“Supply Header Project” (SHP) was part of the ACP transmission scheme

From an Article of The Recorder, July 17, 2020

MONTEREY — If the latest requests and comments to federal regulators are any indication, it’s going to take quite a while for the smoke to clear after cancellation of the Atlantic Coast Pipeline.
Last week, the Southern Environmental Law Center said two requests Dominion Energy made to the Federal Energy Regulatory Commission need extra FERC attention.

Friday, FERC set a 15-day comment period on Dominion’s requests for extending the timeline by one year for the ACP stand down, and two years for completing the supply header project. That was half the time SELC asked FERC to provide for stakeholders to address the modified request to extend the ACP’s construction deadline.

SELC attorneys Greg Buppert, Mark Sabath and Emily Wyche advised in comments to FERC to deny the request for a two-year extension to complete and place into service the proposed Supply Header Project (SHP) because the request fails to meet FERC’s standard for granting extensions. FERC has never granted an extension to an applicant deciding on whether to use a proposed project.

To the extent Dominion decides to move forward with the SHP minus the pipeline, Dominion must seek additional authorization from FERC in a new proceeding. FERC cannot act on the modified extension request for the ACP without providing an opportunity for additional intervention and public comment to address important questions.

Dominion requested a one-year extension for construction activities, which it asserts may be necessary for abandoning and restoring ACP project areas. “There may be good reason for this extension, but Atlantic has provided little explanation for the commission’s authority to grant this request and has left unaddressed details that will be important to the public,” SELC said. “The public could not have anticipated the need to address restoration of the now abandoned right of way during the initial extension comment period, before Atlantic and DETI abandoned the ACP.

The attorneys argued FERC must, at minimum, provide another comment period of at least 30 days. “For example, given the eminent domain authority that comes with a certificate order, and the hundreds of properties affected by the project, the public, and landowners in particular, will be interested in the status of Atlantic’s easements and eminent domain authority during the restoration period and the landowners’ associated rights to their property during this time,” they argued.

“Any extension of the construction deadline must include conditions limiting Atlantic’s authority under the certificate order, and public comment is necessary to identify what conditions would be appropriate. Specifically, if the commission grants the extension of time for construction activities, it must, at a minimum, address the following issues,” they said. They listed those as:
<< • Limiting activities to only those necessary for restoring the right of way and abandoning the pipeline and vacating the remainder of the certificate order, in turn removing Dominion’s eminent domain authority over the right of way.
<< • Identifying the mechanisms by which affected landowners will communicate specific restoration requirements to the company.
<< • Requiring Dominion to immediately commence consultation with all relevant state and federal agencies to promptly establish appropriate standards for completing restoration of the right of way.
<< • Identifying how FERC and other state and federal agencies will monitor restoration activities and associated environmental impacts. Monitoring could include a requirement that Dominion continue to submit regular status reports and environmental compliance monitoring reports during the restoration period.
<< • Requiring Dominion to promptly contact all landowners where a right of way easement exists and inform them Dominion will release the right of way easement within 90 days of a written request from an affected landowner; provide the landowner with the proposed written release; pay the reasonable attorneys’ fees of the landowner in reviewing and negotiating changes to the easement; and file the final, executed written release of the easement in the land records of the appropriate jurisdiction.

Dominion has already committed that landowners will keep the easement compensation they have received, they said.

“These are only a few of the important and complex issues that the commission must resolve and that the public must be permitted to address to help inform the commission’s decision,” SELC said, noting that public comment, while necessary, should only be the first step in developing a restoration plan for the ACP project areas.

“The public comment period will serve to highlight the concerns of landowners, conservation groups, and other stakeholders,” SELC added; but because Dominion did not include details in its extension request on what restoration may require or look like, citizens will be limited in their ability to weigh in.

SELC filed the comments on behalf of the Alliance for the Shenandoah Valley, Cowpasture River Preservation Association, Friends of Buckingham, Friends of Nelson, Highlanders for Responsible Development, Piedmont Environmental Council, Shenandoah Valley Battlefields Foundation, Virginia Wilderness Committee, Sound Rivers, Inc., and Winyah Rivers Foundation.

FERC strongly encourages electronic filings of comments in lieu of paper using the “eFiling” link at www.ferc.gov. In lieu of electronic filing, you may submit a paper copy.

Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, D.C. 20426.

Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Md. 20852.

The comment deadline is 5 p.m. on August 3, 2020.

ACP is a private for-profit project pretending to be in the public interest

From an Article by Sarah Vogelsong, Virginia Mercury, February 24, 2020

WASHINGTON, D.C. — Where does a trail end and the land beneath it begin?

That’s just one of the thorny questions the Supreme Court grappled with Monday morning during a one-hour hearing on a U.S. Forest Service permit for the controversial Atlantic Coast Pipeline that has been hotly anticipated by both the gas and oil industry supporting the pipeline and the environmentalists opposing the project.

Since its inception, the Atlantic Coast Pipeline, a 600-mile conduit that would bring natural gas from West Virginia, through Virginia and into North Carolina, has been challenged on multiple fronts. The project, 53 percent of which is owned by Dominion Energy, currently has eight outstanding permits that have been revoked as a result of legal resistance.

The issue before the U.S. Supreme Court Monday concerned a permit granted by the U.S. Forest Service giving the pipeline the right-of-way to cross federal lands beneath the Appalachian Trail.

A December 2018 decision by the U.S. Court of Appeals for the 4th Circuit stripped the pipeline of that permit on the grounds that the Forest Service had acted “arbitrarily and capriciously” and didn’t have the authority to grant rights-of-way for pipelines to cross federal lands under the Mineral Leasing Act.

It was the latter determination that the Supreme Court took up Monday in a narrow, complicated case that pushed environmental concerns to the back-burner to focus on exactly what authority Congress has given to what agency to manage federal lands in the National Park System.

The Mineral Leasing Act says that “rights-of-way through any federal lands may be granted by the secretary of the interior or appropriate agency head for pipeline purposes,” but defines federal lands as “all lands owned by the United States except lands in the National Park System.”

Whether the Appalachian Trail is just a trail that runs over the surface of the land or includes all the land beneath it — “down to the center of the earth,” as Justice Stephen Breyer put it — was a point of contention during arguments.

“The central flaw in the court’s logic lies in the fact that the Appalachian Trail is a ‘trail,’ not ‘land,’” the federal government’s brief argued. “Congress’s charge to the secretary of the interior to provide ‘overall administration of a trail’ does not transfer any administrative jurisdiction over the federal land that the trail traverses. Those lands remain under the administrative jurisdiction of their relevant federal land-management agencies. As such, National Forest lands crossed by the Appalachian Trail remain under the jurisdiction of the Forest Service.”

Several of the court’s more liberal-leaning justices, including Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, appeared skeptical of that stance. “You’re saying that the trail is distinct from the trail,” said Justice Kagan early in the hearing. “Nobody makes that distinction in real life.”

But Paul Clement, an attorney for the Atlantic Coast Pipeline, argued that “multiple provisions” of the National Trails System Act draw a distinction between the two, and that conflating them would have “untenable consequences,” including the conversion of the Appalachian Trail into a 2,200-mile barrier to all pipeline development that would deprive eastern states of natural gas.

That argument seemed to strike a chord with several justices, including Chief Justice John Roberts and Justice Brett Kavanaugh, who both questioned Michael Kellogg, the attorney representing the consortium of five Virginia conservation groups opposing the Forest Service permit, about the potential outcome of creating what Roberts called “an impermeable barrier” to gas transportation.

Kellogg, however, contended that argument was misleading, because the Mineral Leasing Act only applies to federal lands and does not prohibit the granting of rights-of-way for pipelines beneath the trail on state, local and private lands. “Congress drew a bright line,” he said.

About 50 pipelines currently cross the Appalachian Trail, either on state, local or private land, or on federal lands under rights-of-way established prior to the passage of the Mineral Leasing Act.

Greg Buppert, an attorney for the Southern Environmental Law Center, a law firm that has been heavily involved in fighting both the Atlantic Coast Pipeline and the Mountain Valley Pipeline, said after the hearing that it was the “unprecedented” nature of the request for a right-of-way to construct a pipeline across federal lands that had brought the case to the Supreme Court.

The statutes, he said, “make it clear that this part of the Appalachian Trail gets its highest protections.” A decision in the case is not expected until late spring.

