16 State AGs Urge Supreme Court to Take Forest Service Case

The article below is from Allegheny-Blue Ridge Alliance ABRA Update 239, August 1, 2019. [We note that the effort was led by the West Virginia Attorney General, but only one of the other AGs that signed on is from a state with the AT running through it (Georgia), most of the signers are from fossil fuel energy producing states, and the AGs for states other than West Virginia that are on the proposed ACP route, North Carolina, South Carolina, and Virginia, did not sign.]

Sixteen Republican State Attorneys General, led by West Virginia AG Patrick Morrisey, filed an amicus brief with the U.S. Supreme Court asking it to accept the appeal made by the Atlantic Coast Pipeline, LLC (ACP, LLC) to overturn the Fourth Circuit Court of Appeals decision to vacate the U.S. Forest Service permit for the Atlantic Coast Pipeline to cross the Appalachian Trail. The ACP, LLC filed its appeal with the Supreme Court on June 25. It was joined in that request by the U.S. Solicitor General. The AGs’ brief, filed July 29, stated as reasons for its support of the ACP appeal:

  • The Fourth Circuit decision was wrong, as it misread the Mineral leasing Act (MLA) and because it undermined the MLA’s goal to balance conservation with energy development;
  • Shuttering construction on the Atlantic Coast Pipeline harms states on both ends of its route;
  • The decision could severely constrain energy development nationwide; and
  • The decision undermines important interests beyond pipeline development. (On this final point, the brief claims that the decision “could thus disable any federal agency from being able to authorize power lines and telecommunications infrastructure across the Appalachian Trail, as well as other trails that cross forest land.”)

Joining WV Attorney General Morrisey (who is the principal author of the brief) in signing on to the brief were the AGs of Alabama, Alaska, Georgia, Idaho, Kansas, Louisiana, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Utah and Wyoming.

Swarm the Mountain: A Weekend of Action for Yellow Finch

Swarm the Mountain: A Weekend of Action for Yellow Finch. Aug 1 at 6 PM – Aug 4 at 6 PM, 10303 Russwood Rd, Bent Mountain, VA 24059-2321. Hosted by Preserve Floyd and 11 others.

Swarm the Mountain events in Bent Mountain are on the Mountain Valley Pipeline route and close to the ongoing tree sits.

THURSDAY August 1, 2019
6-9 PM: Dance Party for the Rusty Patched Bumblebee, Lobo Marino, Poetry Jam and more! Wear yellow and black and your dancing shoes. Flag and banner making, potluck offerings welcome.

FRIDAY August 2, 2019
10 AM: Flower March for Yellow Finch. Bring flowers and love notes for the tree people! Wear yellow and black. Starting point tba.
5 PM: Flyer the Floyd Jamboree! Wear yellow and black and swarm the streets with flyers about our amazing People’s Pizza Party.

SATURDAY August 3, 2019
People’s Pizza Party: A Fundraiser for Finch!
If you have farm fresh veggies, bring them and add them to your wood-fired pizza!
5-10 PM: Open Mic and dance party jam; bring your instruments and celebrate!

SUNDAY August 4, 2019
10 AM-2 PM: Solidarity at the Sits: Visit Yellow Finch and support the sitters: shuttle service
2-5 PM: Citizen Voices Radio Show. Story sharing from the MVP grassroots with the Richmond Resistance. Tell your MVP resistance story on the radio!
5-6 PM: Water blessing, closing ceremony.

Come Camp with us!!
-One night or many nights!
-Water available on site
-Leave no trace! Pack it in/ pack it out
– Bring a plate, cup and Utensils

All of these events are Rain or shine. The land that is hosting the events has a Barn where we can gather in a covered area if needed.

Questions? Feel free to ask!

Do I have to come to all of the events?
-No, You come to whatever inspires you.

What if I have an idea for a support event?
– Amazing! please share with others and see if you can get a group together to manifest your dreams.

Does this cost money?
-No, but if you would like to donate, I’m sure we can find a good use for extra money.

Is this taking place at the sits?
– No, Camping and events will take place on private land in Bent mountain (the address listed in the event location tab)
There will be optional visits to the sits throughout the weekend.

What should I wear?
– make sure you are prepared for the weather, whatever it may be. Wear Yellow and Black if you can. We will have stencils for printing on extra items of clothing!

How else can I support?
– Share our social media posts
– Bring some food to share
– Make some art
– There are so many different ways to support, get creative.

See https://www.facebook.com/events/698334687300548/

Legal Observer Training

Attorney Kai Memmer, a volunteer for the Southwest Virginia Chapter of the National Lawyer’s Guild, will train attendees to become Legal Observers. Legal Observers are needed immediately in the Elliston VA area and other areas along the Mountain Valley Pipeline route to monitor and document interactions between police and protesters. The presence of Legal Observers serves to de-escalate tensions on both sides, and is a vital, neutral information gathering tool.

Volunteers are needed for any amount of time. Information on the National Lawyer’s Guild and the Legal Observer program: https://www.nlg.org/our-work/

Monday, Aug. 5 at 6pm at Rockfish Valley Community Center, 190 Rockfish School Ln, Afton 22920.

Questions? drkinva@yahoo.com

SELC Asks FERC to Halt ACP Construction

On July 31, 2019, the Southern Environmental Law Center (SELC) asked FERC to stop ACP construction because of the July 26 ruling from the 4th Circuit Court that voided the US Fish and Wildlife Service permit.

