Dominion Energy Stakes Out Plans for ACP in Spite of the Legal Landscape

by Duane Nichols on March 2, 2019

Dominion would rather ignore reality!

Dominion and partners in pipeline seek new paths around 4th Circuit, including U.S. Supreme Court

From an Article by Michael Martz, Richmond Times-Dispatch, February 26, 2019

Dominion Energy and its partners in the Atlantic Coast Pipeline are looking for new ways around the 4th U.S. Circuit Court of Appeals, including a trip to the U.S. Supreme Court. The Richmond-based energy company, the lead partner in the project, said Tuesday that it “expects an appeal” to the Supreme Court within 90 days to challenge a 4th Circuit decision. The court tossed out a critical federal permit for the 600-mile pipeline to cross beneath the Appalachian Trail in the Blue Ridge Mountains along the Augusta County and Nelson County line.

Dominion declared its intention after a 4th Circuit decision on Monday to dismiss the company’s request for the full appeals court to reconsider a December decision by a three-judge panel. That panel vacated the permits the U.S. Forest Service issued for the project to cross the Appalachian Trail near Wintergreen Resort and portions of two national forests.

The company — anticipating the possible rejection of its request for an “en banc” hearing by the Richmond-based 4th Circuit — estimated earlier this month that the Supreme Court appeal could add $250 million to the cost of the project by delaying completion of the final segment of the pipeline until the end of 2021.

The cost already has risen by $3 billion — to as much as $7.5 billion — since then-Gov. Terry McAuliffe announced it with Dominion officials in September 2014. The company already has spent $2.8 billion on the stalled project, Dominion officials said in an earnings conference call with investment analysts on February 1st.

“We are actively pursuing multiple paths to resolve all outstanding permit issues, including judicial, legislative and administrative avenues,” Dominion CEO Thomas F. Farrell II said on the conference call.

The company is preparing to split the project into two phases to allow it to first build the pipeline from Buckingham County — where it plans to build a hotly disputed natural gas compressor station at the intersection with an existing pipeline — to Lumberton, N.C.

Dominion also proposes to build a 70-mile spur to serve Hampton Roads, where natural gas supplies are limited for industrial customers and economic development prospects. The company proposes to begin work on the first phase by the end of this year and complete it by late 2020. “The partial construction of the Atlantic Coast Pipeline will allow us to open up new pathways for the natural gas to reach customers who need it,” spokesman Karl Neddenien said Tuesday.

Environmental groups are filing legal challenges to every move by Dominion and its partners — Duke Energy and Southern Company Gas — to build the pipeline, including a state permit issued in December for the Buckingham compressor station at Union Hill, a historically black community that has been the focal point of protests.

“The 4th Circuit’s decision, now final, confirmed that this pipeline has to play by the same rules as everybody else,” said DJ Gerken, an attorney for the Southern Environmental Law Center, which represents the Sierra Club and other environmental organizations.

“The Forest Service has never approved a new pipeline across the Appalachian Trail — but, under intense political pressure, it did for Atlantic, while ignoring routes that would avoid the forest,” Gerken said in a statement Monday night. “Atlantic could reroute, but instead it should scrap this boondoggle and stop running up a bill it wants to stick to customers.”

Dominion acknowledged even before the 4th Circuit ruled against the Forest Service permits on December 12th that the company was pursuing legislation in pending appropriations bills to give the federal agency clear authority to permit the pipeline crossing beneath the Appalachian Trail.

Those efforts went nowhere, as nine federal departments shut down for 35 days for lack of funding in a political deadlock between Congress and President Donald Trump. They averted a second possible shutdown by reaching an agreement this month on funding bills that did not include new authority for the Forest Service to permit the pipeline to cross the national scenic trail.

However, the company said Tuesday that it is still pursuing legislative remedies, as well as administrative solutions that Farrell told analysts had been hampered by the partial government shutdown that began in late December. Among the agencies shut down were the Agriculture Department, which oversees the Forest Service, and the Interior Department, which includes the U.S. Fish and Wildlife Service and the National Park Service.

Both of the Interior Department agencies also have been engaged in litigation in the 4th Circuit over permits they issued for the pipeline. The appeals court suspended a stay of the biological opinion by the Fish and Wildlife Service that determined the project would not pose an existential threat to endangered and threatened species.

The 4th Circuit first vacated the “incidental take” statement, part of the biological opinion, in May and confirmed its decision in August. The federal agency reissued the permit the next month, but in early December the court placed a stay on the biological opinion for the entire pipeline route.

Dominion suspended construction — then limited to tree clearing in Virginia — and asked for clarification of the order’s scope. It contends the stay should be limited to a 100-mile stretch that includes the habitat of four endangered or threatened animal species, but the court rejected its request for clarification or additional hearing. The case is scheduled for hearing in early May.

The park service voluntarily vacated the second permit it had issued for the project to cross beneath the Blue Ridge Parkway — which runs beside the Appalachian Trail in the Blue Ridge — after the 4th Circuit struck down the first one in August. “We’re confident the Park Service will review the facts and reissue the permit,” Neddenien, the pipeline spokesman, said Tuesday.


See also: Dominion adds another natural gas fired power plant to Virginia fleetElectric Light & Power, December 10, 2018

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