Category Archives: FERC

Briefs Filed in Appeals Court Suit Against FERC and ACP

The following briefs have been filed (to date) in the suit against the Federal Energy Regulatory Commission (FERC) and Atlantic Coast Pipeline (ACP).

The Joint Opening Brief of Conservation Petitioners [including Friends of Nelson] and Landowner Petitioners, filed by the Southern Environmental Law Center (SELC) on April 5, 2019.

Briefs filed by parties that are challenging part or all of FERC’s certificate for the pipeline:

Amici curiae, or “friends of the court,” briefs in support of of the suit”

And one brief filed by ACP itself, challenging one element of FERC’s certificate:  Opening brief filed by Atlantic Coast Pipeline, LLC

(The addendum of statutes and regulations from several of these briefs was removed to make the file sizes more manageable.)

What happens next:  According to the SELC, FERC’s response brief is due on June 19, ACP’s response brief is due on June 26, and SELC’s reply brief is due on July 10, along with the reply briefs of their fellow petitioners. Oral argument will likely be scheduled for sometime in the fall.

NC General Assembly Members Ask FERC to Halt ACP

After a lobby day last week, 22 members of the North Carolina General Assembly signed an April 12, 2019 letter to FERC urging “the Commission to issue a stop work order, and suspend the Certificate of Public Convenience and Necessity in order to re-assess the need for the Atlantic Coast Pipeline.”

Sierra Club, NC Pipeline Watch, NC Conservation Network, other partners, and congregants from the NC Council of Churches met at the North Carolina General Assembly to advocate for the future world they want to live in. Community lobbyists also passed out the NC Council of Church’s governing board’s statement opposing fracked gas pipelines; the Council represents more than 1.5 million congregants across the state.

Groups File Federal Appeals Court Brief Challenging ACP

On Friday April 12, 2019, a group of ten religious, social justice, and civil rights organizations filed a “friend of the court” brief urging the Federal Court of Appeals in DC to revoke the key federal permit for the Atlantic Coast Pipeline.

The ten groups are Center for Earth Ethics (headed by Karenna Gore); Kairos Center for Religions, Rights, and Social Justice; the Natural Resources Defense Council; the North Carolina Poor People’s Campaign, Repairers of the Breach (led by Rev. William Barber III); Satchidananda Ashram – Yogaville, Inc.; Union Grove Missionary Baptist Church; Virginia Interfaith Power & Light; Virginia State Conference NAACP; and WE ACT for Environmental Justice. All we reaffirming long-standing opposition to the ACP.

Jonathan Sokolow, writing in Blue Virginia on April 15, 2019, explains that, “The 50-plus-page court filing states that the Federal Energy Regulatory Commission (FERC) violated federal law and ‘ignored significant minority populations that live along the proposed route.’ It argues that the permit issued by FERC should be revoked because FERC ‘did not take a hard look at the health and environmental effects of the Atlantic Coast Pipeline’ on ‘environmental justice communities.’ It points in particular to FERC’s failure to consider the disproportionate effect that the pipeline would have on the historic African American community of Union Hill, in Buckingham County, as well as on Native American communities along the proposed route. As the brief points out, Dominion Energy seeks to build three compressor stations to transport fracked methane ‘natural’ gas along a 600-mile route from West Virginia through Virginia and North Carolina. ‘All three compressor stations would be located in census tracts where the minority population, or the population under the poverty level, is higher than the state average.'”

Martina Cole, writing for NRDC, cites examples of FERC’s flawed analysis:

  • Misguided use of census tract data masks communities of color
  • Failure to assess adverse, disproportionate impacts on communities of color

She notes that FERC’s actions are a model of environmental injustice. “In the first instance, FERC’s gerrymandered analysis led to the erasure of communities of color, which led to it not analyzing the ACP’s unique effect on these communities, which led to its faulty conclusion that the ACP would have no disproportionately high and adverse impacts on African American communities. Then when FERC did acknowledge the existence of a minority environmental justice community, its striking disregard of the clear health risks to the community amounted to the same erroneous conclusion of no impact. In each case, FERC’s flawed analysis helped produce FERC’s faulty approval of the project. This is what environmental injustice looks like.”

