As 2019 comes to a close, the Atlantic Coast Pipeline has not begun construction in Virginia. Letters announcing the ACP landed in our mailboxes five and a half years ago, when the project was expected to cost $4.5 billion and be in service at the end of 2018. The US Supreme Court has accepted Dominion’s appeal of the 2018 decision by the Fourth Circuit Court which said the US Forest Service lacked the authority to grant a right-of-way for the ACP to cross the Appalachian Trail. The Court will hear arguments on February 24, 2020, and announce their decision in late spring 2020. But this ill-conceived and unnecessary project has been stalled by numerous other denied permits and court stays, all of which remain in effect. Meanwhile, project cost has risen from $4.5 billion to almost $8 billion, the earliest projected completion date for the ACP is 2022, the energy shortage Dominion cites as the reason the ACP is necessary is simply non-existent (and the State Corporation Commission has stated that Dominion consistently overstates demand), industry reports all say gas supply has significantly outstripped demand, both the price and the demand for natural gas have dropped, and clean energy costs are rapidly dropping to where they are competitive with fossil fuels.
Because of your continued support — whether attending our meetings and rallies, volunteering for one of our programs, or supporting us financially — we and our allies have together accomplished a great deal. Here’s a review of what happened in our fight during 2019. We look forward to joining with all of you as we continue our winning battle in 2020.
Early January 2019: Dominion Withdraws Quick Take Suits. Dominion withdrew the Quick Take suits they filed on November 16, 2018, against at least 20 Nelson landowners. Given the multiple existing court challenges, it seems likely that ACP feared the court might side with the landowners who are at risk of suffering irreparable harm at the hands of a project that may never even be built. The ACP has, however, reserved the right to re-file another “motion for partial summary judgement” or Quick Take at any time.
January 7, 2019: Two Former Air Board Members Challenge State Data. On the eve of the Virginia Air Pollution Control Board vote, the Washington Post reported on January 7, 2019, that both Rebecca Rubin and Samuel Bleicher “warn that regulators are preparing to vote on Dominion Energy’s plan to put a natural gas facility in a rural African American community based on inaccurate information from staff and from the utility.” Rubin and Bleicher are the two Air Board members that Northam removed after the November 2018 meeting when the Board postponed its vote.
January 8, 2019: Air Pollution Control Board Votes 4-0 to Approve Permit. In a 4-0 vote, the Virginia Air Pollution Control Board voted on January 8, 2019, to approve the air permit for the Atlantic Coast Pipeline’s air compressor station in Union Hill. After being postponed from the November and then the December Board meetings, the vote was finally taken by a diminished Board. Northam had removed two Board members after the November meeting, refusing to seat their replacements until after the vote, and the seventh member of the Board had previously recused himself. According to the Washington Post, the vote was taken “under heavy pressure from Dominion Energy, whose executives occupied two reserved rows at the front of the meeting room.”
January 11, 2019: Fourth Circuit Denies Dominion Request. The Fourth Circuit Court of Appeals declined Dominion’s request to either narrow the scope of the Court’s December stay of Atlantic Coast Pipeline construction or to expedite the hearing on the case involving of the U.S. Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement. The oral arguments before the Court were scheduled for March 2019, and an opinion would likely not be issued until some weeks thereafter. Because of the timing of the court case, the legal window will have closed for the tree felling Dominion says is necessary for construction, thus delaying construction for as much as a year and adding an estimated $1 billion to the cost.
January 16, 2019: Park Service to Vacate ACP Permit to Cross Parkway. On January 16, 2019, the US Park Service filed a motion (made public on January 18) with the Fourth Circuit Court of Appeals for a voluntarily remand of the construction and right-of-way permits for the Atlantic Coast Pipeline. The Park Service explained that upon the Court granting the request, the agency would vacate the previously issued permit for the ACP to cross the Blue Ridge Parkway and “consider whether issuance of a right-of-way permit for the pipeline to cross an adjacent segment of the Parkway is appropriate.” The Fourth Circuit granted the Park Service’s request to remand the permit back to the agency for reconsideration on January 24, 2019.
Late January 2019: New Report: Vanishing Need for the ACP. Oil Change International and the Institute for Energy Economics and Financial Analysis issued a new report, The Vanishing Need for the Atlantic Coast Pipeline, discussing the growing risk that the pipeline will not be able to recover costs from ratepayers.
February 8, 2019: SELC Challenges Virginia Air Board Decision. In a press release, the Southern Environmental Law Center announced their challenge of the Air Pollution Control Board on behalf of the Union Hill Community.
