From Allegheny-Blue Ridge Alliance’s ABRA Update 278, May 28, 2020:
It was six years ago this week that Dominion Energy began contacting local officials in Virginia and West Virginia to advise them of the company’s plans to build a natural gas pipeline through their communities. Initially called the Southeast Reliability Project, the pipeline was to cost $4 billion and be operational by end of 2018. In September, the project was re-named the Atlantic Coast Pipeline (ACP) and Duke Energy was named as a partner. Also in September 2014, the organization of ABRA was announced.
In its briefings of county boards that summer, Dominion representatives stated:
The project would be the “energy equivalent of broadband infrastructure,” providing a “key driver in a community’s ability to attract economic development.”
It would promote price stability and enhance economic opportunity.
Substantial economic benefits including a substantial number of well-paying construction jobs and additional tax base in communities along the route” would be provided.
Dominion looks forward to working with affected landowners and communities “to ensure that we can optimize the balance of environmental stewardship and economic opportunity that is created” by the project.
As of May 2020:
The project, approved by the Federal Energy Regulatory Commission on October 13, 2017, is lacking 8 key permits, primarily as the result of lawsuits brought by ABRA members and allied organizations. The missing permits are those from the Forest Service, Park Service, Fish and Wildlife Service, Virginia Air Pollution Control Board and needed permits from four Army Corps of Engineers Districts.
Construction on the project has remained suspended since December 2018, 17-months ago.
The estimated cost of the ACP is now $8 billion, twice the original estimate.
The ACP, if built, is not expected to be operational until 2022, 3-years later than planned.
The final chapter of this story has yet to be written. ABRA members and supporters can take satisfaction in the fact that they have had a major part in influencing the story so far.
From Allegheny-Blue Ridge Alliance’s ABRA Update #276, May 14, 2020
A May 7  request by attorneys general of 10 states and the District of Columbia for a moratorium on approvals of all new and pending natural gas pipelines, LNG facilities and related fossil-fuel infrastructure projects during the COVID-19 pandemic has been summarily rejected by the Chairman of the Federal Energy Regulatory Commission (FERC). The AGs’s letter argued that a moratorium is “necessary to preserve the due process rights of interested parties, many of whom are dealing with unprecedented challenges to their health and economic wellbeing from the COVID-19 crisis and whose ability to participate in hearings and proceedings may be accordingly constrained.”
Chatterjee said: “Hindering the build-out of energy infrastructure now could have long-term and lasting negative impacts on the delivery of energy in the future. For these reasons, I view requests for a moratorium on energy projects to be short-sighted and impractical. Any step to slow the energy economy is a step in the wrong direction.”
If you were not able to listen to the oral arguments before the D.C. Circuit Court of Appeals on Monday, April 27, 2020, on “tolling orders,” the long-standing practice of the Federal Energy Regulatory Commission (FERC) to delay making decisions on appeals of its rulings, the audio is available here[all 3.5 hours of it!]. In a first for the court, the arguments were presented via telephone before all of the 11 active judges on the D.C. Circuit. The case, Allegheny Defense project v. FERC, had initially been decided 2-1 last August in FERC’s favor by a three-judge panel of the court, but a stinging dissent by Judge Patricia Millet led to the full court to hear the case.
According to Allegheny-Blue Ridge Alliance’s ABRA Update 274, “During the course of Monday’s session, several judges expressed skepticism about FERC’s tolling order policy, which effectively permits a project to proceed in taking property through eminent domain and completing a pipeline before affected parties, including landowners, receive a decision on their appeal of the project’s certificate and, if denied, proceed to appeal it in court. It was not clear, though, what decision the DC Circuit might make in the case. In an amicus brief filed by the Southern Environmental Law Center, Earthjustice, Natural Resources Defense Council and the Chesapeake Bay Foundation on behalf of several ABRA members and numerous affected landowners argued that FERC habitually tolls requests for rehearing in such a way that a timely judicial review is precluded. The brief goes on to note that the practice is inconsistent with the Supreme Court’s evaluation of Access-to-Justice Principles.”
On April 28, 2020, the Subcommittee on Civil Rights and Civil Liberties of the House Committee on Oversight and Reform released preliminary investigative findings showing that the natural gas pipeline approval process used by the Federal Energy Regulatory Commission (FERC) unjustly tramples on the rights of private landowners.
The Subcommittee released a video report outlining its preliminary findings and interviewing landowners Richard Averitt and Maury Johnson, who have battled FERC and pipeline companies to protect their land, and Carolyn Elefant, a lawyer and expert in FERC issues.
In a press release, Subcommittee Chairman Jamie Raskin said, “The deck is totally stacked against landowners who want to defend their family’s land against takeover by private natural gas companies It’s not a fair process. FERC habitually delays its administrative duties to respond to landowner requests so long that those landowners have no opportunity to have their voices heard. By the time they have the chance to speak up, their land has already been invaded and in some cases destroyed.”
The press release states, “The Subcommittee’s investigation found that in the last twelve years, FERC issued a tolling order to every single landowner who requested a rehearing. In every single case, FERC eventually denied the request. On average, 212 days—about seven months—passed between the time a landowner made a request for rehearing and when FERC ultimately denied it. While those cases are tolled, the eminent domain cases can continue, landowners can lose their property rights, and pipeline companies can destroy their land.”
On Monday April 27, 2020, the D.C. Circuit Court of Appeals will hold the oral argument in the case challenging FERC’s approval of the Atlantic Sunrise Project (Allegheny Defense Project v. FERC). The case considers the pervasiveness of FERC’s unjust tolling practice and how it has real effects on individuals and groups who are kept out of court while construction is allowed to proceed. The full D.C. Circuit will take up the issue of whether to put an end to this practice.
Monday’s argument will begin at 9:30 am, and each side will have 30 minutes. The argument will be held by phone, and the public can listen to the live-stream through the D.C. Circuit’s website by clicking on the arrow under Daily Calendar with Live Audio (on the left sidebar).
Click here for a brief review of the case in a National Law Review article on January 17, 2020.