Category Archives: Environmental Impact

Fish and Wildlife Permit Vacated by 4th Circuit


An Allegheny-Blue Ridge Alliance email distributed early on July 27, 2019, comments on the Fourth Circuit Court’s opinion vacating the Fish and Wildlife Service permit:

The Fourth Circuit of the U.S. Court of Appeals Friday struck down the latest permit the U.S. Fish and Wildlife Service (FWS) had issued for the the Atlantic Coast Pipeline (ACP). The issue arose from a requirement in the Endangered Species Act that (quoting from the decision) “the proposed pipeline will not jeopardize the continued existence of several endangered and threatened species that are likely to be impacted by pipeline construction. As relevant here, the Biological Opinion concluded that the pipeline will not jeopardize four species: the rusty patched bumble bee, clubshell, Indiana bat, or Madison Cave isopod.” The FWS issued an opinion in 2017 stating that the ACP did not endanger any endangered species. The permit was challenged in a lawsuit filed by the Southern Environmental Law Center (SELC) on behalf of the Defenders of Wildlife, Sierra Club and the Virginia Wildlife Committee (the latter two organizations being ABRA members).

In response to that legal challenge the Fourth Circuit in May 2018 vacated the FWS permit, which it explained in its opinion (not issued until August 6) that the “FWS’s vague and unenforceable take limits are arbitrary and capricious.” The agency reissued a new permit in September 2018, which was again challenged by the same plaintiffs. The Fourth Circuit stayed the new permit and, in response to that, the Atlantic Coast Pipeline, LLC suspended all construction of the project in late 2018.. The case decided Friday was argued on May 9, 2019 (see ABRA Update #229, May 10, 2019).

In today’s decision, the Fourth Circuit stated:

Specifically, Petitioners assert that FWS improperly determined that pipeline construction will not jeopardize the rusty patched bumble bee or the clubshell, and they challenge the validity of the take limits imposed for the Indiana bat and the Madison Cave isopod. Because we find that FWS arbitrarily reached its no-jeopardy conclusions and failed to correct the deficiencies in the take limits that we identified in the previous appeal, we grant the petition and vacate the 2018 Biological Opinion and Incidental Take Statement.

In a statement released Friday afternoon, SELC stated:

“In its rush to help this pipeline company, the agency failed to protect species on the brink of extinction – its most important duty. This pipeline would blast through some of the last populations of these rare animals,” said Patrick Hunter, attorney with the Southern Environmental Law Center. “There is no evidence that this pipeline is needed for anything other than Dominion and Duke Energy profits. For the sake of these rare species and its customers’ wallets, it’s time for these utilities to walk away from this badly planned boondoggle.”

Construction on the Atlantic Coast Pipeline has been stopped since December 2018 when multiple permits were called into question or overturned including permits from the Fish and Wildlife Service, National Park Service, Forest Service, and U.S. Army Corps of Engineers. Those permits are all still outstanding. Among the problems for this pipeline is a Federal Court decision that the Forest Service erred in allowing the pipeline to carve through national forests and was not authorized to allow the project to cross the Appalachian Trail. There is no clear path forward to construct the pipeline on its current route. The project is several years behind schedule and more than $2 billion dollars over budget. If constructed, ratepayers will be expected to pay for the pipeline while the energy companies collect a 15% profit.

Quoted in Charlottesville’s July 27, 2019, Daily Progress article, Dominion spokesperson Aaron Ruby said, “Based on the clear direction provided by the court in today’s opinion, we expect FERC and the Fish and Wildlife Service will be able to immediately begin working to correct the issues identified by the court. Once the new Biological Opinion and Incidental Take Statement are issued, we will seek the necessary approval from the Federal Energy Regulatory Commission to resume construction. We’re confident we remain on track to complete the project by late 2021.”

The Daily Progress article says, “If the Fish and Wildlife Service were to issue a new permit, Dominion has said it would begin building the pipeline from Buckingham County to the southeastern Virginia coast, connecting it to Hampton Roads and extending it through eastern North Carolina. The company plans to build a natural gas compressor station at Union Hill in Buckingham under a state air pollution permit that environmental groups also have appealed to the 4th Circuit. Separately, Dominion and its partners have petitioned the U.S. Supreme Court to review another opinion by the same federal appeals panel last December that threw out a U.S. Forest Service permit to allow the pipeline to cross beneath the Appalachian Trail between Augusta and Nelson counties.”

