Category Archives: FERC

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’

Wintergreen Responds to FERC’s defense of ACP

On July 10, 2019, Friends of Wintergreen, Wintergreen Property Owners Association, and the Fairway Woods Homeowners Condominium Association jointly responded to Federal Energy Regulatory Commission’s defense of the $7.5 B Atlantic Coast Pipeline. Wintergreen plaintiffs are challenging FERC’s order to approve the project, saying FERC was “arbitrary and capricious” in its approval and did not consider several critical factors, such as community safety issues. The next step in the process will be oral arguments before the 5th Circuit Federal Court or a decision.

Friends of Wintergreen announcement here.

See the filing here.

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.

FERC and ACP File Response Briefs in Challenge to ACP Certificate

From Allegheny-Blue Ridge Alliance’s ABRA Update 235:

The lawsuit challenging the certificate of the Atlantic Coast Pipeline (ACP) moved a step closer to being considered by the DC Circuit Court of Appeals with the filing of response briefs by the Federal Energy Regulatory Commission (FERC), on June 18, and Atlantic Coast Pipeline, LLC (ACP, LLC), on June 26. The pending case consolidates several individual suits brought by a group of ABRA members and other organizations, as well as several individual landowners. Counsel representing the plaintiffs include Southern Environmental Law Center and Appalachian Mountain Advocates.

The plaintiffs’ brief, filed on April 5, argued that: 1) FERC’s authorization of the ACP served no demonstrated need and that it’s finding of need based solely on precedent agreements between the project sponsors and affiliated utilities was insufficient; 2) the certification was based on unsupported assumptions and thus violated the Federal Environmental Protection Act (NEPA); 3) environmental justice considerations were improperly evaluated; and 4) the exercise of eminent domain was in violation of the Natural Gas Act and the U.S. Constitution because required conditions of the certificate were not followed.

FERC’s response brief argues that all required issues were properly addressed in the agency’s consideration of the project’s certification. The brief further states:

Over the course of an extensive three-year regulatory review process culminating in a rehearing order issued in August 2018, the Commission carefully weighed the evidence of public benefits against the potential adverse economic and environmental effects of authorizing the Atlantic Coast Pipeline and related Supply Header Project (together, the “Project”). Although the Commission found that the Project may result in some adverse environmental impacts, the Commission ultimately concluded that the Project, if constructed and operated in accordance with federal standards and specific environmental, safety, and regulatory conditions imposed by the Commission, will serve the public interest.

The ACP, LLC response brief makes contentions similar to FERC’s, that the agency’s decision-making process in issuing the certificate was supported by substantial evidence and was in full compliance with all applicable legal procedures. It is worth noting that many of the points made in the April 5 plaintiffs’ brief to which FERC and ACP, LLC responded are not addressed in their briefs.

The case has not yet been scheduled for oral argument before the DC Circuit.

Joint Comment Made to FERC

Friends of Nelson joined 15 other public interest organizations in signing a joint comment to the Federal Energy Regulatory Committee (FERC) in response to their Notice of Inquiry on on whether and how to revise its rate of return on equity (ROE) policy for projects, including new gas pipelines. Discussion points in the joint comment include:

  • 14 percent ROE is excessive in relation to other capital-intensive regulated projects
  • Profit-driven pipeline affiliate deals place captive ratepayers at risk
  • Traditional utilities are lured by lucrative pipeline profits
  • A 14 percent ROE overstates utility pipeline investor risk
  • Pipeline investments are at risk of becoming stranded assets
  • Pipeline overbuild is occurring

To read the full comment, click here.

The comment period for FERC’s Notice of Inquiry ended on June 26, 2019.