The Property Rights and Pipeline Center is very concerned about resident rights to their lands and forests

News Report from the Allegheny Blue Ridge Alliance, May 28, 2021

The Property Rights and Pipeline Center, a national coalition of which ABRA is a member, this week released five new mini-documentary films about the unjust manner in which the power of eminent domain is granted by the Federal Energy Regulatory Commission.

These are excellent depictions of the issues involving eminent domain use to take farmers lands for private gain. Pipelines involve more than the taking of land. The disturbances, noises, air pollution fumes, and water pollution are extreme. Safety issues are due to leaks, fires and explosions.

Kudos to our filmmaker friend and colleague Sarah Hazelgrove for creating such compelling stories! Each video is 12-14 minutes long.

Links for all are below:

• A Town at Risk – https://www.youtube.com/watch?v=fsCVUSWkSAU

• Averitt Family ACP – https://www.youtube.com/watch?v=oXLABUIgNpU

• Megan Holleran Fighting the Constitution Pipeline – https://www.youtube.com/watch?v=6sljN2RmGWg

• The Hero from the Holler – https://www.youtube.com/watch?v=rMe-nrvmNTY

• Landowners vs The Law – https://www.youtube.com/watch?v=qrTufM0W3D4

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See also: The Property Rights and Pipeline Center (PRPC) is committed to ending the use of eminent domain for oil and gas pipelines and associated infrastructure. We are determined to fight oil and gas infrastructure that takes land without the consent of its owners and puts treacherous pipelines under their homes and in protected forests, water supplies, farms and neighborhoods.

The fact is, we don’t need these pipelines — there is currently an oil and gas glut. Energy demand is generally flat in many cases and going down around the country. Pipelines leak and explode all the time and in many cases are used to move product for overseas export; not for our energy needs at all. Americans treasure their right to own and enjoy their property. Companies that foul the local environment and add carbon dioxide to the atmosphere should not take Americans property against their will.

Across America, more municipalities, citizens and landowners every day push back as pipeline companies threaten their land and safety. Many property rights and pipeline fights and legal battles are going on today throughout the country. We hope to join the many voices together so that we can speak with a powerful, unified voice for property rights and a clean energy future in all corners of this country.

MVP extends thru WV and VA and now into NC

Reply Request by Lewis Freeman, Allegheny Blue Ridge Alliance (ABRA), September 7, 2020

The Mountain Valley Pipeline (MVP) has asked the Federal Energy Regulatory Commission (FERC) for an extension of time of “an additional two years, or until October 13, 2022, to complete construction of the Project and place the Project facilities into service.” FERC issued on August 27 an official notice of a comment period for the public to have input on the MVP request, the deadline for which is Friday, September 11 (more information below).

The MVP request, made in an August 25 letter, contends:

>> The need for the MVP by potential customers still exists.

>> FERC has already approved the Southgate Project to extend the MVP into North Carolina.

>> The recent cancellation of the Atlantic Coast Pipeline (ACP) makes it “vitally important for this Project to be completed and placed in service as soon as possible to meet the demand for national gas in these regions.”

>> “Unforeseen litigation and permitting delays outside of Mountain Valley’s control” have prevented the pipeline from being in service by October 13, 2020 (when the current certificate for the project expires).

>> The “Project is approximately 92% complete.”

MVPs request, while not surprising, raises several questions, among them:

>> Given natural gas market realities in 2020, how can the need for the MVP still be as justified as it was when the project’s certificate was granted in 2017?

>> After all, as noted in the August 13 issue of ABRA Update, the CEO of EQT Corporation, potentially the largest shipper of gas on the MVP should the project be completed, there is now – without the MVP being operational – there is an excess of pipeline capacity over production coming from the Marcellus Basin and that production is going to continue to decline, thus widening the gap of excess pipeline capacity over production.

>> How can the project be called 92% complete when by the company’s own admission only half of the MVP route has been fully restored, with the fully restored percentage in Virginia, which is one-third of the route, being only 15%?

