Southern Environmental Law Center Weighs In On Atlantic Coast Pipeline Pt1

On October 19^th, the Virginia Department of Environmental Quality approved the Atlantic Coast Pipeline’s erosion and sediment control plans and storm water management plan, and ACP spokesperson Aaron Ruby announced was requesting a Notice to Proceed with full construction in Virginia from the Federal Energy Regulatory Commission.

No so fast, says the Southern Environmental Law Center. I spoke with Jonathon Gendzier, staff attorney with SELC, about pending litigation regarding the project.

“We do have a legal challenge pending to the Federal Energy Regulatory Commission’s certificate for the Atlantic Coast Pipeline, and a fundamental issue in that legal challenge is the need for the pipeline itself. So FERC made a determination that the pipeline was both necessary and in the public interest, but a body of evidence that we have brought to light, and brought before FERC, really calls that into question. It shows, in part, that the need for the pipeline has been based on contracts between companies affiliated with the pipeline developers, and also that it is based on inflated projections of electricity demand that have been called into serious question.

“So, the case is pending with the 4^th Circuit Court of Appeals in Richmond – I can’t say for sure when argument will be heard, because briefing has not yet been completed, but likely sometime in the first part of next year.”

Localities along the pipeline path can be involved with the case.

“There is an opportunity for localities to make their voices heard in the form of an amicus, or friend of the court, brief. And both the City of Staunton and Nelson County have decided that they wish to file an amicus brief, speaking to some of their concerns with the pipeline and this fundamental underlying need issue. This really does represent perhaps the last opportunity for local governments to make their voices heard before a fact-finder.”

The possibility of joining via amicus brief was presented to the Highland Board of Supervisors during their November regular meeting, and I asked if all localities had been so informed.

“We briefed the county attorney for Highland County, just about this need issue, and the fundamental question with whether the pipeline is actually needed, and would certainly be happy to similarly brief officials from those other localities.”

I asked Mr. Gendzier if there were any other legal challenges to the project.

“There are several other challenges to permits that the Atlantic Coast Pipeline has obtained that are pending. Argument was heard at the end of September on a challenge to the Forest Service special use permit, and to Virginia’s 401 water quality certification. We are awaiting a decision from the court.

“But, this lawsuit on the FERC certificate does represent the opportunity to speak to this fundamental issue of whether the pipeline itself is actually needed. The basis for FERC’s determination of need has been called into serious question by evidence that has come to light over the past couple of years.”

Stay tuned for Part 2 of this story for a discussion on the use of eminent domain and the economics of project construction.