The Atlantic Coast Pipeline and the Law

By John McFerrin

            Now that the Atlantic Coast Pipeline has been cancelled, there will always remain the question of whether it was ever really possible.

            Of course, anything is possible if you have enough bulldozers and a certain attitude.  The real question, however, is whether it was possible without cutting legal corners and inflicting unacceptable havoc upon the woods, people, and waters in its path.

            Building the pipeline would always have been a challenge.  Parts of the route are steep as a horse’s face (see story in the November, 2019, issue of The Highlands Voice).  Just getting heavy equipment up and down such slopes would be grueling.  Keeping the slopes stable and preventing erosion would be difficult.  

            Then there are the water crossings.  There were 739 spots in West Virginia alone where the pipeline would have crossed a stream or wetland and more in Virginia and North Carolina.  Each crossing would have presented its own problems, some more challenging than others.

            It has been my experience that engineers think they can do anything.  With enough resources and a sound plan, there is no mountain they cannot scale, no water they cannot cross.  

            The developers of the Atlantic Coast Pipeline seemed to agree.  Even to the end they never wavered from the belief that the mountains and streams presented no barrier.  Instead, they blamed the cancelation of the project on legal and economic barriers.

            Although I am in no position to know, the economic barriers seem real enough.  Markets for all sorts of energy are changing.  Eight billion dollars is a lot to bet on an investment that the market may not support.

The American Petroleum Institute jumped in to blame legal requirements that resulted in “a barrage of baseless, activist-led litigation, undermining American energy progress.”   The U.S. Energy Secretary Dan Brouillette blamed a “well-funded, obstructionist environmental lobby” for the pipeline’s lack of success.

Let’s look at the record.

There was not a single time when any regulator flatly told the developers that they could not build the pipeline.  Every single time that the pipeline failed to prevail in court, the ruling was that the Atlantic Coast Pipeline had cut corners, failed to submit adequate plans, or something.  The Federal Energy Regulatory Commission—the overarching permitting agency—said, “sure, go ahead.”  After some initial noise, the Forest Service gave permission to cross the National Forest.  The Corps of Engineers gave approval to cross waterways.  When West Virginia had a chance to review the pipeline for compliance with West Virginia water quality standards, it declined the opportunity.

The only exception was the decision by the United States Court of Appeals that the pipeline did not have the proper permission to cross the Appalachian Trail.  There was no suggestion that the Atlantic Coast Pipeline go back to the drawing board and do a better job of planning how it could cross the Trail safely.  The Court of Appeals ruled that it had no permission.

Had that decision remained in place, the Atlantic Coast Pipeline might have needed Congressional action to get permission to cross the Trail.  While a bill granting permission would not be the wildest thing that happened in Congress this year (or even this week), it never came to that.  The United States Supreme Court reversed the Court of Appeals and the pipeline got its approval to cross the Trail.  The only flat no the ACP ever got had been turned into a yes.

A perfect example of the kind of problems that the pipeline kept having is its experience in getting approval to cross the Monongahela National Forest.  During the initial consideration of the request for approval, the Forest Service had expressed serious concerns that it didn’t have necessary information to evaluate landslide risks, erosion impacts, and degradation of water quality. It further lacked information about the effectiveness of mitigation techniques to reduce those risks.

So that it could evaluate these risks, the Forest Service had asked for ten site specific stabilization designs. It took the position that these were necessary and that it could use these ten designs where necessary to determine whether the pipeline could avoid the potential risks and impacts. The Forest Service also questioned the quality of the designs that were submitted and the assumptions behind those designs.

The pipeline developers submitted designs for two sites.  

When it came time to decide on granting permission to cross the Forest, The Forest Service did not question this inadequacy of information, or why it never got the information it asked for. Instead, it accepted the data and approved the Forest crossings.  At the time there were rumors of political influence in the Forest Service decision.

            When the decision to allow the crossings was appealed, the Court focused upon the failure of the developers to submit adequate data, and the Forest Service’s failure to demand the data that it said it needed.  The Court relied upon these failures to conclude that the decision to approve the crossings was arbitrary and capricious.

            It wasn’t any “well-funded, obstructionist environmental lobby” that advised the developers to submit less than was necessary to satisfy the Forest Service that the pipeline could cross the mountains without plans to avoid landscape risks, erosion impacts, and degradation of water quality.  It wasn’t any “well-funded, obstructionist environmental lobby” that whispered in the Forest Service’s ear that it should approve the crossing even if the information submitted was inadequate.  The developers tried to slide by on halfway measures with a possible boost from friends in high places.  When someone called them on this, the Court sent them back to the drawing board.

This is not a “barrage of baseless, activist-led litigation.”  It is a system working as it should.  It is a system that prevents the developers from doing an admittedly hard thing—crossing the mountains—without adequate planning.

            Early on in this pipeline controversy there was speculation in the industry that the construction of the pipeline was a foregone conclusion, that the citizens’ groups had given up on opposing the pipeline and would be content with monitoring its construction.

            To this speculation West Virginia Highlands Conservancy Board member Rick Webb replied, “No, we certainly do not think it’s a foregone conclusion that the pipeline will be built. My view is that Dominion, its investors, and its contractors will only pursue this project if they can count on the relaxed implementation of environmental laws that they have grown used to. Our job is to make it clear that the “business-as-usual” model does not apply.”

            Five years later it appears that Rick was right.  No court ever finally and definitively told the developers that they could not build the Atlantic Coast Pipeline.  What the courts did tell the developers was that the laws enacted to protect the land and water would be taken seriously.  

            The decision to abandon the Atlantic Coast Pipeline may have been purely economic, rooted in market uncertainty.  To the extent that the law and the courts were involved, it was not in stopping the project but in demonstrating that the law would be taken seriously.  If taking the law seriously made the project impossible then maybe it was not such a good idea to begin with.