February 11, 2019: Forest Service Joins Dominion to Challenge 4th Circuit Decision. The US Forest Service (NFS) filed a petition for review of the Fourth Circuit Court of Appeals decision in December vacating the NFS permit for the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail. Atlantic Coast Pipeline, LLC (ACP, LLC) had previously filed a challenge to the decision, on January 28. The NFS petition, like the previously one filed by ACP, LLC, requests that all fifteen members of the Fourth Circuit hear the appeal.
February 19, 2019: Barber and Gore in Buckingham. Civil rights activist William Barber II, of the Poor People’s Campaign, and environmental activist Al Gore, along with his daughter Karenna, visited Buckingham on February 19, 2019, for meetings with Union Hill residents and anti-pipeline activists (closed to the press), followed by an evening public meeting at Buckingham Middle School, where 700-1000 people heard speakers call for justice and tell their stories.
February 25, 2019: Fourth Circuit Denies ACP Request for Review. The Fourth Circuit DENIED Dominion’s request for the full circuit to review and then reverse an earlier panel decision throwing out permits for the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail. Argus Media reported, “A federal appeals court will not reconsider a decision that the developer of the $7bn Atlantic Coast natural gas pipeline has warned would ‘imperil’ pipeline construction from Georgia to Maine.”
March 7, 2019: West Virginia House Votes to Condemn Opponents of the ACP. A resolution from citizen groups condemning the “assaults on the Atlantic Coast Pipeline” (ACP) was approved by the Rules Committee of the West Virginia House of Delegates on March 6, 2019. On March 7, the House of Delegates overwhelmingly approved House Resolution 11 by a 80-17 vote (3 members did not vote). All Republican members voting supported the measure, plus 21 of the 40 Democrats in the House.
March 25, 2019: Report Released on ACP Risks. Oil Change International released a new report, Atlantic Coast Pipeline – Risk Upon Risk, about the public health, ecological, and economic risks of the now $7.5 billion dollar ACP. As the transition to clean energy gathers pace, the risks and costs of this huge fracked gas pipeline project are growing rapidly in the face of major legal, regulatory, financial, and community challenges.
April 5, 2019: Brief Filed in Lawsuit Challenging ACP’s FERC Certificate. The opening brief in a lawsuit challenging the Federal Energy Regulatory Commission’s (FERC) certificate that allows construction of the Atlantic Coast Pipeline (ACP) was filed on April 5 with the U.S. Court of Appeals for the District of Columbia. Appalachian Voices, et. al. vs. FERC, which includes several ABRA members as plaintiffs, had originally been filed with the Fourth Circuit Court of Appeals. It was subsequently transferred to the DC Circuit Court where it was consolidated with several other pending cases that challenged the FERC certificate for the ACP.
April 12, 2019: Groups File Federal Appeals Court Brief Challenging ACP. A group of ten religious, social justice, and civil rights organizations filed a “friend of the court” brief urging the Federal Court of Appeals in DC to revoke the key federal permit for the Atlantic Coast Pipeline.
April 13, 2019: Spruce Creek Workshop. Friends of Nelson held a day long workshop at Spruce Creek Camp featuring six speakers, a tour of the proposed route across the Blue Ridge Mountains, and hands-on exercises on safe participation in a protest action. The event ended with songs and dancing. Videos and slides are here.
Late April: ABRA CSI Has New Web Page and New URL. Allegheny-Blue Ridge Alliance’s Compliance Surveillance Initiative (CSI) program has a redesigned Web page and a new URL: (http://abra-csi.org/). The site includes instructions on how volunteers can become involved in the program, examples of non-compliance issues, and numerous technical resources, including the unique CSI mapping system. There are links to surveillance photographs taken by the ABRA/CSI Pipeline Air Force.
May 22, 2019: Month Extension Requested of Supreme Court. Reuters reported that the U.S. asks the Supreme Court for more time on Atlantic Coast natgas pipe appeal. “The U.S. Solicitor General asked the Supreme Court on Wednesday to extend the time the government has to file a petition in an appeal of a circuit court decision preventing Dominion Energy Inc from building the Atlantic Coast natural gas pipeline across the Appalachian Trail in Virginia. Solicitor General Noel Francisco is seeking a one-month extension until June 25. Without the extension, the time expires on May 28. Some analysts think Dominion could cancel the pipeline if the Supreme Court does not hear the case because the project’s costs have ballooned due to legal and regulatory delays.”
