Next Friday, September 28, two important cases on the fate of the Atlantic Coast Pipeline will be argued before the Fourth Circuit of the U.S. Court of Appeals in Richmond. The first case to be argued challenges the Virginia State Water Control Board’s decision on December 12, 2017 to certify that the ACP will not violate state water quality standards. The principal argument of the plaintiffs in the case, most of whom are ABRA members that are represented by Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC), is, as set forth in their brief:
The Clean Water Act requires a state certifying a project under Section 401 of the Act to have ‘reasonable assurance’ that state water quality standards will not be violated. The Section 401 Certification issued by the Department of Environmental Quality (DEQ) and the Board is arbitrary and capricious because it was issued without a basis for a finding of reasonable assurance.
- The Board invalidated its prior finding of reasonable assurance when it voted on April 12, 2018 to open a comment period on whether reliance on the U.S. Corps of Engineers’ Nationwide Permit 12 was adequate to protect Virginia’s water quality from impacts of pipeline crossings.
- The Board lacked reasonable assurance because the DEQ did not assess the combined impacts on water quality likely to result from multiple areas of pipeline construction activities within individual watersheds.
- An adequate antidegradation review was not conducted. Therefore, issuance of a 401 certification for the ACP was arbitrary and capricious.
- There was a failure by Virginia authorities to ensure that water quality will be protected in fragile karst geology.
The second case that is scheduled for argument on September 28 challenges the U.S. Forest Service’s issuance of a permit to allow the ACP to cross the Monongahela and George Washington National Forests. The plaintiffs in this case, also represented by SELC and Appalmad, argue in their brief that:
- The Forest Service’s amendments to Land Management Plans to the two affected National Forests so that the Atlantic Coast Pipeline can cross the Forest lands unlawfully bypassed applicable federal law.
- The Forest Service refused to study pipeline routes that avoid the National Forests in violation of the National Environmental Protection Act (NEPA) and allowed a right-a-way across the Appalachian Trail without statutory authority.
- The Forest Service dismissed landslide and erosion risks in violation of NEPA based on vague mitigation it knew to be implausible.