FERC and ACP File Response Briefs in Challenge to ACP Certificate

From Allegheny-Blue Ridge Alliance’s ABRA Update 235:

The lawsuit challenging the certificate of the Atlantic Coast Pipeline (ACP) moved a step closer to being considered by the DC Circuit Court of Appeals with the filing of response briefs by the Federal Energy Regulatory Commission (FERC), on June 18, and Atlantic Coast Pipeline, LLC (ACP, LLC), on June 26. The pending case consolidates several individual suits brought by a group of ABRA members and other organizations, as well as several individual landowners. Counsel representing the plaintiffs include Southern Environmental Law Center and Appalachian Mountain Advocates.

The plaintiffs’ brief, filed on April 5, argued that: 1) FERC’s authorization of the ACP served no demonstrated need and that it’s finding of need based solely on precedent agreements between the project sponsors and affiliated utilities was insufficient; 2) the certification was based on unsupported assumptions and thus violated the Federal Environmental Protection Act (NEPA); 3) environmental justice considerations were improperly evaluated; and 4) the exercise of eminent domain was in violation of the Natural Gas Act and the U.S. Constitution because required conditions of the certificate were not followed.

FERC’s response brief argues that all required issues were properly addressed in the agency’s consideration of the project’s certification. The brief further states:

Over the course of an extensive three-year regulatory review process culminating in a rehearing order issued in August 2018, the Commission carefully weighed the evidence of public benefits against the potential adverse economic and environmental effects of authorizing the Atlantic Coast Pipeline and related Supply Header Project (together, the “Project”). Although the Commission found that the Project may result in some adverse environmental impacts, the Commission ultimately concluded that the Project, if constructed and operated in accordance with federal standards and specific environmental, safety, and regulatory conditions imposed by the Commission, will serve the public interest.

The ACP, LLC response brief makes contentions similar to FERC’s, that the agency’s decision-making process in issuing the certificate was supported by substantial evidence and was in full compliance with all applicable legal procedures. It is worth noting that many of the points made in the April 5 plaintiffs’ brief to which FERC and ACP, LLC responded are not addressed in their briefs.

The case has not yet been scheduled for oral argument before the DC Circuit.