Map from the Richmond Times-Dispatch, May 18, 2015

From the Allegheny – Blue Ridge Alliance, ABRA Update #257, December 19, 2019

Efforts by Dominion Energy to convince Congress to approve having the Atlantic Coast Pipeline (ACP) cross the Appalachian National Scenic Trail have not yielded results.

For most of the past year Dominion has been seeking to have a rider added to other legislation that would, in effect, overturn the decision of the Fourth Circuit Court of Appeals that vacated the permit for the ACP issued by the U.S. Forest Service.

Within the past week, two prominent bills that were believed to be possible vehicles for the Dominion amendment – the National Defense Authorization Act and the continuing resolution funding the Federal Government –passed without language addressing the AT issue.

For now, the issue remains pending before the U.S. Supreme Court, which is scheduled to hear arguments on an appeal of the Fourth Circuit decision on the case (U.S. Forest Service v. Cowpasture River Preservation Association, et. al.) on February 24. A decision on the case is anticipated to be announced in June.

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Dominion still sees U.S. Atlantic Coast natgas pipe online in 2022 despite Morgan Stanley’s doubts

From an Article by Scott DiSavino, Reuters News Service, December 16, 2019

(Reuters) – Dominion Energy Inc said on Monday it was confident it will complete the proposed $7.3-$7.8 billion Atlantic Coast natural gas pipeline from West Virginia to North Carolina by early 2022, in response to a prediction by investment bank Morgan Stanley that a court decision would likely scuttle the project.

“We remain committed to completing the project for the good of our economy and the environment,” Dominion spokesman Aaron Ruby said, noting the company expected to complete construction in late 2021 with final in-service in early 2022.

Dominion made its comments after Morgan Stanley said in a report that “Atlantic Coast will likely not be completed given the Fourth Circuit’s likely (in the bank’s view) rejection, for the third time, of a newly issued Biological Opinion and Incidental Take Statement that we expect to come by the first quarter of 2020.”

In July, the U.S. Fourth Circuit Court of Appeals vacated the Fish and Wildlife Service’s (FWS) second Biological Opinion because the court found the agency’s decisions were arbitrary and would jeopardize the Rusty Patched Bumble Bee and other endangered species.

Federal agencies use Biological Opinions when authorizing projects that could adversely affect threatened or endangered species or critical habitats, and issue take statements to limit the number of those species that could be harmed. Ruby said Dominion expects the FWS will issue a new Biological Opinion in the first half of 2020.

Dominion suspended construction of the 600-mile (966-kilometer) project in December 2018 after the Fourth Circuit stayed the FWS’ second Biological Opinion.

Dominion and its partners, Duke Energy Corp and Southern Co., are also working through a dispute over where the pipeline can cross the Appalachian Trail. The U.S. Supreme Court has agreed to take up the Appalachian Trail case, which is also important for the construction of EQM Midstream Partners LP’s Mountain Valley gas pipe from West Virginia to Virginia.

The Supreme Court may issue a ruling in May or June 2020. So, the Appalachian Trail dispute may be resolved by a Supreme Court decision or an administrative or legislative solution.

A route revision was the likely compromise for the endangered species dispute but noted that could boost the project’s costs to around $8 billion and push completion into 2022.

When Dominion started work on the 1.5 billion cubic feet per day pipe in the spring of 2018, the company estimated it would cost $6.0-$6.5 billion and be completed in late 2019.

National Forests are intended to protect our forest heritage

Update from Wild Virginia, Allegheny Blue Ridge Alliance, July 27, 2018

The decision of the U.S. Forest Service to permit the Mountain Valley Pipeline to cross the Jefferson National Forest was vacated July 27 by the 4th Circuit Court of Appeals. The challenge to that decision had been brought by Sierra Club, Wild Virginia, Appalachian Voices and other groups. In its decision, the Court stated:

After careful review, we conclude that aspects of the Forest Service’s decision fail to comply with NEPA and the NFMA. As more fully explained below, we grant the petition challenging the Forest Service’s decision and vacate that decision. We also conclude that the BLM failed to acknowledge its obligations under the MLA, and therefore, we also grant the petition challenging the BLM decision and vacate that decision. We remand to the respective agencies for further proceedings consistent with this opinion.

In analyzing the opinion, a copy of which is available here, Wild Virginia said it convinced the Court on its primary claims:

• The Forest Service was arbitrary in concluding that sedimentation and erosion impacts of the pipeline could be mitigated to insignificance.
• The Forest Service violated the 2012 Forest Planning Rule, by arbitrarily concluding that amendments to the forest plan were not “directly related” to particular provisions of that rule. Specifically, the Forest Service ignored the “purpose” of the amendments, which was squarely directly related to the rule.
• BLM violated the Mineral Leasing Act by failing to demonstrate that alternative routes that would increase co-location with existing rights-of-way were impractical.