Cole finishes by saying, “It is soberingly clear how and why polluting fossil fuel infrastructure is disproportionately placed in communities of color, and FERC’s permissive and inappropriate approach to reviewing these projects facilitates this environmental injustice. The D.C. Circuit can prevent imminent harm to environmental justice communities along the ACP path by vacating FERC’s undue approval of the ACP. Alternatively, the court could remand the case back to FERC for a real analysis that is consistent with the law’s requirements. Such an analysis would not obscure the facts. It would recognize environmental justice communities and the threats they face. It would reveal the disproportionate burden the ACP would have on vulnerable communities. It would thoroughly review project alternatives. It would demonstrate that environmental justice communities matter. As part of a fulsome public interest analysis, a reasoned environmental justice review would further demonstrate what is already known: that the ACP is not needed, is environmentally unjust, would cause permanent environmental damage, and should be rejected.”

Read Jonathan Sololow’s full Blue Virginia column here.

Read Martina Cole’s full NRDC post here.

Read the full Amicus Brief here.

Brief Filed in Lawsuit Challenging ACP’s FERC Certificate

From ABRA Update 225, April 11, 2019:

The opening brief in a lawsuit challenging the Federal Energy Regulatory Commission’s (FERC) certificate that allows construction of the Atlantic Coast Pipeline (ACP) was filed on April 5 with the U.S. Court of Appeals for the District of Columbia. Appalachian Voices, et. al. vs. FERC, which includes several ABRA members as plaintiffs, had originally been filed with the Fourth Circuit Court of Appeals. It was subsequently transferred to the DC Circuit Court where it was consolidated with several other pending cases that challenged the FERC certificate for the ACP.

The principal arguments made in the April 5 brief are:

  1. FERC’s exclusive reliance on precedent agreements with affiliated monopoly utilities to establish market need for the project was arbitrary and capricious. Such precedent agreements are unreliable evidence for market need.
  2. FERC’s Environmental Impact Statement on the ACP was seriously deficient and thus violated requirements of the National Environmental Protection Act (NEPA). Specifically:
     – FERC failed to adequately consider the adequacy of existing transmission systems and off-forest alternative routes;
    – The impacts to aquatic resources, including sedimentation impacts and impacts in karst terrain, were inadequately analyzed by FERC;
    – Analysis of environmental justice impacts by FERC was flawed;
    – Impacts of downstream greenhouse gas emissions were insufficiently considered; and 
    – FERC’s refusal to use the Social Cost of Carbon without an adequate explanation was arbitrary and capricious.
  3. Allowing the ACP, LLC to exercise eminent domain violates the Natural Gas Act and the Constitution because 1) several required permits and related conditions for the project have been vacated, thus removing the basis on which eminent domain authority should be exercised, 2) the use of eminent domain for the ACP thus violates the takings clause of the Constitution and also violates due process.

A copy of the complete brief is available here.

FERC Announces Review Schedule for Proposed MVP Extension

From Allegheney-Blue Ridge Alliance’s ABRA Update #222 for March 21, 2019:

The Federal Energy Regulatory Commission (FERC) has announced its schedule for issuing a Final Environmental Impact Statement (FEIS) for the Southgate Project, a proposed extension of the Mountain Valley Pipeline (MVP) into North Carolina. Specifically, the proposal is a 73-mile natural gas pipeline connecting with the MVP in Pittsylvania County, VA and extending to Rockingham and Alamance Counties in North Carolina. The Southgate Project would also include construction of a 29,000 horsepower compressor station in Pittsylvania County (about half the size of the proposed Buckingham compressor station for the Atlantic Coast Pipeline). The pipeline would transport 375 million cubic feet of natural gas per day. FERC’s March 14 notice of the FEIS schedule is:

  • Issuance of Notice of Availability of the final EIS: December 19, 2019
  • 90-day Federal Authorization Decision Deadline: March 18, 2020

The Southgate Project has encountered stiff opposition since it was first proposed in mid-2018. In September, the Alamance County Commissioners adopted a resolution in opposition to the project. The March 15 FEIS notice acknowledges that “major issues raised during scoping include project need, water quality degradation, environmental impacts, and private property rights and valuation.”

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.