Thursday, January 17, 2019

Shale Law in the Spotlight – Atlantic Coast Pipeline: Overview of Litigation Regarding the Pipeline Construction (Part 2 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. On January 11, we posted the first of three planned articles addressing legal challenges that have been filed opposing the proposed Atlantic Coast Pipeline (ACP) Project as well as related administrative actions taken by governmental entities in response to the legal challenges.  In this article, we will continue to address relevant litigation within the U.S. Court of Appeals for the Fourth Circuit and related administrative actions. 

Appalachian Voices et al. v. FERC in the U.S. Court of Appeals for the Fourth Circuit (Docket no. 18-1114)

On January 29, 2018, Appalachian Voices along with ten other environmental groups filed a joint petition for review against the Federal Energy Regulatory Commission (FERC) challenging a Certificate of Public Convenience and Necessity granted by FERC to Atlantic Coast Pipeline, LLC, for the construction and operation of the ACP project.

On February 16, 2018, FERC filed a motion to dismiss the petition for review asserting a lack of jurisdiction. FERC argued that the issued Certificate is not final based on the fact that requests for rehearing of that Certificate order are currently pending before it; therefore, qualifying the challenge of said petition as being “premature.” Atlantic Coast Pipeline, LLC, filed a similar motion on February 21, 2018.

On March 8, 2018, petitioners filed a motion for stay of the Certificate order and put forward two main arguments. First, petitioners criticized FERC as not properly assessing whether the proposed ACP is in the public interest because it based its findings “solely on Atlantic’s capacity contracts with its own corporate affiliates.” Petitioners added that “[i]n doing so, FERC ignored its own policy and refused to consider substantial evidence in the record showing that the precedent agreements between Atlantic and its affiliates are not reliable indicia of market demand.” Second, petitioners claimed that Atlantic Coast Pipeline, LLC, did not fully address the harm caused to 600 landowners, whose properties had been taken through the eminent domain process.

Therefore, petitioners claimed that FERC violated the Natural Gas Act in failing to support its conclusion that the proposed pipeline met the public convenience and necessity standard while also claiming that “[i]rreparable harm to the environment and Petitioners’ members is imminent.”

Petitioners did not succeed in their attempt to halt construction of the ACP project as the Court of Appeals for the Fourth Circuit granted both motions to dismiss the appeal for lack of jurisdiction on March 21, 2018.

Cowpasture River Preservation v. Forest Service in the U.S. Court of Appeals for the Fourth Circuit (Docket no. 18-1144)

On February 5, 2018, Cowpasture River Preservation Association and six other environmental conservation groups filed a joint petition before the U.S. Court of Appeals for the Fourth Circuit requesting judicial review of the U.S. Forest Service’s Special Use Permit issued to Atlantic Coast Pipeline, LLC, on January 23, 2018. This permit authorized the use and occupancy of National Forest System (NFS) lands for the construction and operation of the proposed pipeline as well as granted a right-of-way across the Appalachian National Scenic Trail (ANST).

Cowpasture also requested review of the Forest Service’s Record of Decision approving project-specific Forest Plan amendments to modify the Land and Resource Management Plans (LRMPs) for the Monongahela National Forest and the George Washington National Forest.

According to petitioners, the U.S. Forest Service violated the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), and the Mineral Leasing Act (MLA) in issuing said Special Use Permit and Record of Decision as well as in granting a right-of-way across the ANST. First, petitioners argued that the Forest Service and Atlantic Coast Pipeline, LLC, did not properly evaluate the purpose of the proposed LRMP amendments pursuant to the substantive requirements for soil, riparian resources, and threatened and endangered species in the 2012 Planning Rule. Second, petitioners claimed that the Forest Service failed to “independently review” the FERC final EIS based on their records. And third, they alleged that the Forest Service did not have authority to grant a right-of-way across the ANST pursuant to the language of the MLA and National Trails System Act.

On December 13, 2018, the Court of Appeals sided with petitioners and ruled that the Forest Service violated the three federal statutes. The court noted “[t]he lengths to which the Forest Service apparently went to avoid applying the substantive protections of the 2012 Planning Rule – its own regulation intended to protect national forests – in order to accommodate the ACP project through national forest land on Atlantic’s timeline,” describing the Forest Service’s actions “striking and inexplicable.” Therefore, the court vacated the Special Use Permit and Record of Decision and remanded the matter to the Forest Service for further proceedings. In addition, the court concluded that the Forest Service did not have the authority to grant Atlantic Coast Pipeline, LLC, a right-of-way across the ANST. Furthermore, the court explained that “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.”

Defenders of Wildlife v. U.S. Dept. of the Interior in the U.S. Court of Appeals for the Fourth Circuit (Docket no. 18-2090)

On September 19, 2018 – for the second time during the course of the calendar year – Defenders of Wildlife, Sierra Club, and the Virginia Wilderness Committee challenged the U.S. Fish and Wildlife Service (FWS)’s Biological Opinion (BO) and Incidental Take Statement (ITS). This challenged BO and ITS was released by FWS on September 11, 2018, following a court order vacating the original FWS actions. The initial BO and ITS had been issued on October 16, 2017, and was the subject of prior litigation leading to a temporary halt of the pipeline construction. FERC authorized construction of the pipeline to resume on September 17, 2018, after the issuance of the second BO and ITS.

Petitioners argued that once again “[t]his second round of rushed decision-making introduced new errors.” As a result, on November 30, 2018, petitioners filed a motion to stay the September 2018 BO and ITS stressing that no less than four listed-species under the Endangered Species Act, including the Indiana bat, Clubshell, Rusty-patched bumble bee, and Madison cave isopod could suffer significant and irreparable harm due to the ongoing pipeline construction.

In their motion, petitioners alleged that FWS did not ensure that the mistakes that were made in the 2017 BO and ITS were not made again in 2018 – petitioners even argued that these mistakes had been exacerbated in the 2018 BO and ITS. Petitioners considered the grant of a stay to be in the public interest “because endangered species “are of ‘esthetic, ecological, educational, historical recreational, and scientific value to the Nation and its people’” and further declared that “even if Atlantic can make a showing of economic harm, that economic harm does not equate to harm to the public interest.”

On December 7, 2018, the U.S. Court of Appeals for the Fourth Circuit granted petitioners’ motion and stayed implementation of the 2018 BO and ITS issued by FWS. On the same day, Dominion Energy wrote to FERC Secretary Kimberly D. Bose indicating that it will cease all operations associated with the ACP construction in response to the Court of Appeals decision.

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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