Friday, January 11, 2019

Shale Law in the Spotlight – Atlantic Coast Pipeline: Overview of Litigation Regarding the Pipeline Construction (Part 1 of 3)

Written by Chloe Marie – Research Specialist

The Atlantic Coast Pipeline (ACP) project is a 600-mile underground pipeline project designed to carry natural gas from wells located in Harrison County, West Virginia, through Virginia to a terminal facility in Robeson County, North Carolina.  On January 9, we posted an article reviewing the timeline of actions taken by various federal and state regulatory entities involved with the construction of the pipeline. This article and two planned subsequent articles will address legal challenges that have been filed opposing the proposed Atlantic Coast Pipeline (ACP) Project. Where relevant, in these articles, we also will address additional administrative actions taken by governmental entities in response to the legal challenges. 

Appalachian Voices v. State Water Control Board et al. in the U.S. Court of Appeals for the Fourth Circuit (Docket no. 18-1077)

On January 18, 2018, Appalachian Voices brought a legal action together with twelve other environmental groups against the Virginia State Water Control Board challenging the issuance of a Section 401 Water Quality Certification on December 20, 2017, for construction of the Atlantic Coast Pipeline (ACP). The petitioners requested a judicial review of the Section 401 certification. They were challenging the finding of the State Water Control Board that there was “reasonable assurance” that activities relating to ACP construction would not violate Virginia water quality standards. 

On July 16, 2018, the petitioners filed a motion for a stay of the State Water Control Board Section 401 Certification pending its review by the Fourth Circuit in order to avoid irremediable damages. In April 2018, the Board had reopened the comment period for an additional 30-day period to address whether the Nationwide Permit 12 granted by the U.S. Army Corps of Engineers was adequate to protect Virginia waterways from potential environmental and property impacts. The petitioners argued that the Board “fatally undermined” its determination that the pipeline construction would not violate Virginia water quality standards when it decided to reopen the public comment period. In addition, the petitioners alleged that “[a]bsent a stay of the Section 401 Certification, Atlantic will move forward with construction in Virginia and cause irreparable injury to the aesthetic and recreational interests of Petitioners’ members in using and enjoying rivers, streams, and wetlands affected by the construction.” The Court of Appeals denied the petitioners’ motion for a stay pending appeal on August 7, 2018.

The public comment period offered by the State Water Control Board initially ran from April 30, 2018, to May 30, 2018. The closing date was then extended to June 15, 2018. The Virginia Department of Environmental Quality (DEQ) made the additional comments available to the public on July 25, 2018.

Judicial review of the Section 401 Water Quality Certification by the Court of Appeals remains pending. On October 29, 2018, the Virginia DEQ approved Erosion & Sediment Control and Stormwater plans for the ACP project. Approval of these plans was a required condition for the water quality certification to become final and effective. Thus, construction was allowed to begin.

Sierra Club v. National Park Service in the U.S. Court of Appeals for the Fourth Circuit (Docket no. 18-1082)

On January 19, 2018, the Sierra Club and the Virginia Wilderness Committee filed a joint petition for review against the National Park Service (NPS) challenging a right-of-way permit issued on December 12, 2017, for the ACP project. Through the issuance of the right-of-way permit, NPS authorized Atlantic Coast Pipeline, LLC, to construct and operate the pipeline underneath the Blue Ridge Parkway – a scenic road running from Virginia to North Carolina. The petitioners claimed that NPS exceeded its authority in granting such right-of-way permit for ACP. As such, it violated a statutory mandate that all agency decisions must be conformed to parkway conservation purposes. They argued that the pipeline corridor would significantly impact the aesthetic and recreational value of the Parkway, especially by the Three Ridges Overlook, based on the findings of an NPS visual impact study.

