Category Archives: Certificates of Approval

Supreme Court Overturns Fourth Circuit Ruling


On Monday June 15, 2020, the U.S. Supreme Court announced its decision in the Cowpasture v. Forest Service case, reversing the decision of the Fourth Circuit that the Forest Service did not have authority to grant permission for the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail. The vote was 7-2, with Justice Thomas writing the decision and Justices Kagen and Sotomayor dissenting. By reversing the Fourth Circuit ruling, the Court’s opinion says that federal law allows the U.S. Forest Service to grant developers of the $8 billion Atlantic Coast Pipeline a right-of-way across the Appalachian National Scenic Trail.

Although Dominion will undoubtedly proclaim the Court’s ruling as a great victory, the fact remains that the ACP still faces numerous legal challenges, and lacks at least seven permits that it needs to move forward.  Greg Buppert, senior attorney for the Southern Environmental Law Center, said “This is not a done deal. The project still has a lot of obstacles in front of it.”

In a Friends of Nelson press release, Doug Wellman, the group’s president, said, “While we are disappointed by the Forest Service v. Cowpasture decision, the great majority of the legal challenges to the Pipeline have been successful. As a result, the Pipeline lacks at least eight permits that it needs to move forward. We will continue to fight the Pipeline with every ounce of our energy to stop its destructive path through Nelson County and many other communities.”

Ernie Reed, formerly president of Friends of Nelson and currently a member of the Nelson County Board of Supervisors, called attention to one of the current challenges facing the ACP: “We are focused on last Thursday’s announcement that the Forest Service has been forced to draft a Supplemental Environmental Impact Statement for the ACP project. The George Washington National Forest, dozens of citizen groups and an amazing legal team still stand in the way of the ACP.”

In a press release from the Southern Environmental Law Center, Program Director D.J. Gerken says, “While today’s decision was not what we hoped for, it addresses only one of the many problems faced by the Atlantic Coast Pipeline. This is not a viable project. It is still missing many required authorizations, including the Forest Service permit at issue in today’s case, and the D.C. Circuit Court of Appeals will soon consider the mounting evidence that we never needed this pipeline to supply power. It’s time for these developers to move on and reinvest the billions of dollars planned for this boondoggle into the renewable energy that Virginia and North Carolina customers want and deserve.”

As the SELC press release further notes, “The Supreme Court’s decision comes at the same time that the purported need for the Atlantic Coast Pipeline, proposed in 2014, is receiving renewed scrutiny, as states are steering their energy economies away from fossil fuels. In March, Dominion Energy told Virginia regulators that the build out of new gas-fired power plants is no longer ‘viable’ in the state, and the Virginia Clean Economy Act signed into law in April requires that the utility shut down all of its existing gas plants by 2045. North Carolina’s Clean Energy Plan calls for a reduction in greenhouse gas emissions from power plants of 70% over 2005 levels by 2030 and total carbon neutrality by 2050. …. [T]he exorbitant price tag for the Atlantic Coast Pipeline continues to climb because of Dominion’s insistence on a harmful and risky route. Under these circumstances and at a time when the region is moving rapidly to 100% renewable energy, it’s unreasonable to expect customers to pay for this obsolete $8 billion fracked gas pipeline.”

The SELC press release lists some of the permits in question for the ACP:

  • Endangered Species Act permit (Biological Opinion) from the U.S. Fish and Wildlife Service
  • Special use permit and right-of-way grant from the U.S. Forest Service
  • Right-of-way permit from the National Park Service
  • Virginia air pollution permit for the Union Hill compressor station
  • Four Clean Water Act authorizations from the Corps of Engineers for Pennsylvania, West Virginia, Virginia, and North Carolina
  • The Atlantic Coast Pipeline’s central permit from the Federal Energy Regulatory Commission is under review in the D.C. Circuit Court of Appeals, and arguments are expected later this year. The case will determine if FERC correctly determined that the Atlantic Coast Pipeline was needed to fuel gas-fired power plants when it approved the project in 2017.

Read the Supreme Court opinion here.

Read the Friends of Nelson press release here.

Read the Southern Environmental Law Center’s press release here.

