The MVP is unnecessary and an insult to the environment and climate change

Letter to Editor from Jim Kotcon, Sierra Club of West Virginia, Morgantown Dominion Post, October 9, 2022

Hoppy Kercheval’s column (“Manchin’s Miscalculation,” Sept. 30) repeats claims from Sens. Manchin and Capito, who relied on industry propaganda calling for “permitting reform” and weakening the National Environmental Policy Act (NEPA).

NEPA has, for over 50 years, required federal agencies to objectively analyze environmental impacts of proposed projects and to involve the public who will be affected by those agency decisions. This approach is both good science and good public policy. Rational decisions are best made with all the facts, and since agencies cannot be expected to know everything about the impacts of their proposals, getting input from those with expertise and interest just makes sense.

Unfortunately, this approach requires that agencies actually listen to people and consider their concerns. Agencies get into trouble when they try to rubber-stamp a decision already made, rather than objectively considering all the issues and reasonable alternatives.

The proposed Mountain Valley Pipeline (MVP) is a classic example of this flawed approach. Courts tend to defer to agency expertise except when the agency is so arbitrary and capricious as to violate federal law. MVP keeps losing in court, not because environmentalists are obstructionists, but because it really is a bad idea — one that violates federal laws meant to protect all of us. The federal agencies that have pushed this have generated NEPA analyses that are so obviously flawed that courts have repeatedly asked that they be redone.

The claim that MVP is needed for domestic security and to supply Europe ignores climate change and the urgent need to wean ourselves from fossil fuels. Investing billions in a project that will not be completed in time to help Ukraine, but that will be obsolete before it pays for itself, while imposing excessive environmental costs on our land and water, is exactly the kind of bad decision that NEPA is intended to prevent.

In a democracy, legitimate permitting reform would not need to rely on a bill that would arbitrarily mandate a single project and prohibit any appeal by citizens.

>>> Jim Kotcon, W.Va. Chapter of the Sierra Club, Morgantown

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See Also: Summary of the National Environmental Policy Act, 42 U.S.C. §4321 et seq. (1969)

The National Environmental Policy Act (NEPA) was one of the first laws ever written that establishes the broad national framework for protecting our environment. NEPA’s basic policy is to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment.

NEPA requirements are invoked when airports, buildings, military complexes, highways, parkland purchases, and other federal activities are proposed. Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all Federal agencies and are the most visible NEPA requirements.

Scientists, engineers, economists and political leaders have a responsibility ...

From the Article by David Shearman, The Hill ~ Energy & Environment, May 12, 2022

Human health and the natural environment are indivisible. A recent article in the journal The Lancet reminds us that “economic decisions on the environment have major impacts on human health, and health and wellness depend on a flourishing environment.”

Those living in vast cities may find this statement difficult to grasp and many economists certainly do, for the words “natural environment” have now to be changed to “natural capital” for their understanding. We live in a world where economic thinking rules our lives, whereas many believe it should be our servant in delivering an equitable and secure future.

When leaders of most Western nations continue to puff out their chests to announce their latest increase in Gross Domestic Product (GDP), or rate of growth, they expose their impotence to manage a nation’s future by failing to recognize environmental costs.

Or as written more politely by Stephen Posner and Lydia Olander, in The Hill, “While congressional leaders debate trillions of dollars of federal spending, they have a critical blind spot” for they are “not informed by a complete accounting of the nation’s assets, leaving out many critical services that nature provides.”

After nearly 70 years of GDP in economic ideology and practice, the World Bank is having second thoughts about GDP as a measure of “growth” for it takes no account of natural and human capital used to achieve it.

Indeed the bank’s “The Changing Wealth of Nations 2021 Managing Assets for the Future” report now seriously questions the use of GDP in its present form and may at long last provide a glimmer of hope for the world to have a sustainable future.

On “natural capital,” the report states “mismanagement of nature and failure to consider the longer-term impacts of our actions can carry severe consequences, even if they might not be immediately evident. We therefore need an expanded economic toolkit, including broader measures of economic progress, to secure our collective prosperity and even sustain our existence as a species.”

The report notes that “in countries where today’s GDP is achieved by consuming or degrading assets over time, for example by overfishing or soil degradation, total wealth is declining. This can happen even as GDP rises, but it undermines future prosperity.”

