Category Archives: Dominion

Round-up of Legal Challenges to the ACP

This excellent update on the current legal challenges to the Atlantic Coast Pipeline comes from Allegheny-Blue Ridge Alliance (ABRA) Update #221

The lawsuit challenging the FERC certificate for the Atlantic Coast Pipeline (ACP) has finally been scheduled for briefs to be filed by April 5. The suit, which was filed August 16 with the 4th Circuit Court of Appeals but was re-assigned to the DC Circuit Court of Appeals, was brought on behalf of a group of ABRA member organizations and other plaintiffs. The plaintiffs are represented by Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates (Appalmad). Arguments before the court are not expected to be scheduled until sometime in the Fall. Here’s a brief status report on two other pending cases that challenge ACP permits:

  • Forest Service – The challenge to the U.S. Forest Service’s issuance of a Special Use Permit for the ACP on January 23 was filed February 5, 2018 with the 4th Circuit Court of Appeals. Plaintiffs are a group of ABRA members and others, represented by SELC and Appalmad. The Fourth Circuit vacated the permit in a December 13 decision, thus denying the ACP the right to cross the Appalachian National Scenic Trail (ANST), which the Court said the U.S. Forest Service lacked the legal authority to grant. An appeal of that ruling to the entire Fourth Circuit (an en banc hearing before all fifteen of the Court’s judges) was denied on February 25. Dominion Energy has said it will appeal the decision by late May to the U.S. Supreme Court. That appeal has not yet been made. It is worth noting that only about one percent of the cases that are appealed to the Supreme Court are heard. In the meantime, Dominion has been lobbying Congress since the Fourth Circuit’s December decision to have language added to pending legislation that would override the Court’s vacating of the Forest Service permit to cross the ANST. To date, those lobbying efforts have not succeeded. ABRA asks that contacts be made with Members of Congress to urge them to oppose such an action. For the Action Alert, click here.
  • Air Permit for Buckingham Compressor Station – The January 8 decision by the Virginia Air Pollution Control Board to grant an air permit for the proposed ACP compressor station in Buckingham County, VA was challenged in a lawsuit filed with the Fourth Circuit Court of Appeals by the Southern Environmental Law Center on behalf of Friends of Buckingham. A proposed briefing schedule for the case will be filed in early May, with arguments in the case not likely until sometime this Fall.

Dominion vs Nelson County in Federal Court: April 8


Dominion’s suit against Nelson County over the refusal of the Nelson Board of Zoning Appeals to grant a variance for the ACP to cross flood plains in the County will be heard on April 8, 2019, at 11:30 a.m. in the Federal Court in Charlottesville, 255 West Main Street. Respectful attendance at the hearing is encouraged – no signs, no t-shirts, no protesting.

Why is Dominion suing Nelson County? On December 3, 2018, on a 3-2 vote, the Nelson County Board of Zoning Appeals denied four of Dominion’s applications for the variances to the County’s flood plain ordinance needed to construct the Atlantic Coast Pipeline across flood plains in Nelson. (The other seven of the original eleven applications were dismissed in January 2018, meaning ACP will have to submit new applications for them.) The Nelson County Zoning Ordinance specifically includes “Structures or facilities that produce, use, store, or transport highly volatile, flammable, explosive, toxic, and/or water-reactive materials” in the list of “critical facilities [that] are prohibited from being constructed or operated within a SFHA [Special Floodplain Hazard Area] unless a Variance is granted.” (Article 10.15F on p. 87)

Three days after the Nelson BZA denial of variances, on December 6, 2018, Atlantic Coast Pipeline filed a lawsuit against the Nelson County Board of Supervisors in the Western District of Virginia’s federal court, and it is this suit that will be heard on April 8. The suit asks the Court to:

  • enter judgement declaring that Nelson’s zoning ordinance and floodplain regulations are preempted by federal regulations and therefore null and void as applied to the ACP
  • enter an injunction enjoining Nelson County from enforcing any of its zoning ordinances and floodplain regulations that may affect ACP construction

The ACP has no federal permit to cross any waterbodies, including wetlands and floodplains.

For further information on the four variances denied by the Nelson Board of Zoning Appeals see our story from 2018.

Sidenote: The Virginia Department of Conservation and Recreation has designated March 10-16, 2019, as Virginia Flood Awareness Week. You can read about the function and value of floodplains on their floodplain Web page.

West Virginia House Votes to Condemn Opponents of the ACP

In early January 2019, energy lobbyist, Bob Orndorff, state policy director for Dominion Energy, speaking to the WV legislature’s Joint Committee on Natural Gas Development on behalf of the West Virginia Oil and Natural Gas Association, said construction on the Atlantic Coast Pipeline has been halted because “rogue environmental groups” were getting in the way. He urged lawmakers to “stand up to these rogue environmental groups” and pass a resolution to condemn them.

