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Defeat of Atlantic Coast Pipeline rooted in homegrown legal strategy

Defeat of Atlantic Coast Pipeline rooted in homegrown legal strategy


Six summers ago, a group of community activists from both sides of the Blue Ridge Mountains met around a kitchen table at a Christmas tree farm in Augusta County to face the emerging threat of a natural gas pipeline that Virginia’s largest energy company was planning to build through the heart of the state.

Dominion Energy already had begun notifying landowners along a 400-foot-wide study corridor for the Southeast Reliability Project. Three months later, it would become the Atlantic Coast Pipeline, a multibillion-dollar construction project that would have cut a swath through the Allegheny Highlands, the Shenandoah Valley, the Blue Ridge and the central Piedmont on its way to the southeastern coast.

Six years later, the $8 billion, 604-mile project is dead, thwarted by homegrown community organizing and a legal strategy that took root in the June 2014 meeting at Francisco Farms, which the original route of the pipeline would have come near in Augusta.

“That meeting at the farm was the first time people from different communities had gotten together,” said Ernie Reed, a current member of the Nelson County Board of Supervisors and a past president of Friends of Nelson, one of 50 community organizations that ultimately formed the Allegheny Blue Ridge Alliance to oppose the pipeline.

The meeting was at the home of Bill Francisco, whose daughter, Sarah, a lawyer at the Southern Environmental Law Center in Charlottesville, was leading an imminently successful effort to stop fracking and other forms of oil and gas exploration in almost all of the 1.1 million-acre George Washington National Forest.

“Here was a project that put this immense natural gas pipeline on top of that national forest,” said Sarah Francisco, now director of the Virginia office of the law center.

Supported by a philanthropic endowment and $131 million in net assets at the end of 2018, the law center took the lead role in a legal alliance that stymied federal and state permits for the project in the 4th U.S. Circuit Court of Appeals in Richmond, despite a high-profile defeat at the U.S. Supreme Court on a permit for the pipeline to cross the Appalachian Trail. Opponents lost only one case at the 4th Circuit, which upheld Virginia’s water quality certification for the project.

“SELC is founded on the principle that the courts are the ultimate backstop and that the law will prevail,” Francisco said. “The law and the facts carried the day with this project.”

Dominion, based in Richmond, canceled the project with its partner, Duke Energy, on July 5, shortly before the U.S. Supreme Court issued an emergency order to narrow a federal court ruling in Montana that would have blocked pipeline projects across the country from using a nationwide water quality permit for crossing multiple bodies of water and wetlands without undergoing reviews for each.

No more appetite

The partners, Dominion and Duke Energy, made clear that no matter how the Supreme Court acted on the issue, they had no more appetite for legal battles that had delayed the project’s anticipated completion by more than three years and added more than $3 billion to its cost.

With $3.4 billion already spent, they said they weren’t willing to invest more shareholder money to clear trees in the project’s path during the upcoming winter and prepare for construction without greater legal certainty.

“To state the obvious, permitting for gas transmission and storage has become increasingly litigious, uncertain and costly,” Dominion Chairman and CEO Tom Farrell told financial analysts the day after announcing the decision to end the project.

Derek Teaney, senior attorney at Appalachian Mountain Advocates, said the Supreme Court’s emergency ruling to limit the Montana decision to construction of the Keystone XL Pipeline won’t stop similar challenges to the use of the Nationwide 12 permit for other pipelines.

“Somebody is going to bring that question to the 4th Circuit,” Teaney said.

Dominion officials declined to comment for this story, but other supporters of the Atlantic Coast Pipeline were critical of the legal strategy of opponents to use the courts to block numerous permits federal and state agencies issued for the project.

Delay ‘a success’

“The tactic to defeat the pipeline was one where delay was considered a success,” said Barry DuVal, president and CEO of the Virginia Chamber, which supported the project as vital to the state’s competitiveness for economic development projects that require reliable sources of natural gas.

“The concern of the business community is when courts begin to substitute their judgment for that of elected officials,” DuVal said.

The decision to cancel the project also disappointed West Virginia Attorney General Patrick Morrisey, whose state relies economically on energy production from shale gas fields in the Marcellus Basin that would have supplied the pipeline.

“Litigation should not be a barrier to economic development,” Morrisey said in an email statement. “While appropriate protections have their place, this strategy does little to help the environment and instead hurts hard-working pipeliners, laborers and the countless others who rely upon their success.”

The American Petroleum Institute warned that the legal system has become a barrier for production and transmission of energy.

“Unfortunately, activists have been able to successfully manipulate an outdated, convoluted system, opening the door for a barrage of baseless litigation and nearly endless delay,” spokeswoman Bethan Aronhalt said in an email statement.

Rigged by FERC?

But environmentalists say the process was rigged in the other direction by the Federal Energy Regulatory Commission, or FERC, which issued a certificate for the Atlantic Coast Pipeline in October 2017. The commission used a series of tolling orders to delay rehearing of the order for almost 10 months, preventing legal challenges in the courts.

“The practice is immensely unfair,” said Greg Buppert, a senior attorney at the Southern Environmental Law Center, who also attended the meeting at Francisco Farms.

The U.S. Circuit Court of Appeals for the District of Columbia prohibited the use of tolling orders in late June in a case brought by the Allegheny Defense Project, a Pennsylvania-based environmental group that Nelson supervisor Ernie Reed said he recruited after the meeting in 2014 to help advise opponents on how to work against the Atlantic Coast Pipeline at FERC.