PHOTO in ARTICLE: Greg Buppert of the Southern Environmental Law Center offers comments about the hearing on the Atlantic Coast Pipeline, on the steps of the U.S. Supreme Court in Washington, D.C. Feb. 24, 2020.

Dominion Energy goes to the court of last resort

From the Allegheny Blue Ridge Alliance, Update #264, February 20, 2020

The U.S. Supreme Court argument of the Cowpasture River Preservation Association v. Forest Service will take place on Monday, February 24 at 10 am. One-hour is scheduled for the case.

To review briefs that have been filed on the Cowpasture case, click here. The ABRA Update article on the Fourth Circuit Court of Appeals decision of December 2018 that is being appealed is available here.

The U.S. Forest Service and Atlantic Coast Pipeline, LLC are the appellants in the case. The respondents are seven ABRA members: Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Association, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

Those who plan to attend the argument should consult instructions on the Supreme Court website, here. Note that space in the courtroom is limited and there is no guarantee that all who wish to attend will be seated. Therefore, it is advised that attendees for the argument arrive very early. The Supreme Court is at 1 First St., SE, Washington, DC, located 0.3 miles from the Capital South Metro Station. The closest parking garage is at Union Station, located 0.5 miles from the Court.

Audio recordings of all oral arguments heard by the Supreme Court are posted online on Fridays of each argument week (February 28 for this case). To access the recordings, click here.

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Federal Court Rebuffs US Fish & Wildlife Service (FWS) Over Classification of Northern Long-Eared Bat

From the Allegheny Blue Ridge Alliance, Update #264, February 20, 2020

The 2015 listing of the northern long-eared bat as “threatened” rather than “endangered” by the U.S. Fish and Wildlife Service (FWS) has been rejected by U.S. District Court for the District of Columbia. The January 28 decision by the Court, came as the result of a legal challenge by the Center for Biological Diversity, threatened despite the fact that it has declined in its core range by over 90% since 2006, when Defenders of Wildlife, Sierra Club, Coal River Mountain Watch and Ohio Valley Environmental Coalition.

The bat, whose habitat includes the central Appalachian Mountains, was listed as the fungal disease known as white-nose syndrome began killing hibernating bats by the millions.

In rejecting the agency’s decision, the judge found that FWS had failed to explain why the species was not endangered after suffering catastrophic declines as a result of white-nose syndrome. The judge also found FWS failed to consider the cumulative effects of habitat destruction against that grim backdrop.

The decision could impact future infrastructure developments in the habitat region of the bat. It is not yet known whether the FWS will appeal the decision. For more, click here.

ACP protest of Union Hill Compressor Station

From an Article of The Recorder, May 16, 2019

RICHMOND – The U.S. Fourth Circuit Court of Appeals on May 9 heard environmentalists again ask the three-judge panel to stop a proposed shale gas pipeline’s construction through the Alleghenies due to the presence of an endangered bumblebee and another threatened species.

Defenders of Wildlife, Sierra Club, and the Virginia Wilderness Committee filed a second appeal.

The appeal followed word from the U.S. Fish and Wildlife Service about a second biological opinion and incidental take analysis approving construction of the $7.5 billion, 600-mile Atlantic Coast Pipeline, which would bring shale gas to the Southeast for power generation and to the western shore of the Chesapeake Bay for export.

Dominion Energy manages the project.

The first biological opinion was challenged at the same court.

Late last year, the three-judge panel threw out the permit after finding it ignored regulations for endangered species. Dominion stopped construction in 2018 while awaiting a second permit.

The same environmental groups on May 9 re-challenged the permit’s impact on species including the rusty patched bumblebee.

Southern Environmental Law Center attorney Austin Donald Gerken Jr. argued for the environmental groups that the Fish and Wildlife Service expedited the permit and again failed to address issues raised the first time. He argued that a 2018 Virginia Department of Conservation and Recreation survey found a few rusty patched bumblebees seen in the area marked “one of only five reported sightings outside the Midwest in the last decade.”

Fish and Wildlife ignored the new bee data and presented other errors in the second permit, Gerken said.

Justice Department attorney Kevin McArdle argued for Fish and Wildlife and was asked about the rusty patched bumblebees. He said Fish and Wildlife said a bee expert’s estimation was a best guess, and her expertise along with new data met legal requirements. U.S. Circuit Judge Stephanie Thacker suggested that was not very scientific.