Status of legal challenges to ACP permits and certifications (as of June 16)

Media coverage, discussing various aspects of the decision and its ramifications:

Forest Service Announces Supplemental EIS Process for ACP


From the Allegheny-Blue Ridge Alliance’s ABRA Update #280, June 11, 2020

Development of a Supplemental Environmental Impact Statement (SEIS) for the Atlantic Coast Pipeline (ACP) was announced June 11 [2020] by the U.S. Forest Service (USFS). The Notice of Intent, published in the Federal Register, is in response to the Fourth Circuit Court of Appeals action of December 13, 2018 vacating the USFS’s Record of Decision and Special use Permit issued for the ACP. While one of the reasons for the Court’s action – whether the USFS had the authority to authorize the ACP to cross the Appalachian National Scenic Trail (ANST) – is on appeal to and awaiting a decision by the U.S. Supreme Court, there were several other issues in question that the SEIS process will focus upon:

  • Issues identified in the Court ruling including the potential for the proposal to cause adverse impacts to soil, water, and threatened and Endangered Species Act (ESA) Threatened and Endangered species and their habitat;
  • The purpose and impact of the Forest Plan amendments on affected resources (soil, water, ESA Threatened and Endangered species, scenic integrity, ANST, and eligible recreation rivers) and consistency with the Planning Rule;
  • The feasibility and practicality of having routes that are not on NFS lands; and,
  • A re-evaluation and assessment of erosion, sedimentation, and water quality effects in relation to anticipated mitigation effectiveness.

The USFS Federal Register Notice of Intent states that a draft SEIS will be available in July 2020 and that a final SEIS is anticipated later in 2020. The Notice indicated that when the Draft SEIS is made available there will be information provided about how public comments can be made.

FERC Provides “Additional Landowner Protections”

In a news release on June 9, 2020, the Federal Energy Regulatory Committee announced an amendment to its regulations which says that even if a project has all other certifications and permissions to begin construction, it must wait to do so until the Commission either acts on the rehearing request or the 30-day time limit passes with no requests for rehearing.

When FERC issues a certificate of public convenience and necessity, allowing a project to proceed, affected landowners have the right to ask FERC to reconsider. Although FERC is supposed to respond to such requests within 30 days, it frequently issues a “tolling order,” which indefinitely extends FERC’s deadline to respond. FERC thus freezes the landowner’s request for a hearing while allowing pipeline companies to continue construction – meaning that by the time a landowner has a hearing the pipeline construction may be completed.

According to FERC Chair Neil Chatterjee, quoted in the press release, “‘The Commission has undertaken a number of initiatives to improve affected landowners’ access to a fair and transparent process and today’s effort is another important step forward,’ Chatterjee said. ‘These are complex issues, with a diverse array of stakeholder input, but I remain firmly committed to doing what we can to make the FERC process as fair, open, and transparent as possible for all those affected while the Commission thoroughly considers all issues.'”

However, FERC did not define what it meant by “begin construction,” and could still allow pipeline companies to condemn property before FERC makes a decision on a landowners appeal, and, depending on the definition of “begin construction,” go forward to cut down all the trees, dig the trench for the pipeline, spray herbicides, cross waterbodies – everything but actually put the pipe in the ground.

FERC has been under mounting pressure from landowner rights advocates and from Congress to address inequities in its hearing process for affected property owners.

Read FERC’s press release here.

Read press coverage in E&E Energywire here and in Utility Dive here.

President Signs Order Waiving Environmental Reviews for Key Projects

On June 4, 2020, President Trump signed an Executive Order “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”   According to the Washington Post report, the order instructs “agencies to waive long-standing environmental laws to speed up federal approval for new mines, highways, pipelines and other projects given the current economic ’emergency.’ Declaring an economic emergency lets the president invoke a section of federal law allowing ‘action with significant environmental impact’ without observing normal requirements imposed by laws such as the Endangered Species Act and the National Environmental Policy Act. These laws require agencies to solicit public input on proposed projects and analyze in detail how federal decisions could harm the environment.”

The order directs that “Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and to facilitate the Nation’s economic recovery.  As set forth in this order, agencies should take all reasonable measures to speed infrastructure investments and to speed other actions in addition to such investments that will strengthen the economy and return Americans to work, while providing appropriate protection for public health and safety, natural resources, and the environment, as required by law.”

The President maintains that waiving requirements will help the country recover from virus-related economic losses.

There are instructions in the order specific to:

  • Expediting Delivery of Civil Works Projects Within the Purview of the Army Corps of Engineers
  • Expediting the Delivery of Infrastructure and other Projects on Federal Lands
  • National Environmental Policy Act (NEPA) Emergency Regulations and Emergency Procedures
  • Endangered Species Act (ESA) Emergency Consultation Regulations
  • Emergency Regulations and Nationwide Permits Under the Clean Water Act (CSW) and Other Statutes Administered by the Army Corps of Engineers

The Post report says, however, that “It is unclear how the directive will affect individual projects, especially since developers are often wary of legal challenges they could face from environmental or public interest groups. Jason Bordoff, founding director of Columbia University’s Center on Global Energy Policy, said in an email that ‘companies would be reluctant to rely on such an executive order,’ knowing they would later have to prove that they were operating in an emergency.”

