4th U.S. Circuit Court of Appeals Story Archives - West Virginia Public Broadcasting

Court Throws Out Forest Service Approvals for Atlantic Coast Pipeline

A federal court today ruled the U.S. Forest Service improperly granted permits for the Atlantic Coast Pipeline to cross under national forest lands, including the Appalachian Trail.

In her 60-page opinion, 4th U.S. Circuit Court of Appeals Judge Stephanie Thacker bashed the agency for failing to protect federal land when it issued approvals to allow the 600-mile Atlantic Coast Pipeline to cross the George Washington National Forest, Monongahela National Forest and the Appalachian Trail.

“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues,'” Thacker wrote, invoking Dr. Seuss’ “The Lorax.” “A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.”

Concluding remarks from 4th Circuit Judge Stephanie Thacker’s opinion.

The opinion finds the Forest Service violated both the National Forest Management Act and the National Environmental Policy Act. For example, the judge agreed with environmental groups’ arguments that the Forest Service shirked its responsibilities under NEPA by not doing an analysis of whether the pipeline could be approved with a route that goes outside of the national forest lands. The agency argued that FERC was responsible for that analysis in its environmental assessment, but, as the court notes, “no such analysis is apparent anywhere in the record.”

Thacker said the agency repeatedly expressed serious concerns about the environmental impacts of the multi-billion dollar natural gas pipeline project, which crosses West Virginia, Virginia and North Carolina.

But, she continued, those concerns were “suddenly, and mysteriously assuaged in time to meet a private pipeline company’s deadlines.”

“I think what happened here is for years the Forest Service was asking tough questions about this project and requesting additional information and it turned on a dime when the Trump administration came into power,” said Patrick Hunter, a lawyer with the Southern Environmental Law Center, which was one of the groups that filed the original lawsuit in February. “Federal agencies can change their minds, but they have to good reasons for doing it and they didn’t have a good reason to change their mind and turn on a dime like this and I think that came through in this decision-making.”

The court’s opinion also clarifies that the Forest Service does not have the authority to grant the Atlantic Coast Pipeline the approval to cross under the Appalachian Trail. Following that reasoning, the panel of appellate court judges tossed the agency’s approvals granting the project’s right of way for the Appalachian Trail.

Hunter said the ACP’s developer, Dominion Energy, will not have to rethink the project’s route and if that is the case, other federal agency permits and approvals may have to be reexamined.

“The pipeline route that Dominion has chosen cannot be approved as of right now, and so if they want to keep working on this thing, they’re going to have to go back to the drawing board,” he said. “All of the agencies that have to issue approvals for this pipeline — their approvals depend on this one pipeline route. And since that can no longer be built as planned, I think that calls all of those other approvals into question.”

Aaron Ruby, a spokesman for the project, said in a statement that Dominion strongly disagrees with the court’s ruling and the developers intend to immediately appeal the court’s decision to the full U.S. Court of Appeals for the Fourth Circuit.

“Under Democratic and Republican administrations alike, for decades, 56 other oil and gas pipelines have operated across the [Appalachian Trail],” Ruby said. “This opinion brings into question whether or not these existing pipelines can remain in place.”

Currently, all construction along the ACP’s route has been stopped following a separate decision from the 4th Circuit, which stayed the pipeline’s revised Biological Opinion and Incidental Take Statement, a key permit from the U.S. Fish and Wildlife Service.

Feds Allow Atlantic Coast Pipeline Construction to Resume

Federal regulators gave the Atlantic Coast Pipeline the green light to restart construction Monday.

The Federal Energy Regulatory Commission halted construction of the 600-mile pipeline last month after a federal court threw out two of the project’s federal permits.

In early August, the 4th U.S. Circuit Court of Appeals ruled the Fish and Wildlife Service (FWS) needed to revisit a key endangered species permit. It also ruled the National Park Service (NPS) needed to reissue a right-of-way approval to allow the pipeline to pass under the Blue Ridge Parkway.

Until those were completed, FERC told pipeline officials most construction should stop.