May 30, 2019: Five Years and Counting. Lew Freeman, Executive Director, Allegheny-Blue Ridge Alliance (ABRA), marked the fifth anniversary of our fight against the unnecessary and destructive Atlantic Coast Pipeline with this post in ABRA Update 231 for May 30, 2019. “‘Holy cow’ is how the chairman of the Highland County Board of Supervisors reacted to the news that Dominion Energy planned to build a natural gas pipeline through his county, according to a May 29, 2014 news story in The Recorder newspaper. A Dominion spokesperson quoted in the story said that the Southeast Reliability Project, as the company initially called what has become the Atlantic Coast Pipeline (ACP), was to cost $4 billion and be in operation by the end of 2018. …. The ACP is now stalled due to it losing many of its key permits. By Dominion’s own admission, the project is over 2 years behind schedule and its anticipated project costs are nearly double the original estimate. The extraordinary effort by ABRA’s more than 50 member organizations, dozens of cooperating organizations and thousands of committed volunteers are a significant reason for where we find ourselves today. But the fight is not over against the ACP. Our persistence and perseverance must continue! Thanks to all of our coalition participants for your past and future efforts.”
June 25, 2019: ACP Appeals Forest Service Decision to U.S. Supreme Court. Atlantic Coast Pipeline, LLC (ACP, LLC) 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 to cross the Appalachian National Scenic 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.
June 26, 2019: 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.
June 30, 2019: A Landslide Study of the ACP in Nelson. At the Friends of Nelson public meeting, Anne Witt, a Geohazards Geologist from the Virginia Department of Mines, Minerals and Energy, presented her work on a VDEM-FEMA Pre-Disaster Mitigation Grant Project. The project is to develop a risk assessment of landslides in western Albemarle and Nelson counties based on previous landslide events that occurred largely during Hurricane Camille. According to Ms. Witt, previous landslide locations are prone to having future ones.
July 3, 2019: FERC Requests Toxicological Info on ACP Coatings. On July 3, 2019, the Federal Energy Regulatory Commission (FERC) requested that the Atlantic Coast Pipeline, LLC and Dominion Transmission, Inc. provide within 20 days toxicological environmental and health information on epoxy coatings associated with pipeline materials used in the Atlantic Coast Pipeline.
July 3, 2019: Petition Challenging Quick Take to Go to U.S. Supreme Court. On July 3, 2019, attorneys for Katheryn Givens and other landowners on the Mountain Valley Pipeline route are expected to file their U.S. Supreme Court petition challenging a 4th U.S. Circuit Court of Appeals ruling that a lower court properly allowed developers to obtain immediate possession of property in the project’s path using “quick take.”
July 11, 2019: ACP Seeks Lease on Site in Amherst. On July 11, 2019, the Lynchburg News Advance reported that the Atlantic Coast Pipeline sought to lease an Amherst site for storage and transporting workers. The site the ACP wants to lease “is about 45 acres in the back of the industrial park, which is a short drive from U.S. 29 Business in Amherst and directly on the U.S. 60 corridor. The use of the land is for storage, placing equipment and mobilizing workers to bus to Nelson and Buckingham counties, which are among about 30 localities on the pipeline’s route through Virginia and North Carolina.”
July 22, 2019: Dominion Responds to FERC Request for Toxicological Info on ACP Coatings. Dominion filed a response to FERC’s request – a two page covering letter, a two page response, and 315 pages of attachments, most of which are safety data sheets (SDS) from manufacturers.
July 26, 2019: Fourth Circuit Court Vacates Fish and Wildlife Service Permit. The Fourth Circuit of the U.S. Court of Appeals struck down the latest permit the U.S. Fish and Wildlife Service (FWS) had issued for the the Atlantic Coast Pipeline (ACP), saying “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.”
July 31, 2019: SELC Asks FERC to Halt ACP Construction. Southern Environmental Law Center (SELC) asked FERC to stop ACP construction because of the July 26 ruling from the Fourth Circuit Court that voided the US Fish and Wildlife Service permit.
August 15, 2019: Landslide Potential Basis of Request to FERC to Stop ACP. In an open letter to Kimberly Bose, secretary of the Federal Energy Regulatory Commission, and reprinted in the Nelson County Times on August 15, 2019, Helen Kimble and Doug Wellman (President and Vice-President of Friends of Nelson) discussed the potential for hazardous landslides in the steeply mountainous areas on the Atlantic Coast Pipeline route in Nelson County.
August 21, 2019: Study Highlights Negative Water Quality Impacts of Pipeline Projects. A new study commissioned by Trout Unlimited concluded that the impact on water quality of several natural gas pipeline projects in the Appalachian region is profound, even when care is taken to minimize impacts. Pipeline Impacts to Water Quality, prepared by Downsteam Strategies, a West Virginia environmental research firm, examined the construction of four pipeline projects: Mountain Valley Pipeline (MVP) and WB Xpress Pipeline (WBX) in West Virginia and Virginia, the Rover Pipeline in West Virginia and Ohio, and the Mariner East II Pipeline in Pennsylvania. The most significant water quality problems were caused by inputs of sediment-laden water to streams.
