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The pipeline boom

Federal Court Denies Atlantic Coast Pipeline’s Request for New Hearing

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Sections of pipe sit in a storage yard outside Buckhannon, W.Va. Photo: Jesse Wright/West Virginia Public Broadcasting

A federal appeals court has denied a request by the developers of the Atlantic Coast Pipeline to rehear a case over the legality of permits that allow the multibillion dollar natural gas pipeline to cross under national forest lands, including the Appalachian Trail.

The 4th U.S. Circuit Court of Appeals on Monday declined pipeline developer Dominion Energy’s request for the case to be reheard in front of the full bench. The company says it intends to appeal to the U.S. Supreme Court within 90 days.

In December, a three-judge panel of the 4th Circuit ruled the U.S. Forest Service violated two cornerstone environmental laws — the National Forest Management Act and the National Environmental Policy Act — and thus failed 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.

In her 60-page opinion, 4th U.S. Circuit Court of Appeals Judge Stephanie Thacker cited Dr. Seuss’ “The Lorax.”

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

The court’s decision not to rehear the case “en banc” or in front of the full court is another blow to the 600-mile interstate natural gas pipeline that would run from West Virginia to eastern North Carolina. Construction is currently halted along its entire route.

The 4th Circuit in December also stayed the pipeline’s revised Biological Opinion and Incidental Take Statement, a key permit from the U.S. Fish and Wildlife Service that authorizes construction through habitat identified as critical for certain threatened or endangered species across West Virginia, Virginia and North Carolina.

In a statement, Dominion spokesman Karl Neddenien said project developers intend to appeal to the U.S. Supreme Court within the next 90 days. The company is also pursuing legislative and administrative options.

In its Feb. 1 earnings call, Dominion said costs for the pipeline had ballooned from between $4.5 billion and $5 billion when first announced to between $7 billion and $7.5 billion.

The company said despite the myriad of delays, it is confident “at least partial construction will recommence in the third quarter of 2019” and the entire pipeline will be completed.

In a statement, the Southern Environmental Law Center and the Sierra Club, two environmental groups challenging the project, said the 4th Circuit’s decision not to rehear the case “sends the Atlantic Coast Pipeline back to the drawing board.”

This story was originally published by West Virginia Public Broadcasting.

The pipeline boom

With Two New Trump Appointees, FERC is Ready to Open the Tap on Appalachia’s Pipeline Boom

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In the past few years, Appalachia has seen an explosion of plans for pipeline infrastructure from utilities and natural gas companies wanting to transport gas from the abundant Marcellus and Utica shale formations in Ohio, West Virginia, and Pennsylvania to markets in the Southeast, East Coast, and Midwest.

“It’s a mad dash,” said Ben Luckett, staff attorney for nonprofit law and policy center Appalachian Mountain Advocates. “Everyone wants to build their own highway, their own toll road.”

Nearly half of the pipelines proposed in Appalachia have already been approved, but the rest — including the controversial Mountain Valley and Atlantic Coast pipelines — are awaiting certification from the Federal Energy Regulatory Commission. The industry scored a victory last week when the Senate voted to confirm two of President Trump’s nominees, restoring quorum for the agency and allowing it to vote on certificates for gas infrastructure projects for the first time in seven months.

“FERC has been a rubber stamp for the industry for a long time,” Luckett said. “I’m not aware of a single project where there have been contracts in place where FERC has denied an application.”

That record is unlikely to change with the newly appointed commissioners, who are well-known as being industry-friendly themselves. One is Neil Chatterjee, energy policy adviser to Senate Majority Leader Mitch McConnell. Chatterjee was integral in the Republican effort to rescind the Clean Power Plan.

Joe Arnold, vice president of communications for the Kentucky Association of Electric Cooperatives, said that Chatterjee impressed Kentucky’s electric cooperatives during his time with the National Rural Electric Cooperative Association.

“Neil has firsthand awareness of the energy landscape, including of the important role coal plays in [ensuring] the delivery of affordable, reliable power and we believe he will fight to insure the lights stay on and people can maintain their livelihood and way of life in Appalachian communities,” Arnold said.

The other new FERC commissioner is Robert Powelson, who spent years as a member and chairman of the Pennsylvania Public Utility Commission. He’s also the current president of the National Association of Regulatory Utility Commissioners. Before Trump appointed him earlier, Powelson was criticized for a comment he made saying people protesting pipelines were leading a “jihad” to keep gas from reaching new markets. He also publicly praised the CEO of Dominion, the company behind the Atlantic Coast Pipeline.

