Category Archives: Forest Service

Round-up of Legal Challenges to the ACP

This excellent update on the current legal challenges to the Atlantic Coast Pipeline comes from Allegheny-Blue Ridge Alliance (ABRA) Update #221

The lawsuit challenging the FERC certificate for the Atlantic Coast Pipeline (ACP) has finally been scheduled for briefs to be filed by April 5. The suit, which was filed August 16 with the 4th Circuit Court of Appeals but was re-assigned to the DC Circuit Court of Appeals, was brought on behalf of a group of ABRA member organizations and other plaintiffs. The plaintiffs are represented by Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates (Appalmad). Arguments before the court are not expected to be scheduled until sometime in the Fall. Here’s a brief status report on two other pending cases that challenge ACP permits:

  • Forest Service – The challenge to the U.S. Forest Service’s issuance of a Special Use Permit for the ACP on January 23 was filed February 5, 2018 with the 4th Circuit Court of Appeals. Plaintiffs are a group of ABRA members and others, represented by SELC and Appalmad. The Fourth Circuit vacated the permit in a December 13 decision, thus denying the ACP the right to cross the Appalachian National Scenic Trail (ANST), which the Court said the U.S. Forest Service lacked the legal authority to grant. An appeal of that ruling to the entire Fourth Circuit (an en banc hearing before all fifteen of the Court’s judges) was denied on February 25. Dominion Energy has said it will appeal the decision by late May to the U.S. Supreme Court. That appeal has not yet been made. It is worth noting that only about one percent of the cases that are appealed to the Supreme Court are heard. In the meantime, Dominion has been lobbying Congress since the Fourth Circuit’s December decision to have language added to pending legislation that would override the Court’s vacating of the Forest Service permit to cross the ANST. To date, those lobbying efforts have not succeeded. ABRA asks that contacts be made with Members of Congress to urge them to oppose such an action. For the Action Alert, click here.
  • Air Permit for Buckingham Compressor Station – The January 8 decision by the Virginia Air Pollution Control Board to grant an air permit for the proposed ACP compressor station in Buckingham County, VA was challenged in a lawsuit filed with the Fourth Circuit Court of Appeals by the Southern Environmental Law Center on behalf of Friends of Buckingham. A proposed briefing schedule for the case will be filed in early May, with arguments in the case not likely until sometime this Fall.

Forest Service Joins Dominion to Challenge 4th Circuit Decision

ABRA Update 217 from Allegheny-Blue Ridge Alliance reports that on February 11, 2019, the US Forest Service (NFS) filed a petition for review of the Fourth Circuit Court of Appeals decision in December vacating the NFS permit for the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail. Atlantic Coast Pipeline, LLC (ACP, LLC) had previously filed a challenge to the decision, on January 28. The NFS petition states:

. . . the Forest Service seeks rehearing of the panel’s holding that National Forest System land traversed by the Appalachian National Scenic Trail “is land in the National Park System.” Slip op. 52. That holding presents “a question of exceptional importance,” Fed. R. App. P. 35(a)(2), because it may preclude the construction of infrastructure for any pipeline across all federal lands traversed by the 2100-mile Appalachian Trail in states within the jurisdiction of this Court, and because it contradicts the plain language of the National Trails System Act and the agencies’ consistent practice over eighty years of Appalachian Trail management. The panel’s holding also calls into question the validity of dozens of Forest Service permits for electrical transmission lines, telecommunications sites, municipal water facilities, roads, and grazing areas.

Reaching this issue was unnecessary to the judgment. The Forest Service seeks rehearing to preclude the above-described holding from having precedential effect— with disruptive consequences for the many operations of the Forest Service and the Park Service in this Circuit.

The NFS petition, like the previously one filed by ACP, LLC, requests that all fifteen members of the Fourth Circuit hear the appeal. At this writing, the Court has not yet acted on either petition.

Call or Write Your Senators!

The Richmond Times-Dispatch reported on December 3, 2018, that “Legislation is pending in Congress that would give the National Park Service clear authority to allow construction of the Atlantic Coast Pipeline beneath the Appalachian Trail and Blue Ridge Parkway…. Dominion Energy, lead partner in the $7 billion project, confirmed the legislative proposal, which first surfaced in a blog post from an Alabama group that suggested aid for the 600-mile natural gas pipeline is ‘tucked into the omnibus spending bill’ being negotiated by Sen. Richard Shelby, R-Ala., chairman of the Senate Appropriations Committee.”

The Fourth Circuit Court of Appeals has vacated a federal approval for the Atlantic Coast Pipeline to cross the Monongahela National Forest, George Washington National Forest, and Appalachian Trail.

Having been thwarted by the court in efforts to bend the National Forest and the National Parks Services to its will, Dominion is trying circumvent the court ruling by sneaking a last-minute amendment into a pending appropriations bill for the Department of Interior that would permit the Atlantic Coast Pipeline to cross the Appalachian Trail and Blue Ridge Parkway near Wintergreen and Reed’s Gap.

Although we understand that (at this moment) the amendment has been pulled, we should assume that Dominion is pulling out all the stops to get something from Congress to sidestep the court’s ruling.

Write or call (or better yet, do both!) your Senators and tell them that you are upset about any possible legislative “slight of hand,” that you oppose any last minute amendments to the budget reconciliation bill, especially one that would allow gas pipelines to cross our national forests and the Appalachian Trail, and that you oppose Dominion’s efforts to make an end run around the clear and carefully considered ruling of the Fourth Circuit Court.

