It has been fifty-seven months since Dominion Energy first announced its proposal to build a 600-mile natural gas pipeline from the Marcellus Shale fields of north-central West Virginia to the southern part of North Carolina. At first called the Southeast Reliability Project, and later named the Atlantic Coast Pipeline (ACP) when Duke Energy and The Southern Company became partners, the project since it was first announced in May 2014 has been vigorously opposed by citizen groups and numerous communities along the route’s path through West Virginia, Virginia and North Carolina.
The project is – by Dominion Energy’s own admission in a February 1 press statement – now some two years behind schedule and 50% over budget. Construction of the ACP, which began early last year in West Virginia, is currently stopped due to court actions. A common theme running through all of the cases that have been filed is that permitting judgments were inadequately considered, and/or without merit, and rushed.
The plaintiffs in the legal challenges of the inept permitting processes that enabled construction of the ACP to begin in the first place are in most instances ABRA member organizations and the firms representing them are also ABRA members: Appalachian Mountain Advocates and the Southern Environmental Law Center. Kudos to both firms for their tireless work.
Below is a summary of the status of the principal cases that have to date been filed:
- FERC Certificate – A challenge to the Federal Energy Commission’s (FERC) issuance of a certificate for the ACP on October 13, 2017 was filed with the Fourth Circuit Court of Appeals on August 16, 2018. The plaintiffs are 14 conservation groups, represented by the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates. The suit could not be filed until FERC formally rejected a request for a rehearing of the certificate, which did not occur until August 10. The basis of the suit is the petitioners’ contention that FERC did not look behind the affiliate agreements that Dominion Energy and Duke Energy, (principal partners in the project) claim demonstrate that the pipeline is needed in Virginia and North Carolina markets. Jurisdiction of the case has been transferred to the D.C. Circuit Court of Appeals. A briefing schedule for the case has not yet been established, but oral arguments are not expected until probably the fall of 2019.
- Forest Service Permit – On January 23, 2018, the U.S. Forest Service granted the ACP a Special Use Permit to cross national forest lands and a right-of-way to cross beneath the Appalachian National Scenic Trail (ANST). This action followed a November 17, 2017 decision by the Forest Service to amend the Forest Plans for the George Washington and Monongahela National Forests to accommodate the ACP. A suit was filed on February 5, 2018 by seven conservation/environmental organizations represented by SELC, arguing that the Forest Service had rushed to judgment to approve the project, notwithstanding raising serious questions about the project’s ability to be built over steep mountain terrain without serious environmental damage. The case was argued before a three-judge panel on September 28. On December 13, the Fourth Circuit ruled to vacate the Forest Service permit, expressing agreement with the petitioners about environmental threats being improperly evaluated and ruling that the Forest Service lacked the authority to grant the project permission to cross the ANST.
Atlantic Coast Pipeline, LLC on January 28 filed with the Fourth Circuit requesting a rehearing en banc, meaning a hearing on the case before all fifteen judges of the Fourth Circuit. The petitioners argue that the three-judge panel decision ignored several precedential U.S. Supreme Court decisions. A decision on the en banc request is not expected until at least the latter half of February.
- National Park Service Permit– The National Park Service’s (NPS) December 2017 approval for the ACP to cross underneath the Blue Ridge Parkway was challenged in the Fourth Circuit by the Sierra Club and the Virginia Wilderness Committee, represented by SELC. The Court vacated the permit on August 6, and FERC issued a stop-work order for the entire project on August 10. The stop-work order was lifted September 17 when the NPS issued a new permit that purported to remedy the deficiencies in the earlier permit. That permit was challenged again by the petitioners in the Fourth Circuit.
But, before the case was argued, the Park Service asked the Court to vacate the previously issued permit for the ACP to cross the Blue Ridge Parkway so the agency could “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 that motion on January 23. Thus, at this writing, there is no permit for the ACP to cross the Blue Ridge Parkway. (For additional information, see separate article below.)
- Fish and Wildlife Service– The U.S. Fish and Wildlife Service’s (FWS) biological opinion on threats to endangered species by the ACP was vacated by the Fourth Circuit Court of Appeals on May 5, 2018, but an opinion from the Court explaining its order was not issued until August 6, as part of the same order vacating the NPS permit. As with the NPS permit, a new biological opinion was issued by the FWS that sought to meet the court’s objections. That re-issued opinion has also been challenged by the petitioners in the first case, the Sierra Club and the Virginia Wilderness Committee, represented by SELC. That challenge is scheduled to be argued before the Fourth Circuit in May.
- Army Corps of Engineers – The U.S. Army Corps of Engineers filed a motion on January 18 with the Fourth Circuit Court of Appealsfor a remand and vacating of the permit that the Huntington District of the Corps had issued for the Atlantic Coast Pipeline (ACP) to cross rivers and streams in West Virginia. The Court had previously issued a stay of the Nationwide 12 (NWP12) permit issued for the ACP by the Huntington District, as well as other NWP12 permits issued for the project by Corps districts in Pittsburgh, Norfolk and Wilmington that have jurisdiction over other portions of the ACP project. The motion was unopposed and subsequently granted by the Court. While the action only directly affects the portion of the ACP subject to the Huntington District’s jurisdiction (West Virginia portions of the route), the stays on stream and river crossings for the ACP in the other Corps districts remain in effect.
- Virginia State Water Board 401 Certification – The Virginia water quality certification under Section 401 of the Clean Water Act was granted December 12, 2017 by the State Water Control Board. The action was challenged in a suit filed by SELC on behalf of several conservation group clients and argued before the Fourth Circuit Court of Appeals on September 28, 2018. The principal contention in the case was that the Board’s approval of the certificate for the ACP was, on several grounds, arbitrary and capricious. On January 14, 2019, the Court rejected the arguments of the petitioners.
In a related matter, the Water Board in December voted to consider revoking the 401-certification for the Mountain Valley Pipeline due to erosion and sediment control failures along the project’s route in Virginia. In doing so, the Board chose not to extend a similar review of the ACP 401 certificate because construction on the project had not yet begun in Virginia, so at that time there were no examples to point to of non-compliance to support an argument that the certificate as improperly issued.