Deadline July 27 – Submit Comments

Deadline July 27, 2019: Submit your comment to the Army Corps of Engineers to stop fracked-gas pipelines from blasting through West Virginia rivers.

When West Virginia regulators initially considered the Clean Water Act permits needed for the Atlantic Coast (ACP) and Mountain Valley Pipeline (MVP) in 2017, they decided to place three strong but reasonable requirements on pipeline companies, above what the Army Corps required, in order to protect the state’s valuable water resources. These reasonable measures would have prevented pipeline construction from impeding the movement of fish and would have limited pipeline construction across major rivers like the Gauley, Elk, and Greenbrier to 72 hours. They would also make large diameter pipelines like ACP and MVP ineligible for the one-size-fits-all review process, requiring them to undergo an individual review process.

The Chesapeake Climate Action Network argued — and the court agreed — that MVP had no plans to comply with West Virginia’s 72-hour time limit when crossing major rivers, and that this failure meant that the entire permit, not just as it applied to specific crossings, was defective. After this decisive court decision rejecting MVP’s permit, the Army Corps voluntarily threw out its permit for the ACP too.

But now the West Virginia Department of Environmental Protection is trying to rewrite its own rules and remove the environmentally protective conditions they placed on projects like the ACP and MVP.

The Army Corps of Engineers is asking for the public’s opinion on whether it should accept attempts by West Virginia regulators to modify the conditions they put in place to protect water quality. This request places the Corps in an untenable position, asking the Corps to commit an unlawful act and to be drawn once more into a time-consuming and expensive conflict over the proper regulation of the two proposed fracked-gas pipelines.

The Corps is only accepting comments until Saturday, July 27, 2019. Time is running out. Write to the Corps TODAY to ask them to SAY NO to West Virginia’s illegal request.

CLICK HERE to use Chesapeake Climate Action Committee’s email letter, but please be sure to customize the email with your county and state and include any other concerns you may have.

Crucial Legal Decisions Expected in Coming Months

This excellent Status of Principal Court Challenges to Permits and Certifications for the Atlantic Coast Pipeline was prepared by the Allegheny-Blue Ridge Alliance and posted in the ABRA Update #236 for July 12, 2019.

Construction activity on the Atlantic Coast Pipeline was suspended several months ago as the result of a stay from the Fourth Circuit Court of Appeals regarding a successful challenge to the endangered species biological opinion that had been issued by the U.S. Fish and Wildlife Service. But, a decision on that important case, as well as decisions regarding some other cases challenging permits for the ACP are expected over the next 3-4 months. Here is a rundown of the status of the key court cases that have been brought by various ABRA member organizations.

1. FERC Certificate – A challenge to the Federal Energy Commission’s (FERC) issuance of a certificate for the ACP on October 13, 2017 was filed with the Fourth Circuit Court of Appeals on August 16, 2018. The plaintiffs are 14 conservation groups, represented by the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates. The suit could not be filed until FERC formally rejected a request for a rehearing of the certificate, which did not occur until August 10. One basis of the suit is the petitioners’ contention that FERC did not look behind the affiliate agreements that Dominion Energy and Duke Energy, (principal partners in the project) claim demonstrate that the pipeline is needed in Virginia and North Carolina markets. The petitioners argue that FERC’s Environmental Justice Impact Statement is fatally flawed. Jurisdiction of the case has been transferred to the D.C. Circuit Court of Appeals. Oral arguments are expected to occur in the fall of 2019.

