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:
-
Shale Law in the Spotlight – Atlantic Coast Pipeline:
Overview of Federal State Regulatory Approval Processes (January 9, 2019)
-
Shale Law in the Spotlight – Atlantic Coast Pipeline:
Overview of Litigation Regarding the Pipeline Construction (Part 1 of 3) (January 11, 2019)
This material is
based upon work supported by the National Agricultural Library, Agricultural
Research Service, U.S. Department of Agriculture.
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