West Virginia Highlands Conservancy Support for the
Allegheny-Blue Ridge Alliance – August 2018 to July 2019
In the Summer of 2018, the West Virginia Highlands Conservancy (WVHC) awarded a substantial grant to support the work of the Allegheny-Blue Ridge Alliance (ABRA) Compliance Surveillance Initiative (CSI) in opposing unneeded natural gas pipeline projects through the Allegheny Highlands, with specific attention to ABRA’s opposition to the Atlantic Coast Pipeline (ACP) in West Virginia.
Allegheny-Blue Ridge Alliance is a coalition of over 50 organizations in Virginia and West Virginia. It was founded in September 2014 to oppose the proposed construction of the Atlantic Coast Pipeline (ACP). ABRA’s broader, long-term interests are in preserving and promoting the integrity of the heritage, natural resources and economy of the Allegheny-Blue Ridge region of Virginia and West Virginia. ABRA provides an organizational infrastructure that serves as a catalyst for and coordinator of communications and strategy development among its members and supporters. WVHC is an original member of ABRA.
In its five years of existence, Allegheny-Blue Ridge Alliance and its member organizations have been successful in significantly slowing the Atlantic Coast Pipeline project. As of mid-Summer, 2019, due to regulatory and legal challenges by ABRA member organizations, the ACP project is more than two-years behind its originally announced schedule, is projected to cost nearly twice the originally projected cost, and construction of the entire project has been suspended for over six-months.
Mindful that construction will resume if currently suspended permits are reinstated after pending legal decisions, Allegheny-Blue Ridge Alliance created the Compliance Surveillance Initiative in 2018, a citizen surveillance program to monitor construction activity on the ACP project to assure that it complies with all permits and applicable regulations.
Allegheny-Blue Ridge Alliance Activities That Have Been Supported by the WVHC Grant
Allegheny-Blue Ridge Alliance provides an organizational infrastructure to assist in the development and implementation of strategies to fight against the Atlantic Coast Pipeline. During the past year, ABRA’s Compliance Surveillance Initiative (CSI) has been busy with surveillance flights of the route (over 10 in 2019) and on-the ground monitoring by CSI’s volunteers. These efforts have resulted in several potential violations being referred to the West Virginia Department of Environmental Protection, with some of the incidents resulting in Notices of Violation being issued. All CSI work in West Virginia is done in partnership with the West Virginia Rivers Coalition (WVRC), an ABRA member and a co-recipient of WVHCs grant. Autumn Crowe, Staff Scientist for WVRC, also serves as the CSI West Virginia Coordinator and is a member of the CSI Committee that oversees the program.
Compliance Surveillance Initiative West Virginia Field Coordination – ActivitySummary
Pipeline Incident Reports
Since the partnership was formalized, the WV Field Coordinator has submitted 46 incident reports to West Virginia Department of Environmental Protection resulting in multiple follow-up inspections and 2 violations being issued. Where violations were not warranted, Department of Environmental Protection inspectors issued warnings to improve erosion control deficiencies which resulted in better protections for our streams and rivers. The process of citizens reporting potential pollution events and the relationship with DEP Inspectors has significantly improved over the course of this program. We facilitate “pipeline roundtable” meetings with DEP and CSI partners to discuss how to better streamline our reporting processes and review agency expectations.
The WV Field Coordinator provided technical assistance to local groups, regional partners and concerned individual citizens. Most often this involved walking citizens through the processes of how to report pollution, how to access maps of the pipeline route, and how to access inspection reports and violations. Unfortunately, this information is not easy to access or readily available unless you know where to look. The Coordinator is essential in helping assist groups, citizens and the media in accessing and understanding information.
The WV Field Coordinator led the analysis and development of 11 sets of technical comments on proposed permits, modifications and consent orders related to pipelines with a total of 137 organizational sign-ons. These comments have resulted in the strengthening of permit requirements and increases in fines for non-compliance. However, the enhanced requirements are under attack and the fines are still not close to where they need to be to be an effective deterrent to non-compliance.
The WV Field Coordinator helped organize and deliver 6 trainings related to pipeline monitoring training to over 100 individuals. Trainings included water quality monitoring, visual assessment of pipeline construction, and using online mapping to assist monitoring efforts.
Outreach and Education
The WV Field Coordinator provided critical information related to pipelines with action alerts, fact sheets, and one-on-one conversations at events. The WV action alerts generated over 1,000 comments to state regulators on permit modifications and consent orders. Additionally, the WV Field Coordinator attended events and wrote articles for newsletters, like The Highlands Voice, and blogs reaching thousands more.
Efforts are underway to generate reports detailing citizen complaints and demonstrating the failure of pipeline construction best management practices, impacts to water, and lack of agency oversight capacity.
We recently coordinated a field tour of the Mountain Valley Pipeline with WV legislators, followed by a town hall meeting for legislators to see and hear first-hand the devastating impacts for WV landowners and communities. Next, we are facilitating a meeting for those legislators to share concerns about what they saw and heard with DEP.
