Category Archives: Request for Rehearing

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.

Where’s the Promised Hearing?

Writing in the Virginia Mercury on February 13, 2019, members of the POWHR Coalition ask, “Where’s the pipeline hearing you promised?”

The State Water Control Board passed a motion on December 13, 2018, requiring a hearing on whether the water quality certificate for the Mountain Valley Pipeline should be revoked. But eight weeks later, no hearing date has been announced and the MVP continues to inflict damage.

“MVP’s ongoing pattern of violations disproves the assertion that formed the basis for certification, that compliance with water quality standards was reasonably assured. Every day that passes without a stop work order from the commonwealth undermines the board’s intention to reconsider the question of reasonable assurance. The Department of Environmental Quality’s refusal to issue stop-work orders where harm continues and imminent threats to water quality now exist betrays the state’s duty to use its full authority to protect our resources.”

The authors call on the Board to:

  • meet as soon as possible
  • vote that DEQ and the attorney general act immediately to stop work and prevent even further damage
  • provide an opportunity for meaningful citizen input. “In this case, participation by citizens is especially necessary to ensure that the interests of the public and the environment are represented. Recent disclosures by a former board member show that DEQ Director David Paylor is hostile to citizens.”

“It is important to stress that the authority for the notice and hearing process lies with the board; DEQ is merely tasked with carrying out the board’s order.”

Read the full article here.

On February 14, 2019, a meeting was announced for March 1, 2019, to discuss details on when the actual hearing will take place, and the format it will take.  The Water Board meeting to discuss a time and process for the actual hearing is scheduled to begin at 10 a.m. at the DoubleTree by Hilton, 1021 Koger Center Blvd., Richmond.

FERC Upholds MVP Approval in 3-2 Vote

The three Republican Trump appointees on the Federal Energy Regulatory Commission (FERC) voted on June 15, 2018, to uphold FERC’s previous approval of the Mountain Valley Pipeline and denied a request for rehearing. Democrats Cheryl LaFleur and Richard Glick dissented, questioning the finding of a market demand, since all of the pipeline’s shipping agreements are with corporate affiliates of the project’s five developers. When the rehearing request was filed in late 2017, FERC issued a tolling order, meaning the project was allowed to go forward while awaiting FERC’s action on the rehearing request. Thus, construction is well already underway. However, FERC’s formal refusal to rehear means a direct legal challenge by pipeline opponents may now go forward.

See news coverage of FERC’s denial in the Roanoke Times and the Richmond Times-Dispatch.

FERC Asked to Stop ACP Construction

ACP Construction, Upshur County, WV – June 8, 2018 Photo taken by ABRA Pipeline Air Force

A motion was filed June 11, 2018, with the Federal Energy Regulatory Commission requesting that the agency immediately revoke its May 11, 2018, authorization for construction to proceed in West Virginia for the Atlantic Coast Pipeline. The action, filed by the Southern Environmental Law Center on behalf of Defenders of Wildlife, Sierra Club and Virginia Wilderness Committee, was prompted by a report last week to ABRA’s Compliance Surveillance Initiative (CSI) of construction activity occurring south of Buckhannon, West Virginia (in Upshur County). The construction work was subsequently verified by photographic evidence produced by the ABRA/CSI Pipeline Air Force (one of the photos is above).

In Monday’s filing, SELC said:

Petitioners request that the Commission grant rehearing, immediately revoke the West Virginia Notice to Proceed, and stay all pipeline construction authorized by the Notice. On May 15, 2018 the Fourth Circuit Court of Appeals vacated the Fish and Wildlife Service’s Incidental Take Statement for the Atlantic Coast Pipeline. Therefore, Atlantic and Dominion are not in compliance with two mandatory conditions of the project’s Certificate Order: Environmental Condition 54 and Environmental Condition 10. Certificate Order, Appendix A, ¶¶ 10, 54. Both of these conditions require a valid incidental take statement before pipeline construction proceeds.

A copy of the full SELC motion is available here.

FERC Answers Kaine

In a January 5, 2018 letter to FERC Chair Kevin McIntyre, Senator Tim Kaine requested that FERC grant rehearings on the Mountain Valley Pipeline and Atlantic Coast Pipeline petitions and asked for clarification on “tolling orders,” which some suggest are a way for FERC to freeze legal appeals while allowing construction to move forward. (See our story on January 5, 2018)

In a letter dated February 5, 2018, FERC responded to Kaine, saying, “On October 13, 2017, when the Commission had a quorum consisting of three commissioners, the Commission approved both the MVP and ACP Projects. Although the decision on those projects was not unanimous, it was a Commission approval that remains valid without regard to the number of commissioners present today.”

The requested clarification on “tolling orders” is not very clear. FERC suggests that the tolling order does not necessarily help the pipeline developer because, after all, should the developer go ahead and continue work, it “bears the risk that the Commission will revise or reverse the initial decision or that the Commission’s order will be overturned on appeal.” Of course, the risk of irreversible damage being done to a landowner’s property is not even mentioned.

Petition: Demand Greater Scrutiny of the ACP and MVP

Earlier this month, Senator Tim Kaine called on the Federal Energy Regulatory Commission (FERC) to hold rehearings for the Atlantic Coast (ACP) and Mountain Valley (MVP) fracked-gas pipelines.

Show your support for Senator Kaine’s request and urge your Congressional representatives to do the same!

The ACP and MVP would be the largest emitters of greenhouse gases in the region with more than 95 million tons of GHG emissions per year. These pipelines would increase the threat of climate change and impose significant environmental damage to our mountains, streams and rivers.

We don’t need these pipelines to meet our energy needs. Companies like Dominion Energy have created the illusion of demand by selling the pipeline’s capacity to their own subsidiaries.

Sign the Sierra Club petition! Ask your representative to call on FERC for rehearings now!