On November 27, 2018, a group of six ABRA members – Appalachian Voices, Chesapeake Climate Action Network, Sierra Club, West Virginia Highlands Conservancy, West Virginia Rivers Coalition, and Wild Virginia – asked the Federal Regulatory Commission to issue a stop work order for the Atlantic Coast Pipeline (ACP). On November 9, the same organizations had requested a stop-work order. The new request, sent by Appalachian Mountain Advocates on behalf of the six organizations, supplements the November 9 request, noting that the project has recently lost permits from three U.S. Army Corps of Engineers districts (Norfolk, Wilmington and Huntington) to construct the ACP over streams under the Corps’ Nationwide 12 permit. FERC’s October 13, 2017 Certificate to the ACP requires all federal authorizations to be in place in order for construction to take place. The letter states:
As a result of the suspensions of those three authorizations, Atlantic no longer has the requisite federal approval to construct any stream or wetland crossing along its entire route. Atlantic also lacks NWP 12’s authorization for “temporary structures, fills, and work necessary for the remediation of inadvertent returns of drilling fluids to waters of the United States through subsoil fissures or fractures that might occur during horizontal directional drilling [HDD] activities,” meaning that Atlantic lacks the ability to promptly and legally control the all-too-common inadvertent releases from HDD operations that might be performed in lieu of in-stream crossings. Because those mandatory federal authorizations are now lacking, FERC must not allow pipeline construction to continue, not only in waters of the United States but anywhere along the pipeline route.
Natural Gas Intelligence reported on October 16, 2018, that FERC Commissioner Cheryl LaFleur’s, in her speech to North American Gas Forum hosted by Energy Dialogues, discussed the natural gas industry’s “complicated relationship” with climate change. LaFleur has dissented on several recent pipeline decisions and “has critiqued FERC’s approach to assessing climate change impacts from gas projects.”
She spoke of the need for “more in-depth climate assessments as part of a broader desire to see FERC incorporate more information into the record when it analyzes project need, including the anticipated end-uses of the gas.”
She also “called for FERC to go beyond precedent agreements in evaluating the need for a pipeline project. She said basing FERC’s certificate decisions solely on precedent agreements could lead to pipeline overbuild.”
Read the full article here.
Photo by Marion Kanour
On October 3, 2018, Dominion, on behalf of the Atlantic Coast Pipeline, asked FERC for permission to proceed with tree felling in certain areas of Virginia that FERC had not already authorized. On October 5, the Southern Environmental Law Center filed a letter asking FERC to deny the request and to issue a stop-work order in light of the fact that the Fourth Circuit has issued a stay of the Forest Service permit. Because much of Dominion’s filing was “privileged” and not available to the public, SELC also urged the FERC to make publicly available the maps referenced in the ACP request showing where tree felling would occur.
On October 3, 2018, the White House announced the President’s intention to appoint Bernard L. McNamee of Virginia, to be a Member of the Federal Energy Regulatory Commission, for the term expiring June 30, 2020. He would fill the seat vacated by Commissioner Robert Powelson, who resigned from FERC in August to accept a position in the private sector.
According to the White House announcement, Mr. McNamee currently serves as the Executive Director of the Office of Policy for the U.S. Department of Energy. Previously, he served as Deputy General Counsel for Energy Policy at the U.S. Department of Energy and practiced energy law with McGuireWoods LLP. Additionally, Mr. McNamee served four Attorney Generals in two states (Virginia and Texas), was a policy advisor to a Virginia governor, and served as a senior domestic policy advisor to a United States Senator. He earned his B.A. from the University of Virginia and J.D. from Emory University School of Law.
In her guest column in the September 21, 2018, Staunton News Leader (West Augusta pipe yard is putting the ‘cart before the horse’), Nancy Sorrells discusses Dominion’s request to the Augusta Board of Zoning Appeals for a proposed pipe yard in West Augusta. She notes that when FERC was contacted to verify Dominion’s Emmett Toms’ statement to the BZA that they had approval to “leave the thousand dump truck loads of contaminated gravel from the parking area in a pile in the field after construction, rather than take the cleaned gravel to an approved landfill as is standard procedure,” they were told by FERC that “the contractor/pipe yard you referenced below has not been proposed to FERC.”
Further, the area where Dominion proposes the pipe yard (that FERC doesn’t know about) is one that has paved roads of “less than minimum design standards” because the county agreed in 2010 that the area is not to be the target of any development, and therefore should certainly not “have the kind of traffic and heavy equipment that would occur on this road for two years or more with ACP’s proposed construction yard.”
She concludes, “So there you have it: Dominion has proposed something that both DEQ and FERC are unaware of in an area that the county has legally promised never to develop. Cart before the horse? In reality there never should have been a cart or a horse proposed here.”
Early afternoon on September 17, 2018, the Federal Energy Regulatory Commission lifted the stop work order for the Atlantic Coast Pipeline it issued on August 10. The FERC Notice was based on the issuance of new permits by, respectively, the National Park Service and the Fish and Wildlife Service.
- On September 11, 2018, the FWS issued a revised Biological Opinion (BO), which included a modified Incidental Take Statement for the ACP
- Additionally, on September 14, 2018, the NPS issued a new right-of-way permit for crossing the Blue Ridge Parkway
Earlier versions of these permits had been vacated by the U.S. Court of Appeals for the Fourth Circuit, which had prompted FERC to issue its stop work order.
In its press coverage, the Virginia Mercury quotes D.J. Gerken, an attorney with the Southern Environmental Law Center in Asheville, N.C., who said, “The Park Service right of way is almost the same document,” Gerken said. “It’s very disappointing. … It sure looks like more of the same, which is these agencies making political decisions rather than fact-based ones. All of these federal agencies with responsibility to protect public resources moved too fast on a political timetable. This is entirely consistent with that approach. And that’s what got them in trouble last time.” Gerken added, “There is no question that these pipeline developers deliberately race the courts. So no matter how bad the legal violations are, the project is well under way before the courts have an opportunity to review it. This is baked into their business model. It doesn’t matter if it’s wrong as long as it’s fast.”