See also: Federal appeals court delivers blow to Mountain Valley Pipeline | roanoke.com

Tree cutting has already started on Peters Mountain

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FERC Asked to Revoke ACP Construction Authority in West Virginia

The Federal Energy Regulatory Commission (FERC) has been asked to rehear its decision last month to authorize construction in West Virginia of the Atlantic Coast Pipeline. In a motion filed with the agency on July 24 by the Southern Environmental Law Center (SELC) on behalf of Sierra Club, Defenders of Wildlife and the Virginia Wilderness Committee, FERC was requested to grant a rehearing and to immediately revoke the West Virginia Notice to Proceed.

The motion notes that “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.”

The FERC request follows a motion filed by SELC for the same client group on July 5 with the Fourth Circuit Court of Appeals asking that construction activity on the Atlantic Coast Pipeline (ACP) be halted until the Fish and Wildlife Service (FWS) complies with the Court’s May 15 order vacating the FWS’s Incidental Take Statement for the ACP. Details of that motion were discussed in the July 12 issue of ABRA Update.

National Lawyers Guild (NLG) Guidance

From an Article by Alan Graf and Joel Richard Kupferman, National Lawyers Guild Environmental Committee, May 13, 2018

May 11, 2018 –The Environmental Justice Committee of the National Lawyers Guild stated it condemns the actions of the United States Forest Service in denying basic necessities to a Virginia protester in violation of international law and 18 USC §2340(2)(b).

The protester, a pod-sitter, with the forest name of “Nutty,” has sat in a pod since March 28, 2018, on a 50-foot pole in the Giles county section of Jefferson National Forest challenging the construction of the Mountain Valley Pipeline (MVP). The 50-foot pole is attached by guy wires to a gate on a road.

MVP, having already started the construction of a 300-mile pipeline scheduled to carry fracked liquid natural gas, has commenced tree-cutting in the county in preparation for pipeline construction. The US Forest Service has closed off areas near Nutty and her pod, denying access to water protectors who support her, but more importantly, denying her food and water and subjecting her to smoke, bright lights and noise in an attempt to force her down from her perch atop of the pod.

A pod-sitter has a civil and human right to life. A police duty to protect has been created. By preventing others from providing food and water, the Forest Service has created a situation where the pod-sitter’s safety and well-being are at risk under the Deshaney Standard. See Deshaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989). The Forest Service in conjunction with the State Police has exhibited deliberate indifference to the protector’s serious medical needs, violating the 8th Amendment under Deshaney.

Under the 14th amendment, the State has an affirmative duty to protect, which arises from the limitation it has imposed on the protector’s freedom to act on her own behalf.

Denial of food and water is also a violation of both domestic and International Law, including The Rome Statute, Article 7. 18 USC §2340(2)(b) expressly forbids citizens of the United States from “the administration and application of procedures calculated to disrupt profoundly the senses or the personality” and section (c) of the same forbids threats of imminent death or bodily harm.

The denial of food and water and the continuing use of smoke, bright lights and excessive noise is both a threat and perpetration of bodily harm. Similarly, the denial of food and drinking water, and subjecting the pod sitter to smoke, bright lights and excessive noise has been calculated to disrupt the senses of this pod-sitter.

Further, UN Resolution 64/292, passed in July 2010, acknowledged that clean drinking water is essential to the realization of all human rights. The ends achieved by several United States acts, including the Clean Water Act, the Resource Conservation and Recovery Act, and the Safe Drinking Water Act, are all consistent–that American citizens are entitled to access clean drinking water.

The first line of the Virginia Constitution reads as follows: “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” The actions of the state in denying medical attention, food, water and clean air is a deprivation of the protector’s posterity and her pursuit of happiness and safety.

We are of the opinion that denial of food and water, and the use of smoke, excessive lights and noise amounts to a rejection of the protector’s First Amendment rights of Speech, Expression, and Peaceable Assembly. The pipeline protectors in Virginia are peaceably redressing the Forest Service for grievances. United States Parks are a public forum according to Justice Roberts in CIO v. Hague. Denying protectors access to water and food amounts to a prohibition on their expression.

The actions of the Forest Service amount to a content-specific violation and would not survive strict scrutiny analysis under the First Amendment. There are less restrictive means to
achieve the governmental ends. We believe that the Government’s objective in the continued torture of these protectors is not a compelling interest.

The Forest Service may claim that the pod-sitter has the ability to climb down, receive food and be arrested. However, at this point, no agency or independent inspector has ascertained the health and cognizant status of the pod-sitter. No one knows whether she has the strength or capacity to leave the pod.

