By Lewis Freeman, Executive Director, Allegheny-Blue Ridge Alliance
It has been over four years since the first proposals were set forth to build two natural gas pipelines that begin in the Marcellus shale fields of central West Virginia, both designed principally to provide fuel for public utility electricity generation. The proposed Mountain Valley Pipeline would go south through West Virginia, then cross east into Virginia, traversing the Blue Ridge Parkway and the Appalachian National Trail, including cutting through a portion of the Jefferson National Forest. The project would be 300 miles in length.
The second project, proposed in May 2014, is the Atlantic Coast Pipeline (ACP). A joint venture led by Dominion Energy and Duke Power, the 600-mile project would end in southern North Carolina, with a spur over to the Norfolk, Virginia area. Questions have abounded about both projects over the intervening four years, including: the need for the projects, given unused capacity in existing natural gas pipelines and declining projections for electricity demand in the markets to be served; the environmental impact of the projects, particularly as they are built through the mountains; and the use of eminent domain to acquire private property from owners who would not benefit from the projects, yet would have their land taken from them against their will.
Among the most prominent questions raised about both projects, particularly the ACP, concern the impact on the National Forests. The ACP would cross approximately 21-miles, combined, of the Monongahela and George Washington National Forests. An earlier proposed route would have doubled the amount of Forest lands traversed.
The Forest Plans of both the Monongahela (MNF) and George Washington (GWNF) contain strict provisions governing whether a project like the ACP could be built. In recognition of that, Forest Service officials began asking the ACP for specific information on how the project could be built through the two Forests without causing serious environmental damage. Of paramount concern to the Forest Service was how the ACP could be built over the steep mountain slopes dominating portions of the MNF and GWNF without causing serious, permanent damage. Much of the proposed construction would involve effectively removing the tops of steep mountain ridges in the Forests, thus causing serious threats of permanent, ongoing erosion.
Representative of the Forest Service’s concerns was an October 24, 2017, request it made to the Federal Energy Regulatory Commission, the federal agency with overall responsibility for granting approval for the ACP, to require site-specific design of stabilization measures in selected high-hazard portions of the ACP route. The Forest Service letter stated:
The route for the Atlantic Coast Pipeline Project (ACP Project), proposed by Atlantic Coast Pipeline, LLC (ACP) would cross some very challenging terrain in the central Appalachians. Potentially difficult situations include steep slopes, presence of headwater streams, geologic formations with high slippage potential, highly erodible soils, and the presence of high-value natural resources downslope of high hazard areas. These hazards are exacerbated by high annual rates of precipitation and the potential for extreme precipitation events.
Similar hazards on other smaller pipeline projects in the central Appalachians have led to slope failures, erosion and sedimentation incidents, and damage to aquatic resources. Therefore, the Forest Service (FS) is concerned that crossing such challenging terrain with a much larger pipeline could present a high risk of failures that lead to resource damage.
To address these hazards, ACP has proposed implementing “best in class” slope stabilization and erosion/sedimentation control measures. ACP provided general descriptions and conceptual drawings of these methods in its resource reports and other filings. In comments on resource reports and in other formal and informal communication, the FS has asked ACP to provide documentation of the effectiveness of these techniques.
Both the George Washington and Monongahela National Forests contain Forest Plan standards that limit activities in areas that are at high risk for slope and soil instability. To facilitate the acceptance of ACP’s Special Use Permit application for further processing, the Forests need to be able to determine that the project is consistent or can be made consistent with this Forest Plan direction.
To further clarify the likelihood that the ACP can be constructed through the George Washington and Monongahela National Forests without undue risk of resource damage, the Forest Service is requesting that ACP develop site-specific stabilization designs for selected areas of challenging terrain.
Consultations between the Forest Service and Dominion Transmission, Inc., managing partner for the ACP project, regarding the development of acceptable stabilization measures for the project continued over the ensuing months. In July, 2017, however, before the Forest Service’s concerns were satisfactorily addressed by Dominion, the agency approved a proposed amendment to the Monongahela and George Washington Forest Plans that in effect provided an exemption for the ACP from Forest Service standards. In November, a Special Use Permit for the project was granted.
The Special Use Permit for the ACP by the Forest Service was challenged in a law suit filed February 5, 2018 by a coalition of several member organizations of the Allegheny-Blue Ridge Alliance (ABRA). In its press release announcing the legal action, the ABRA stated:
The Forest Service repeatedly requested additional information from developers yet moved ahead and approved this risky project with its questions unanswered. The pipeline is slated to cut through miles of steep, rugged mountainous regions of national forest land in West Virginia and Virginia. Much of this land provides habitat for rare and endangered species and is land that is regularly used by hikers and campers.
Pipeline developers have yet to receive all the permits needed for this project, including a water certification from Virginia meant to ensure protection of sensitive waterways. The Forest Service should not allow any work to move forward on national forest lands until this project is fully permitted.
On Monday, September 24, the U.S. Court of Appeals for the Fourth Circuit ordered a stay of the Special Use Permit that had been issued by the U.S. Forest Service for the Atlantic Coast Pipeline (ACP).
The Order was the third time in four months that the Fourth Circuit has vacated or stayed federal authorization for the ACP. The Court had issued on May 15 and reaffirmed on August 6 an order vacating the incidental take statement from the U.S. Fish and Wildlife Service (FWS), pursuant to requirements of the Endangered Species Act. Also, on August 6, the Court vacated the right-of-way permit issued by the U.S. Park Service (NPS) to permit the pipeline to cross the Blue Ridge Parkway and Appalachian Trail.
Four days later, on September 28, the Fourth Circuit heard oral arguments on the challenge to the Forest Service Permit. During the arguments on the case, the presiding judge observed that the Forest Service seemed to have suddenly changed its mind in mid- 2017 and proceeded to approve the requested Special Use Permit. He inquired of the Justice Department attorney representing the Forest Service what the circumstances were that caused the agency to change course. The attorney responded evasively, prompting the judge to interrupt him again and ask: “When?” The attorney tried to continue with his non-responsive response, and Judge Gregory again interrupted with: “When?” The judge’s “When?” question was asked twice more, but never received a response, prompting the judge to thunder: “Who’s running the train station? Is it the private company?”
When the Forest Service issued in November 2017 the Special Use Permit for the ACP to cross the Monongahela National Forest and the George Washington National Forest, ABRA issued the following statement to the media:
“We firmly disagree with the decision announced today by the U.S. Forest Service to allow construction of the Atlantic Coast Pipeline through publicly owned forest lands – valued by millions of visitors and the source of drinking water for thousands of people. We believe this decision is based on seriously deficient and incorrect information. The action imperils some of the nation’s most treasured natural resources and reflects a rush to judgment that is contrary to the standards of deliberation that we have a right to expect from the Forest Service. The decision should be strongly challenged.”
The decision has indeed been challenged and ABRA and its members will continue to challenge any decision that adversely affects the integrity and diminishes the value of one of our nation’s most treasured assets: its National Forests.
The Allegheny-Blue Ridge Alliance, is a coalition of over 50 conservation and environmental organizations in Virginia and West Virginia concerned with protecting the heritage, resources and economy of the Allegheny-Blue Ridge region and leading opposition to the Atlantic Coast Pipeline. The West Virginia Highlands Conservancy is a founding member of ABRA.