Category Archives: FERC

Averitt is Panel Member at FERC Forum

Nelson’s Richard Averitt was at the Envision Forum hosted by the University of Kentucky Center for Applied Energy Research and FERC on October 20-21, 2019. He was there along with a couple hundred energy company execs and government policy makers, and was asked to sit on a panel as the only landowner voice.

The gas industry media outlet, Natural Gas Intel, quoted some of Richard’s comments: “‘I think there’s a very serious question about whether eminent domain should ever be used to produce a for-profit export project. I think that’s inconsistent with our beliefs around property rights, but particularly when you look at how the courts have extended the right to eminent domain to include preliminary injunctions, or ‘quick take,’ that collapses on landowners to be an absolute destruction of your right to due process…. The idea that eminent domain is only used as a last resort is a false narrative from a landowner’s perspective. It is used in every pipeline case if it’s on the table. Because when you sit down at the negotiating table, one of the two parties can walk away with virtually no negative impact, and the other one loses everything they care about.’

“In addition, conditional permits issued by the Federal Energy Regulatory Commission leave landowners powerless, Averitt said. Such permits allow companies to seize land and prepare it for pipeline construction, often destroying farmland even if the project never comes to fruition, he said. ‘To enable the taking of private citizen’s land and the destruction of that land at a time when those permits are still in question is unconscionable…that’s not an appropriate due process.'”

Richard thanks fellow landowner supporters Ron Evans and Mayor Kristin McLaughlin, with special thanks to Megan Gibson and Niskanen for getting them in the room.

And we thank Richard for so ably and articulately representing landowners!

Here are YouTube links for Richards comments and to the full panel discussion:

To download all of the above, click here.

Read the full Natural Gas Intel article here.

Legal Challenge to FERC Certificate Put on Hold

From The Allegheny-Blue Ridge Alliance’s ABRA Update #248, October 10, 2019

Consideration of legal challenges to the certificate issued in December 2017 by the Federal Energy Regulatory Commission for construction of the Atlantic Coast Pipeline (ACP), which was to be argued before the DC Circuit Court of Appeals on October 16, has been deferred. The case before the Court consolidates several cases, including the challenge brought by several ABRA members asking that the FERC certificate for the ACP be invalidated. The Order deferring the argument of the case, issued by the DC Circuit late on October 4, explained that the reason for delaying the scheduled argument was the U.S. Supreme Court’s decision announced earlier that day to accept for argument United States Forest Service v. Cowpasture River Preservation Association case, in which the Fourth Circuit Court of Appeals decided that the Forest Service did not have the authority to grant the ACP the right to cross the Appalachian Scenic National Trail.

The DC Circuit will decide when to reschedule consideration of the FERC challenge after the Supreme Court hands down a decision on the Cowpasture case. No date has yet been set by the Supreme Court for the Cowpasture case to be argued, but it is believed that will occur sometime in February or March 2020, with a decision being made before the end of June. Initial briefs by parties in the Cowpasture case are to be filed with the Supreme Court by December 19.

In the meantime, construction on the ACP is still suspended as the company awaits issuance by the U.S. Fish and Wildlife Service (FWS) of a new biological opinion for the project, which is expected to occur sometime in coming weeks. The Southern Environmental Law Center submitted to FWS on October 1 an 88-page submission to the agency on how it should consider rewriting the new biological opinion, noting:

  • As the agency well knows, this is the second time its approvals for this project have been vacated. Both vacaturs followed rushed, incomplete analysis unsupported by best available science. We urge the agency to resist pressure from the pipeline companies to fast-track yet another approval for this unnecessary project and to instead heed its mandate under the Endangered Species Act (“ESA”) to protect and conserve endangered and threatened species and their habitats. That requires avoiding inflicting further harm on species where that injury may jeopardize the species, as it would here for rusty-patched bumble bee, clubshell, and Roanoke logperch.
  • In the year since the agency issued its last biological opinion and incidental take statement, facts regarding the impact of constructing this pipeline on protected species have changed. The agency must take these changes into account to issue a valid approval for this project. If the agency again seeks to expedite approvals, we are concerned these changes will be ignored. Therefore, on behalf of Defenders of Wildlife, Sierra Club, and the Virginia Wilderness Committee, we request that the agency consider the following in its re-evaluation of the pipeline.

Friends of Nelson Public Meeting: FERC into FREC Road Show


Sunday October 20, 2019 – The Nelson Center, gather at 5:30, meeting begins at 6:00. Ted Glick, from Beyond Extreme Energy (BXE), will be our featured speaker, and will show a short film followed by discussion. We’ll also have announcements and updates. This is a kid-friendly event, and there will be an art station run by BXE’s Maple Osterbrink.

Join activists from Beyond Extreme Energy (BXE) on their FERC Into FREC roadshow! BXE is traveling from the shalefields of Pennsylvania down through the path of the MVP and ACP pipelines in West Virginia and Virginia. BXE members will screen their short film “FERC Doesn’t Work” and hold a community discussion on the fight to turn the Federal Energy Regulatory Commission (FERC) into the Federal Renewable Energy Commission (FREC). FERC is the federal agency responsible for the regulation of all fossil fuel infrastructure and pipelines that cross state lines. As such FERC is a lynchpin in the nationwide movement against fossil fuels and for climate justice!

