Attorney Wilson Contends Virginia DEQ Not Doing Its Job On Pipelines
Sen. Deeds Opposes Construction Of Both Pipelines |
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Covington, VA (May 28, 2019) - Several months ago, Bill Wilson, President of the Jackson River Preservation Association, Inc. (JRPA) wrote to every member of the Virginia General Assembly outlining the history of the JRPA's opposition to the Atlantic Coast Pipeline (ACP) proposed by Dominion Energy outlining some of the milestones along the way. The text of that letter is set forth below:
"My name is Bill Wilson. I am president of the Jackson River Preservation Association Inc. (JRPA). For four years our organization has fought to stop the Atlantic Coast Pipeline (ACP) which is proposed to cross the Alleghany Highlands. The purpose of this communication is to briefly summarize for you some of the major happenings as we have fought this battle.
We have not been alone in this fight. The JRPA joined an association called the Allegheny Blue-Ridge Alliance (ABRA) which is made of many organizations also in opposition to the ACP.
Early on, we approached many state and federal legislators asking for help. A few would join us but most were reluctant to get involved. Some flatly said they were for the pipeline.
We soon learned that Dominion Energy had liberally spread political contributions among the legislators which could have affected the judgment of some. We also heard that the Director of DEQ, David Paylor, had been sent on an all expenses paid trip to the Masters Golf Tournament. It was easy to see we had our work cut out for us.
Since that time, I have been to many, many meetings, including two public hearings, I only saw one legislator at the public hearings, although the large rooms were packed with people.
I naively thought that Governor Northam could help us, since he purports to be an environmentalist, but when he re-appointed David Paylor Director of DEQ, and later removed two members of the Air Board when it appeared they might vote against Dominion's compressor station in Buckingham County, our job became tougher!
Set out below is a brief summary of major events regarding both the ACP and MVP (Mountain Valley Pipeline). It is not meant to be comprehensive but should give you the highlights of what has happened.
Before getting to this summary, I want to mention that I just watched a video of a public gathering in Buckingham County where Union Hill (a small community in rural Buckingham County) residents (mostly Afro-American landowners), and others, met in opposition to Dominion's proposed Compressor Station. That gathering had a number of powerful speakers, including former U.S. Vice President Al Gore. If you have time to watch the video, it is worth your time. (Link to video: Moral Call for Ecological Justice in Buckingham.)
When we started fighting these pipelines, the "smart money" said that both the ACP and MVP would be built because Dominion had so much money and power. We are not so sure that is true anymore because the public is waking up to how ill-conceived those projects are and how damaging they are to landowners and the environment.
The summary mentioned above is as follows:
Status of Natural Gas Pipeline Projects in Virginia and West Virginia
Two major pipeline projects have been proposed to bring natural gas out of the Marcellus Shale fields of West Virginia to markets in the eastern and southwestern United States. The projects have drawn sharp opposition from environmental and conservation organizations, as well as citizens groups, on the grounds that:
1) Construction of the projects would perpetuate the use of fossil fuels at a time when there should be a greater emphasis on converting the nation’s energy resources to renewables;
2) There is not a demonstrated need for more natural gas transmission, for existing infrastructure is adequate to meet transmission needs, particularly considering the declining projections by utility companies of how much natural gas and electricity will need to be produced in the future;
3) It is inappropriate to seize people’s land with the eminent domain power granted to pipeline companies by the Natural Gas Act given the lack of a demonstrated need for more pipelines; and
4) The construction of these projects through the steep terrain and sensitive ecosystems of the Appalachian Mountains of Virginia and West Virginia creates serious environmental threats, particularly to water resources. The headwaters of some of the major rivers in the Eastern United States are in the path of one or both proposed pipelines.
Atlantic Coast Pipeline
The Atlantic Coast Pipeline (ACP) is a 600-mile natural gas pipeline that would begin in the Marcellus Shale fields of north-central West Virginia, through Virginia and terminate in southern North Carolina, just above the South Carolina border. A spur of from the ACP would extend to Norfolk, VA. Dominion Energy, Duke Energy and the Southern Company are owners of Atlantic Coast Pipeline, LLC, with Dominion serving as managing partner.
The original cost of the project was to be $5 billion, but estimates have risen sharply in the last year. In a February 1 statement released in conjunction with its quarterly earnings report, Dominion projects the cost of building the ACP will be $7.5 billion, and possibly higher. It is noteworthy that these rising cost projections are made before any construction has begun in Virginia or in the rugged mountains of eastern West Virginia and western Virginia, where the costliest work will be required.