In Australia with an election due on May 21, the government has proudly announced a current GDP of 4 percent, yet it may well be minus 4 percent if the loss on natural capital is accounted for, due to prodigious land clearing, urban expansion and extensive environmental damage from mining. This may also be the case in the U.S. but there has been little attempt to measure it.

The issue is of pressing importance because world food supply is threatened by war, harvest failures from climate change extreme events and by supply problems. This is a threat to one of our life support systems, the living soil, the ecology of which together with the surrounding services from biodiversity provide our food. The research of many scientists defining these threats should galvanize action.

The World Bank 2021 report may have been influenced by the report “The Economics of Biodiversity,” by eminent economist Professor Partha Dasgupta, which was cited in a previous article in The Hill. Dasgupta pointed out that GDP does not include “depreciation of assets” as such as the degradation of the biosphere. Economic progress has been based on the extraction of resources from nature and the dumping of waste back into it. When extraction and dumping exceed nature’s capacity to repair itself, natural capital shrinks as do biodiversity and the essential environmental services they provide.

A basic tenet of any policy or practice is that it should be able to measure its effect accurately so it is now vital to establish environmental accounting to place a value on natural capital as explained in an article from the Harvard Kennedy School.

Indeed, one has to ask why the U.S. has been tardy to adopt the UN System of Environmental-Economic Accounting (SEEA) which commenced in 2012, when about 90 countries have already done so. The answer may be that the U.S. favors of a free-market system that embodies deregulation and is the leading instrument in disregard for the consumption of natural capital. Indeed, even recent articles from eminent business schools fail to mention the environment as it related to the U.S. economy.

It is also important to reflect that for too long we have failed to acknowledge and use the inherent knowledge of many indigenous peoples on land management. The free-market system has moved Western civilizations far from such understanding.

Reform must be initiated by a fundamental change in the thinking of economists and by politicians of both persuasions. Bipartisan reforms will become all the more necessary when climate-driven conflict emerge, and reforms could offer security, especially to rural constituencies who understand food production. Given the unprecedented impact we’ve had on land, the recent sobering UN land report is essential reading for all members of Congress as they consider economic policies — not just climate action.

A vital step in developing the World Bank’s “expanded economic toolkit” should be to educate the public and business on reform of GDP to put a value on nature so providing an incentive for government to protect it. Currently, “Real GDP” denotes GDP adjusted for inflation. Let us have “true GDP,” which encompasses environmental loss.

But we must realize that reform of GDP is only one piece of a thousand others needed to complete this jigsaw puzzle in the next few decades, if the planet is to remain viable for human life. The other pieces — including climate change, pollutions, toxic chemicals, water security, sea and land ecology, population growth, consumption, conflict — must all fit together as they are interrelated. Only in fitting together the puzzle can we ensure out survival.

>>> David Shearman (AM, Ph.D., FRACP, FRCPE) is a professor of medicine at the University of Adelaide, South Australia and co-founder of Doctors for the Environment Australia. He is co-author of “The Climate Change Challenge and the Failure of Democracy” (2007) commissioned by the Pell Centre for International Relations and Public Policy.

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See Also: Americans Largely Favor U.S. Taking Steps To Become Carbon Neutral by 2050, Alec Tyson, et al., March 1, 2022

Majorities of Americans say the United States should prioritize the development of renewable energy sources and take steps toward the country becoming carbon neutral by the year 2050. But just 31% want to phase out fossil fuels completely, and many foresee unexpected problems in a major transition to renewable energy.

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.

National Environmental Policy Act (NEPA) is Law!

Article from the Allegheny Blue Ridge Alliance (ABRA), December 13, 2018

The Fourth Circuit Court of Appeals vacated on December 13 the U.S. Forest Service’s approval for the Atlantic Coast Pipeline (ACP) to cross two national forests and the Appalachian Trail. The Court’s 60-page opinion came on a case brought by several ABRA members and others that was argued on September 28 (see ABRA Update #200 for details).