August 28, 2019: SELC Files Opposition Brief. The Southern Environmental Law Center filed an opposition brief in the US Supreme Court on August 28, 2019, arguing that the Court should not agree to review the Fourth Circuit opinion as requested by the petitioners, US Forest Service and Atlantic Coast Pipeline. The Fourth Circuit decision blocked the ACP from coming across Reid’s Gap.
September 18, 2019: Low Natural Gas Prices Going Forward. The Institute for Energy Economics and Financial Analysis (IEEFA) discusses low natural gas prices now and going forward. They say, “With the news from IHS Markit that natural gas prices in the United States will drop below $2 MMBtu in 2020 and remain low through at least 2024, if not longer, heads must be exploding in the board rooms of oil and gas producers throughout the U.S. and Canada. The profit picture is now imploding. The ramifications run deep, far and wide. The mantra that more pipelines will rationalize the market has been upended. This view from the oil and gas industry never made sense. As IHS Markit makes clear, new pipeline capacity contributes to an oversupply of natural gas forcing down prices and profits.”
September 25, 2019: 50+ Groups and Delegates Demand Northam Deny Permits for Two New Pipelines & Gas Plant. Delegates Lee Carter, Del. Sam Rasoul, Food & Water Action, and a coalition of over 50 groups across Virginia officially released a letter urging Governor Ralph Northam to stop investing in new fossil fuel infrastructure. The letter specifically calls on the governor’s administration to deny state permits for two new pipelines in Northern Virginia and in Pittsylvania that will lead to more dependence on fossil fuels and the development of new dirty fuel infrastructure in the state.
September 28, 2019: Hands Across the Appalachain Trail. The 4th annual Hands Across the Appalachian Trail, a special weekend of events across the state, took place on Saturday, September 28 and Sunday, September 29, highlighting work to protect our communities, water, air, land and natural treasures from the threats posed by unneeded and harmful fracked gas pipelines.
October 4, 2019: Supreme Court Will Hear Forest Service Case. The U.S. Supreme Court announced on October 4, 2019, that it will hear the appeal by the Atlantic Coast Pipeline, LLC of the Fourth Circuit Court of Appeals decision on the Cowpasture River, et. al. vs. Forest Service case. The case will consider the Forest Service’s authority to permit the Atlantic Coast pipeline to cross the Appalachian Trail. Initial briefs in the Cowpasture River Preservation Association, et. al. v. Forest Service are due to be filed with the U.S. Supreme Court by the petitioners – U.S. Forest Service and Atlantic Coast Pipeline, LLC – on December 2. The Southern Environmental Law Center, representing the Cowpasture River Preservation Association and the other respondents in the case, is scheduled to file its response brief on January 15, 2020. The case is scheduled for oral argument on Monday, February 24, 2020 at 10 am.
October 4, 2019: Legal Challenge to FERC Certificate Put on Hold. Consideration of legal challenges to the certificate issued in December 2017 by the Federal Energy Regulatory Commission for construction of the Atlantic Coast Pipeline (ACP), which was to be argued before the DC Circuit Court of Appeals on October 16, has been deferred. The Order deferring the argument of the case, issued by the DC Circuit late on October 4, explained that the reason for delaying the scheduled argument was the U.S. Supreme Court’s decision announced earlier that day to accept for argument United States Forest Service v. Cowpasture River Preservation Association case, in which the Fourth Circuit Court of Appeals decided that the Forest Service did not have the authority to grant the ACP the right to cross the Appalachian Scenic National Trail.
October 16, 2019: ABRA Alerts Feds to ACP Safety Problems. In an October 16, 2019, letter to PHMSA, Dan Shaffer, ABRA’s Geospatial Consultant, brought to the agency’s attention photographs that show “CSI has identified 25 locations along the route that seem to show large rocks loose in the trench, directly underneath the pipe, incorporated with backfill, or protruding into the trench in close proximity to the pipe. . . . We are concerned that these conditions place the Atlantic Coast Pipeline at a significant risk of damage during hydrostatic testing, increased rates of corrosion due to damaged epoxy coating, or rupture due to landslides or even small slips.”