SELC said, “Allowing continued construction violates the Endangered Species Act’s (‘ESA’s’) prohibition on engaging in actions likely to jeopardize a species. It places the Commission at risk of an unauthorized take of endangered species. It risks substantial environmental harm by constructing facilities that might have to be relocated or abandoned if the pipeline route is modified. And it violates the condition of the Commission’s certificate of public convenience and necessity that Atlantic Coast Pipeline, LLC (‘Atlantic’) obtain all applicable authorizations required under federal law before commencing construction.”

In their letter, SELC explained the five reasons why FERC cannot rely on the ACP’s temporary work stoppage to address the four issues in the paragraph above.

  • The Commission may not authorize any action that is likely to jeopardize the continued existence of an endangered species.
  • In permitting construction, the Commission risks taking species in violation of the ESA. Section 9 of the ESA similarly prohibits the “take” of endangered and threatened species.
  • Allowing construction of pipeline facilities that might have to be relocated or abandoned risks unnecessary environmental harm.
  • The Commission cannot permit construction where Atlantic lacks federal authorizations that are mandatory conditions of its certificate.
  • Atlantic’s voluntary work stoppage does not satisfy the Commission’s obligation to halt construction in light of these significant issues.

Read SELC’s letter here.

Fish and Wildlife Permit Vacated by 4th Circuit


An Allegheny-Blue Ridge Alliance email distributed early on July 27, 2019, comments on the Fourth Circuit Court’s opinion vacating the Fish and Wildlife Service permit:

The Fourth Circuit of the U.S. Court of Appeals Friday struck down the latest permit the U.S. Fish and Wildlife Service (FWS) had issued for the the Atlantic Coast Pipeline (ACP). The issue arose from a requirement in the Endangered Species Act that (quoting from the decision) “the proposed pipeline will not jeopardize the continued existence of several endangered and threatened species that are likely to be impacted by pipeline construction. As relevant here, the Biological Opinion concluded that the pipeline will not jeopardize four species: the rusty patched bumble bee, clubshell, Indiana bat, or Madison Cave isopod.” The FWS issued an opinion in 2017 stating that the ACP did not endanger any endangered species. The permit was challenged in a lawsuit filed by the Southern Environmental Law Center (SELC) on behalf of the Defenders of Wildlife, Sierra Club and the Virginia Wildlife Committee (the latter two organizations being ABRA members).

In response to that legal challenge the Fourth Circuit in May 2018 vacated the FWS permit, which it explained in its opinion (not issued until August 6) that the “FWS’s vague and unenforceable take limits are arbitrary and capricious.” The agency reissued a new permit in September 2018, which was again challenged by the same plaintiffs. The Fourth Circuit stayed the new permit and, in response to that, the Atlantic Coast Pipeline, LLC suspended all construction of the project in late 2018.. The case decided Friday was argued on May 9, 2019 (see ABRA Update #229, May 10, 2019).

In today’s decision, the Fourth Circuit stated:

Specifically, Petitioners assert that FWS improperly determined that pipeline construction will not jeopardize the rusty patched bumble bee or the clubshell, and they challenge the validity of the take limits imposed for the Indiana bat and the Madison Cave isopod. Because we find that FWS arbitrarily reached its no-jeopardy conclusions and failed to correct the deficiencies in the take limits that we identified in the previous appeal, we grant the petition and vacate the 2018 Biological Opinion and Incidental Take Statement.

In a statement released Friday afternoon, SELC stated:

“In its rush to help this pipeline company, the agency failed to protect species on the brink of extinction – its most important duty. This pipeline would blast through some of the last populations of these rare animals,” said Patrick Hunter, attorney with the Southern Environmental Law Center. “There is no evidence that this pipeline is needed for anything other than Dominion and Duke Energy profits. For the sake of these rare species and its customers’ wallets, it’s time for these utilities to walk away from this badly planned boondoggle.”

Construction on the Atlantic Coast Pipeline has been stopped since December 2018 when multiple permits were called into question or overturned including permits from the Fish and Wildlife Service, National Park Service, Forest Service, and U.S. Army Corps of Engineers. Those permits are all still outstanding. Among the problems for this pipeline is a Federal Court decision that the Forest Service erred in allowing the pipeline to carve through national forests and was not authorized to allow the project to cross the Appalachian Trail. There is no clear path forward to construct the pipeline on its current route. The project is several years behind schedule and more than $2 billion dollars over budget. If constructed, ratepayers will be expected to pay for the pipeline while the energy companies collect a 15% profit.

Quoted in Charlottesville’s July 27, 2019, Daily Progress article, Dominion spokesperson Aaron Ruby said, “Based on the clear direction provided by the court in today’s opinion, we expect FERC and the Fish and Wildlife Service will be able to immediately begin working to correct the issues identified by the court. Once the new Biological Opinion and Incidental Take Statement are issued, we will seek the necessary approval from the Federal Energy Regulatory Commission to resume construction. We’re confident we remain on track to complete the project by late 2021.”

The Daily Progress article says, “If the Fish and Wildlife Service were to issue a new permit, Dominion has said it would begin building the pipeline from Buckingham County to the southeastern Virginia coast, connecting it to Hampton Roads and extending it through eastern North Carolina. The company plans to build a natural gas compressor station at Union Hill in Buckingham under a state air pollution permit that environmental groups also have appealed to the 4th Circuit. Separately, Dominion and its partners have petitioned the U.S. Supreme Court to review another opinion by the same federal appeals panel last December that threw out a U.S. Forest Service permit to allow the pipeline to cross beneath the Appalachian Trail between Augusta and Nelson counties.”