>> If 92% of the MVP route is actually complete, why would it take two years to complete the remaining 8% of the project?

>> Given that North Carolina has denied a Section 401 water certificate for the Southgate Project, what assurance can MVP demonstrate that the project (which is one of the cited reasons for the certificate extension request to FERC) will even be built?

ABRA members and those active in the coalition are strongly urged to file comments with FERC by 5 pm, Friday, September 11 in opposition to the extension of the certificate for the MVP. Regarding filing comments, the FERC Notice states:

The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “e-File” link at http://www.ferc.gov.

Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.

Comment Deadline: 5:00 pm Eastern Time on September 11, 2020

MVP has created a trail of land disturbances in WV & VA

From an Article by Laurence Hammack, Roanoke Times, March 10, 2020

At a time when building the Mountain Valley Pipeline was focused almost entirely on controlling erosion, muddy runoff continued to flow from dormant construction sites.

In a letter last month to a conservation group that first raised the issue, Virginia Department of Environmental Quality Director David Paylor said the infractions would be forwarded to the state attorney general’s office, which has the authority to seek tough financial penalties.

VA-DEQ is “committed to aggressively and effectively enforcing and maintaining compliance of the Mountain Valley Pipeline construction,” Paylor wrote in a Feb. 13 letter to David Sligh, conservation director of Wild Virginia. Sligh made the letters public this week.

Sligh had asked the week before about DEQ inspections that showed violations of erosion and sediment control regulations from Sept. 19 through Dec. 20, 2019 — when construction of the controversial natural gas pipeline was stalled by legal action, leaving workers to concentrate largely on efforts to curb erosion.

The violations were especially troubling, Sligh wrote, because they began so shortly after Sept. 18 — the last day covered by a consent decree in which Mountain Valley agreed to pay Virginia $2.15 million to settle a lawsuit that alleged similar problems in the past. Approved in December, the consent decree carried a provision for enhanced fines should the same issues recur.

Paylor wrote a month ago in his letter to Sligh that “DEQ acknowledges noncompliance noted in inspection reports during the last quarter of 2019. These will be communicated to the Office of the Attorney General for inclusion in a future demand for penalties.”

But no demand had apparently been made by Tuesday. DEQ spokeswoman Ann Regn said the agency is “compiling noncompliance information monthly” and will notify Mountain Valley, in conjunction with the attorney general, of any violations or penalties.

A spokeswoman for Mountain Valley said the company had not been told of any recent violations. “MVP continues to work cooperatively with the DEQ,” Natalie Cox wrote in an email.

In a follow-up letter to Paylor on Monday, Sligh urged the state to act promptly. — “Violations by MVP, which have been frequent and damaging to waterbodies and landowners, must not be handled as routine occurrences,” he wrote. “If construction resumes, the history of this project tells us that the frequency and magnitude of violations is likely to increase, unless DEQ shows that it will act quickly and decisively.”

An attorney for Mountain Valley accused Sligh of making “inaccurate and misleading statements” about the company’s compliance with erosion and sediment control regulations.

It’s not unusual for silt fences, sediment traps and other erosion control devices to be breached by heavy rains, but those “deficiencies” can be quickly repaired and do not amount to formal violations, Todd Normane, deputy general counsel for Equitrans Midstream Corp., wrote in a Feb. 25 letter to Sligh that was posted to the Federal Energy Regulatory Commission’s online docket.

“There is a persistent misconception that Virginia law prohibits the discharge of sediment-laden storm water from a construction site,” Normane wrote. “That is legally incorrect and factually impossible.

“The inspection reports cited in your letter do not represent violations and the ‘aggressive enforcement action’ requested by Wild Virginia is not warranted,” the letter stated. Sligh, however, said it appears that his reading of the reports was borne out by Paylor’s letter.

Normane also accused Wild Virginia and other environmental groups of making matters worse by filing multiple legal challenges, which have delayed pipeline construction and forced the use of temporary erosion control measures that are more vulnerable to storms.