The plaintiffs, represented by Southern Environmental Law Center, were Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

The Court concluded that the Forest Service’s decisions amending its Forest Plans and granting a Special Use Permit (SPU) for the ACP violate the National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA), and that the Forest Service lacked statutory authority pursuant to the Mineral Leasing Act (MLA) to grant a pipeline right of way across the Appalachian National Scenic Trail. The Court granted the petition for review of the Forest Service’s SPU and its Record of Decision to amend the Forest Plans, as sought by the plaintiffs, vacated those the Forest Service’s decisions and remanded the case to the Forest Service “for further proceedings consistent with this opinion.”

In its opinion, the Court detailed how the Forest Service initially expressed serious skepticism about the ACP’s ability to be constructed through the steep slopes of the central Appalachian mountains in West Virginia and Virginia. In an October 24, 2016 letter to the Atlantic Coast Pipeline, LLC (Atlantic), the Court noted that the Forest Service had requested ten site-specific stabilization designs for selected areas of challenging terrain to demonstrate the effectiveness of Atlantic’s proposed steep slope stability program, which Atlantic called the “Best in Class” (“BIC”) Steep Slopes Program” because the agency needed to be able to determine that the project was consistent with the Forest Plans of the George Washington National Forest(GWNF) and the Monongahela National Forest (MNF). The ACP would cross a combined 21-miles of National Forest lands in the two forests. Then, the Court noted, the Forest Service changed its mind and without explanation ultimately approved the project without requiring the requested ten stabilization designs for the project. (For more on the Forest Service request to Atlantic, see ABRA Update #103)

The NFMA establishes a procedure for managing forest plans through the use of Forest Plans and directs the Forest Service to ensure that all activities on forest lands are consistent with those Plans. The Court ruled that the Forest Service, in amending the GWNF and MNF plans, did not follow its own criteria and procedures for doing so. Among reasons cited in the opinion was the Forest Service’s failure to do a proper analysis of whether the ACP could be reasonably routed through non-national forest lands.

In considering the Forest Service’s compliance with NEPA in its evaluation of the ACP, the Court concluded that the agency violated that law “by failing to take a hard look at the environmental consequences of the ACP project. The Forest Service expressed serious concerns that the DEIS (Draft Environmental Impact Statement of the Federal Energy Regulatory Commission for the project) lacked necessary information to evaluate landslide risks, erosion impacts, and degradation of water quality, and it further lacked information about the effectiveness of mitigation techniques to reduce those risks.”

Regarding the violation of the MLA, the Court faulted the Forest Service for approving the ACP crossing the ANST on national forest land when the agency did not have the authority to do so. In its concluding paragraph of the opinion, the Court stated:

We trust the United States Forest Service to “speak for the trees, for the trees have no tongues.” Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources. This conclusion is particularly informed by the Forest Service’s serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.

Reacting to the Court’s opinion, SELC attorney Patrick Hunter said:

“The George Washington National Forest, Monongahela National Forest and the Appalachian Trail are national treasures. The Administration was far too eager to trade them away for a pipeline conceived to deliver profit to its developers, not gas to consumers. This pipeline is unnecessary and asking fracked gas customers to pay developers to blast this boondoggle through our public lands only adds insult to injury.”

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Federal Energy Regulatory Commission (FERC) Requested to Revoke ACP’s Certificate

Article from the Allegheny Blue Ridge Alliance, December 13, 2018

In a filing late December 13, the Federal Energy Regulatory Commission (FERC) was asked to revoke the certificate for the Atlantic Coast Pipeline in light of the decision earlier in the day by the Fourth Circuit Court of Appeals to vacate the U.S. Forest Service’s approval for the pipeline to cross national forest lands and the Appalachian National Scenic Trail. In its 65-page letter to FERC, the Southern Environmental Law Center stated:

Crucially, the court held that the Forest Service does not have statutory authority to authorize the pipeline to cross the Appalachian Trail. As a result, under federal law, Atlantic Coast Pipeline, LLC (“Atlantic”) cannot obtain authorization from federal agencies to cross the Trail as proposed.

The Commission must therefore revoke the Certificate of Public Convenience and Necessity. Further, the Commission must issue a formal stop-work order, effective immediately, halting all construction activities because the court’s decision means that Atlantic continues to be out of compliance with a mandatory condition of its Certificate of Public Convenience and Necessity.

