SELC Responds to DC Circuit Questions About FERC Case

From Allegheny-Blue Ridge Alliance’s ABRA Update #246 for September 26, 2019:

The DC Circuit Court of Appeals has asked all of the parties involved in the legal cases challenging the certificate of public convenience issued for the Atlantic Coast Pipeline by the Federal Energy Regulatory Commission (FERC) to response to several questions prior to the scheduled argument of the case before the Court on October 16. In a September 13 Order, the Court noted that the Fourth Circuit Court of Appeals in the Cowpasture River Preservation Association v. Forest Service case, which has been appealed to the U.S. Supreme Court, may render the FERC case “unfit for review at this time” (depending upon the Supreme Court’s decision on whether to accept the Cowpasture case for review). Given that, the DC Circuit asked the parties to the FERC case to respond to the following questions:

  1. Whether an alternative route would allow the ACP to proceed on the same certificate of public convenience and necessity;
  2. Whether the prospects of building the pipeline using the same certificate are so speculative that these petitions are unripe (i.e., not ready for consideration) on either constitutional or prudential grounds; and
  3. Assuming that the petitions are unripe, whether the appropriate remedy is to dismiss the petitions or to hold them in abeyance.

The Southern Environmental Law Center, representing the Cowpasture River Preservation Association and other petitioners challenging the FERC certificate, responded to the questions in the Order in a September 20 filing with the Court. Joining in the filing were Appalachian Mountain Advocates, Chesapeake Bay Foundation and Christopher Johns, a counsel for several landowner petitioners. The SELC, et. al. filing argues that:

  • While an alternative route should require a new or amended certificate, FERC has not acknowledged the implications of the Fourth Circuit’s Cowpasture decision for the ACP project;
  • Conservation and landowner petitioners’ claims are ripe for review; and
  • If the Court finds the petitions unripe, the Court should vacate or stay FERC’s certificate for the ACP.