“If Wild Virginia’s concern is truly erosion and sedimentation, then the best environmental outcome is to support the completion of construction as soon as possible so that the ROW [right of way] can be fully restored and revegetated,” he wrote.

Wild Virginia reviewed 67 inspection reports from between Sept. 19 and Dec. 20, covering work sites in the six Virginia counties — Giles, Craig, Montgomery, Roanoke, Franklin and Pittsylvania — though which the pipeline will pass on its route from northern West Virginia to Chatham.

Three of the inspections found that Mountain Valley had not installed erosion control devices as required by the state, Sligh wrote in his letter. In another 19, DEQ officials determined that the devices were not properly maintained. And in at least eight cases, sediment was washed away from the 125-foot -wide construction right of way.

The problems came after Mountain Valley suspended work on parts of the pipeline after Wild Virginia and other groups raised questions in a lawsuit about the project’s impact on endangered or threatened species of fish and bats in its path.

The 4th U.S. Circuit Court of Appeals issued a stay of the U.S. Fish and Wildlife Service’s approval for the pipeline, which was followed Oct. 15 by an order from FERC that all pipeline work cease, except for stabilization and erosion control efforts.

Although other legal challenges have led to the suspension of two other sets of federal permits, Mountain Valley says it expects to obtain new approvals in time to complete the 303-mile pipeline by the end of the year.

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See also: Updated Status of Principal Legal Challenges to the ACP Now Available, Allegheny Blue Ridge Alliance, Update #267, March 12, 2020 — The new update on the status of the principal legal challenges to the Atlantic Coast Pipeline (ACP) is now available on the ABRA website.

National Environmental Policy Act (NEPA) is comprehensive

From the Allegheny Blue Ridge Alliance, ABRA Update #225 — April 11, 2019

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.

The principal arguments made in the April 5 brief are:

1. FERC’s exclusive reliance on precedent agreements with affiliated monopoly utilities to establish market need for the project was arbitrary and capricious. Such precedent agreements are unreliable evidence for market need.

2. FERC’s Environmental Impact Statement on the ACP was seriously deficient and thus violated requirements of the National Environmental Protection Act (NEPA). Specifically:

• FERC failed to adequately consider the adequacy of existing transmission systems and off-forest alternative routes;

• The impacts to aquatic resources, including sedimentation impacts and impacts in karst terrain, were inadequately analyzed by FERC;

• Analysis of environmental justice impacts by FERC was flawed;

• Impacts of downstream greenhouse gas emissions were insufficiently considered;
and

• FERC’s refusal to use the Social Cost of Carbon without an adequate explanation was arbitrary and capricious.

3. Allowing the ACP, LLC to exercise eminent domain violates the Natural Gas Act and the Constitution because 1) several required permits and related conditions for the project have been vacated, thus removing the basis on which eminent domain authority should be exercised, 2) the use of eminent domain for the ACP thus violates the takings clause of the Constitution and also violates due process.

A copy of the complete brief is available here.

Allegheny - Blue Ridge Alliance (ABRA) Protest

>>> From: Lewis Freeman, ABRA, September 29, 2018

Yesterday, September 28, a three-judge panel of the Fourth Circuit of the U.S. Court of Appeals in Richmond heard arguments on two important cases challenging permits granted to the Atlantic Coast Pipeline (ACP).

The first case challenged the December 13 decision by the Virginia State Water Control Board to grant a water quality certificate for the ACP (pursuant to requirements of Section 401 of the federal Clean Water Act).

The second case challenged the decisions of the U.S. Forest Service to amend the Forest Plans of the Monongahela National Forest and the George Washington National Forest and to accordingly issue a Special Use Permit for the ACP to cross the two forests.

