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. We posted three
separate articles – on January
11, January
17, and February
1 – addressing legal challenges that have been filed opposing the
proposed Atlantic Coast Pipeline (ACP) project. Where relevant, in these
articles, we also addressed additional administrative actions taken by
governmental entities in response to the legal challenges. In this article, we
address legal developments that have taken place since we wrote the previous
articles in this series.
Update on Appalachian
Voices v. State Water Control Board et al., U.S. Court of Appeals for the Fourth
Circuit (Docket no. 18-1077)
In an opinion
dated January 14, 2019, the U.S. Court of Appeals for the Fourth Circuit denied
a petition for review of the Section 401 Water Quality Certification for the
Atlantic Coast Pipeline project issued by the Virginia State Water Control
Board on December 20, 2017. In January 2018, Appalachian Voices and twelve
other environmental organizations had sought judicial review of the Water
Quality Certification alleging that it was “arbitrary and capricious” and questioning
the Board’s “reasonable assurance” that activities relating to the pipeline
construction would not violate Virginia water quality standards.
The Court of Appeals held that, even though “[g]overnmental agencies can always take
additional steps to increase the protection of the environment … [t]here is no
indication that the State Agencies did not consider relevant factors or that
they clearly made an error of judgment” in issuing the certification.
Sierra Club v. U.S. Dept. of the Interior, U.S. Court of
Appeals for the Fourth Circuit (Docket no. 18-2095) and Update on Sierra Club v. National Park Service, U.S.
Court of Appeals for the Fourth Circuit (Docket no. 18-1082)
On August 6, 2018, and December 13, 2018, respectively, the U.S. Court
of Appeals for the Fourth Circuit issued rulings vacating right-of-way permits
– one granted by the National Park Service in December 2017 authorizing
construction of the Atlantic Coast Pipeline underneath the Blue Ridge Parkway
and another granted by the U.S. Forest Service in January 2018 allowing
Atlantic Coast Pipeline, LLC to cross the Appalachian National Scenic Trail
(ANST), which is located along the Parkway. The vacation of these right-of-way
permits halted all activities relating to the pipeline construction and
operation. In both cases – Sierra Club v.
National Park Service (Docket no. 18-1082) and Cowpasture River Preservation v. Forest Service (Docket no.
18-1144) – the Court of Appeals ruled that, under the Mineral Leasing Act,
neither agency had authority to issue the requested permit.
On September 14, 2018, the National Park Service issued a new
right-of-way permit again authorizing the crossing of the Blue Ridge Parkway.
This action led Sierra Club and Virginia Wilderness Committee to once again
request judicial review of said right-of-way permit by the Court of Appeals. (Sierra Club v. U.S. Dept. of the Interior, Docket
no. 18-2095). Petitioners alleged that, in issuing that permit, the
National Park Service relied on environmental and cultural impact studies
prepared for the earlier vacated permit as well as the mere existence of a
valid Forest Service permit approving the crossing of the adjacent George
Washington National Forest Land.
On January 16, 2019, the National Park Service filed a motion
for remand to vacate and reconsider the Atlantic Coast Pipeline’s second right-of-way
permit application for the Blue Ridge Parkway segment. The motion argued that “[i]n light of
Cowpasture’s vacatur of the Forest
Service’s permit and ruling that the Forest Service lacks authority under the
Mineral Leasing Act to issue that permit, the Park Service requests that the
Court remand the permits challenged in the present petition.” In the motion, the
National Park Service indicated that, upon remand, it would review whether
issuance of the 2018 permit was indeed justified in the Parkway area. On January 23, 2019, the U.S. Court of Appeals for the
Fourth Circuit granted such motion.
Friends of Buckingham v. State Air Pollution
Control, U.S. Court of
Appeals for the Fourth Circuit (Docket no. 19-1152)
On February 8, 2019, a group of citizens from Buckingham
County, Virginia, filed a lawsuit against both the Virginia Department of
Environmental Quality and the Virginia Air Pollution Control Board challenging
their decisions to approve the Buckingham Compressor Station minor new source
review air permit issued on January 9,
2019. This citizens group – Friends of Buckingham – petitioned the U.S.
Court of Appeals for the Fourth Circuit for judicial review of said permit.