Lynda Farrell, executive director of the Pennsylvania-based Pipeline Safety Coalition, said that in Pennsylvania, Powelson was widely considered to be pro-gas industry, even before he made that comment.

“That was a very biased and telling statement, and his nomination and confirmation at FERC are troubling because he’s got that bias,” she said.

The president has also nominated Richard Glick, a Democratic Senate aide, and Kevin McIntyre, who heads energy practice at Jones Day, a law firm that has sent several attorneys to the Trump administration, for the remaining two commission positions. The Senate Energy and Natural Resources Committee will hold a hearing for them in September, according to Mary O’Driscoll, the director of media relations for FERC.

The nominations don’t bode well for environmental groups hoping to stop pipeline construction. Pending approval are two controversial projects: the 300-mile Mountain Valley Pipeline, which will run through Virginia and southwestern Virginia, and the 600-mile Atlantic Coast Pipeline, developed by Duke Energy and Dominion, which will run from West Virginia through Virginia to North Carolina. But they are just two of nearly a dozen proposed in the region, even though industry experts say there isn’t enough demand for natural gas to meet the number of pipelines being built. Many of the same companies developing the pipelines are the companies buying the gas, and they see big return investments with these projects, despite the fact that consumers may have to pay higher rates to finance them.

The only decision the commissioners have left to make is whether to issue a certificate for the pipelines. All the other work, like the environmental impact statements, has been completed by FERC staff, who have been working while the agency was stalled. The Atlantic Coast and Mountain Valley pipelines should be decided on sometime in the fall.

Luckett said he’s seen an “incredibly strong” movement building against the pipelines throughout Appalachia, in a way that he never saw with mining projects. “The taking of private property and coming through peoples’ communities, plus the companies’ and FERC’s attitude of dismissiveness has rubbed people the wrong way,” he said. “It’s bringing together more typical environmentalists from the left, property rights advocates from right, and people who don’t consider themselves politically active but a giant pipeline was going to come through their farm.”

Virginia attorneys recently filed a lawsuit challenging the Mountain Valley pipeline and FERC’s eminent domain authority, saying that the developers have violated constitutional rights by taking property from landowners. The Virginia Supreme Court ruled in favor of the Atlantic Coast Pipeline company last month in a lawsuit against a woman who sought to keep them from surveying her property. The West Virginia Department of Environmental Quality, which just halted construction of Energy Transfer Partner’s Rover pipeline over water pollution risks, is holding informal hearings this week on the Mountain Valley Pipeline. The Virginia DEQ is holding hearings as well. There have also been many protests against the pipelines across the region this year.

Even though the movement against the pipelines is gaining momentum, FERC’s history indicates that it is unlikely to reject them. In June, FERC released its final environmental impact statement for Mountain Valley, saying that there would be “significant” impacts on forests but otherwise the impacts would be limited. The pipeline crosses the Appalachian Trail, nearly 1,000 bodies of water, and hundreds of acres of forest. The Atlantic Coast Pipeline, which will run through tribal lands, national forests, habitats for endangered species, also got a nod of approval from FERC in July. Its environmental impact stated the pipeline’s effects can be mitigated.

FERC did reject a single pipeline in 2016, but in that case, the proposed pipeline in Oregon had no contracts and linked to a terminal that didn’t exist yet. The Atlantic Coast and Mountain Valley pipelines would link to existing terminals, and both already have contracts.

Pipeline companies have already started staging some areas for construction while awaiting approval; the seven-month delay isn’t expected to set their schedules back. In February, before FERC lost quorum when chairman Norman Bay resigned, one of the commission’s last actions was to approve the Atlantic Sunrise Pipeline, a 180-mile project in Pennsylvania.

FERC declined a request to speak to commissioners directly, but Driscoll said “it will be up to the commissioners to determine when and how they vote on the matters before them. We do not speculate on when or how the Commission will vote.”

If the agency does approve the certificates, Luckett said the agency could take other steps to “lessen the damage” by using their power to enforce the certificates and monitor environmental impacts. 

“All too often we see that if there’s no one to enforce [the certificates] it’s pretty meaningless,” Luckett said. “But the agency could still have real impact.”

Lyndsey Gilpin (@lyndseygilpin) is a contributing editor of 100 Days in Appalachia based in Louisville, Kentucky. She is also the editor of Southerly, a newsletter covering the American South.

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