Category Archives: Court cases

From Southern Environmental Law Center

Thank you for fighting the Atlantic Coast Pipeline with us.

When, on July 5th, Duke Energy and Dominion Energy abruptly cancelled the Atlantic Coast Pipeline, it didn’t come out of nowhere. For years, SELC and a broad coalition proved again and again that this project was unneeded and unwanted. Finally, those facts forced Dominion and Duke to make the only rational choice and cancel the project.

We’re so grateful to everyone who pitched in to fight this pipeline and create a cleaner future for our region. Thank you!

Click here to read more about SELC attorney and staff perspectives on the victory.

DC Circuit Rules Against FERC’s “Kafkaesque” Tolling Order Use

On Tuesday June 30, 2020, the DC Circuit Court of Appeals ruled that the Federal Energy Regulatory Commission could not use “tolling orders” to avoid facing a legal challenge in court for approval of projects like natural gas pipelines. The decision came in the case involving the Atlantic Sunrise Pipeline, Allegheny Defense Project, et. al. v. Federal Energy Regulatory Commission. Several ABRA members (including Friends of Nelson) filed a brief in the case.

The majority opinion, written by Judge Patricia Millett on behalf of all the active judges on the DC Circuit, said: “…we hold that, after thirty days elapsed from the filing of a rehearing application without Commission action, the Tolling Order could neither prevent a deemed denial nor alter the jurisdictional consequences of agency inaction. To the extent our prior decisions upheld the use of tolling orders in that manner, they are overruled in relevant part.”

Tolling orders allow FERC to put off responding to requests for a rehearing, thus blocking challengers from bringing their concerns to court, while still allowing construction on pipeline projects to move forward. The ruling means that although FERC is not required by the decision to decide a rehearing request within the 30 days it must stick to the mandated 30-day time frame to decide on whether to accept a request for rehearing.  If FERC does not act on a rehearing application within thirty days, it means the request for a rehearing can be deemed denied and the applicant may then go straight to court to obtain judicial review of FERC’s action.

Read the court’s decision here.

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:

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.

Appeals Court Urged to Keep Freeze on Army Corps’ NWP 12 for Pipelines

From Allegheny-Blue Ridge Alliance’s ABRA Update #277, May 22, 2020:

The Ninth Circuit Court of Appeals has been urged to uphold a Federal District Court in Montana’s ruling prohibiting the U.S. Army Corps of Engineers’ Nationwide Permit 12 (NWP12) program from issuing new permits for oil and natural gas pipelines. 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.

In a May 20, 2020 brief filed with the Court, the Northern Plains Resource Council, a Montana-based conservation group, argued that Army Corps had failed to evaluate the cumulative impact on endangered species of all projects under the NWP12 and that the agency should have completed a programmatic review under the Endangered Species Act before reauthorizing the program for a five-year term beginning in 2017. The case is before the Ninth Circuit on appeal by the Army Corps and industry groups that are asking the Appeals Court to overturn the District Court’s freeze of the NWP12 program until the case is decided the issues. For a copy of the brief, click here.

ACP Responds to Buckingham Compressor Station Court Decision

From Allegheny-Blue Ridge Alliance’s ABRA Update #276, May 14, 2020

Atlantic Coast Pipeline, LLC (ACP, LLC) has finally submitted a response to the January 7 decision by the Fourth Circuit Court of Appeals to vacate the Buckingham compressor station. ACP, LLC made recently two supplemental information submissions to the Virginia Department of Environmental Quality (DEQ), each responding to different issues raised by the Fourth Circuit.

An April 24 submission to DEQ responded to the issue of “why electric turbines are not required to be considered in Virginia’s BACT [Best Available Control Technology] analysis of the Compressor Station.” The company’s April 30 submission addressed the Court’s concern about “conflicting evidence in the record, the particular studies it relied on, and the corresponding local character and degree of injury from particulate matter and toxic substances threatened by construction and operation of the Compressor Station.” It is uncertain when the matter will be taken by the Virginia Air Pollution Control Board, as that body has not yet scheduled a meeting to reconsider the project’s air permit.