Status of Major Legal Challenges to the ACP
- FERC Certificate- A challenge to the Federal Energy Commission’s (FERC) issuance of a certificate for the ACP was filed with the Fourth Circuit Court of Appeals on August 16, 2018. The plaintiffs are 14 conservation groups (many of them ABRA members) represented by the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates. Jurisdiction of the case has been transferred to the D.C. Circuit Court of Appeals. Oral arguments are expected to occur in the Fall of 2019.
- Forest Service Permit– This suit was filed with the Fourth Circuit Court of Appeals on February 5, 2018 by seven conservation/environmental organizations (most members of ABRA) represented by SELC, arguing that the Forest Service had rushed to judgment to approve the project, notwithstanding raising serious questions about the project’s ability to be built over steep mountain terrain without serious environmental damage. The Fourth Circuit vacated the permit in a December 13, 2018 decision, and turned down an appeal from Atlantic Coast Pipeline, LLC (ACP, LLC). ACP, LLC filed an appeal to the U.S. Supreme Court on June 25, with the U.S. Solicitor General also filing a supporting petition. The Supreme Court is expected to decide in October of whether or not to consider the case. On average, only 1% of the cases appealed to the Supreme Court are accepted for argument.
- Fish and Wildlife Service- The U.S. Fish and Wildlife Service’s (FWS) biological opinion on threats to endangered species by the ACP was vacated by the Fourth Circuit Court of Appeals on May 5, 2018. A new biological opinion was issued by FWS in September, and was also challenged, resulting in the Fourth Circuit issuing a stay. ACP, LLC subsequently suspended all construction on the project pending a decision by the Court on the second FWS opinion. That challenge was argued before the Fourth Circuit on May 9, 2019 and an opinion is anticipated by August.
- National Park Service Permit – The National Park Service’s (NPS) December 2017 approval for the ACP to cross underneath the Blue Ridge Parkway (BRP) was challenged in the Fourth Circuit by Sierra Club and the Virginia Wilderness Committee, represented by SELC. After the court ruled in favor of the plaintiffs, the NPS issued a new permit on September 17, which was also challenged by the plaintiffs. Before the case was argued, the Park Service asked the Court to vacate the previously issued permit so the agency could “consider whether issuance of a right-of-way permit for the pipeline to cross an adjacent segment of the BRP is appropriate.” The Court agreed. At this writing, there is no permit for the ACP to cross the Blue Ridge Parkway.
- Army Corps of Engineers- The U.S. Army Corps of Engineers filed a motion on January 18 with the Fourth Circuit Court of Appeals for a remand and vacating of the permit that the Huntington District of the Corps had issued for the Atlantic Coast Pipeline (ACP) to cross rivers and streams in West Virginia. This was due to challenges over conflicts with WV law. The motion was unopposed and subsequently granted by the Court. While the action only directly affects the portion of the ACP subject to the Huntington District’s jurisdiction (West Virginia portions of the route), the stays on stream and river crossings for the ACP in the other Corps districts remain in effect.
- Buckingham County Compressor Station Air Permit– The Virginia Air Pollution Control Board voted on January 8, 2019 to grant an air permit for the proposed ACP compressor station in Buckingham County, VA. The Southern Environmental Law Center (SELC), on behalf of Friends of Buckingham, challenged on February 8 the Air Board’s decision to approve a permit for the compressor station. Joining SELC in the lawsuit, filed with the Fourth Circuit Court of Appeals, was the Chesapeake Bay Foundation. Oral arguments are expected in the Fall
- Virginia State Water Board 401 Certification– The Virginia water quality certification under Section 401 of the Clean Water Act was granted December 12, 2017 by the State Water Control Board. The action was challenged in a suit filed by SELC on behalf of several conservation group clients and argued before the Fourth Circuit Court of Appeals on September 28, 2018. The principal contention in the case was that the Board’s approval of the certificate for the ACP was, on several grounds, arbitrary and capricious. On January 14, 2019, the Court rejected the arguments of the petitioners.
Need for Continuing These Efforts
The Mountain Valley Pipeline and the previous pipeline construction projects including the Leach, Rover, and Mountaineer and WB Xpress pipelines provide extreme examples of the failure of regulators to protect lands and waters from inadequate pipeline construction practices. More work is needed to bring attention to these failures and prevent the Atlantic Coast Pipeline and future pipeline projects from following suit.
In addition to ongoing coordination of WV field efforts and volunteer monitor support, are several upcoming events and actions that need the attention of the partnership:
- ACOE comment period on the WVDEP modifications of the Nationwide 12 permit
- WVDEP meeting with WV legislators to discuss permit modifications, fines, and enforcement capacity
- MVP construction monitoring
- ACP legal challenges
- ACP stabilization monitoring
- Comment and appeal period on the revised WV stormwater permit for pipeline construction, resulting from a settlement with WVONGA and DEP
- WVDEP Environmental Protection Advisory Council – on the September 12 meeting agenda to review pipeline policy recommendations
- Biological assessment training and additional trainings on-request
- 2020 legislative session
There is no doubt the CSI partnership has made a difference in empowering citizens to take steps to protect their lands and waters, and in holding pipeline companies and regulators accountable. We have their attention. It has been one of the most successful efforts in building pressure to expose and reverse the culture of environmental non-compliance in West Virginia. We cannot let up now!