Then, in a letter sent to Atlantic Coast Pipeline officials on Sept. 17, agency staff said both permits had been received and construction could resume.

“On September 11, 2018, the FWS issued a revised Biological Opinion (BO), which included a modified Incidental Take Statement, for the ACP and [Supply Header Project],” wrote Terry Turpin, director of FERC’s Office of Energy Projects. “Additionally, on September 14, 2018, the NPS issued a new right-of-way permit for crossing the Blue Ridge Parkway. Construction activities along project areas which had previously received a notice to proceed may now continue.”

ACP spokesperson Aaron Ruby said in an emailed statement that pipeline developers are “pleased” construction can move ahead and will closely monitor the wet weather conditions before resuming work.

“We commend the Fish & Wildlife Service and National Park Service for promptly addressing the issues raised by the Fourth Circuit Court of Appeals and FERC’s Stop Work Order,” he stated. “The agencies have reaffirmed that the project does not threaten any federally protected species and is consistent with the public use of the Blue Ridge Parkway.”

Environmental groups have repeatedly challenged the pipeline, arguing it’s not needed and will harm water and other natural resources across its route in West Virginia, Virginia and North Carolina.

“Rather than taking the time to address the major problems we have seen in federal agencies’ reviews of the Atlantic Coast Pipeline, these agencies continue to rush through a rubberstamp process that ignores legal requirements – not to mention the public interest,” said D.J. Gerken, a senior attorney with the Southern Environmetnal Law Center, in a statement.

FERC’s decision to life the stop work order on the ACP follows the agency’s decision to allow the Mountain Valley Pipeline to resume the bulk of its construction despite having not yet gotten new federal permits as required by the federal court.

In that case, agency staff wrote order to “mitigate further environmental impacts” construction along rights-of-way could resume, except on federal lands.

Atlantic Coast Pipeline Permit Under Fire from Environmental Advocates

Environmental advocates asked a federal court Tuesday to review a federal permit for the 600-mile Atlantic Coast Pipeline.

Appalachian Mountain Advocates, a law firm representing a coalition of environmental and citizen groups, filed a petition with the 4th U.S. Circuit Court of Appeals.

The groups, which include the Sierra Club, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, Appalachian Voices and the Chesapeake Climate Action Network, are asking the court to review a federal permit issued by the Army Corps of Engineers.

The Nationwide Permit 12, which falls under Section 404 of the federal Clean Water Act, sets out how the Atlantic Coast Pipeline (ACP) must be built through streams and wetlands in West Virginia.

In a letter sent last month to Army Corps’ Huntington District, the groups argue the pipeline developer has admitted it cannot cross parts of the Greenbrier, West Fork and Buckhannon rivers in the 72-hour time frame mandated by the permit, and thus its Nationwide Permit 12 should be revoked.

The request comes days after the 4th Circuit stayed the same permit issued to the Mountain Valley Pipeline for failing to complete construction quickly enough.

Once completed, the 600-mile, 42-inch ACP pipeline will bring natural gas from West Virginia through Virginia to North Carolina. The ACP is being jointly developed by Dominion Energy, Duke Energy, Piedmont Natural Gas and Southern Company Gas.

A spokesperson for the ACP could not be reached for comment.

Mountain Valley Pipeline Construction Partly Halted in West Virginia

The 4th U.S. Circuit Court of Appeals Thursday halted some construction of the natural gas Mountain Valley Pipeline in West Virginia.

The three-judge panel sided with conservation groups who challenged the pipeline’s water-crossings permit issued by the U.S. Army Corps of Engineers.

Environmental groups, led by the Sierra Club, argued that construction of the 303-mile pipeline should be halted in the state, because the pipeline developer’s own documents showed they could not complete construction quickly enough to comply with the federal permit.

Clean Water Act Permitting

At the heart of the dispute is a federal Clean Water Act permit which allows the Mountain Valley Pipeline (MVP) to disrupt streams and wetlands during construction, while maintaining water quality standards.