Tim Kaine
https://www.kaine.senate.gov/contact/share-your-opinion
Phone: 202-224-4024

Mark Warner
https://www.warner.senate.gov/public/index.cfm?p=ContactPage
Phone: 202-224-2023

SELC Asks FERC to Revoke ACP’s Certificate

Allegheny-Blue Ridge Alliance reports that in a filing late December 13, 2018, the Southern Environmental Law Center (SELC) asked the Federal Energy Regulatory Commission (FERC) to revoke the certificate for the Atlantic Coast Pipeline in light of the decision earlier in the day by the Fourth Circuit Court of Appeals to vacate the U.S. Forest Service’s approval for the pipeline to cross national forest lands and the Appalachian National Scenic Trail. In its 65-page letter to FERC, SELC stated:

Crucially, the court held that the Forest Service does not have statutory authority to authorize the pipeline to cross the Appalachian Trail. As a result, under federal law, Atlantic Coast Pipeline, LLC (“Atlantic”) cannot obtain authorization from federal agencies to cross the Trail as proposed. Thus, the Commission’s Certificate approves a project that cannot be constructed in compliance with federal law. Further, the proposed Appalachian Trail crossing is a linchpin in the Commission’s alternatives analysis—almost every alternative considered in the Final EIS includes this crossing point. See ACP Final EIS at 3-18 to 3-19. In light of the court’s decision, that analysis is not valid and cannot be used to approve a re-route of the project at this stage. The Commission must therefore revoke the Certificate of Public Convenience and Necessity. Further, the Commission must issue a formal stop-work order, effective immediately, halting all construction activities because the court’s decision means that Atlantic continues to be out of compliance with a mandatory condition of its Certificate of Public Convenience and Necessity.

 

Fourth Circuit Court Throws out ACP’s Forest Service Permit


On December 13, 2018, the Fourth Circuit Court of Appeals vacated a federal approval for the Atlantic Coast Pipeline to cross the Monongahela National Forest, George Washington National Forest, and Appalachian Trail.

The case was argued before the Court on September 28, 2018, with the Southern Environmental Law Canter and Appalachian Mountain Advocates representing the plaintiffs.

The Court found that the Forest Service “abdicated its responsibility to preserve national forest resources,” and noted the agency’s “serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.” The opinion says the Forest Service violated the National Environmental Policy Act, National Forest Management Act, and did not have authority under the Mineral Leasing Act to grant a right-of-way across the Appalachian Trail.

Read the Court’s opinion here.

See news coverage from Virginia Mercury here.

See news coverage from the Washington Post here.

See news coverage from the Richmond Times-Dispatch here.

Be aware: The Richmond Times-Dispatch points out that, “Dominion’s allies in Congress reportedly are considering an amendment to a pending appropriations bill for the Department of Interior that would permit the crossing of the Appalachian Trail and Blue Ridge Parkway near Reed’s Gap.”  Additional information hereContact your Senators and Representatives to urge them to oppose any legislative amendment that would give the National Park Service unchecked authority to allow pipeline construction.

Congressional Act to Allow Pipelines to Cross Appalachian Trail and Blue Ridge Parkway?


Say “NO!”

On December 3, 2018, KPVI6 reported that “Legislation is pending in Congress that would give the National Park Service clear authority to allow construction of the Atlantic Coast Pipeline beneath the Appalachian Trail and Blue Ridge Parkway, both potentially critical obstacles under litigation pending in the 4th U.S. Circuit Court of Appeals. Dominion Energy, lead partner in the $7 billion project, confirmed the legislative proposal, which first surfaced in a blog post from an Alabama group that suggested aid for the 600-mile natural gas pipeline is ‘tucked into the omnibus spending bill’ being negotiated by Sen. Richard Shelby, R-Ala., chairman of the Senate Appropriations Committee.”

Dominion’s Aaron Ruby emailed the Richmond Times-Dispatch, saying that, “Congress is considering a legislative amendment that would explicitly authorize the park service to grant a permit for such a crossing.”

The Park Service has twice issued permits for the ACP to cross the Parkway. After the first permit was issued, the 4th Circuit Court of Appeals vacated it in early August as an “arbitrary and capricious” exercise of the agency’s powers. At the same time, the Court also issued a stay of the permit the Forest Service issued for the ACP to cross the Appalachian Trail. After the two agencies [minimally] revised their permits, FERC lifted the stay order, but appeals against the reissued permits are pending, and legal briefs to the Court are due at the end of this week.

In vacating the Park Service permit in early August, Judge Gregory did not rule decisively on whether the Park Service has authority to issue the permit under the Blue Ridge Parkway Organic Act, but he said it had failed to show how the project is consistent with the purposes of the parkway and National Park System. For example, the Park Service had conducted a visibility study and found that because the crossing at Reeds Gap near the Wintergreen entrance would be very visible, it would “thus significantly decreasing the park’s scenic value.”

In trying to get Congress to pass a bill (buried in the omnibus spending bill where they surely hoped no one would notice it) giving the Park Service authority to allow construction, Dominion is clearly trying to make an end run around pending Court rulings that might not be in their favor. Austin “DJ” Gerken, an attorney for the Southern Environmental Law Center, commented, “It’s disappointing but not surprising that Dominion would try to bend the law to its will. It’s already tried to bend the agencies to its will.” And he added, “The fact that Dominion is trying to work around [the law] before it even knows what the court has ruled is really shocking and bold.”

Take action! Contact your Senators and Representatives to urge them to oppose any legislative amendment that would give the National Park Service unchecked authority to allow pipeline construction. Contact Senator Shelby and other members of the Senate Appropriations Committee. Senator Kaine’s office says he does not support the measure, so thank Senator Kaine for protecting the land held in common for all of us to enjoy.