2. Forest Service Permit – On January 23, 2018, the U.S. Forest Service granted the ACP a Special Use Permit to cross national forest lands and a right-of-way to cross beneath the Appalachian National Scenic Trail (ANST). This action followed a November 17, 2017 decision by the Forest Service to amend the Forest Plans for the George Washington and Monongahela National Forests to accommodate the ACP. A suit was filed on February 5, 2018 by seven conservation/environmental organizations (most members of ABRA) represented by SELC, arguing that the Forest Service had rushed to judgment to approve the project, notwithstanding raising serious questions about the project’s ability to be built over steep mountain terrain without serious environmental damage. The case was argued before a three-judge panel on September 28, 2018. On December 13, the Fourth Circuit ruled to vacate the Forest Service permit, expressing agreement with the petitioners about environmental threats being improperly evaluated and the Forest Service’s failure to asses off-forest alternatives, and in addition ruled that the Forest Service lacked the authority to grant the project permission to cross the ANST.

Atlantic Coast Pipeline, LLC (ACP, LLC) on January 28 filed with the Fourth Circuit requesting a rehearing en banc, meaning a hearing on the case before all fifteen judges of the Fourth Circuit. The Fourth Circuit rejected the ACP, LLC petition for rehearing and an appeal to the U.S. Supreme Court was filed June 25. The Supreme Court is expected to decide in October whether to take the case.

3. Fish and Wildlife Service – The U.S. Fish and Wildlife Service’s (FWS) biological opinion on threats to endangered species by the ACP was vacated by the Fourth Circuit Court of Appeals on May 5, 2018, but an opinion from the Court explaining its order was not issued until August 6. A new biological opinion was issued by the FWS that sought to meet the court’s objections. That re-issued opinion was also been challenged by the petitioners, (Defenders of Wildlife, Sierra Club and the Virginia Wilderness Committee) represented by SELC. That challenge was argued before the Fourth Circuit on May 9, 2019. A decision is expected later in the summer. The re-issued biological opinion is currently stayed pending a ruling by the court.

4. National Park Service Permit – The National Park Service’s (NPS) December 2017 approval for the ACP to cross underneath the Blue Ridge Parkway was challenged in the Fourth Circuit by Sierra Club and the Virginia Wilderness Committee, represented by SELC. The Court vacated the permit on August 6, and FERC issued a stop-work order for the entire project on August 10. The stop-work order was lifted September 17, just five weeks later, when the NPS issued a new permit that purported to remedy the deficiencies in the earlier permit. That permit was challenged again by the petitioners in the Fourth Circuit.

Before the case was argued, the Park Service asked the Court to vacate the previously issued permit for the ACP to cross the Blue Ridge Parkway so the agency could “consider whether issuance of a right-of-way permit for the pipeline to cross an adjacent segment of the Parkway is appropriate.” The Fourth Circuit granted that motion on January 23. Thus, at this writing, there is no permit for the ACP to cross the Blue Ridge Parkway.

5. Army Corps of Engineers – The U.S. Army Corps of Engineers filed a motion on January 18 with the Fourth Circuit Court of Appeals for a remand and vacating of the permit that the Huntington District of the Corps had issued for the Atlantic Coast Pipeline (ACP) to cross rivers and streams in West Virginia. The Court had previously issued a stay of the Nationwide 12 (NWP12) permit issued for the ACP by the Huntington District, as well as other NWP12 permits issued for the project by Corps districts in Pittsburgh, Norfolk and Wilmington that have jurisdiction over other portions of the ACP project. The motion was unopposed and subsequently granted by the Court. While the action only directly affects the portion of the ACP subject to the Huntington District’s jurisdiction (West Virginia portions of the route), the stays on stream and river crossings for the ACP in the other Corps districts remain in effect.

6. Buckingham County Compressor Station Air Permit – The Virginia Air Pollution Control Board voted on January 8, 2019 to grant an air permit for the proposed ACP compressor station in Buckingham County, VA. The vote had been delayed several times and was particularly contentious because of concerns over air emissions that would affect the immediate area, as well as the Chesapeake Bay to the east, but also be because it would be built proximate to an historic African American community, raising the issue of environmental justice. The Southern Environmental Law Center (SELC), on behalf of Friends of Buckingham, challenged on February 8 the Virginia Air Pollution Control Board’s decision to approve Dominion’s Atlantic Coast Pipeline Buckingham County compressor station. Joining SELC in the lawsuit, filed with the Fourth Circuit Court of Appeals, was the Chesapeake Bay Foundation. SELC filed its opening brief on May 31. Response briefs are due to be filed by July 24. Oral arguments are expected in the Fall.