Ted Glick has been a progressive activist, organizer and writer since 1968. He has prioritized the climate crisis issue since 2004 and was one of the founders of Beyond Extreme Energy in 2014. Following retirement after nine years as the National Campaign Coordinator for the Chesapeake Climate Action Network, he has worked since as a volunteer with BXE and several local and state organizations in New Jersey fighting climate disruption and the expansion of new fossil fuel infrastructure. Since 2000 he has written a nationally-distributed Future Hope column of political, social and cultural commentary.

Maple Osterbrink has volunteered for peace, justice and earth conservation since the 1960’s. She “took the earth-conservation pledge as a young girl scout and has held to it.” She retired from several “almost-careers” to North Carolina and is helping out many organizations including BXE, APPPL, Workers’ Assembly and the Raging Grannies. She worked to preserve wetlands in New Hampshire in the mid-90’s as a town conservation commissioner. She is “sick of the corruption, theft and poisoning of democracy, peace, water, food and sustainability.” As an artist she will have mini-projects to do with children, or adults, during events.

SELC Responds to DC Circuit Questions About FERC Case

From Allegheny-Blue Ridge Alliance’s ABRA Update #246 for September 26, 2019:

The DC Circuit Court of Appeals has asked all of the parties involved in the legal cases challenging the certificate of public convenience issued for the Atlantic Coast Pipeline by the Federal Energy Regulatory Commission (FERC) to response to several questions prior to the scheduled argument of the case before the Court on October 16. In a September 13 Order, the Court noted that the Fourth Circuit Court of Appeals in the Cowpasture River Preservation Association v. Forest Service case, which has been appealed to the U.S. Supreme Court, may render the FERC case “unfit for review at this time” (depending upon the Supreme Court’s decision on whether to accept the Cowpasture case for review). Given that, the DC Circuit asked the parties to the FERC case to respond to the following questions:

  1. Whether an alternative route would allow the ACP to proceed on the same certificate of public convenience and necessity;
  2. Whether the prospects of building the pipeline using the same certificate are so speculative that these petitions are unripe (i.e., not ready for consideration) on either constitutional or prudential grounds; and
  3. Assuming that the petitions are unripe, whether the appropriate remedy is to dismiss the petitions or to hold them in abeyance.

The Southern Environmental Law Center, representing the Cowpasture River Preservation Association and other petitioners challenging the FERC certificate, responded to the questions in the Order in a September 20 filing with the Court. Joining in the filing were Appalachian Mountain Advocates, Chesapeake Bay Foundation and Christopher Johns, a counsel for several landowner petitioners. The SELC, et. al. filing argues that:

  • While an alternative route should require a new or amended certificate, FERC has not acknowledged the implications of the Fourth Circuit’s Cowpasture decision for the ACP project;
  • Conservation and landowner petitioners’ claims are ripe for review; and
  • If the Court finds the petitions unripe, the Court should vacate or stay FERC’s certificate for the ACP.

Pipe Coatings

In a letter to FERC,submitted as a Motion to Intervene on September 16, 2019, Bill Limpert discusses Dominion’s July 22 and August 23 reports to the Federal Energy Regulatory Commission (FERC). The Dominion reports were in response to FERC’s July 3 request for data regarding possible environmental and health impacts from the 3M Scotchkote Fusion Bonded Epoxy 6233 external pipe coating, and other pipe coating products used for the Atlantic Coast Pipeline.

Limpert says, “I believe Dominion’s reports significantly understate the risk to public health and the environment from this coating, and other products used on the exterior of the pipe. I believe the reports use questionable data, and questionable methodologies to arrive at unreliable conclusions, and therefore, do not adequately answer the FERC’s request for information, or the concerns raised by the Virginia Department of Health.”

Limpert then critiques Dominion’s July 22 report in detail, covering the lack of leaching studies, the impacts of degradation and the long-term health impacts.

He states, “The Dominion reports use questionable data and questionable methodologies to arrive at unreliable conclusions. They do not prove the pipeline coating is safe, or that there will be no negative health or environmental impacts from the coating and associated products used on the exterior of the pipes for the ACP. They do not reliably answer the questions presented in FERC’s request, nor the concerns of the Virginia Department of Health.”

Limpert’s critique of the July 22 report concludes with a list of recommendations for actions FERC should take, including additional study using valid data and methodology, consultation with federal agencies with expertise, advising the US Fish and Wildlife Service that a 3M Material Declaration states that UV degradation byproducts will be toxic to aquatic life, requiring ACP to conduct pre and post construction sampling for chemicals associated with this coating and other products used on the exterior of the pipes in drinking water wells and springs in the vicinity of the proposed pipeline, requiring ACP to provide a potable water source and fair compensation for drinking water sources that are contaminated by these products, and requiring that all pipes be immediately covered to prevent UV degradation material from becoming airborne.

Limpert also writes a detailed critique of Dominion’s August 23 report.

Read the full letter and the attachments to it here.

Filing to FERC on New Landslide Information

In their “Motion to Intervene (Out of Time) in Docket No CP15-554 Atlantic Coast Pipeline – Request to review new information and to issue a stop work order,” filed recently with the Federal Energy Regulatory Committee, Richard and Jill Averitt and other family members ask FERC to review the LIDAR work done by Dr. Anne Witt of the Virginia Department of Mines, Minerals and Energy. They call attention specifically to the slopes near their home that are part of the Atlantic Coast Pipeline path, and the disturbing results of an overlay of LIDAR data with the ACP route.

Read the Motion to Intervene here.

Read more about Dr. Witt’s LIDAR work and the heightened potential for landslides along the ACP route here and here.