October 22, 2019: Fish and Wildlife Service Redrafting New Permit. The biological opinion and taking statement issued for the Atlantic Coast Pipeline (ACP) by the U.S. Fish and Wildlife Service (FWS), and twice struck down by the Fourth Circuit Court of Appeals (most recently in July of this year), is once again on the drawing boards. Dominion Energy and FWS have begun consultations required under Section 7 of the Endangered Species Act (ESA). According to minutes of an October 22 meeting between officials with Dominion, Duke Energy, FWS staff and the Federal Energy Regulatory Commission (FERC), the status of recent surveys that have been conducted on endangered species that would be affected by the ACP was reviewed. It was indicated that two species that were listed under the ESA since FERC’s approval of the ACP – the yellow lance and candy darter – will be included in the new assessment.
October 29, 2019: Friends of Nelson Honored for Its Community Contributions. Friends of Nelson, a founding member of ABRA, was given the Community Stalwart Award by the Property Rights and Pipeline Center (PRPC), a national coalition supporting the fight to prevent the use of eminent domain for siting of oil and gas infrastructure. ABRA is a member of PRPC. The award was presented to Friends of Nelson for its “generous donation of time, toil, and inspiration in the struggle for a cleaner America.” Doug Wellman, Vice-President of the organization, accepted the award on October 29 at the annual conference of PRPC, held in Washington.
October 29, 2019: Oral Arguments in 4th Circuit Court on Buckingham Compressor Station. Oral arguments before the Fourth Circuit Court of Appeals on the challenge to the air permit issued in January 2019 for the Buckingham compressor station took place in Richmond on October 29, 2019. Chief Judge Roger Gregory, who headed the three-judge panel, repeatedly pushed attorneys representing the Virginia Department of Environmental Quality, the State Air Pollution Control Board, and the Atlantic Coast Pipeline about why they compared Union Hill air quality to air quality around the state rather than to the surrounding Buckingham area. Under questioning from Gregory, Deputy Solicitor General Martine Cicconi conceded that Union Hill is populated overwhelmingly by African Americans. Dominion had long disputed findings of an extensive door-to-door survey to document who lives around the proposed compressor station site, begun four years ago by anthropologist Lakshmi Fjord.
October 29, 2019: BREDL Releases Report on Union Hill. Blue Ridge Environmental Defense League and its Buckingham Chapter, Concern for the New Generation, released a new report: Union Hill: Real Property, Racism and Environmental Justice, which reveals a history of subversive policies, in Virginia and nationwide, which severely limit the ability for African Americans to build wealth.
November 2019: New Report on FERC Gas Pipeline Policy. The Natural Resources Defense Council (NRDC) announced a new report by Analysis Group, authored by renowned energy expert Dr. Susan Tierney. The report, FERC’s Certification of New Interstate Natural Gas Facilities: Revising the 1999 Policy Statement for 21st Century Conditions, outlines many of the key calls for action found in the thousands of comments filed in summer 2018 with FERC regarding its gas pipeline reviews. FERC’s January 2018 decision to reconsider its 20-year-old policy guiding its pipeline reviews was a major victory, but the docket has largely been shelved since comments were filed, despite the plethora of great ideas contained therein.
Early December 2019: Friends of Nelson Issues Annual Report. A review of the year’s accomplishments and plans for 2020.
December 9, 2019: Briefs Supporting Dominion’s AT Appeal Filed With Supreme Court. Amicus briefs in support of the appeal by the U.S. Forest Service and Atlantic Coast, LLC to the U.S. Supreme Court in the Cowpasture River, et. al. case were filed on December 9. The brief for the respondents in the case, represented by the Southern Environmental Law Center, must be filed by January 15. Amicus briefs in support of the respondents’ position are due January 22. Among the seven amicus briefs filed were arguments from the Attorney Generals of 18 states (led by the Attorney General of West Virginia), 62 Members of the U.S. House of Representatives, and the Mountain Valley Pipeline. Also filing a brief was the Appalachian Trail Conservancy.
12-9-19 Augusta Free Press announces that Rasoul’s Green New Deal Act addresses climate emergency. “Roanoke Democrat Sam Rasoul announced Monday that he is introducing legislation to address the climate change emergency. Del. Rasoul’s bill, the Green New Deal Act, HB 77, is part of a suite of bills developed by Green New Deal Virginia, a broad coalition of more than 60 grassroots organizations co-founded in 2018 by Rasoul and Del. Elizabeth Guzman, D-Prince William County.”
December 19, 2019: Virginia Legislators Unveil “Virginia Clean Economy Act.” The proposed Virginia Clean Economy Act was unveiled by bill patrons State Senator Jennifer McClellan (patron in the Senate), Delegate Rip Sullivan (patron in the House) Delegate Jennifer Carroll Foy (chief co-patron in the House), and Delegate Alfonso Lopez (chief co-patron in the House).
Onward to 2020 — Happy New Year!