Tag Archives: Atlantic Coast Pipeline

Pipelines Clear Another Regulatory Hurdle

Another regulatory barrier to the Atlantic Coast Pipeline and Mountain Valley Pipeline has fallen. The board of trustees of the Virginia Outdoors Foundation unanimously approved Monday applications for “conversion of open space” by the two natural gas pipeline developers that propose to cross 11 VOF conservation easements.

From the outset, VOF informed the pipeline companies that their incursions would be incompatible with the conservation values of the easements, therefore triggering a process in state law known as “conversion” of open space. (See the VOF announcement here.)

The two resolutions included several conditions, including restrictions on the footprint of the pipelines and access roads, the conveyance to VOF of more than 1,100 acres of substitute land in Highland, Nelson, and Roanoke counties, and the transfer of $4.075 million in stewardship funding for the properties’ long-term care and maintenance.

The VOF easements will remain in place on the properties with overlaying permanent rights-of-way for the pipeline developers.

Last week the Federal Energy Regulatory Commission (FERC) granted the ACP and MVP certifications of public convenience and necessity. The VOF vote eliminated one of the few remaining regulatory obstacles to the project. The pipelines still face one significant hurdle, however: meeting state regulatory standards for erosion and sediment control.

FERC Approves Atlantic Coast, Mountain Valley Pipelines

map credit: Marcellusdrilling.com

The Federal Energy Regulatory Commission (FERC) approved the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) in rulings issued Friday.

The three-person commission was divided on the issue of granting the pipelines a Certificate of Public Convenience and Necessity, with two commission members appointed by President Trump ruling in favor while an Obama administration holdover issued a dissenting opinion.

While FERC approval was required for the two natural gas pipeline projects to advance, the battle is not over. Environmentalists and landowners remain adamantly opposed to the projects, and they have vowed to continue resisting. Major sticking points are reviews by West Virginia, Virginia and North Carolina environmental agencies of pipeline impacts on water quality.

Naturally, Dominion Energy, which is the managing partner of the ACP, is delighted at news. Said Leslie Hartz, Dominion vice president of engineering & construction:

We are very pleased to receive FERC approval for this vitally important project. This is the most significant milestone yet for a project that will bring jobs, economic growth and cleaner energy to our region. In the coming days we will fully review the Certificate and finalize our plans for complying with its conditions. We will also continue working with the other state and federal agencies to complete the environmental review process and make this critically important project a reality.

All three commissioners acknowledge the need for more natural gas infrastructure to serve consumers in Virginia and North Carolina. In her dissent, Commissioner LaFleur noted that more than 90 percent of the ACP’s capacity is subscribed by public utility customers in the two states. The end use of this gas is well established on the public record and is a matter of urgent public necessity.

The FERC ruling also garnered kudos from Dominion’s business allies. This joint statement comes from Barry Duval, president of the Virginia Chamber of Commerce, and Matt Yonka, president of the Virginia Building & Construction Trades Council:

This is great news for our economy, our working men and women and energy consumers all across our region. This project will serve as a catalyst for economic growth, job creation and greater energy security in our region for years to come. The hardworking men and women who built our nation are ready to get to work rebuilding our region’s infrastructure. We’re eager to see the thousands of new jobs and billions of dollars in new income this project will bring to the region.

By lowering energy costs in Virginia and North Carolina by more than $370 million a year, this pipeline will allow businesses to grow and families to save. The pipeline will also mean lower emissions and cleaner air in all of our communities as electric utilities continue making the transition from coal to cleaner-burning natural gas.