According
to Friends of Buckingham, “[m]isleading claims by state officials undermine
the basis for the Virginia State Air Pollution Control Board’s Jan[uary] 8
decision to approve a permit for a natural gas compressor station in Union Hill
…” They further claimed that “state Department of Environmental Quality staff
asserted that because local air concentrations of fine particulate matter are
now, and will continue to be, much better than in the rest of the state – ‘in
top 10 percent of clean air,’ with only ‘marginal’ changes caused by the
compressor station – there can be no disproportionate impact.”
Stay tuned for further legal developments!
References:
Please see below for a listing of references that have been relied upon
for this article as well as prior Shale Law in the Spotlight articles addressing
the Atlantic Coast Pipeline:
- Order
Issuing Certificates; Atlantic Coast Pipeline, LLC, Docket Nos. CP15-554-000,
CP15-554-001; Dominion Transmission, Inc. Docket No. CP15-555-000; Atlantic
Coast Pipeline, LLC, Piedmont Natural Gas Company, Inc., Docket No.
CP15-556-000 (FERC, Oct. 13 2017)
Virginia Administrative Documents
- Virginia
Department of Environmental Quality, Re: Atlantic Coast Pipeline, LLC; Project
Location: AP1 Mile Post 83.93 through 300.07, AP3 Mile Post 12.21 through
82.68, AP4 Mile Post 0 through 0.41, AP5 Mile Post 0 through 0.93 and
Supportive Ancillary Areas;
DEQ SWM#: ACP-17-01; Erosion and Sediment Control (ESC) and Stormwater
Management (SWM) Plans (Oct. 19, 2018)
- Virginia
Department of Environmental Quality, Buckingham County Special Use Permit (Feb.
21, 2017)
West Virginia Administrative Documents
Appalachian Voices et al. v. FERC (Docket no. 18-1114)
- Joint
Petition for Review, Appalachian Voices
et al. v. FERC, No. 18-1114 (4th Cir., Jan. 29, 2018)
Appalachian Voices v. State Water Control Board (Docket no.
18-1077)
- Melanie
D. Davenport, Director, Water Permitting Division, 401 Water Quality
Certification No. 17-002 – Atlantic Coast Pipeline, LLC, Report to the Board on
the Supplemental Karst Evaluation Plan, Annual Standards and Specifications,
and Erosion and Sediment
Control and Stormwater Management Plans (Oct. 19, 2018)
Cowpasture River Preservation v. Forest Service (Docket no.
18-1144)
Defenders of Wildlife v. U.S. Dept. of the Interior (Docket no.
18-1083)
Defenders of Wildlife v. U.S. Dept. of the Interior (Docket no.
18-2090)
Friends of Buckingham v. State Air Pollution
Control (Docket no. 19-1152)
- Virginia
Department of Environmental Quality; State Air Pollution Control Board Approves
BCS Permit
- Friends of Buckingham, Breathing
while black: A Dominion compressor station would disadvantage a historically
black community in Virginia
(Jan. 25, 2019)
Sierra Club v. National Park Service (Docket no.
18-1082)
Sierra Club v. U.S. Army Corps of Engineers (Docket no.
18-1743)
Sierra Club v. U.S. Army Corps of Engineers (Docket no.
18-2273)
Additional Resources on this topic from the Center for
Agricultural and Shale Law:
Shale
Law in the Spotlight – Atlantic Coast Pipeline: Overview of Federal and 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)
Shale
Law in the Spotlight – Atlantic Coast Pipeline: Overview of Litigation
Regarding the Pipeline Construction (Part 2 of 3) (January 17, 2019)
Shale
Law in the Spotlight – Atlantic Coast Pipeline: Overview of Litigation
Regarding the Pipeline Construction (Part 3 of 3) (February 1, 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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