In an editorial on January 11, the Gazette-Mail asked, “Who are the real rogues?” The editorial says, “In reality, Dominion Energy has halted construction after the Fourth Circuit Court of Appeals found environmental regulatory groups were bypassing rules meant to protect people, wildlife and the environment in the path of such large-scale projects. No doubt Dominion will continue to pursue the Atlantic Coast Pipeline once these legal hurdles are cleared, but for representatives of the industry to blame ‘rogue’ environmentalists is dishonest and simply wrong.” The editorial concluded, “The suggestion to the Legislature offered up by lobbyist Bob Orndorff that the body pass a resolution condemning the environmental groups pursuing litigation is insulting. These groups trying to protect their rights are made up of actual West Virginians who want to preserve what they have and avoid being steamrolled by big industry. Their government should be watching out for them, but it’s not, so the only way to stand up for themselves is through the courts. Remember it’s the people who are the David in this scenario, not the Goliath.”

Despite the editorial, a resolution condemning the “assaults on the Atlantic Coast Pipeline” (ACP) from citizen groups was approved by the Rules Committee of the West Virginia House of Delegates on March 6, 2019. On March 7, the House of Delegates overwhelmingly approved House Resolution 11 by a 80-17 vote (3 members did not vote). All Republican members voting supported the measure, plus 21 of the 40 Democrats in the House. (The resolution as introduced is available here.) An identical resolution was introduced in the West Virginia Senate in mid-February. Senate Resolution 42 is pending before the Senate Committee on Energy, Industry and Mining, which to date has taken no action on the measure.

It is amazing that the West Virginia legislature continues to think it is a valid legislative action to condemn the many citizens who, for a wide variety of reasons based on a wide variety of reliable data, continue to oppose Dominion’s proposed Atlantic Coast Pipeline.

4th Circuit Hearing on ACP Not Expected Until May

On February 18, 2019, WVNews reported that the Fourth Circuit Court has moved from March until May its scheduled hearing of ACP arguments on the December decision which stayed an authorization previously issued by the U.S. Fish and Wildlife Service.

DJ Gerken, senior attorney with the Southern Environmental Law Center, says that, although lawyers have been told to hold availability in May, no date has yet been set for a May hearing, and if the court is unable to hold the hearing in May, the next available court week is in September.

Read the full article here.

Economic Blows to ACP

According to the February 18, 2019, Rocky Mount Telegram, Moody’s Investors Service has changed its rating of the proposed Atlantic Coast Pipeline “to credit negative due to the project’s latest increases in costs and delays in construction. ‘As cost estimates continue to rise and as the completion date is pushed further out, Dominion’s path for financial improvement is starting to look more uncertain,’ said Moody’s Vice President Ryan Wobbrock. When investors begin to sour on big construction projects, the collapse comes into view, said Jim Warren, executive director of N.C. Warn, a Durham-based environmental watchdog group. ‘This project is $3 billion over budget yet construction had barely begun when it’s been halted for many months,’ Warren said. ‘My guess: 30 percent chance it’ll ever be completed.'”

A few days earlier, S&P Global reported on February 14, 2019, that “On its earnings call, Duke executives expressed concern over litigation and permit delays of one of its biggest projects, the planned 600-mile Atlantic Coast Pipeline. Analysts were told that the company hopes it can resume construction of the line in the fall when it will pursue a phased schedule, with the first phase of the line in service by late 2020 and the second in 2021. The estimated cost of the pipeline has risen to $7.8 billion from $7 billion, Duke Energy chairman and CEO Lynn Good told the analysts.”

The $7.8 billion mentioned by S&P is a new high for the ACP projected cost. Recently mentioned estimated costs had been $7 billion, up from the original $4.5-$5 billion estimated by Dominion in 2014.

SELC Urges FERC to Reject ACP “Stabilization ” Plan

In a letter on February 15, 2019, the Southern Environmental Law Center (SELC) urged the Federal Energy Regulatory Commission (FERC) to reject the Atlantic Coast Pipeline’s Interim Right-of-Way and Work Area Stabilization Plan.

SELC points out that the ACP’s “stabilization” actions were merely an excuse to do new construction. ACP had said that several areas had already been trenched, and that installation of strung pipe in those areas was necessary to stabilize the right-of-way. In reality, none of the areas, totaling almost half a mile in length, had been trenched.

The letter states, “Atlantic and DETI have now asked the Commission for authorization to trench and install pipe in those three areas and six others, covering a total of approximately 1.5 miles along the pipeline right-of-way. Trenching, however, is not necessary to stabilize a right-of-way; on the contrary, it is one of the most destabilizing activities involved in pipeline construction. The Commission’s own Final Environmental Impact Statement for the ACP is replete with examples of the environmental risks associated with trenching. Accordingly, Atlantic and DETI’s construction plans call for installing additional erosion control devices once trenching begins and ‘minimizing the length of open trench at any given time.’ Far from a stabilization method, trenching actually demands further mitigation measures due to its destabilizing effects on a landscape.”

The SELC letter concludes, “We urge the Commission to enforce the terms of its certificate and to reject Atlantic and DETI’s request to proceed with construction that cannot be justified by environmental or safety concerns.”

Read the full letter here.