Proposed pipelines for shale gas in central Appalachia

Letter to Editor of Charleston Gazette-Mail by Jim Kotcon and Kevin Campbell, August 4, 2020

Doug Reynolds, majority owner of HD Media LLC, which owns the Charleston Gazette-Mail, questioned in a recent op-ed whether anyone wins from the cancellation of the Atlantic Coast Pipeline natural gas project.

Unfortunately, he and a wide range of West Virginia leaders appear to be taking the wrong lessons from the cancellation. If West Virginia leaders want to promote economic development, they need to recognize what really happened here and what it means for the future.

Developers, politicians and other industry leaders blame “regulatory uncertainty” and litigation by environmentalists for the cancellation. But West Virginians should not be fooled: The developers of the pipeline really have only themselves and their bad management decisions to blame.

Courts tend to defer to regulatory agencies, so the court decisions halting the pipeline only could have happened because those violations were real. These were not the result of “regulatory uncertainty,” they were the result of developers trying to ignore the plain language of the law.

For over five years, we have told developers that climate change is real, that building a pipeline on steep slopes with erodible soils requires very careful, site-specific plans to prevent water pollution and that the need for the pipeline was never really demonstrated. Instead of addressing these very real issues, developers continually tried to bulldoze over our objections. Those bad decisions resulted in dozens of violations, successful legal challenges, wasted money and continuous conflict.

Water quality violations from Atlantic Coast are numerous. We saw it coming, we warned regulatory agencies in hundreds of public comments and complaints, and unfortunately, it happened as we forecast. This was not some big surprise, it was the inevitable and easily predictable result of trying to build on West Virginia’s steep slopes without adequate precautions.

The lack of need for the pipeline may have been the real driver for the cancellation. It was dubious from the beginning, driven more by the greed of developers to capture guaranteed returns from ratepayers than from any realistic assessment of market demand. As prices for exported gas collapsed and plans for new power plants were shelved, the economic justification looked more and more contrived. We suspect that if there were a legitimate market need, Atlantic Coast would not have been canceled, regardless of the environmental concerns.

Most importantly, climate change is real. We need to reduce use of fossil fuels quickly and be entirely out within 30 years. Investing billions of dollars in fossil fuel infrastructure would almost certainly never pay off. The passage in Virginia this spring of the state’s Clean Economy Act made that abundantly clear to developers, even if West Virginia politicians remain chained to the failed fossil fuel millstone of the past. Until we recognize the reality of climate change and adopt the needed policies to address it, economic development struggles will continue.

And if West Virginians want jobs, dollars invested in renewables now produce more jobs than fossil fuels. West Virginia continues to miss real job creation opportunities by trying to save a dying fossil fuel industry. Every surrounding state has more jobs in renewables than West Virginia, primarily due to the renewable energy policies chosen by lawmakers.

Reynolds asked, “Who won?” Well, landowners will get to use their property (we hope), so they won. West Virginia streams will be a little cleaner, so we all win that one. Ratepayers do not have to reward developers with billions of dollars for unnecessary costs, so they win big. Most of all, the greenhouse gases will not pollute the atmosphere for decades to come, so planet Earth wins.

Note: Jim Kotcon and Kevin Campbell are with the Sierra Club Chapter in West Virginia.
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See also: The Atlantic Coast Pipeline was canceled. What happens to all the land acquired for it? – Virginia Mercury, July 29, 2020

‘ROW’ for MVP in Roanoke County, VA, in July 2018

Letter of Emily Satterwhite, Virginia Mercury, April 15, 2019

In May 2018, Mountain Valley Pipeline confessed to the Federal Energy Regulatory Commission that its plan for stream crossings along its proposed 303-mile fracked gas pipeline had been based on “theoretical desktop analysis” that “did not take site specific constructability issues (elevations, terrain and workspace) into account.”

From May to September, MVP, FERC, and the Army Corps of Engineers communicated with one another about this confession. We only know about this correspondence thanks to the work of a community-based watershed group in West Virginia, which in December filed a letter with FERC outlining its findings from a Freedom of Information Act inquiry.

Before then, all we knew was that on September 24, 2018, MVP requested a project-wide Variance-006 that would allow pipe to be buried more shallowly on either side of streambeds and that the variance was granted the very next day.

In requesting a variance, MVP admitted that if it followed its original vertical scour and lateral erosion plan, construction “would pose increased environmental or landslide risks or be unsafe or impractical due to terrain or geology.”

FERC staff approved the massive changes, essentially allowing MVP to fabricate its own construction standards on the fly, despite reservations from within both FERC and the corps. Documents indicate that Chris Carson, a corps project manager for the Huntington district, cautioned that “no information is provided indicating whether any of the changes would result in additional discharges of dredge or fill material into waters of the United States.”

FERC Senior Consultant Lavinia DiSanto directed MVP to provide a “site specific scenario … for each location that would receive mitigation.” MVP Design Engineer Ricky Myers dismissed DiSanto’s directive as “excessive” and insisted that MVP would abide by its own newly revised rule: they would build as they saw fit and then consult with a monitor after construction.

FOIA documents give no indication that MVP or FERC informed the West Virginia Department of Environmental Protection or the Virginia Department of Environmental Quality regarding the MVP—FERC-corps communications about the variance prior to publication on the FERC docket.

Collusion between FERC staff and MVP enables ongoing reckless construction of a massive project that continues to negatively affect water quality and the well-being of people and communities.

If MVP is able to obtain a new Army Corps of Engineers permit (its previous permit was vacated by the U.S. 4th Circuit Court of Appeals) and allowed to resume construction in waterways, MVP will do so under its own rogue standards.

