ACP Appeals Forest Service Decision to U.S. Supreme Court

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

Atlantic Coast Pipeline, LLC (ACP, LLC) on June 25, 2019, filed an appeal with the U.S. Supreme Court asking it to review the December 13, 2018 decision of the Fourth Circuit Court of Appeals that said the U.S. Forest Service lacked the authority to grant a right-of-way for the Atlantic Coast Pipeline (ACP) to cross the Appalachian National Scenic Trail (Trail). The filing by ACP, LCC of a Writ of Certiorari (appeal to a higher court a lower court’s decision) was accompanied by a similar petition by the U.S. Solicitor General. Both had been anticipated. In its petition to the Court, ACP, LLC argued that:

  • “Several environmental groups challenged the pipeline on numerous grounds, including the novel theory that the Forest Service lacked statutory authority to grant a right-of-way because the entire Trail and the land underneath is National Park System land under the exclusive authority of the National Park Service. Because the MLA does not authorize any federal agency to grant pipeline rights-of-way across National Park System land, the import of this theory was not that the wrong federal agency had granted the right-of-way under the Trail, but that no agency had that power.”
  • “. . .the decision imperils not just the billions of dollars invested in this pipeline, but future projects that will cross under the Trail, the 50-some pipelines that already cross under the Trail that require ongoing regulatory approvals from other state and federal agencies, and potentially other projects (including electrical transmission lines, telecommunications sites, municipal water facilities, roads, and grazing areas) that cross national trails administered by the National Park Service. “In short, the decision below is both profoundly wrong and profoundly important. It misreads federal statutes that make clear that the designation of a trail does not transfer authority over the land being crossed. It will chill investment, harm millions of energy consumers, and unsettle longheld agency views. This decision plainly warrants this Court’s plenary review.”

The Solicitor General’s petition echoes the contentions made in the ACP, LLC petition:

“. . . the court of appeals misread the National Trails System Act, decreeing that long sections of the Appalachian Trail within national forests rest on lands that are rendered part of the National Park System as a result of the presence of the Trail on the surface, and therefore cannot be subject to rights-of-way granted under the Mineral Leasing Act. That ruling threatens to hamper the development of energy infrastructure in the eastern United States, including the construction and operation of the natural gas pipeline at issue in this case.”

The Southern Environmental Law Center (SELC), which represents the petitioners that brought the original lawsuit before the Fourth Circuit, has 30 days (until July 25) to file a brief with the Court commenting on the ACP, LLC and Solicitor General petitions. The seven petitioners represented by SELC – all members of ABRA – are: Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

Reuters press coverage of the ACP filing is here.

SELC Comments to Forest Service on AT

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

The Southern Environmental Law Center (SELC) wrote the U.S. Forest Service (USFS) on June 24 regarding the Fourth Circuit Court of Appeals’ December 18 decision that the USFS lacked the authority to grant a right-of-way for the Atlantic Coast Pipeline (ACP) to cross the Appalachian National Scenic Trail (ANST). The SELC letter follows an April 30 communication from USFS to the Atlantic Coast Pipeline, LLC (ACP, LLC) asking the company if it would like the USFS to “renew is consideration of the right-a-way application for the ACP.” The company responded in the affirmative. The SELC letter points out that:

  • “(1) the Cowpasture decision does not affect the Forest Service’s other management authorities for the ANST;
  • “(2) reasonable off-forest alternatives exist for the ACP to cross the ANST; and
  • “(3) while the Forest Service has never before and cannot now issue a new gas pipeline right-of-way across the ANST, options exist for new pipelines to be built in the eastern United States, and existing pipelines are unaffected by the Cowpasture decision.”

SELC further explains to USFS:

  • “We have examined every existing crossing of the ANST by an oil or gas pipeline and confirmed that the Forest Service has never before granted a new right-of-way for an oil or gas pipeline to cross the ANST where it traverses a national forest, until it did so for the Atlantic Coast and Mountain Valley pipelines.”
  • “Of the pipelines that do cross the Appalachian Trail on federally-owned land, nearly all existed before the creation of the Appalachian Trail or before the land was acquired by the federal government. The Mineral Leasing Act applies only to the initial grant of a right-of-way or the renewal of temporary rights-of-way for oil and gas pipelines. See 30 U.S.C. § 185(a), (q). Permanent rights-of-way granted before the creation of the ANST as land in the National Park System are unaffected by the Cowpasture decision because they require no new authorization under the Mineral Leasing Act. Similarly, the federal government took ownership subject to any property rights for permanent rights-of-way that existed prior to federal acquisition; such property rights do not require renewal under the Mineral Leasing Act and are unaffected by the Cowpasture decision.”