The plaintiffs in both cases were a group of ABRA member organizations and others that were jointly represented by Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC). An article about the briefs filed in each case appeared in the September 21 ABRA Update:

https://www.abralliance.org/2018/09/21/court-to-hear-challenges-to-acp-forest-service-water-quality-permits/?highlight=court%20to%20hear%20challenges

I attended Friday’s arguments. The lawyers representing our interests – Ben Luckett of Appalmad in the 401 case; D.J. Gerkin of SELC in the Forest Service case – were most effective. More about the oral arguments will appear in next week’s ABRA Update.

For now, though, I want to highlight a particularly significant moment during the arguments presented in the Forest Service case. In the course of the argument presented by the U.S. Justice Department attorney representing the U.S. Forest Service, Chief Judge Roger Gregory, who was presiding over the panel, interrupted the attorney and noted that the U.S. Forest Service had been diligently asking Dominion Energy for more complete information on how the company would and could build the ACP through the steep forest lands in West Virginia and Virginia without causing environmental damage. The judge then observed that the Forest Service seemed to have suddenly changed its mind and proceeded to approve the requested Special Use Permit.

Judge Gregory inquired of the attorney what the circumstances were that caused the Forest Service to change course. The attorney responded evasively, prompting the judge to interrupt him again and ask: “When?” The attorney tried to continue with his non-responsive response, and Judge Gregory again interrupted with: “When?” The judge’s “When?” question was asked twice more, but never received a response, prompting Judge Gregory to thunder: “Who’s running the train?” It was a riveting moment and one that also caught the attention of Michael Martz of the Richmond Times Dispatch, whose article about yesterday’s arguments appears in this morning’s paper and is available here.

A recording of Friday’s oral arguments will be available on the Court’s website on Monday. The case numbers you will need to access the recordings are: 401 case – 18-1077; Forest Service case: 18-1144.

>>> Lewis Freeman, Executive Director, Allegheny-Blue Ridge Alliance, ABRA Web-site: https://www.abralliance.org/

To the Friends of the Allegheny – Blue Ridge Alliance (ABRA)

From Lew Freeman, ABRA Executive Director, June 12, 2018

A motion was filed June 11 with the Federal Energy Regulatory Commission requesting that the agency immediately revoke its May 11 authorization for construction to proceed in West Virginia for the Atlantic Coast Pipeline. The action, filed by the Southern Environmental Law Center on behalf of Defenders of Wildlife, Sierra Club and Virginia Wilderness Committee, was prompted by a report last week to ABRA’s Compliance Surveillance Initiative (CSI) of construction activity occurring south of Buckhannon, West Virginia (in Upshur County). The construction work was subsequently verified by photographic evidence produced by the ABRA/CSI Pipeline Air Force. A copy of one of the photographs is attached.

In Monday’s filing, SELC said:

Petitioners request that the Commission grant rehearing, immediately revoke the West Virginia Notice to Proceed, and stay all pipeline construction authorized by the Notice. On May 15, 2018 the Fourth Circuit Court of Appeals vacated the Fish and Wildlife Service’s Incidental Take Statement for the Atlantic Coast Pipeline.

Therefore, Atlantic and Dominion are not in compliance with two mandatory conditions of the project’s Certificate Order: Environmental Condition 54 and Environmental Condition 10. Certificate Order, Appendix A, ¶¶ 10, 54. Both of these conditions require a valid incidental take statement before pipeline construction proceeds.

A copy of the SELC motion is available at https://www.abralliance.org/wp-content/uploads/2018/06/Defenders-of-Wildlife-et-al.-Request-for-Rehearing-re-May-11-2018-Notice-to-Proceed-6-11-18.pdf.

>>> Lewis Freeman, Executive Director,
Allegheny-Blue Ridge Alliance​, P.O. Box 685
Monterey, Virginia 24465

The Compliance Surveillance Initiative (CSI)

CSI Has New Online Incident Reporting Form Available —

ABRA’s Compliance Surveillance Initiative program now has a convenient online form available for reporting observations of pipeline construction noncompliance and pollution incidents. The form was developed in consultation with the West Virginia Rivers Coalition, Trout Unlimited and the Mountain Valley Watch.

ACP Construction photo – 6-8-18