Friday, February 1, 2019

Shale Law in the Spotlight – Atlantic Coast Pipeline: Overview of Litigation Regarding the Pipeline Construction (Part 3 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.  On January 17, we posted the second of three planned articles continuing to address relevant litigation within the U.S. Court of Appeals for the Fourth Circuit and related administrative actions.  This article continues to address recent litigation. 

Sierra Club v. U.S. Army Corps of Engineers in the U.S. Court of Appeals for the Fourth Circuit (Docket no. 18-1743)

On July 3, 2018, Sierra Club and four other environmental groups filed a joint petition before the U.S. Court of Appeals for the Fourth Circuit requesting judicial review of the Nationwide Permit 12 verifications (NWP 12) issued on February 7, 2018, by the Huntington District of the U.S. Army Corps of Engineers (Corps) authorizing Atlantic Coast Pipeline, LLC, to discharge dredged and/or fill material into 153 water crossings in southern West Virginia.

On July 20, 2018, petitioners sought to stay the issued NWP 12 claiming that Atlantic Coast Pipeline, LLC (ACP), was not eligible to receive an NWP 12 because “[t]he record reveals that ACP’s Greenbrier River crossing cannot satisfy the NWP 12 condition in West Virginia limiting the duration of in-stream construction” to 72 hours. Petitioners furthermore asserted that “because ACP’s Greenbrier River crossing is ineligible for coverage under NWP 12, ACP may not use NWP 12 for any of its stream crossings. That is because, under NWP 12, one bad apple spoils the bunch: according to the terms of the permit, if even one stream crossing is ineligible, then every stream crossing is ineligible.” On July 27, the Corps suspended all NWP 12 verifications pending the provision of additional information from ACP to ensure its compliance with all NWP 12 conditions.

The Court of Appeals denied petitioners’ motion for a stay pending appeal on August 23, 2018, holding that nothing in the record showed that ACP would not be able to comply with the 72-hour condition. Additionally, the grant of said stay would be of little use due to the fact that the Huntington District of the Corps already suspended all NWP 12 verifications for ACP in West Virginia.

On October 19, 2018, the Corps released a letter ordering the reinstatement of all NWP 12 verifications for ACP for the discharge of dredged and/or fill material in West Virginia streams. Consequently, petitioners filed a new petition for review of the reinstatement letter on October 26, 2018, which will be addressed later on in this article.

On October 31, 2018, Sierra Club along with the other environmental groups filed a motion asking the Court to consolidate their petition with the one they filed through case No. 18-2273. The Court granted such motion and agreed to consolidate the cases on November 20, 2018.

Sierra Club v. U.S. Army Corps of Engineers in the U.S. Court of Appeals for the Fourth Circuit (Docket no. 18-2273)

As mentioned above, same petitioners asked the U.S. Court of Appeals for the Fourth Circuit, on October 26, 2018, for judicial review of the October 19, 2018, letter from the Corps ordering the reinstatement with modification of ACP’s NWP 12 verification for the discharge of dredged and/or fill material in 156 water crossings within the Corps’ Huntington District.  

On October 31, 2018, petitioners filed a motion for stay of the reinstatement order in its entirety and argued that the revised and reinstated Greenbrier River crossing plan still did not conform with Special Conditions L and C contained in NWP 12 – respectively prohibiting in-stream structures that affect fish movement upstream and downstream and limiting stream-crossing durations to 72 hours. The Court of Appeals granted such motion on November 7, 2018.

Following the grant of the stay motion, Appalachian Mountain Advocates, on behalf of petitioners, asked FERC to issue a Stop-Work Order requiring Atlantic Coast Pipeline, LLC, to stop further construction activities. Appalachian Mountain Advocates argued that “[b]ecause that mandatory federal authorization is now lacking, FERC must not allow pipeline construction to continue, not only in waters of the United States within the Corps’ Huntington District but anywhere along the pipeline route.” In that regard, Appalachian reiterated its argument that if “any single crossing is ineligible for coverage under a Section 404 nationwide permit, then all of a project’s crossings are ineligible.” FERC responded on November 20, 2018, but agreed to suspend only three NWP 12 authorizations issued by the Corps’ Pittsburgh, Norfolk, and Wilmington Districts.

Subsequently, on November 27, 2018, Appalachian wrote to FERC Secretary Kimberly D. Bose specifically demanding a Stop-Work Order for the entire ACP project. Appalachian declared that[a]s a result of the suspensions of those three authorizations, Atlantic no longer has the requisite federal approval to construct any stream or wetland crossing along its entire route” before adding that “[f]or that reason, the undersigned respectfully request that the Commission issued a Stop-Work Order to Atlantic as soon as possible. Time is of the essence because we have reason to believe that Atlantic resumed tree-felling activities along the pipeline route when the window for such activity reopened on November 15, 2018.”

FERC did not answer this specific request directly; however, on December 7, 2018, all operations associated with the pipeline construction ceased in response to the Court of Appeals decision staying implementation of the FWS’ 2018 Biological Opinion and Incidental Take Statement.

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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