Additionally, the Post notes, “Thomas Jensen, a partner at the firm Perkins Coie, said in an email that any decisions made in response to the executive order could be challenged in court. He noted that the National Environmental Policy Act was enacted 50 years ago partly to prevent arbitrary federal decisions such as building highways through parks and communities of color and that the current administration cannot simply set aside laws aimed at protecting vulnerable Americans or the environment. ‘I will not be surprised to see many observers comparing this move — declaring an emergency to shield agency decisions from the public — to the order to clear Lafayette Square on Monday evening,’ Jensen said, referring to actions in a Washington park this week. ‘It’s just one more face of authoritarian ideology, with a clear link to issues of race and equality and government accountability.'”

SELC Files Request with FERC for Supplemental EIS for ACP

On June 1, 2020, the Southern Environmental Law Center (SELC) filed a request with the Federal Energy Regulatory Commission (FERC) for a supplemental Environmental Impact Statement for the Atlantic Coast Pipeline “to address significant new information bearing on the ACP’s environmental impacts.” SELC filed the motion asking for the EIS supplement on behalf of 16 organizations, including Friends of Nelson.

The motion lists areas in which new information has arisen since FERC issued the EIS for the ACP in July 2017, and says that new information “presents a seriously different picture of the project’s available alternatives and environmental impacts than the one considered by the Commission.”

Issues considered in the motion include:

  • Alternatives. The region’s energy future has undergone a dramatic shift away from gas-fired power generation while the ACP’s projected cost has ballooned and its timeline has been pushed back, compelling the Commission to revisit its consideration of alternatives.
  • Vulnerable Species. Surveys have documented multiple new occurrences of the endangered rusty-patched bumble bee along the ACP route, and the U.S. Fish and Wildlife Service (“FWS”) has proposed critical habitat for the newly listed candy darter (endangered) and yellow lance (threatened) in streams that the pipeline would cross.
  • Water Quality. Well-documented landslides and sedimentation problems along the ACP’s steep terrain, combined with the rollback of federal water protections relied on by the Commission, indicate that the project’s impacts to water quality would be more substantial than previously analyzed.
  • Environmental Justice. The Commonwealth of Virginia and Atlantic Coast Pipeline, LLC (“Atlantic”) have now recognized the existence of a minority environmental justice population in Union Hill, Virginia, neighboring the ACP’s proposed Buckingham Compressor Station.
  • Climate Change. Scientific understanding about the anticipated impacts of climate change, both globally and in the area of the ACP, has expanded dramatically since the publication of the EIS.
  • Cumulative Impacts. The majority of the ACP’s construction is now anticipated to occur between 2020 and 2021 alongside newly proposed area projects whose cumulative impacts the Commission never considered.

The motion further states that “In light of this substantial new information, the Commission’s prior environmental review of the ACP is stale and fails to address significant effects of the project. The ACP is far from complete — less than 6% of the 604-mile pipeline has been installed — and cannot be completed without further action by the Commission, including a decision whether to extend the ACP’s construction and in-service deadline of October 2020. As such, the National Environmental Policy Act (“NEPA”) requires the Commission to analyze new information and to disclose its analysis for public review. With this motion, Conservation Groups request that the Commission supplement the EIS to address the new information, circulate the supplemental EIS for public comment, and stay its certificate of public convenience and necessity for the ACP pending finalization of the supplemental EIS.”

Our thanks to SELC for this massive and detailed filing!

Click here for the full motion. Links for the 56 exhibit documents filed with the motion are are included in the exhibit listing at the end of the motion.

Court Denies Request to Reinstate NWP 12

On May 28, 2020, the Ninth Circuit Court of Appeals denied the request by the Army Corps of Engineers, Transcanada Keystone Pipeline, and other pipeline companies to reinstate Nationwide Permit 12 (NWP12). This means NWP 12 will remain invalid while the Ninth Circuit considers whether the Montana district court correctly ruled that the Corps violated the Endangered Species Act.

The District Court’s April 15 ruling came in a case challenging the NWP12 permit for the Keystone project and was extended to affect permits for other new oil and natural gas pipelines. The ruling impacts the Atlantic Coast and Mountain Valley Pipelines, neither of which currently have valid NWP12 permits. At this point, the Corps cannot authorize either the MVP or the ACP to use NWP12 unless and until the Ninth Circuit reverses the Montana district court’s determination that the Corps violated the Endangered Species Act.