The U.S. Court of Appeals for the Fourth Circuit overturned the NPS right-of-way permit on August 6, 2018, holding that the NPS permit decision lacked adequate reasoning. The Circuit Court further declared that “[b]ecause NPS’s permit decision contains no explanation of likely inconsistencies that NPS’s own review has uncovered, we must conclude that the agency has failed to draw a ‘rational connection between the facts found and the choice made’ and has ignored important aspects of the problem.” Therefore, the court ruled that the NPS permit decision was arbitrary and capricious and that, in reaching such decision, NPS failed to fulfill its obligations to ensure that conservation values as well as the purposes of both the Blue Ridge Parkway unit and the overall National Park system were respected.

Based upon this order vacating the NPS right-of-way permit, FERC issued a stop work order on August 10, 2018, mandating that Atlantic Coast Pipeline, LLC, halt construction of the ACP project. On September 14, 2018, however, NPS issued a new right-of-way permit allowing Atlantic Coast Pipeline, LLC, to cross the Blue Ridge Parkway. Consequently, on September 17, 2018. FERC lifted its prior stop work order and authorized the pipeline construction to resume.

Defenders of Wildlife v. U.S. Dept. of the Interior in the U.S. Court of Appeals for the Fourth Circuit (Docket no. 18-1083)

On January 19, 2018, Defenders of Wildlife, the Sierra Club and the Virginia Wilderness Committee requested judicial review in the U.S. Court of Appeals for the Fourth Circuit of the U.S. Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement (ITS) for the proposed ACP project.

The U.S. Fish and Wildlife Service (FWS) released this biological opinion and ITS on October 16, 2017, to address the issue of whether the proposed pipeline would adversely affect the federally listed species pursuant to Section 7 of the Endangered Species Act as well as to address how potential impacts could be mitigated. According to the FWS biological opinion, ACP construction and operation may create adverse impacts to some six listed-species, but the proposed project “is not likely to jeopardize” their current statuses. FWS also recommended multiple reasonable and prudent measures to minimize the incidental take for some of the species. The petitioners alleged that FWS failed to meet its statutory responsibilities by not setting clear numeric limits on take nor establishing proper habitat surrogates.

On May 15, 2018, the Court of Appeals vacated the FWS ITS holding that “the limits set by the agency are so indeterminate that they undermine the Incidental Take Statement’s enforcement and monitoring function under the Endangered Species Act.” Consequently, on July 5, 2018, the petitioners sought to enjoin Atlantic Coast Pipeline, LLC, from constructing ACP following the court’s order. To support their requested injunction, the petitioners alleged that “[d]espite that ruling, Atlantic is racing ahead with construction, including within habitat of endangered species. An injunction is necessary to stop the potential take of species and to prevent foreclosure of reasonable and prudent alternatives that FWS may require to satisfy its [Endangered Species Act] obligations, following the Court’s opinion.”

On August 6, 2018, the Court of Appeals ruled that FWS “failed to create proper habitat surrogates, failed to explain why numeric limits are not practical, and failed to create enforceable take limits for the Clubshell, the Rusty Patched Bumble Bee, the Madison Cave Isopod, the Indiana Bat, and the Northern Long-Eared Bat.” Therefore, the court decided to vacate the FWS ITS, calling its take limits “arbitrary and capricious.” Based upon this court order, FERC issued a work order on August 10, 2018, halting all pipeline construction.

On August 19, 2018, the Court of Appeals for the Fourth Circuit denied the petitioners’ motion for an injunction stating that “such extraordinary relief is not warranted at this time” as Atlantic Coast Pipeline, LLC, already had stopped all activities likely to impact listed species pursuant to the court’s earlier ruling issued on August 6, 2018. 

Following the issuance of the FERC stop work order on August 10, 2018, FWS released a new Biological Opinion and Incidental Take Statement (ITS) on September 11, 2018. This release led FERC to lift the stop work order and allow Atlantic Coast Pipeline, LLC, to pursue the pipeline construction. The second Biological Opinion and ITS has been subject to further litigation in a separate case, which will be addressed in a following article in this Shale Law in the Spotlight series.


A cumulative listing of references will be posted in the final article addressing this topic.

Additional Resources on this Topic from the Center for Agricultural and Shale Law:

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.

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