By Whitney Pipkin of the BayJournal.com, permission granted for reprint
A string of recent court decisions has left the future uncertain for a sprawling natural gas pipeline project cutting its way across some Chesapeake Bay states.
Judges have reversed three federal permits that would have allowed the Atlantic Coast Pipeline to cross national parks and trails or to impact endangered species, halting construction while Dominion Energy, the project’s backer, regroups to appeal.
Despite strong local opposition along the project’s 600-mile path — which winds its way from West Virginia through Virginia to North Carolina — the Atlantic Coast Pipeline had been gathering steam over the last three years while garnering the federal and state permits necessary to begin construction in Virginia.
Dominion officials contend that the pipeline is essential to meet growing energy demands along the East Coast and to replace coal-fueled power generation with natural gas.
The project is one of several pipelines planned or under construction to carry natural gas across portions of the Chesapeake Bay watershed. The gas is extracted from underground shale formations using a controversial technique called hydraulic fracturing, or “fracking,” and pipeline construction often entails disrupting wetlands, crossing streams, removing trees and exposing bare soil, sometimes on steep slopes.
Environmental groups say the $7 billion Atlantic Coast Pipeline, the largest project of its kind in the region, poses an unnecessary threat to natural resources and cost to ratepayers. They also argue that the hurried permit process that preceded it cannot now stand up in court.
“The big picture here is that the Atlantic Coast Pipeline is in trouble,” said Greg Buppert, a lawyer with the Southern Environmental Law Center representing environmental organizations in several of the lawsuits. Now, the company “doesn’t have multiple required permits to proceed with this project.”
This spring, SELC attorneys and others will go for the project’s metaphorical jugular by challenging its baseline permit from the Federal Energy Regulatory Commission, which set it into motion four years ago. They will argue that FERC’s singular requirement — that the project must have a signed contract with future natural gas recipients — does not go far enough. That’s because, in this case, subsidiaries of Dominion Energy are both building the pipeline and claiming demand for it as future customers. Because FERC has guaranteed a 15-percent return on investment for building the pipeline project, advocates say the company makes a profit from the process regardless of whether the infrastructure is actually needed.
Will Cleveland, another SELC attorney, said that Dominion has justified the need to supply East Coast customers by “wildly overpredicting demand.”
Cleveland contends that the Virginia State Corporation Commission bolstered that argument in a Jan. 17 decision, when it rejected Dominion’s plans to modernize its energy grid, stating that they were based on inflated load projections for the future.
Energy efficiency improvements and restrictions on carbon emissions are continuing to reduce — not increase — the need for new sources of natural gas in some of the areas that would be served by new pipelines, Cleveland said.
“If there are no new gas plants and the existing plants will run on less gas, why do Dominion customers in Virginia need to pay for access to a $7 billion pipeline that is duplicative?” Cleveland asked.
Dominion spokesman Karl Neddenien said the pipeline will deliver natural gas that is “essential” to North Carolina and parts of Virginia where additional power generation would boost economic growth. Groups opposed to the project, he said, are only delaying it — and driving up the cost — “because, ultimately, they know the Atlantic Coast Pipeline is urgently needed.”
Another project that began construction across mountainous terrain in Virginia’s southeast corner this year also has faced legal setbacks. Construction of the 300-mile Mountain Valley Pipeline was riddled with environmental violations during a particularly rainy spring and summer last year.
Virginia Attorney General Mark Herring and the state Department of Environmental Quality filed suit on Dec. 7 against the project over more than 300 environmental violations between June and mid-November, mostly related to improper erosion control and stormwater management. Later that month, the State Water Control Board, which had issued the pipeline project’s permit at the end of 2017, voted to reconsider its certification through a process that will unfold this year.
Both of the pipelines have faced setbacks at the federal level as the U.S. Court of Appeals for the Fourth Circuit has rejected key permits. In May and August, the court tossed out permits that had been granted by the U.S. Fish and Wildlife Service and the National Park Service. On Dec. 13, the court rejected a third federal permit for the Atlantic Coast Pipeline from the U.S. Forest Service that would have allowed it to cross the Appalachian Trail.
Dominion’s Neddenien said the company is appealing the decision to revoke its Forest Service permit. He said the pipeline would be constructed 600–800 feet below the surface of the Appalachian Trail using the horizontal directional drilling that has been used to pass beneath streams and water bodies in other areas.
“There are currently 56 other pipelines operating safely under the Appalachian Trail,” Neddenien said. “There’s no reason we should not be number 57.”
With so many federal permits currently rejected by the courts, the Atlantic Coast Pipeline had to stop all construction activity, which had begun in West Virginia. The pipeline had not yet broken ground in Virginia, though some tree-clearing began last year.
Neddenien said that the project was estimated to cost up to $5 billion when it was originally proposed in 2014 but will now cost as much as $7 billion. The pipeline was planned to be in service by late 2018 and is now planned to come online in two phases starting in late 2019.
“And that is, of course, contingent on the court ruling we are waiting to hear from now,” he said of the company’s planned appeal of the Forest Service permit decision.
Lawyers aren’t the only ones continuing to oppose pipeline projects in Virginia, where environmental organizations are training citizens to keep an eye on construction and violations with the help of water quality monitoring and photographic fly-overs. Ben Cunningham, a Virginia field coordinator for the Pipeline Compliance Surveillance Initiative, said the goal of these efforts is to stop construction of the pipeline and bolster environmental oversight.
“Whatever does happen, Dominion is not in a good place right now,” he said. “I like to say that we have them on the ropes somewhat.”