Equally predictably, pipeline foes were appalled by the ruling. This from the Allegheny-Blue Ridge Alliance, a coalition of 52 organizations in Virginia and West Virginia:

The Commission’s judgment has been made in advance of necessary and required decisions by the U.S. Forest Service, the U.S. Army Corp of Engineers and the state environmental authorities in the affected states of Virginia, West Virginia and North Carolina on critical environmental issues. We concur with the thoughtful dissent of Commissioner LeFleur’s, who has served on the Commission for 7 years, raising serious questions about the basis of need for both the ACP and the Mountain Valley Pipeline and expressing concerns about environmental impacts that both projects present. The majority decision does not reflect an understanding of the issues at hand and is clearly not in the public interest. It calls into serious question the agency’s regulatory credibility.

Greg Buppert, a senior attorney with the Southern Environmental Law Center, said this: Continue reading

Pipelines and “Environmental Justice”

“Environmental Justice” has been a much bigger rallying cry in the pipeline controversies out west than here in Virginia.

As I was perusing the federal court ruling on the Sierra Club vs. FERC lawsuit (see previous post), I encountered a realm of administrative law with which I was entirely unfamiliar: environmental justice. I’d heard of the concept, of course; I just didn’t realize that it had insinuated itself into environmental impact statements (EISs) for pipelines, transmission lines, and the like.

The majority opinion explained the relevance of the concept this way: “The principle of environmental justice encourages agencies to consider whether the projects they sanction will have a ‘disproportionately high and adverse’ impact on low-income and predominantly minority communities.”

In this particular instance, involving the EIS for the Southeast Markets Pipeline Project, the Sierra Club argued that FERC had failed to adequately take the principle into account. According to the EIS, 83.7% of the pipeline complex’s proposed routes would cross through, or within one mile of, environmental-justice communities.

However, an adverse impact on a minority/low-income community is not necessarily a deal killer. FERC, the court opined, simply must “take a hard look” at the effect on minority/low income areas when drafting an environmental impact statement, and disclose relevant information to the public. And that the commission did. FERC concluded that feasible alternative routes would affect a comparable percentage of environmental-justice populations, the court said. “FERC’s decision to directly compare the proposed alternatives to one another, rather than to some broader population, was reasonable under the circumstances.”

“Environmental justice” has been a rallying cry out west, most prominently in the Dakota Access Pipeline controversy. We don’t hear much of it in Virginia, but I was curious: How does the proposed Atlantic Coast Pipeline rate according to environmental justice criteria?

Here are the numbers, as extracted from the ACP environmental impact statement: In Virginia the percentage of minorities census tracts within one mile of the ACP pipeline and related facilities varies from 0.2% to 100%. In ten of the 63 census tracts, the percentage of minority population is meaningfully greater than that of the county in which it is located. But in 53 tracts, it is not. In other words, it appears that minorities are less impacted than whites.

Likewise, 11.5% of all Virginians live below the poverty line. Thirty-four of 63 census tracts in Virginia within a one-mile radius of ACP facilities have a higher percentage of persons living below the poverty line. In other words, despite the fact that pipelines don’t run through urban areas and suburbs where incomes tend to be highest, but through rural areas where incomes are lower, only 54% of the census tracts affected by the pipeline have a higher poverty rate.

The primary adverse impacts on environmental-justice communities would be temporary increases in dust, noise and traffic from construction work. But, according to the ACP environmental impact statement, “these impacts would occur along the entire pipeline route and in areas with a variety of socio-economic backgrounds.”

These numbers undoubtedly explain why pipeline opponents have not made environmental justice an issue here in Virginia.

It’s not as if the engineers working for Dominion Energy, the managing partner of the pipeline, were especially socially conscious. Rather, in selecting a route, they were threading the needle between national parks, the Appalachian Trail, conservation easements, and other environmental, historical and cultural assets, any one of which could have spiked the project. That the pipeline had so little impact on minorities and low-income Virginians was the luck of the draw.

Sometimes infrastructure projects like highways, natural gas pipelines and electric transmission lines will disproportionately affect minorities and the poor, as it happened with the Southeast Markets Pipeline Project, and sometimes they won’t. Route selection is driven mainly by geography, terrain, market considerations, and economics; the socioeconomic impact is incidental and random.