If denial of food and water has already resulted in such profoundly diminished senses that she cannot cooperate to do so, the Forest Service’s actions in continuing to allow her to starve and dehydrate are tantamount to torture and contrary to International Law under the Geneva Convention and domestic law under 18 USC § 2340(2)(b) and (c).

The National Lawyers Guild Environmental Justice Committee demands the following:

– An independent medical body be permitted to visit the pod-site in the Jefferson National Forest and ascertain the health and well-being of the pod sitter

– The US Forest Service allow regular delivery of food and water to the pod sitter until the situation is resolved

-Governor Ralph Northam of Virginia order the State Troopers on site to immediately deliver, or allow delivery of, food and water to the pod sitter

– The United States Forest Service acknowledge their liability for any injuries or deaths that result from the continued denial of food and water.

Large diameter pipe has been in storage for months

By Beth Little, Mountain State Sierran, Volume 44, Number 2, Spring 2018

The Atlantic Coast Pipeline could not be built through the Monongahela National Forest without violating the law, so the law has been suspended.

I will explain. I say “suspended” because the amendments to the forest’s Land and Resource Management Plan included in the permit issued by the Forest Service are “project-specific plan amendments.” They apply only to construction of the Atlantic Coast Pipeline.

The Land and Resource Management Plan is law. It contains the regulations for how the forest is to be managed. It was developed by the staff of the Forest Service, including scientists and technicians, who are charged with protecting the forest from the ravages of the late 1800s and early 1900s, when a frenzy of logging resulted in massive flooding, huge fires, loss of life, destruction of local economies and disappearance of wildlife. Unregulated practices left a wasteland that took more than a century to recover significant productivity.

The Monongahela National Forest includes the highest mountains in West Virginia and the origin of major rivers in the East. These rivers have been cutting their channels for millennia, resulting in ravines with startlingly steep slopes. To truly appreciate how steep they are, you have to stand at the top and look down what appears to be a straight drop of hundreds of feet to rushing water. It is hard to believe trees can grow on slopes so steep, but then it’s the trees that maintain the slopes by holding the soil on them.

The forest also gets some of the highest rainfall in the continental U.S. So, if the trees (and all other vegetation) are removed, and a heavy rainfall comes, the soil is washed away, making the rivers run with sediment.

There are four standards in the forest’s management plan to be modified for the pipeline construction. The shortest example: “Standard SW06: Severe rutting resulting from management activities shall be confined to less than 5 percent of an activity area.”

This language is specific and easy to enforce. The modified standard reads: “Standard SW06: Severe rutting resulting from management activities shall be confined to less than 5 percent of an activity area with the exception of the construction of Atlantic Coast Pipeline, where the applicable mitigation measures identified in the COM (Construction Operations & Maintenance) Plan and SUP (Special Use Permit) must be implemented.”

The next standard, SW07, involves limitation of the use of wheeled and/or tracked motorized equipment on steep and very steep slopes with soil types prone to slips and landslides. Again, the standard is replaced with the COM Plan.

The Construction Operations & Maintenance Plan, developed by Dominion, has reassuring sounding language, but it is general and almost impossible to enforce: “Atlantic recognizes the increased risk of instability associated with pipeline construction while traversing steep slopes. As a baseline, Atlantic developed a program for use on projects within steep terrain.” A long list of engineering measures follows.

“Selection of the most appropriate engineered prevention measure or combination is dependent on the individual site conditions and constraints during the time of construction.”

The Construction Operations & Maintenance Plan wasn’t available for comment when the draft environmental impact statement was issued. When the final statement was issued on July 21, 2017, it was labeled a draft with critical sections missing. It wasn’t until October 27, 2017, three months later, that a final version was identified in the Forest Service Record of Decision. (https://goo.gl/wS24ZG)

How could the Federal Energy Regulation Commission (FERC) properly evaluate the environmental consequences of the pipeline, when they didn’t have all the pertinent information? This has been the basis of media reports that several agencies have issued postponements after requesting more information. Why didn’t the commission postpone the environmental impact statement until they had a completed COM Plan?

The Land Management Plan for the Monongahela National Forest took several years and thousands of hours of Forest Service personnel to develop at taxpayer expense.

You might question whether it is appropriate that a private, for-profit company can arrange for a federal law to be brushed aside because they can’t abide by it.

Dominion will tell you that their substitution is better; but, if so, why do they have to suspend the existing regulations? And why wasn’t the Construction Operations & Maintenance Plan available for public comment?

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This commentary was published in the Charleston Gazette-Mail on February 1, 2018.