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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.

4th Circuit Halts Atlantic Coast Pipeline Work in National Forest

A federal appeals court has halted work on the Atlantic Coast Pipeline through stretches of national forest land.The 4th U.S. Circuit Court of Appeals…

A federal appeals court has halted work on the Atlantic Coast Pipeline through stretches of national forest land.

The 4th U.S. Circuit Court of Appeals granted a request this week from environmental groups to stay National Forest Service decisions allowing construction on about 20 miles of the 600-mile route.

Environmental groups requested the stay while a challenge to the forest service approvals is pending. The court is scheduled to hear arguments Friday.

Pipeline spokesman Aaron Ruby says the forest service conducted a thorough review and the court’s ruling won’t have a “significant impact” on the construction schedule.

Attorney DJ Gerken with the Southern Environmental Law Center says the stay means federal officials should halt work on the entirety of the pipeline. The center asked regulators for a stop-work order Tuesday.

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.

Unpacking the Recent Federal Court Rulings Turning Pipeline Development on its Head

Federal regulators have halted construction of two major natural gas pipelines that cross through Appalachia this month, following several federal court decisions.

The Federal Energy Regulatory Commission (FERC) halted the Atlantic Coast Pipeline on Friday, Aug. 10. The agency issued a similar stop-work order earlier this month for the 303-mile Mountain Valley Pipeline. Both orders followed decisions issued by the 4^th U.S. Circuit Court of Appeals, a federal appeals court based in Richmond, Virginia.

Since getting the green light from FERC last year, developers of both the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) have found themselves spending a lot of time in the courtroom battling more than a dozen lawsuits from pipeline opponents.

The litigation touches on everything from landowner rights to the validity of permits issued by an alphabet soup amalgamation of state and federal agencies.

The decisions out of the 4th Circuit, which has been especially prolific this summer, cover a lot of ground and have not exclusively been in the favor of pipeline opponents. Still, some experts and court watchers say the court’s decisions may be fundamentally shifting both the ways in which future natural gas pipeline projects will be proposed and the opposition strategy for environmental groups and landowners.

“I think the ground is shifting for opponents of natural gas pipelines in that they’ve seen some of these really specific challenges to federal review processes pay off,” said Ellen M. Gilmer, a legal reporter with E&E News who has been closely following the court rulings out of the 4^th Circuit. “[Pipeline developers] know now that they’re going to be facing huge pushback in court.”

Mark “Buzz” Belleville, director of the Natural Resource Law Center at the Appalachian School of Law, said he sees the spate of lawsuits and 4^th Circuit court decisions as proxies for a larger problem: no federal agency is taking a comprehensive view on how the build-out of natural gas pipeline infrastructure across the mid-Atlantic region and Appalachia should take place.

Once built, both the MVP and ACP are expected to transport billions of cubic feet of natural gas from the Utica and Marcellus shale formations to markets — both residential and export — on the East Coast and in the Gulf states.

“Most rational people realize we have to figure out how to get gas out of the Utica and Marcellus, but we can’t do it all,” he said.

These are nearly a dozen major proposed pipeline projects that would cross Appalachia awaiting FERC approval. Some may overlap. For example, portions of the Mountain Valley and Atlantic Coast pipelines run within hundreds of feet of one another. Belleville said federal regulators don’t have a mechanism to consider whether that made sense, or if another solution was possible, but they could if they created a regional, or programmatic, plan for pipeline buildout.

“Nobody — no president, no executive agency — is stepping back and saying, ‘big picture, where do we want to put these pipelines, what do we want to do here?’ ” he said.

Belleville added that until a regional review is conducted, pipeline project developers will likely have to continue to contend with an all-out deluge of lawsuits filed by those who oppose the development.

Delays could have major financial effects for pipeline developers.

EQT Midstream Partners, which is the lead developer of the $3.5 billion MVP, said it would have to push back the project’s completion date by at least eight months if the 4^th Circuit ruled the pipeline must halt water crossings in West Virginia.

“Under the most optimistic scenario, MVP would incur more than $600 million in incremental expense due to the suspension of construction in these areas until December 1, 2018,” MVP wrote in a court filing.

On June 21, the court invalidated a water crossings permit issued by the U.S. Army Corps of Engineers and halted all construction in streams and wetlands in West Virginia. A month later, the court vacated two more of the MVP’s federal permits. These were related to construction within the Jefferson National Forest. FERC ordered all construction to halt following that ruling, at least temporarily.

A spokeswoman for the pipeline did not respond to a request for comment as to whether this has affected the project’s completion date.

A New Opposition Playbook

For environmental and conservation groups that continue to fight these and other pipelines, the court decisions coming out of the 4^th Circuit do provide a roadmap for what works, said Nathan Matthews, a senior attorney with the Sierra Club. He argued the ACP case that challenged the project’s Incidental Take permit and National Park Service approval of the pipeline’s construction under the Blue Ridge Parkway. The court this month invalidated both permits, which triggered FERC to issue a stop-work order.

He said this ruling and others by the 4^th Circuit that have sided with arguments made by environmental groups affirm “these pipelines have serious impacts that can’t be papered over.”