For all practical purposes, the closest thing to a social-justice issue in Virginia is landowner rights — justice for the propertied class. Are landowners getting fair compensation for the loss of value to their land? That’s a fair question, but if it doesn’t affect the poor and minorities disproportionately, it’s not a matter of “social justice.”

Federal Pipeline Ruling a Big Deal… Or Maybe Not

Construction of the Sabal Trail Pipeline, part of the Southeast Markets Pipeline Project, in Florida. Photo credit: Orlando Sentinel.

Environmentalists notched a win yesterday when the U.S. Court of Appeals in the District of Columbia issued a ruling finding that the Federal Energy Regulatory Commission (FERC) had failed to properly take into account the impact of greenhouse gas emissions on climate change when approving the Southeast Markets Pipeline Project more than a year ago.

“Today, the D.C. Circuit rejected FERC’s excuses for refusing to fully consider the effects of this dirty and dangerous pipeline,” said Staff Attorney Elly Benson with the Sierra Club, the plaintiff, in a prepared statement. “Even though this pipeline is intended to deliver fracked gas to Florida power plants, FERC maintained that it could ignore the greenhouse gas pollution from burning the gas. … Today’s decision requires FERC to fulfill its duties to the public, rather than merely serve as a rubber stamp for corporate polluters’ attempts to construct dangerous and unnecessary fracked gas pipelines.”

Could this spell Doomsville for the Atlantic Coast Pipeline and Mountain Valley Pipeline here in Virginia?

Probably not. I asked for a response from Kate Addleson, director of the Sierra Club Virginia Chapter. She was tied up in meetings today so she couldn’t talk, but she forwarded me the national Sierra Club press release. That document did not speculate whether the D.C. federal court ruling would apply to other pipeline projects.

Also, Dominion Energy, managing partner of the ACP, has reviewed the ruling and concluded that it does not apply. “We … don’t believe it will have any impact on the ACP,” said spokesman Aaron Ruby. When reviewing the Southeast Markets Pipeline Project, FERC did not ask what the pipeline complex meant for greenhouse gas emissions. But in the 18 months since approving that project, federal regulators have become more attuned to climate-change impact, and FERC did examine the issue in the environmental impact statement it wrote for the ACP.

“Based on its analysis, FERC concluded that the ACP would not significantly contribute to climate change and could potentially offset some regional greenhouse gas emissions since much of the gas will be used to replace higher-emitting coal plants,” Ruby said.

While acknowledging that gas-fired plants generate less carbon dioxide per unit of energy than coal, environmentalists contend that gas-fired plants provide no net improvement when one considers the full life-cycle of gas production. Life-cycle analysis counts natural gas leaks from the production, collection and transportation of gas burned in the gas-fired power plants. Methane, a main component of natural gas, has a far greater greenhouse effect than carbon dioxide.

However, FERC rejected life-cycle analysis. Federal law, said the ACP environmental impact statement, “does not .. require us to engage in speculative analyses or provide information that will not meaningful inform the decision-making process. Even if we were to find a sufficient connected relationship between the proposed project and upstream development or downstream end-use, it would still be difficult to meaningfully consider these impacts, primarily because emission estimates would be largely influenced by assumptions rather than direct parameters about the project.”

Federal rule-making moves much slower than environmentalist thinking. When the Obama administration acted to decarbonize the U.S. economy in order to ward off climate change, official government policy allowed a large role for both natural gas and nuclear power. Many environmental organizations now disapprove of both energy sources, preferring renewable power like wind and solar instead. In the past half year, the Trump administration has positioned itself as a champion of fossil fuels. The D.C. Court of Appeals ruling may represent the legal high water mark for environmentalists for the foreseeable future.

Pipeline Passes FERC Environmental Review

While the proposed 605-mile Atlantic Coast Pipeline (ACP) would have temporary adverse impacts on people and the environment, the impact can be reduced to “less-than-significant levels,” if the project is constructed and operated in compliance with federal standards, declared the Federal Energy Regulatory Commission in a final Environmental Impact Statement issued today. Read the EIS here.