7. Virginia State Water Board 401 Certification – The Virginia water quality certification under Section 401 of the Clean Water Act was granted December 12, 2017 by the State Water Control Board. The action was challenged in a suit filed by SELC on behalf of several conservation group clients and argued before the Fourth Circuit Court of Appeals on September 28, 2018. The principal contention in the case was that the Board’s approval of the certificate for the ACP was, on several grounds, arbitrary and capricious. On January 14, 2019, the Court rejected the arguments of the petitioners.

Catalog of Disasters

In an article published July 17, 2019, DC Media Group reports on the catalog of disasters inflicted by the Mountain Valley Pipeline on the LaFerriere family and their Blackberry Springs Farm in West Virginia. In September 2018, despite cease and desist orders, the organic farm was showered repeatedly with pellets of Earth Guard Edge dropped from helicopters. The pellets are an erosion control product containing acrylamide, a carcinogen. LaFerriere, his wife and children, and an intern were all struck by the pellets while harvesting ginseng a quarter mile from the MVP right of way, with resulting contusions and lacerations. Specialists said nothing could be done to mitigate the damage, since once the pellet gets wet, it gets into the soil.  The organic status of the farm has been jeopardized.

“MVP is required to adhere to an Organic Management Plan it filed with FERC, but LaFerriere said they still hadn’t provided him with any information with regard to its implementation. He claims he hasn’t been allowed to speak with the expert from the International Organic Inspectors Association hired by MVP–who has been out to the property twice–and he still hasn’t received a complete list of materials that MVP would be using on the farm. MVP also wouldn’t tell him much about the pale green coating on the 42″ diameter pipeline. His concern about the coating degrading and contaminating the soil and water is shared by FERC, which last week sent a letter to MVP asking about its safety after two years of sitting in the sun.”

Last year, LaFerriere asked for 72 hours notice before MVP cut trees in the right-of-way so he could move some materials. They failed to give notice, and felled trees on the materials, ruining them. MVP had to pay to replace them.

MVP maintains they have “retained an organic consultant to train workers and environmental inspectors and monitor construction activities and remediation. LaFerriere said that no monitors or inspectors have been introduced to them, and he has not seen anyone on site that he can identify as a organically trained monitor.”

Because Laferriere believed MVP wasn’t honoring its organic management plan requirements, he sent yet another cease and desist order; MVP representatives agreed to meet with him, but cancelled at the last minute.

On July 16, only an hour after the scheduled (ten cancelled) meeting meant to discuss the Laferriere’s concerns over MVP’s failure to adhere to the organic management plan requirements, “an excavator operating on the right-of-way tipped over onto its side. The excavator was on relatively flat terrain, not on a steep hill or slope, LaFerriere said. Fluids spilled out, and nearly 20 workers were required to bag soil that was contaminated. He didn’t observe any barrier or protective silt socks put in place to contain the spill. The driver was able to exit the excavator and walk away with the assistance of co-workers.”

The article notes that, “Problems with MVP construction have not been limited to Blackberry Springs Farm. MVP was cited with more than 300 violations by the end of 2018 alone. As a consequence, many of the pipeline’s permits have been revoked. FERC has approved 125 requests by MVP to deviate from its original work plan, and most appear to be related to efforts correct erosion events.”

Also in recent days, MVP construction materials in Virginia were swept down the Blackwater River by heavy rains, ending up in Smith Mountain Lake, where they are a safety hazard, particularly for boaters. Because of its many violations in Virginia, attorney general Mark Herring filed a civil lawsuit against MVP in October 2018. But because he refuses to issue a stop work order, construction and the resulting devastation continues.

Read the full DC Media Group article here.

