Some of ACP path in Nelson County where local residents oppose pipeline
From an Article by Emily Brown, Lynchburg News & Advance, December 17, 2018
The board has not yet decided who will represent the county and supervisors in the lawsuit. County Administrator Stephen Carter said such a decision could be made Tuesday, when supervisors are scheduled to have a special called meeting. The agenda for the meeting, set for 4 p.m. in the former supervisors meeting room at the Nelson County Courthouse, includes a “closed meeting” to discuss the case.
Nelson County and its supervisors have less than two weeks to respond to ACP’s complaint.
In a phone interview Monday, Supervisor Ernie Reed said he’s confident in whomever the board chooses as legal counsel, adding he thinks the county is in good position to defend itself.
“I think the main issues are procedural,” Reed said. “I don’t think it’s necessary that an attorney have a strong background on this … because there are resources available to be able to [get] that information without [having] the experience.”
Rutherford said he is only concerned with hiring “someone who is looking out for what’s best for Nelson County, period.”
While the county has insurance that will cover some of the legal costs the county will incur from the case, according to Carter, a portion of the fees will not be covered.
Given the uncertainty of whom the board will hire as legal counsel and how much time the case will require, it’s unclear how much money the county may have to spend on the suit. But Rutherford has thought of the ramifications.
“This lawsuit’s gonna cost us,” Rutherford said. “… I am of the assumption that [the county will] pay what it costs, but it’s hard to estimate what that’s gonna be.”
Following the denial of permitting requests at the local level this month, Atlantic Coast Pipeline took an unprecedented step in an attempt to move the project forward, filing a lawsuit against a locality — Nelson County — for the first time in the years-long approval process.
Three days after Nelson’s Board of Zoning Appeals denied the company’s variance requests for floodplain crossings, ACP filed suit against Nelson County and its board of supervisors.
The lawsuit, filed in the United States District Court’s Western District of Virginia on December 6th, is seeking a judgment stating the Natural Gas Act “preempts” the requirements of Nelson’s floodplain ordinance, which would include “obtaining any zoning permits for any of the floodplain crossings.”
According to officials from Dominion Energy, lead partner of the ACP, the suit against Nelson County is the first of its kind for the project — a 600-mile natural gas pipeline that will stretch from West Virginia to North Carolina and through Virginia.
“While it was not our preference, now that the Nelson County Board of Zoning Appeals has denied our applications, we have no choice but to take the next step of seeking preemption from the federal courts,” Dominion spokesman Karl Neddenien said in a statement Monday. “ … There is a well-established process for resolving conflicts between the decisions of a local governing authority and a federal agency, in this case the [Federal Energy Regulatory Commission].”
FERC approved the route and issued a Certificate of Public Convenience and Necessity for the ACP in October 2017.
The denial of four variance requests, thanks to a 3-2 vote of the BZA on December 3rd, also represents the first time a locality has denied floodplain crossing requests, according to project officials. Elsewhere along the route, ACP also was required to obtain local permits for floodplain crossings, but Nelson County was unique in its review of the requests.
Because of changes to the county’s floodplain ordinance passed in September 2017 — which resulted in the pipeline qualifying as a “critical facility” that normally would not be allowed to be constructed in a floodplain — ACP was required to obtain variances from the BZA for 11 floodplain crossings. The 11 crossings combine to make up about 3½ miles of the 27-mile pipeline route through Nelson and 1 mile of access roads for the project.
In February 2018, the BZA unanimously dismissed seven of the 11 applications because ACP had not obtained easement agreements from owners of those properties. The four remaining applications, which were reviewed by the BZA’s hired outside consultant KCI Technologies, were denied by the BZA earlier this month.
According to Neddenien, ACP believes the BZA’s decision “is in direct conflict” with FERC’s decision to approve the route. ACP’s lawsuit states, “The application of Floodplain Regulations to the Project conflicts with federal law and regulation and will delay construction and operation of the Project.”
If the court rules in ACP’s favor, the “degree of injury” Nelson County and its supervisors will suffer is “less than the injury” ACP would incur if the court denies the request in the lawsuit, the company alleges in the suit.
Reached Monday by phone, Nelson County Supervisor Jesse Rutherford said he wasn’t surprised by ACP’s lawsuit. “I think everyone knew it wasn’t a matter of if, but when,” he said.
The county and supervisors were named as defendants in the suit because the BZA acts as its own judicial body, similar to a court, and therefore cannot be a defendant.
While the county now must defend itself against the suit that resulted from the BZA’s decision — and incur costs associated with legal fees — Rutherford said he’s not upset by the suit.
“I can appreciate those who voted no, and I can appreciate anyone who voted yes, because that’s their right,” Rutherford said of the BZA members, “and it’s Dominion’s right to take it to [court].
“Anytime something goes before the BZA, there’s the chance that’s gonna happen.”
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