Senior U.S. District Judge Norman Moon issued an opinion on Monday March 9, 2020, finding that the Natural Gas Act preempts Nelson County’s floodplain ordinance, siding with the Atlantic Coast Pipeline and finding federal law superseded the county’s effort to block the project from crossing designated flood plains.
On December 3, 2018, on a 3-2 vote, the Nelson County Board of Zoning Appeals denied four of Dominion’s applications for the variances to the County’s flood plain ordinance needed to construct the Atlantic Coast Pipeline across flood plains in Nelson. The Nelson County Zoning Ordinance specifically includes “Structures or facilities that produce, use, store, or transport highly volatile, flammable, explosive, toxic, and/or water-reactive materials” in the list of “critical facilities [that] are prohibited from being constructed or operated within a SFHA [Special Floodplain Hazard Area] unless a Variance is granted.” (Article 10.15F on p. 87)
Three days after the Nelson BZA denial of variances, on December 6, 2018, Atlantic Coast Pipeline filed a lawsuit against the Nelson County Board of Supervisors in the Western District of Virginia’s Federal Court, asking the Court to enter judgement declaring that Nelson’s zoning ordinance and floodplain regulations are preempted by federal regulations and therefore null and void as applied to the ACP, and to enter an injunction enjoining Nelson County from enforcing any of its zoning ordinances and floodplain regulations that may affect ACP construction. The case was heard before Judge Moon on April 8, 2019.
In his opinion, Judge Moon wrote, “Nothing gives these floodplain regulations, as modified, the force of federal law now,” – referring to the county’s zoning ordinances. “Rather… because the floodplain regulations and their application through the [county] to deny Atlantic’s variance request stands as a clear obstacle to the meaning and purposes of the [Natural Gas Act], it is therefore preempted as applied to the Atlantic Coast Pipeline.”
Nelson County now must decide whether to appeal the ruling to the Fourth Circuit Court of Appeals in Richmond. The Fourth Circuit has vacated a number of permits that Dominion needs in order to construct and operate the Atlantic Coast Pipeline, finding repeatedly that Dominion and relevant Federal agencies have acted arbitrarily, capriciously and not in accordance with law.
In addition, Nelson County’s floodplain ordinances play a critical role in potentially stopping the Army Corps of Engineers from authorizing construction of the Pipeline, even if the ruling is upheld. On February 11, 2020, the Southern Environmental Law Center sent a letter to the United States Army Corps of Engineers, Norfolk District, stating that they cannot lawfully reinstate their suspended verification that the proposed Atlantic Coast Pipeline is authorized to be constructed using Nationwide Permit 12. The pipeline developer, Atlantic Coast Pipeline, LLC (Atlantic), expressly plans to violate at least one of the permit’s general conditions and has taken steps to do so, despite making contrary representations to the Corps and other regulators. The letter stated that the Norfolk District cannot reinstate its suspended verification because:
- General Condition 10 of Nationwide Permit 12 requires Atlantic to “comply with applicable FEMA-approved state or local floodplain management requirements.”
- Nelson County’s floodplain ordinance adopts a FEMA recommendation that critical facilities not be located within floodplains by mandating that any such facility proposed to be located in a special flood hazard area receive a variance.
- Atlantic will not satisfy General Condition 10 unless Atlantic complies with the variance requirement, regardless of the outcome of Atlantic’s separate lawsuit that is referred to above.
- The Corps cannot lawfully excuse Atlantic’s plan to violate General Condition 10 by failing to comply with the variance requirements.
The letter stated that, under the circumstances, reinstating the suspended verification would be arbitrary, capricious, and not in accordance with law.