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.

Sign the Petition

No pipeline across the Appalachian Trail is a no brainer! Sign on to Wild Virginia’s petition to Senators Kain and Warner asking them to oppose any change to the law that would allow destructive natural gas pipelines to cross the Appalachian Trail on our precious federal lands. Dominion Energy wants a special favor from Congress, allowing it to mar our important scenic areas for its profit.

Joint Comment Made to FERC

Friends of Nelson joined 15 other public interest organizations in signing a joint comment to the Federal Energy Regulatory Committee (FERC) in response to their Notice of Inquiry on on whether and how to revise its rate of return on equity (ROE) policy for projects, including new gas pipelines. Discussion points in the joint comment include:

  • 14 percent ROE is excessive in relation to other capital-intensive regulated projects
  • Profit-driven pipeline affiliate deals place captive ratepayers at risk
  • Traditional utilities are lured by lucrative pipeline profits
  • A 14 percent ROE overstates utility pipeline investor risk
  • Pipeline investments are at risk of becoming stranded assets
  • Pipeline overbuild is occurring

To read the full comment, click here.

The comment period for FERC’s Notice of Inquiry ended on June 26, 2019.

Formal Complaint Against MVP Filed with FERC

Press release from Wild Virginia, June 21, 2019. Contact: David Sligh, ​​​ 434-964-7455

Citizens File Formal Complaint with FERC, Call on State Water Control Board to Intervene and Insist that MVP License Be Revoked or Suspended

On June 21, 2019, Wild Virginia, partner groups, and individuals filed a formal complaint against Mountain Valley Pipeline LLC with the Federal Energy Regulatory Commission. The Complaint is based on MVP’s frequent and repeated violations of state and federal requirements, throughout work on the project.

“We are asking that FERC revoke or suspend the Certificate it issued to MVP,” said David Sligh of Wild Virginia. Through this formal process, parties can also intervene and the complainants are calling on the State Water Control Board to do so and insist that FERC do what its members decided they lack the authority to do -stop the project and defend Virginians and our resources. The Board meets next week, on June 27 and the parties want them to act on this issue at that time.

The FERC approval was based on a finding that MVP was able and willing to meet all requirements, protect the environment, and the people affected. “MVP has shown, through hundreds of blatant violations that is neither able nor willing to obey the law,” Sligh said.

The complaint is joined by the Indian Creek Watershed Association, Preserve Craig, Inc., Betty Werner, and Neal Laferriere. Werner and Laferriere are landowners who have reported ongoing problems and the locally-based groups have seen all of their warnings about the damages MVP would cause come true.

When the Commission issued the Certificate allowing MVP to proceed, it said it “expected strict compliance . .. with any state and federal mandated conditions.” The citizens joining this complaint are asking the Commissioners at FERC to prove that they meant what they said.

Two categories of violations are cited in the complaint. First, is the continued construction on MVP despite the fact that federal licenses to cross waterbodies and the National Forest were rejected by a federal court. Second,MVP has violated a broad range of legal requirements meant to protect the environment, people, and property along its path.

Citizens have monitored the project from the start and shown that MVP doesn’t bother to install pollution controls until forced to do so and that those used are sometimes so poorly designed and maintained that they won’t work even when built according to plans. Findings of regulators in both West Virginia and Virginia of hundreds of violations show that MVP is not serious about protections but is focused solely on ramming this project through with little regard for anyone else’s interests. Even FERC inspectors have document many blatant violations – often with the same problems occurring time and again.

“What we have is regulators watching our waters get trashed and then trying to act. By the time that happens though it may be too late for some of our most valuable resources,” Sligh said.

Initial Roanoke Times press coverage on the filing with FERC is here.

UPDATE by the Roanoke Times on June 28, 2019Request to stop work on Mountain Valley Pipeline remains in limbo. “A complaint that seeks to stop work on the Mountain Valley Pipeline is in a state of limbo. Last week, Wild Virginia and other environmental groups filed what they called a formal complaint with the Federal Energy Regulatory Commission. They expected that the action would start an official process, and they asked the State Water Control Board to join in their request that FERC halt construction. But after the board met Thursday in a closed session with an assistant attorney general, member James Lofton said it had been advised that the complaint has yet to be docketed with FERC. The 24-page document — which cites hundreds of environmental violations and the loss of two key sets of federal permits — was filed with FERC on June 21. ‘At this time, the filing is under review by the Commission who will determine how to address the issues raised,’ spokeswoman Tamara Young-Allen said Thursday by email.”