netherlands, and as the court describes, the organization uses ‘engagement and public pressure to stop banks from financing specific projects it disagrees with.’ Letters to banks financing the Dakota Access Pipeline were organized, and Energy Transfer Partners sued BankTrack for hundreds of millions of dollars. The corporation alleged that BankTrack was involved in “criminal racketeering” and owed damages under the Racketeer Influenced and Corrupt Organizations (RICO) Act. ‘An extreme minority of DAPL protestors committed criminal acts that harmed Energy Transfer,’ Judge Billy Roy Wilson ruled [PDF]. ‘But BankTrack’s letters did not plausibly cause or further arson, bombing, destruction of an energy facility, transportation of stolen property, drug trafficking, “acts of terrorism,” or violation of the PATRIOT Act.’ BankTrack director Johan Frijns said the organization ‘raised legitimate human rights concerns arising from the Dakota Access Pipeline with the banks financing the project. The judge’s decision confirms that this type of advocacy work is legitimate and is not ‘reasonably or plausibly related’ to any acts of criminal conduct,’ Frijns added. ‘We hope the judge will now similarly dismiss the case against the other defendants, and that the ringing rejection of this case will discourage other corporations from launching these kinds of Strategic Lawsuits Against Public Participation.'”

Court Cancels BLM and Forest Service Permits


On July 27, 2018, a federal court rescinded Mountain Valley Pipeline’s permit to cross the Jefferson National Forest. The three-judge panel of the U.S. Court of Appeals for the Fourth Circuit voted unanimously to vacate the permits MVP had received from the Forest Service and Bureau of Land Management to cross the Jefferson National Forest.

The lawsuit that led to this decision was brought by the Sierra Club, Wild Virginia, Appalachian Voices and other local groups. According to Wild Virginia, the court sided with their arguments that:

  1. the Forest Service was arbitrary in concluding that sedimentation and erosion impacts to be mitigated to insignificance,
  2. the Forest Service violated the 2012 Forest Planning Rule by arbitrarily concluding that amendments to the forest plan were not “directly related” to that rule, and
  3. that BLM violated the Mineral Leasing Act by failing to demonstrate that alternative routes that would increase co-location with existing rights-of-way were impractical.

As a result of the decision, MVP should halt work in the Jefferson National Forest immediately. David Sligh of Wild Virginia the court’s decision “…upholds the principle that agencies responsible for protecting the public lands and resources must conduct thorough and honest reviews and reject proposals that would harm our interests.”

Friends of Nelson president Helen Kimble commented: “Friends of Nelson and other citizen groups submitted numerous comments to the FERC regarding US Forest Service and National Park Service permits for the route of the Atlantic Coast Pipeline citing numerous deficiencies. We also expressed concern about the use of a third party contractor by the USFS/NPS who also worked for the ACP as a consultant, to review the pipeline operator’s plans for the route. We commend the 4th Circuit for noting similar deficiencies regarding the Mountain Valley Pipeline and taking action to force these agencies to perform a proper review.”

See press coverage by WVTF and the Washington Post.

Appeals Court Halts Challenge to FERC Use of Eminent Domain

E&E News reported on July 26, 2018, that “In a high-stakes ruling yesterday, the 4th U.S. Circuit Court of Appeals found that a lower court was right to dismiss legal arguments from a group of Virginia and West Virginia landowners concerned about FERC’s approval of EQT Corp.’s Mountain Valley pipeline. The litigants were taking aim at FERC’s practice of letting pipeline builders use eminent domain authority to take land once their project is approved. That practice is unconstitutional, the landowners say, because it violates property rights protected under the Fifth Amendment. But according to the 4th Circuit, the courts have no jurisdiction to hear the complaint because the landowners didn’t go through FERC’s standard administrative process for pipeline challenges. The ruling affirms the U.S. District Court for the Western District of Virginia’s decision to dismiss the claims late last year….

“Under the Natural Gas Act, pipeline challengers must raise their concerns with FERC and wait for an agency decision on the matter before going to a federal appeals court. The landowners argued that their case, a broad constitutional challenge, is distinct from routine pipeline complaints raised under the NGA. Plus, they argued, waiting for FERC to finish its administrative process would deprive them of meaningful judicial review. The commission routinely issues ‘tolling orders’ to give itself more time to consider rehearing requests from challengers. Pipeline construction and land acquisition are usually well underway before the process is complete.”

Read the full article here.

FERC Approves ACP Construction Start in NC

As reported by the Virginia Mercury and WVNews, on July 24, 2018, FERC gave approval for the start of ACP construction in North Carolina, despite a federal court challenge that seeks to halt construction. In May the 4th Circuit Court in Richmond invalidated a key environmental review of U.S. Fish and Wildlife Service’s “incidental take statement,” which sets limits for harming or killing certain sensitive species along the pipeline route, finding it too vague to be enforced. Although the 4th Circuit has yet to release its full opinion, opponents of the project argue the court’s opinion should have stopped the entire project. However, in a letter to FERC last month, the Fish and Wildlife Service said the take statement was only relevant to habitat and species in Virginia and West Virginia.

Patrick Hunter, a North Carolina attorney with the Southern Environmental Law Center, which handled the 4th Circuit case on behalf of environmental groups, said, “These piecemeal authorizations of a project that doesn’t have all the approvals it needs just doesn’t make sense.” A request that the 4th Circuit halt construction in pending before the court, he added.