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Utilities ask Federal Energy Regulatory Agency to step on it with ACP

From an Article by John Bruce, Highland Recorder, September 7, 2017

MONTEREY — Today, in a move to speed up the regulatory process, Dominion, Duke and Southern asked the Federal Energy Regulatory Commission to approve the proposed Atlantic Coast Pipeline this month so tree clearing can start in November.

An urgently toned letter to FERC chair Neil Chatterjee, commissioners Cheryl LaFleur and Robert F. Powelson requested FERC “issue an order granting the certificate for the project at the earliest possible time, consistent with the rules and regulations of the commission.

“The commission staff issued the final Environmental Impact Statement for the project July 21, 2017. In the EIS, FERC staff concluded that the majority of impacts would be reduced to less-than- significant levels with the implementation of ACP’s proposed mitigation and the additional measures recommended in the EIS. We are pleased by the favorable findings in the EIS and have every confidence that the staff recommended conditions can be incorporated into our construction framework.”

It was difficult to determine whether the sense of urgency was related to what climate change scientists have decided is a link between fossil fuels emissions and the record hurricane season devastation. The request did not mention a U.S. Court of Appeals landmark Aug. 22 decision ordering FERC to write a second EIS of the Spectra (now Enbridge) Sabal Trail Pipeline taking greenhouse gas emissions into account as integral to the pipeline overall environmental impact.

Rather, the utilities pointed to agencies that, they claim, want the project to stay on schedule, plus purported economic benefits.

“Further, activities by other federal agencies including the U.S. Forest Service, U.S. Fish and Wildlife Service, Army Corps of Engineers and the National Park Service for permits and related authorizations remain on schedule. Similarly, state actions for section 401 Water Quality Certifications and other state requirements are proceeding and align with our anticipated construction schedule to begin tree clearing in November 2017,” the letter urged.

The proposed “ACP will deliver 1.5 MMDt/day and has commitments for 93 percent of the pipeline capacity. Of this amount, 68 percent of the supplies will serve the electric generation needs in North Carolina and Virginia, thereby improving regional air quality. In addition, 24 percent of ACP’s capacity will provide expanded supplies of natural gas for local gas utilities to meet the critical needs of residential, commercial and industrial customers in gas constrained areas,” the letter said.

“Virginia Natural Gas, a gas distribution subsidiary of Southern Company Gas, serving nearly 300,000 customers in Eastern Virginia, best exemplifies the urgency with this statement on the FERC docket: There is not currently enough interstate pipeline capacity to serve any substantial economic development east of Richmond, Virginia, and often throughout the heating season, large transportation customers are adversely impacted by having their natural gas use restricted by operational flow orders issued from existing interstate pipelines,” the company wrote.

“Piedmont Natural Gas of North Carolina has documented similar critical needs: Increasing demand for natural gas in Piedmont’s rapidly growing Carolinas market is the primary driver for the Atlantic Coast Pipeline, which is the most competitively-priced option for our customers. Not only will ACP deliver the needed additional supplies to support customer growth, but it also will provide operational pressure critical to Piedmont’s physical infrastructures at strategic locations on its pipeline system. The significant natural gas pipeline also will create much needed economic development opportunities through a portion of North Carolina that historically has been economically challengers. The established record about the project confirms that natural gas delivered by ACP will enhance energy security and fuel diversity for the region.

“The associated economic benefits are well documented as the project will bring over 17,000 new jobs in the construction industry, $377 million in annual energy cost savings for customers and $28 million in new, annual tax revenues for local governments along the pipeline route. These are only a few of the project’s benefits. Since ACP formally filed with FERC in September 2015 for permission to build the project, it has gained an expansive record of support from state and local governments, skilled craft labor organizations and leading business groups.

“We recognize the commission has a number of cases pending consideration with the restoration of quorum,” Dominion continued. “The commission’s timely issuance of the order for the ACP project, however, is essential to meeting our contract obligations, ensuring customers realize the energy savings, providing manufacturing access to needed supplies of natural gas, and offering enhanced energy security and reliability to the region. For these reasons, we respectfully request that the commission issue an order approving the ACP certificate in September, so that the initial construction activities and tree clearing can begin in November and conclude in early 2018 as described in the final EIS.”

Those signing the letter included Diane Leopold of Dominion, Franklin Yoho of Duke, and Andrew Evans of Southern.

See also: Friends of Nelson County: Standing in Opposition to Dominion’s Proposed Pipeline