“Not only is the ACP a turning point, but there have been other important decisions that are going to make the process fairer and more transparent,” Buppert said.

Locally grown

The massive legal effort that stopped the Atlantic Coast Pipeline grew directly from the communities in the path of the project, including the law firms that worked to stop it.

“The project was really in the backyard of SELC as an organization of Virginia and North Carolina,” said Patrick Hunter, senior attorney at the law center’s office in Asheville, N.C., one of nine offices it operates in the Southeast with more than 80 attorneys.

Hunter played a major role in successful challenges of the permits required for the pipeline to cross the George Washington and Monongahela national forests, the Blue Ridge Parkway and, until the Supreme Court ruling in June, the Appalachian Trail.

He also was part of the legal team that persuaded the 4th Circuit to throw out the biological opinion and incidental take statement that the U.S. Fish & Wildlife Service had issued to ensure that the pipeline construction would not risk the existence of endangered and threatened species, including the rusty patched bumblebee in the mountains of Bath County.

It was the second time the 4th Circuit had tossed out the incidental take statement for failing to determine the effect on the bumblebee and other endangered species.

“You can’t say it’s not going to be a problem and not impact the species if you don’t know where the species is because you haven’t looked for it,” Hunter said.

The pipeline company suspended construction after the court issued the second ruling in December 2018 and declined to stay its effect on the entire length of the project.

Work never resumed.

‘Multifront battle’

Teaney, at Appalachian Mountain Advocates, is a ninth-generation West Virginian whose daily commute crosses the Greenbrier River, which became part of what he called “a multifront battle” against both the Atlantic Coast Pipeline and the 302-mile Mountain Valley Pipeline, partly constructed through West Virginia and Southwest Virginia.

“Being an environmental advocacy law firm, there was no way we weren’t going to be involved,” said Teaney, who played a leading role in blocking the water quality permit for both pipelines to cross the Greenbrier and other bodies of water, a barrier that remains for the Mountain Valley project.

‘We don’t charge for our work, but there are people who like the work we’re doing,” he said.

The SELC also doesn’t charge its clients fees, Francisco said. “We have the ability to choose our cases based on what’s at stake for the environment and the people who are affected.”

The Sierra Club, one of the organizations represented in the suits, also brought its legal resources to bear on its own behalf and that of Wild Virginia.

Citizens’ ‘huge role’

The Chesapeake Bay Foundation, another well-established nonprofit environmental advocacy organization, also joined lawsuits against the Atlantic Coast Pipeline because of concerns about potential effects on water quality, both from construction and airborne pollution from a proposed natural gas compressor station in Buckingham County.

“The citizens played a huge role in these cases,” said Jon Mueller, vice president of litigation at the Chesapeake Bay Foundation and former environmental enforcement attorney at the U.S. Department of Justice.

Mueller cited the research of Yogaville resident Lakshmi Fjord and other activists in persuading the 4th Circuit to reject a state air pollution permit that would have allowed construction of a natural gas compressor station next to the predominantly Black community of Union Hill in Buckingham.

The Buckingham air permit case also showed a growing impatience of a three-judge panel on the 4th Circuit with how Dominion and government agencies, both at the federal and state levels, handled permit applications for the project, specifically for protecting the health of Union Hill residents.

“That panel had heard enough about what Dominion had been doing,” Mueller said.

Judges’ skepticism

The 4th Circuit’s skepticism about the permitting process for the project was most apparent in a ruling by the same three-judge panel in December 2018, that quoted from Dr. Seuss’ “The Lorax” in rejecting the permits the Forest Service issued to allow the pipelines to cross 21 miles of the George Washington and Monongahela national forests.

“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues,’” concluded the ruling, written by Judge Stephanie Thacker of West Virginia. “A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.”

The ruling also rejected the permit issued by the agency to allow the pipeline to cross under the Appalachian Trail in a tunnel through the Blue Ridge between Augusta and Nelson counties.

The Supreme Court overturned the ruling on a 7-2 vote in June, but the project still lacked a valid permit to cross the national forests because of the 4th Circuit’s finding that the Forest Service had not done the necessary work to protect steep mountain slopes and comply with the agency’s management plans for the forests.

‘Sweet spots’ for SELC

The law center had played a major part in raising concerns about the permitting process at the Forest Service. It used Freedom of Information requests to document apparent changes of position after President Donald Trump’s election on a platform that emphasized energy development.

“SELC knows the Forest Service inside and out,” said Nancy Sorrells, who was a member of the Augusta Board of Supervisors during the fight to prevent fracking in the George Washington National Forest. She co-founded the Augusta County Alliance after the 2014 meeting at Francisco Farms. She is now Augusta coordinator at the Alliance for the Shenandoah Valley.

The law center had worked extensively on the George Washington forest management plan and other efforts to protect public lands, but it also had developed expertise on energy regulation and renewable energy, as well as the Endangered Species Act.

“The project really hit the sweet spots for SELC,” Buppert said.

Meanwhile, environmental groups were raising concerns publicly about the need for the project and its contribution to greenhouse gases, such as carbon dioxide and methane, linked to global warming and climate change.

A Democratic takeover of the General Assembly this year led to passage of the Virginia Clean Economy Act to promote the use of renewable energy instead of fossil fuels, and the state this month became the first in the South to join the Regional Greenhouse Gas Initiative.

“Time was on our side,” Friends of Nelson President Doug Wellman said in a message to members this month. “While our team was bedeviling Dominion’s team with beautifully crafted lawsuits, the world was changing in our favor.”

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