FERC commissioners should mandate a supplemental environmental impact statement (EIS) that includes the site-specific analysis requested by FERC contractor DiSanto. Virginia’s attorney general and State Water Control Board must issue a stop-work order until such time as the SWCB can assess the effects of variance-006 upon construction of the Mountain Valley Pipeline and demand that MVP to do the stream-by-stream homework that Virginia’s DEQ should have required in the first place.

>>> Emily Satterwhite is an associate professor and director of Appalachian studies at Virginia Tech.

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.

It takes a strong commitment to protect & preserve what we have!

An article of this title recently ran in the Wheeling Intelligencer. It represents a cave in by a significant environmental group that give the business oriented Intelligencer some thing to brag about. It is unlikely the report, “Improving Steep-Slope Pipeline Construction to Reduce Impacts to Natural Resources,” will meet the needs of our steep and rocky terrain.

It will be applied to the entire range of conditions from the soft soil and rock on the Appalachian Plateau through the folded Appalachian Mountains to the south and east. Through limestone karst, famous for caves and sinkholes and slopes up to and beyond 173% (60 degrees).

In places the fill will be the broken rock cut out to make the trench. This will make it impossible to divert the water off the right of way. It will divert water to flow down the broken rock in the ditches. In other places the long pipeline straight down the hill for hundreds of feet will have diversion ditches that deliver the diverted water off the right of way in additive fashion so large volumes will be aggregated in heavy rains. Pipelines in karst is asking for failure due to cave-ins and stream diversion.

If the pipe must go in, what is required is meticulous attention to local topography and geology and equally meticulous attention to small scale engineering. This is unlikely to occur due to the great cost involved.

The Nature Conservancy is doubtless well intentioned, but really not directed by people close to conditions involved.

>>> S. Tom Bond, Retired Chemistry Professor & Resident Farmer, Lewis County, WV

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Brief Comment on TNC Pipeline Project —

This is why I consider TNC foremost among the Shady Lady environmental groups, to put it politely.

They also collaborated with the gas industry on a study of how much methane leaks, with findings coming out much lower than independent studies. Looks to me like they aid industry much more than the environment, with this attitude that the pipelines must and will be built so we should do what we can to minimize the harm.

As far as I’m concerned, their main mission to collect funds to buy land which they then protect from development, is no better — I’ve seen allegations that they don’t always protect their lands and anyway this reinforces the idea that the rich legitimately own the Earth, and if we want any of it protected we have to buy it back from them.

>>> Mary Wildfire, Roane County, WV

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We might also consider this —

I believe TNC has a conservation easement that will be crossed by MVP and one of their motivators for this was to hold the company to a higher standard where they could, for their property.

Amy Mall, Land & Wildlife Program, National Resources Defense Council (NRDC)

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Letter to The TNC Magazine (August 13, 2018)

I am a retired mining engineer (B.S.; M.S.; P.E.) living in Rockingham County Virginia. I am writing in response to a “study” I just became aware of entitled “IMPROVING STEEP-SLOPE PIPELINE CONSTRUCTION TO REDUCE IMPACTS TO NATURAL RESOURCES” (link here).

This study was apparently a collaboration between the Nature Conservancy and 8 oil and gas companies. It’s unfortunate the input was so heavily weighted in favor of the companies that will profit from doing this type of work by externalizing the environmental costs to the public.

Your “study” seems to over simplify the issues involved in constructing a major natural gas pipeline through steep mountainous terrain, much of it containing karst. It fails to mention more active measures for monitoring pipeline stress and the installation of strain and displacement gages on and around the pipeline. Even with such measures, however, the construction of pipelines like the Mountain Valley and Atlantic Coast will cause significant and irreversible environmental damage. It will also cause significant economic losses to the people whose land is crossed by or near to the pipelines.

The installation of such fracked gas pipelines will also act as a driving force for further fracking of deep shale formations, which will cause even more environmental damage.

Your participation in the preparation of this document will be seen as a sellout and betrayal of the thousands of people who are opposed to such pipelines and whose lives will be so negatively impacted by them. I am disappointed in the position your organization has taken.

George M. Neall III, Rockingham County, Virginia

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Dear Friends,

I think any time you have a very large organization—and TNC is the largest environmental non-profit in the country if not the world—that does thousands of transactions and works globally, there are going to be problems that surface, whether they’re falsehoods, misunderstandings or actual wrongdoings. I know there have been misunderstandings when people have left land to TNC in their wills or by a donation while they’re living, with the incorrect assumption that TNC would manage the land as a nature preserve of sorts.

Like any company, TNC has to decide where to best devote its resources. Unless they’ve made a specific agreement with a donor to hold and manage their land a certain way, they are more likely to divest themselves of that asset and put the money toward higher-value conservation areas such as the rainforests or coral reefs.

They also have to make decisions regarding if and how they’ll work with industry. My experience has been that, right or wrong, they feel they can make more headway working with industry than against them. Their CEO is a former Goldman Sachs director, and not a conservation biologist, so that may sway how the organization makes decisions.

My gut tells me that TNC does far and away more good work than they get credit for.

Disclaimer: We have no relationship with TNC—and certainly no monetary relationship—besides jointly holding one conservation easement with them in Bedford County, VA, and running in some of the same professional circles as their Virginia staff.

David C. Perry, Executive Director
Blue Ridge Land Conservancy—An Accredited Land Trust
722 First St. SW Suite L, Roanoke, VA 24016
(540) 985-0000,
blueridgelandconservancy.org