Matthews said in the case of the ACP and MVP, opponents did not limit their legal challenges to FERC.

“Going wide and engaging in every federal approval is one [strategy] that other pipeline opponents should emulate,” he said.

He acknowledged every pipeline fight will be different. For example, not every pipeline crosses a national forest like the MVP and only some projects will potentially affect endangered species like the ACP.

“But having the broad community opposition and the folks that are engaged at all levels and pursuing all of those in court, if necessary, I think is the way that these pipeline challenges need to proceed going forward,” he said. “Our wins here show that that strategy has paid off.”

Another lesson Appalachian pipeline opponents may be teaching others is that collaboration between grassroots organization can be powerful. In a brief published last week, Nicholas Stump, a faculty member with the George R. Farmer Jr. Library at the West Virginia University College of Law, noted the collaborative effort between grassroots groups is a central tenant of many environmental actions undertaken in the region. It has also has played a big role in the ability of smaller organizations to mount legal challenges against the MVP and ACP.

“Appalachian grassroots organizations are deeply involved in these recent MVP victories, as such organizations served as environmental plaintiffs in these actions,” Stump wrote, adding later, “Thus, Appalachian grassroots organizations occupy a central role in such legal-institutional efforts.”

Still, not all legal challenges by pipeline opposition groups have been successful.

In late July, the 4^th Circuit ruled against a group of landowners who challenged FERC’s eminent domain process. On Aug. 1, the court ruled against environmental groups who challenged state water quality permits issued by state agencies in Virginia for the MVP.

Gilmer, with E&E News, said the future of pipeline battles going forward depends, in part, on how environmentalists define success.

“If success means they shut down a pipeline, I don’t think the rulings that we have seen so far from federal courts suggest so far that this is likely to happen extremely soon,” she said.

In the stop-work orders FERC issued to both the ACP and MVP, the agency noted it ultimately expects new federal permits that had been vacated by the 4^th Circuit to be reissued. Both MVP and ACP pipeline developers expressed confidence they could quickly sort out the permitting issues.

But FERC also said it could not predict how quickly that might happen. Delays could add millions of dollars to the final cost of these pipelines.

“As we have seen in court, they are able to slow down construction, temporarily halt construction, force agencies to take a closer look,” Gilmer said of lawsuits brought by opposition groups. “In that way, they are really pushing that issue forward.”

Feds Halt Construction of Atlantic Coast Pipeline

Federal regulators halted all construction of the 604-mile, interstate Atlantic Coast Pipeline (ACP) following a federal court’s ruling this week that invalidated two major federal permits.

The Friday evening decision comes just a week after regulators issued a similar stop work order for another major interstate natural gas project, the Mountain Valley Pipeline.

On Aug. 6, the U.S. 4^th Circuit Court of Appeals ruled the National Park Service (NPS) acted in an “arbitrary and capricious” manner when it granted the ACP pipeline a right-of-way permit to cross under the Blue Ridge Parkway. The court also said the U.S. Fish and Wildlife Service did not do enough analysis to ensure the protections of five endangered or threatened species and vacated the pipeline’s “Incidental Take Permit.”

In a letter to pipeline officials, the Federal Energy Regulatory Commission (FERC) said without these permits, construction of the ACP could not continue.

“In light of this development, Atlantic Coast Pipeline, LLC (Atlantic) has not obtained the rights-of-way and temporary use permits from the NPS needed for ACP to cross certain federally owned lands and lacks an Incidental Take Statement for the project,” the letter states.

The move comes a week after FERC issued a stop work order for the 300-mile Mountain Valley Pipeline. In that case, the 4^th Circuit invalidated two federal permits authorizing construction inside Jefferson National Forest because the Bureau of Land Management and U.S. Forest Service did not conduct enough environmental analysis. FERC said until those approvals are re-issued, construction must stop.

In the letter sent to ACP officials, the agency noted the Park Service and the Fish and Wildlife Service would most likely issue new permits, but FERC could not predict when that may happen.

“Should NPS authorize an alternative crossing location, Atlantic may need to revise substantial portions of the ACP route across non-federal or federal lands, possibly requiring further authorizations and environmental review,” the agency said. “Accordingly, allowing continued construction poses the risk of expending substantial resources and substantially disturbing the environment by constructing facilities that ultimately might have to be relocated or abandoned.”

The ACP is a project of Dominion Energy. The $5.5 billion pipeline would transport natural gas from central West Virginia to the eastern portions of Virginia and North Carolina.

ACP spokesman Aaron Ruby said in an emailed statement that pipeline developers were already working closely with federal agencies and were confident the issues could be resolved quickly.

“The Atlantic Coast Pipeline has been the most thoroughly reviewed infrastructure project in the history of our region,” he said. “The recent action by the courts and FERC are further evidence of this unprecedented scrutiny and the high standard that is being applied to this project.”

The company has five days to submit a stabilization plan to FERC that indicates what measure the project intends to take to ensure that construction already in progress does not become an environmental liability.

The agency on Friday also decided not to rehear challenges brought by environmental groups to its initial certificate of the pipeline, opening to door for continued legal challenges regarding the “public need” for the project.

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.