Impact on the Madison Cave isopod, a threatened native subterranean freshwater crustacean, was another topic of argument.

McArdle told the panel the project would impact subsurface rock in one area, but not others. The pipeline would be buried eight feet, and the water table for most of the area was about 20 feet deep, McArdle said.

Gerken argued the agency’s documentation showed at least six sinkholes in the pipeline’s path. Blasting and heavy equipment movement would impact the isopod.

Forester Sam Crockett pointed out thousands of workers lost employment before Christmas when the Forth Circuit threw out the first permit December 8th.

All Democratic appointees, Chief U.S. Circuit Judge Roger Gregory and U.S. Circuit Judge James Wynn joined Thacker on the panel. There was no time frame for issuing a decision.
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See Also: That’s part of our responsibility’: Faith leaders lead march in protest of Atlantic Coast Pipeline, WRIC, Richmond. VA, May 17, 2019

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Allegheny – Blue Ridge Alliance, ABRA Update #230 – May 16, 2019

Some 52 Groups Oppose Congress Acting on Appalachian Trail & BLue Ridge Parkway Crossings

Fifty-Two organizations, representing thousands of individual members in Virginia, wrote to the Virginia congressional delegation on May 16 urging them to oppose “possible federal legislation that would allow the highly controversial Atlantic Coast Pipeline (ACP) to be built across the Appalachian Trail and Blue Ridge Parkway.” The groups’ letter noted that “Dominion Energy is pressuring some members of Congress to consider legislation that could make it easier to build the ACP along the developers’ preferred route. Such legislation would be inappropriate given the ongoing review of the project by agencies and the courts.” Separate letters were sent to Senators Warner and Kaine and to the eleven Virginia members of the U.S. House of Representatives. ABRA and many of its member organizations were among the signatories to the letter.

Union Hill deserves protection from noise & air pollution

Press Release of Southern Environmental Law Center, Charlottesville, VA, February 8, 2019

Richmond, VA — Today the Southern Environmental Law Center, on behalf of its client the Friends of Buckingham, challenged the Virginia Air Pollution Control Board’s decision to approve Dominion’s Atlantic Coast Pipeline Buckingham County compressor station.

“The Air Board has refused to address the disproportionate harm that our community will have to bear as a result of the construction of this polluting compressor station,” said John W. Laury of Friends of Buckingham. “The members of our community should not have our health put at risk for a project that wasn’t properly vetted for environmental justice or air quality concerns.”

The Air Board and the Department of Environmental Quality did not meet their obligations under state and federal laws to consider less polluting alternatives and the best available pollution controls for minimizing pollution from the proposed compressor station.

“The backdrop to the board’s decision about the compressor station is the mounting evidence that customers in Virginia do not need the Atlantic Coast Pipeline to meet their energy needs,” said Southern Environmental Law Center Senior Attorney Greg Buppert. “When a project like this pipeline goes forward without a full and transparent evaluation of its public necessity, it unfairly puts communities like Union Hill in harm’s way.”

Dominion’s Atlantic Coast Pipeline project is already stymied because a federal court has vacated or put on hold multiple required permits for failing to comply with applicable law and federal agencies have themselves revoked other permits.

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For more than 30 years, the Southern Environmental Law Center has used the power of the law to champion the environment of the Southeast. With more than 80 attorneys and nine offices across the region, SELC is widely recognized as the Southeast’s foremost environmental organization and regional leader. SELC works on a full range of environmental issues to protect our natural resources and the health and well-being of all the people in our region. www.SouthernEnvironment.org

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The Moral Call for Ecological Justice in Buckingham, Feb. 19th, 6 to 8 PM.

Join Rev. Dr. William J. Barber, II and former Vice President Al Gore for a program on “The Moral Call for Ecological Justice in Buckingham.” The public is invited to this free, educational event, where Buckingham residents and other Virginians will share stories of the impacts of environmental injustice, and scientific experts will discuss the health threats and ecological devastation of the proposed Atlantic Coast Pipeline and compressor station. As we celebrate Black History Month, we recognize how poverty, racism and ecological concerns are connected, and that we cannot address just one without addressing the others.

