Legal Proceedings Continue on the Atlantic Coast Pipeline (ACP)

FERC Is Asked to Halt the Atlantic Coast Pipeline (ACP) Construction

From the Update #260, Allegheny – Blue Ridge Alliance (ABRA), January 23, 2020

A new request to halt construction of the Atlantic Coast Pipeline (ACP) was made to the Federal Energy Regulatory Commission (FERC) in a January 14 filing by the Southern Environmental Law Center, Appalachian Mountain Advocates and Chesapeake Bay Foundation on behalf of their respective client groups.

While construction on the ACP ceased more than a year ago in the wake of the project losing its Biological Opinion and Take Statement, as required by the Endangered Species Act, the project’s managing partner, Dominion Energy, has indicated its intention to resume construction as soon as a new Biological Opinion and Take Statement is issued by the U.S. Fish and Wildlife Service (FWS). The FWS has not announced plans for reissuing a revised permit.

The request to FERC points out that with the recent loss of the Buckingham compressor station air permit – struck down January 7 by the Fourth Circuit Court of Appeals (see ABRA Update #259, January 9 for details) – there are 8 missing permits for the project:

1. Nationwide Permit 12 Verification, Pittsburgh District, U.S. Army Corps of Engineers: suspended by Pittsburgh District, Nov. 20, 2018.
2. Nationwide Permit 12 Verification, Norfolk District, U.S. Army Corps of Engineers: suspended by Norfolk District, Nov. 20, 2018.
3. Nationwide Permit 12 Verification, Wilmington District, U.S. Army Corps of Engineers: suspended by Wilmington District, Nov. 20, 2018.
4. Special Use Permit and Record of Decision, U.S. Forest Service: vacated by Fourth Circuit, Dec. 13, 2018 Cowpasture River Pres. Ass’n v. Forest Serv., 911 F.3d 150 (4th Cir. 2018).
5. Right-of-Way and Construction Permits, National Park Service: remanded by Fourth Circuit, Jan. 23, 2019, to be vacated by Park Service. Order (Dkt. 51), Sierra Club v. U.S. Dep’t of the Interior, No. 18-2095 (4th Cir. Jan. 23, 2019).
6. Nationwide Permit 12 Verification, Huntington District, U.S. Army Corps of Engineers: vacated by Fourth Circuit, Jan. 25, 2019. Order (Dkt. 67), Sierra Club v. U.S. Army Corps of Eng’rs, No. 18-1743 (4th Cir. Jan. 25, 2019).
7. Biological Opinion and Incidental Take Statement, U.S. Fish and Wildlife Service: vacated by Fourth Circuit, July 26, 2019. Defenders of Wildlife v. U.S. Dep’t of
the Interior, 931 F.3d 339 (4th Cir. 2019).
8. Article 6 Permit, Virginia State Air Pollution Control Board (implementing federal Clean Air Act requirements): vacated by Fourth Circuit, January 7, 2020. Friends
of Buckingham, 2019 WL 63295 (4th Cir. Jan. 7, 2020).

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State AGs File Briefs Backing 4th Circuit on Forest Service Permit Case

From the Update #260, Allegheny – Blue Ridge Alliance (ABRA), January 23, 2020

The Atlantic Coast Pipeline “threatens Virginia’s resources without clear corresponding benefits,” so stated a brief filed January 22 with the U.S. Supreme Court by Virginia Attorney General Mark Herring.

The amicus brief was filed as part of the appeal brought by Atlantic Coast Pipeline, LLC and the U.S. Forest Service of the Fourth Circuit Court of Appeal’s decision in the Cowpasture River Preservation Association, et. al. v. U.S. Forest Service case. The Fourth Circuit’s decision vacated the Forest Service’s permit issued for the Atlantic Coast Pipeline (ACP).

The permit was rejected by the Court on several grounds, including holding that the agency did not have the proper legal authority to authorize the ACP to cross the Appalachian National Scenic Trail.

In addition to the Virginia AG brief, the Attorneys General of 13 states and the District of Columbia filed an amicus brief in support of upholding the Fourth Circuit’s decision.

Attorney General Herring was unequivocal in his criticism of the ACP project:
………. The pipeline company (Atlantic) claims the project is necessary to address an unmet and growing demand for natural gas in Virginia and North Carolina. But that claim does not withstand scrutiny. Indeed, recent analyses indicate that the demand for natural gas will remain flat or decrease for the foreseeable future and can be met with existing infrastructure.
………. Beyond offering dubious benefits, the pipeline unquestionably threatens some of Virginia’s most valued natural sites. The George Washington National Forest, the Blue Ridge Parkway, and the Appalachian Trail are woven into the fabric of Virginia’s history, offering solitude and recreation to Virginians and visitors for generations, bringing tourism and its corresponding benefits to the neighboring communities.
…………..the United States Forest Service failed to conduct the meticulous review of Atlantic’s permit application called for by the Service’s governing statutes and regulations. Instead, the permitting process was rushed and slipshod and driven by Atlantic’s arbitrary deadlines. Given the chaotic nature of the agency proceedings, it is unsurprising that the Fourth Circuit invalidated the permit on three separate grounds that are entirely independent of the question whether the Forest Service has authority to grant Atlantic permission to cross the Appalachian Trail.

The amicus brief filed by Vermont Attorney General Thomas Donovan, on behalf of his state and 12 other states and the District of Columbia, stressed that the Appalachian Trail is a vital part of the National Park System and that “existing Appalachian Trail pipeline crossings and utility easements will be unaffected” by the Fourth Circuit’s decision.

The AGs’ brief also notes that the “availability of adequate energy sources or even this particular pipeline project” are not imperiled by the Fourth Circuit decision, noting that the project could be built on non-federal land to cross the Trail.

Seven of the 13 states filing amici briefs in support of the Fourth Circuit decision encompass 58% of the total length of the Appalachian Trail. Of the 18 states whose Attorneys General filed briefs in support of the Forest Service/ACP appeal, only 2 are states traversed by the Trail – Georgia and West Virginia – and their total of 80 Trail miles represents less than 4% of the Trail’s 2200-mile length.

Other amici briefs filed this week in support of the Fourth Circuit decision include those by: John Jarvis, former Superintendent of the National Park Service; Natural Resources Defense Council; Wintergreen Property Owners Association; and a joint brief by Nelson County, VA and the City of Staunton. A link to all of the briefs filed is available here.

The Supreme Court is scheduled here arguments on the case on February 24.

Tagged as: ABBA, ACP, Appalachian Trail, Atlantic Coast Pipeline, FERC, fracking, marcellus shale, natural gas, pipeline, US Fish & Wildlife Service, VA, wv