Related article in the July 15, 2019 Virginia Mercury, MVP’s violations show ‘complete absence of any and all meaningful regulation’

FERC Requests Toxicological Info on ACP Coatings

On July 3, 2019, the Federal Energy Regulatory Commission (FERC) requested that the Atlantic Coast Pipeline, LLC and Dominion Transmission, Inc. provide within 20 days toxicological environmental and health information on epoxy coatings associated with pipeline materials used in the Atlantic Coast Pipeline. The operative language in the request is:

Please provide toxicological environmental and health information for Fusion Bonded Epoxy (FBE) coatings (3M™ ScotchkoteTM Fusion Bonded Epoxy Coatings and 3M™ ScotchkoteTM Liquid Epoxy Coatings, or their equivalents) used for coating the project’s pipeline and associated utilities. Evaluate and report on the toxicity of the FBE from all potential exposure pathways including from direct and indirect human contact, ingestion or inhalation; as well as environmental pathways (leachability and mobility) in air, soils, surface water, and groundwater. The evaluation should likewise include an analysis of human and environmental exposure from the degradation of FBE due to exposure to sunlight, and sloughing (chalking) of the material.

FERC’s full request is here.

Progressive Pulse news coverage is here.

Formal Complaint Against MVP Filed with FERC

Press release from Wild Virginia, June 21, 2019. Contact: David Sligh, ​david@wildvirginia.org​​ 434-964-7455

Citizens File Formal Complaint with FERC, Call on State Water Control Board to Intervene and Insist that MVP License Be Revoked or Suspended

On June 21, 2019, Wild Virginia, partner groups, and individuals filed a formal complaint against Mountain Valley Pipeline LLC with the Federal Energy Regulatory Commission. The Complaint is based on MVP’s frequent and repeated violations of state and federal requirements, throughout work on the project.

“We are asking that FERC revoke or suspend the Certificate it issued to MVP,” said David Sligh of Wild Virginia. Through this formal process, parties can also intervene and the complainants are calling on the State Water Control Board to do so and insist that FERC do what its members decided they lack the authority to do -stop the project and defend Virginians and our resources. The Board meets next week, on June 27 and the parties want them to act on this issue at that time.

The FERC approval was based on a finding that MVP was able and willing to meet all requirements, protect the environment, and the people affected. “MVP has shown, through hundreds of blatant violations that is neither able nor willing to obey the law,” Sligh said.

The complaint is joined by the Indian Creek Watershed Association, Preserve Craig, Inc., Betty Werner, and Neal Laferriere. Werner and Laferriere are landowners who have reported ongoing problems and the locally-based groups have seen all of their warnings about the damages MVP would cause come true.

When the Commission issued the Certificate allowing MVP to proceed, it said it “expected strict compliance . .. with any state and federal mandated conditions.” The citizens joining this complaint are asking the Commissioners at FERC to prove that they meant what they said.

Two categories of violations are cited in the complaint. First, is the continued construction on MVP despite the fact that federal licenses to cross waterbodies and the National Forest were rejected by a federal court. Second,MVP has violated a broad range of legal requirements meant to protect the environment, people, and property along its path.

Citizens have monitored the project from the start and shown that MVP doesn’t bother to install pollution controls until forced to do so and that those used are sometimes so poorly designed and maintained that they won’t work even when built according to plans. Findings of regulators in both West Virginia and Virginia of hundreds of violations show that MVP is not serious about protections but is focused solely on ramming this project through with little regard for anyone else’s interests. Even FERC inspectors have document many blatant violations – often with the same problems occurring time and again.

“What we have is regulators watching our waters get trashed and then trying to act. By the time that happens though it may be too late for some of our most valuable resources,” Sligh said.

Initial Roanoke Times press coverage on the filing with FERC is here.

UPDATE by the Roanoke Times on June 28, 2019Request to stop work on Mountain Valley Pipeline remains in limbo. “A complaint that seeks to stop work on the Mountain Valley Pipeline is in a state of limbo. Last week, Wild Virginia and other environmental groups filed what they called a formal complaint with the Federal Energy Regulatory Commission. They expected that the action would start an official process, and they asked the State Water Control Board to join in their request that FERC halt construction. But after the board met Thursday in a closed session with an assistant attorney general, member James Lofton said it had been advised that the complaint has yet to be docketed with FERC. The 24-page document — which cites hundreds of environmental violations and the loss of two key sets of federal permits — was filed with FERC on June 21. ‘At this time, the filing is under review by the Commission who will determine how to address the issues raised,’ spokeswoman Tamara Young-Allen said Thursday by email.”