The ACP has been the subject of several lawsuits that have been brought by conservation and environmental organizations, most of whom are members of the coalition that is leading the fight against the ACP, the Allegheny-Blue Ridge Alliance (ABRA). Two prominent public interest law firms are handling the aforementioned litigation (Southern Environmental Law Center and Appalachian Mountain Advocates). We are also being helped by several prominent state, regional and national environmental groups.
The principal legal challenges to the various permits and certificates for the ACP are briefly summarized below.
- FERC Certificate – Contends that need for ACP was inflated and that FERC failed to conduct appropriate analysis of environmental dangers. Pending before the DC Circuit Court of Appeals, arguments not likely until Fall 2019.
- Forest Service Permit–Plaintiffs argued that Forest Service failed to follow its own rules in approving the permit. Argued before the Fourth Circuit Court of Appeals on September 28, 2018 Court rendered an opinion on December 13 to vacate the Forest Service permit. The Atlantic Cost Pipeline, LLC on January 28 appealed for a rehearing en banc. No decision expected before late February.
- National Park Service Permit (for ACP to cross the Blue Ridge Parkway) – Contention is that the NPS lacked proper authority to issue a permit. Fourth Circuit vacated the permit on August 6, 2018. NPS issued new permit in September, which was also challenged by plaintiffs. NPS has subsequently withdrawn the permit, with Fourth Circuit agreeing to that on January 23.
- Fish and Wildlife Service Biological Opinion- Suit contended that the FWS biological opinion on the threats posed by the ACP to certain endangered species was seriously inadequate. Fourth Circuit agreed in an August 6 opinion. FWS wrote a new opinion, issued in September, which has been challenged. The case is due to be argued in May. In the meantime, a Court-ordered stay on ACP construction remains in effect.
- Army Corps of Engineers Nationwide 12 permit for crossing streams – Fourth Circuit issued a stay in 2018 for the permit on the grounds that the permit was improperly issued. Huntington District of the Corps on January 18, 2019 filed a motion with the Fourth Circuit to remand the permit, meaning there is no current authority for the ACP to cross rivers and streams in West Virginia.
- Virginia State Water Board 401 Certification – The December 2017 approval of a 401 certificate for the AP was challenged. The Fourth Circuit rejected the suit on January 14, 2019.
When the ACP project was announced in 2014, construction was to have begun in September 2016 and service of the new pipeline would commence in the 4th Quarter of 2018. Because of delays – some caused by Dominion’s own mistakes, some resulting from legal challenges – construction on the ACP did not commence until early 2018. In Dominion’s quarterly earnings press statement released on February 1, 2019, the company said: “The company currently expects that construction could recommence on the full route during the third quarter of 2019 with partial in-service in late 2020 and full in-service in early 2021.”
In short, the ACP is already 50% over budget and more than two years behind schedule.
Mountain Valley Pipeline
The Mountain Valley Pipeline (MVP) is a 300-mile, $4.6 billion project that would transmit natural gas from the Marcellus Shale fields in north-central West Virginia to southwest Virginia at an intersection point with an existing Transco pipeline that currently extends from the Gulf Coast to the Northeast. The project’s principal owners are EQM Midstream Partners, LP and NextEra US Gas Assets. The owners have recently proposed extending the MVP into northwestern North Carolina.
The MVP was proposed in October 2015 and approval from the Federal Energy Regulatory Commission was granted in October 2017. Construction began in February 2018 and is targeted for completion by the 4th Quarter of 2019. MVP claimed in December that it had completed 70% of the project, but local citizen groups in the affected communities who have been monitoring the project estimate the actual percentage of project completion is less than 50%.
The MVP has been plagued with considerable problems due to construction challenges caused by the steep slopes over which the project route must cross, causing numerous incidents of erosion. In some instances, stop work orders have been issued. In December 2018 the project was sued by the Virginia Attorney General for over 300 violations of environmental regulations. There have also been numerous citations by West Virginia officials, but no lawsuits. Construction is currently at a standstill due to winter weather.
Opposition to the MVP from citizens groups and environmental organizations has been fierce and very public, including incidents of tree-sitters blocking construction. The principal coalition opposing the MVP is POWHR (Protect Our Water, Heritage Rights), whose members are 15 county and regional citizen groups in Virginia and West Virginia. A legal challenge to the FERC certificate, brought by Appalachian Voices (Appalachian Mountain Advocates is counsel) was argued before the DC Circuit Court of Appeals on January 28, 2019, but was not successful.