The Army Corps of Engineers granted the MVP a Nationwide Permit 12, which covers all stream and wetland disruptions caused by utility line construction nationwide. It is one of about 50 broader so-called “general permits” that can be granted under Section 404 of the Clean Water Act.

A general permit does not require public notice and comment or environmental review.

A spokesperson for the Army Corps of Engineers said it could not comment on the decision to grant the MVP a general permit. They also said they could not comment on the court’s decision, because issues regarding ongoing litigation are handled by the Department of Justice. The Department of Justice did not respond to a request for comment.

Environmental groups praised the court’s decision. In a statement, Peter Anderson, program manager for Appalachian Voices Virginia, said the one size fits all permit does not make sense for natural gas pipeline construction. He said the MVP should be granted an individual permit under Section 404 of the Clean Water Act, which would allow for more public debate on the impact of the pipeline’s construction on waterways.

“Putting the breaks on in-stream construction activity for the Mountain Valley Pipeline while the court performs its full review not only makes sense, it is also the only just outcome for communities directly impacted by this destructive project,” he said. “MVP’s inability to cross rivers in compliance with the conditions of the permit is the most obvious – but certainly not the only – reason why blanket permits should not be used for projects of this size.”

Two months after construction began, the MVP was cited by the West Virginia DEP for failing to control erosion at two work sites.

Construction Timeline

State regulators can add protections under the federal Clean Water Act Section 404 permitting scheme. In West Virginia, for example, the Department of Environmental Protection requires pipeline operators to finish a stream or wetland crossing in 72 hours.

In its petition to the court, environmental groups said MVP’s own planning documents showed river crossing for the Elk, Gauley, Greenbrier and Meadow rivers would take 4-6 weeks to complete. The federal appeals court agreed and stayed stream and wetland crossings.

In a statement released hours after the decision, Gov. Jim Justice said the administration was committed to the MVP.

“We will continue to monitor these proceedings closely to determine what role the state may play in expediting the construction of this pipeline,” he said.

MVP spokeswoman Natalie Cox said in a statement they are disappointed with the temporary setback. She said the company is evaluating options to continue construction that does not involve stream and wetland crossings.

Cox said the pipeline, which is a joint venture between EQT Midstream, WGL Midstream, RGC Midstream, Con Edison Transmission and an affiliate of NextEra, intends to ask for a rehearing and intends to begin operations in late 2018.

Currently, the pipeline cannot engage in stream or wetland crossings until the 4^th Circuit rules on the pending case. Oral arguments are scheduled for late September.

Ruling Upheld in Water Pollution Case Appeal

A federal appeals court panel has upheld a ruling that coal operators in West Virginia have to follow legal water pollution limits.

The Charleston Gazette-Mail reported that a three-judge panel of the 4th U.S. Circuit Court of Appeals found that a state water pollution permit didn’t shield Fola Coal Co. from the water quality standards. The panel said West Virginia rules incorporated the standards into the Department of Environmental Protection permit.

The ruling Wednesday upheld a decision two years ago from U.S. District Judge Robert C. Chambers. The appeals panel said Chambers’ ruling reflected “careful fact-based findings” and that Fola’s arguments against it failed.

Chambers’ ruling concerned mining conductivity pollution that scientists, environmental groups and the U.S. Environmental Protection Agency have found seriously harmed streams in the Appalachian coalfields.

Arguments Set for October in Ex-Massey CEO's Appeal

Oral arguments are set in federal court for October in former Massey Energy CEO Don Blankenship’s appeal of his conviction related to the deadliest U.S. mine explosion in four decades.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, on Wednesday scheduled oral arguments for Oct. 26.

Blankenship reported to a California prison May 12 to begin serving a one-year sentence for conspiring to willfully violate mine safety standards at West Virginia’s Upper Big Branch coal mine. The mine exploded in 2010, killing 29 men.

In briefs filed earlier this year, Blankenship’s attorneys complained that the jury pool in Charleston was biased against him, the prosecution was politically motivated and the trial controlled by rulings unfair to the defense.