Rev. Dr. Barber is President of Repairers of the Breach and co-chair of the Poor People’s Campaign: A National Call for Moral Revival. Former Vice President Gore is the founder and chairman of The Climate Reality Project, a non-profit devoted to solving the climate crisis.

Please note: We encourage you to RSVP for this event, but you will not need your ticket to get in. Please share and bring others!

Date And Time: Tue, February 19, 2019, 6:00 PM – 8:00 PM EST

Location: Buckingham Middle School, 1184 High School Road, Buckingham, VA 23921

Reason is slow and difficult to achieve on pipelines

From an Article by Robert Zullo, Virginia Mercury, August 16, 2018

A federal court in Richmond that has served as a major legal battlefield this summer over federal and state permits for the Atlantic Coast and Mountain Valley pipelines got a new case added to its docket Thursday.

The Southern Environmental Law Center and Appalachian Mountain Advocates filed a challenge to the Federal Energy Regulatory Commission’s certificate of public convenience and necessity for the Atlantic Coast Pipeline, the federal approval that underpins the entire project and conveys the right to seize land from uncooperative property owners along the 600-mile route.

The new suit was filed in the U.S. Court of Appeals for the 4th Circuit in Richmond, the same court that has vacated several key permits for the Atlantic Coast and Mountain Valley pipelines.

In response to the court’s action, FERC ordered construction halted last week on the ACP, developed by a group of energy companies led by Dominion Energy. On the same day, in a 2-1 vote, the agency’s commissioners denied a request for rehearing on the certificate.

At least two of FERC’s four sitting commissioners say the pipeline isn’t in the public interest. The fifth, Robert Powelson, left FERC this month.

In a dissent, Commissioner Cheryl LaFleur, who also voted last year against issuing certification for the ACP and the Mountain Valley Pipeline, which will cross into Pittsylvania County, said the ACP remains contrary to the public interest and that FERC should have explored more opportunities for co-locating the two projects.

Photo in original article: The Lewis F. Powell Jr. federal courthouse in Richmond is home to the U.S. Court of Appeals for the 4th Circuit, which struck down a key approval for the Atlantic Coast Pipeline Monday. (Ned Oliver/ Virginia Mercury)
“I disagree with the commission’s approach to evaluating system and route alternatives, particularly in light of the recently-issued Fourth Circuit Court of Appeals (Fourth Circuit) decision which vacated the National Park Service’s federal authorization allowing the ACP Project to cross the Blue Ridge Parkway,” LaFleur wrote, adding that she also took issue with how FERC treats climate and environmental effects.

Another commissioner, Richard Glick, abstained from the vote “solely to enable those parties challenging the certificate to have their day in court.”

Glick added that if he had voted, the rehearing order would have failed on a 2-2 vote and the “appellate courts would not have had jurisdiction to review the commission’s decision to grant the certificate.”

FERC has come under scrutiny for its use of “tolling orders” to prevent opponents of the projects it certifies from getting into court to fight them.

“I share many of the concerns articulated in Commissioner LaFleur’s dissenting opinion and I do not believe that the ACP Project has been shown to be in the public interest,” Glick wrote. “It is fundamentally unfair to deprive parties of an opportunity to pursue their claims in court, especially while pipeline construction is ongoing.”

The SELC and their allies have argued that the gas from the Atlantic Coast Pipeline isn’t needed for utilities, as the companies pushing the projects have insisted.

Gas-fired plants in Virginia and North Carolina are already connected to the existing system and testimony at the Virginia State Corporation Commission indicates that Virginia ratepayers could be on the hook for nearly $2.4 billion in extra costs because of the pipeline. FERC has guaranteed a 14 percent rate of return for the project, which could cost more than $6.5 billion.

‘”At a time when clean, renewable energy is affordable and abundant, the only reason to lock us into decades of dependence on climate-disrupting fracked gas is that polluting corporations are making billions of dollars off it. It’s a shame that we have to go to court to force FERC to do its job, but we are committed to using every available avenue to stop the ACP and all the other coal, oil and gas projects that threaten our climate and communities,” said Joan Walker, a representative with the Sierra Club’s “Beyond Dirty Fuels Campaign,” in a statement.

Dominion Energy spokesman Aaron Ruby did not immediately respond to a request for comment on the lawsuit. The company has said it is “already working with the key agencies to resolve the issues in FERC’s order so we can resume construction as soon as possible.”