After you have considered the above, especially the Buckingham County video, JRPA would respectfully ask you to do the following:
1) If you have taken a position against the ACP and MVP, we urge you to speak out forcefully and urge your colleagues to do so.
2) If you have been "on the fence," we would ask you to come down and join us in our opposition. It should be clear from the above court cases and the video that these pipelines are not for Virginia.
3) It is not enough to simply be against the pipelines, you need to speak and write against them in a forceful way. The plain facts should give you plenty of ammunition. Time is of the essence so we hope you will "get busy."
4) By the time you get to this point, if you have not already done so, please view the video mentioned above. It is well worth your time.
5) The JRPA and others, have argued that DEQ is not doing its job. I leave it to your good judgment to decide why that is. We have our own opinions in that regard, but the main thing, at this point, is for you to make inquiry and see that DEQ protects the public. Two months ago, the SWCB voted to review its permit granting Dominion a §401 Water Quality Permit but since DEQ is the "staff" for the SWCB no date for the hearing was scheduled until a few days ago. Finally a March 1, 2019, date was picked. If you can attend that meeting, I would invite you to do so.
6) If you have questions or if you would like to meet with the JRPA or ABRA boards, please contact me or Lewis Freeman at ABRA.
Thanks for considering the above."
In response to Wilson's letter, Senator Creigh Deeds made the following remarks:
"Dear Bill:
Thank you for your email of February 22, 2019.
In my view, neither the Atlantic Coast Pipeline nor the Mountain Valley Pipeline is in the best interest of Virginia. I have seen nothing that proves that we need the gas and am very skeptical about the routes chosen for the pipelines.
While it is true that there are many miles of pipeline transmitting gas throughout Virginia, there are not pipelines the size of those proposed here. Nor do the pipelines that currently exist traverse such sensitive terrain.
It is especially frustrating to me, because I suggested to Dominion, DEQ and FERC that if the pipeline was going to cross Bath County, the more logical route it should take would be through the existing 150’ wide transmission easements that cross the county from Back Creek.
We have already gotten used to looking at those easements, and Dominion already has easement agreements there, but none of the aforementioned parties have been willing to consider that route.
It is also frustrating because I believe that the critters that persuaded the Forest Service to move the route from the Shenandoah Mountains south into Bath County, are more in abundance in some of the areas of private property that the Atlantic Coast Pipeline is now scheduled to cross.
From the beginning, I have been convinced that the only way this pipeline would be stopped is through legal action and in fact that remains the best course for stopping one or both pipelines.
Sincerely, Creigh Deeds"
Although Delegate Terry Austin, who represents much of the area through which the Jackson River flows, was sent a copy of Wilson's letter and invited to respond, he has not done so.
After receiving Deeds' letter, Wilson sent the following email, dated March 7, 2019, to Deeds, suggesting further actions:
"Dear Creigh:
Thanks for your email dated February 27, 2019, expressing your opposition to the pipelines. When you replied to me, I think you hit "Reply All," so I think my JRPA members got
a copy of your email. My plan is to work up a news release for the local papers, with your comments in it, if you have no objection.
Also, there are some proactive things you can do, in my opinion:
1) David Paylor is doing a horrible job as Director of DEQ. He should not have been re-appointed, in my view, but there he is. You could be more visible and outspoken in urging DEQ and the boards it staffs, to properly assess these pipelines and to call Dominion to account for their many construction violations. DEQ is giving Virginia a bad name and Governor Northam is not helping. The Democratic Party is supposed to be the party protecting the environment, not tearing it down!
2) Help to rally your fellow legislators to help. I have been to a number of public hearings and meetings and I rarely see a legislator. Where are they?
3) I agree that the Fourth Circuit Court has been the blocking force to Dominions plans and will continue to be, I think, but the power of Virginia legislators should not be overlooked. Now is the time to stand up and be heard. I hope you will.
Best wishes. Sincerely,
Bill Wilson, President
Jackson River Preservation Association, Inc."
To date, Senator Deeds has not replied further but Wilson says he will publish any reply that comes to him.
The JRPA is a non-profit, 501 (c)(3) organization created for the sole purpose of preserving and protecting the Jackson River. Annual dues are only $20. To join send checks made payable to JRPA and mail to Karen Feldenzer, 811 Scott Circle, Salem, Virginia 24153. | | | | | |
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