The finding is a critical step toward ultimate approval or denial by the commission. Backers of the project lauded the FERC finding, while pipeline foes criticized it. Here follows a sample of the immediate reaction.

Atlantic Coast Pipeline. Leslie Hartz, vice president-engineering and construction for Dominion Energy, the ACP’s managing partner: “The favorable environmental report released today provides a clear path for final approval of the Atlantic Coast Pipeline this fall. The report concludes that the project can be built safely and with minimal long-term impacts to the environment. The report also reinforces previous findings by the FERC and decades of research demonstrating that natural gas pipelines do not adversely impact tourist economies or residential property values. With this report, the region moves one step closer toward a stronger economy, a more secure energy supply and a cleaner environment.”

Allegheny-Blue Ridge Alliance. Executive Director Lew Freeman: “The Trump administration’s final environmental report issued today for the Atlantic Coast Pipeline, which would carry fracked-gas through West Virginia, Virginia and North Carolina, utterly fails to independently assess whether the project is even needed. This is the core issue upon which all other considerations of the controversial project are based, says a coalition of community groups and legal and technical experts.”

Energy Sure. Samantha Quig with the Virginia Chamber of Commerce and Rich Greer with the Laborer’s International Union of North America: “After almost three years of extensive study by the Federal Energy Regulatory Commission (FERC) and other agencies, we are encouraged by the favorable conclusions of the final environmental report released today. Never before has an infrastructure project in our region received so much scrutiny by so many agencies and offered so many opportunities for public input. We have total confidence in the process, and we are convinced the project will be built with all necessary protections for the environment and public safety.”

House Republicans (no link): Virginia House of Delegates Speaker William J. Howell and Speaker-designee M. Kirkland Cox: “We are heartened by today’s positive news from the Federal Energy Regulatory Commission regarding the Atlantic Coast Pipeline. Construction of this project is crucial to ensuring Virginia’s economy continues to grow in the years ahead, and that our families and businesses will continue to have access to affordable and reliable domestic energy. As Governor Terry McAuliffe has noted, the ACP is really a ‘jobs pipeline’, and it is desperately needed in our Commonwealth. We know that we can grow Virginia’s economy, and create thousands of good paying jobs for our people, while also preserving the environmental treasures we all cherish and love. Today’s report proves this.”

Southern Environmental Law Center. Staff attorney Greg Buppert: “FERC still hasn’t addressed the most basic question hanging over this project: Is it even needed? It’s FERC’s responsibility to determine if this pipeline is a public necessity before it allows developers to take private property, clear forests, and carve up mountainsides. Mounting evidence shows that it is not.”

Bold Alliance. Richard Averitt, affected landowner and entrepreneur: ““The FEIS is based on incomplete information, false narratives, and superficial statements of need that are based on corrupt self-dealing. It makes a mockery of the approval process. It’s clear that FERC exists to do the bidding of the industry that pays its salaries and feels no responsibility to the public or to the truth.”

I’ll add more responses as I get them.

The Nightmarish Complexity of Environmental Regs

As far as I’m concerned, the environmental regulatory process governing the proposed Atlantic Coast Pipeline and Mountain Valley Pipeline is incomprehensible. And that’s a bad thing. If only a handful of regulators, industry players and environmentalist activists can navigate the layers of bureaucracy and thicket of rules, the public is the loser.

In the latest hoo-ha, the Department of Environmental Quality (DEQ) has back-tracked on public statements regarding how it will regulate erosion and sediment control of pipeline construction crossing steep mountain slopes.

On April 6, DEQ issued a press release stating that “in addition to utilizing the U.S. Army Corps of Engineers nationwide permit 12 for wetland and stream crossings, DEQ will be requiring individual 401 water quality certifications for each project.” The next day, DEQ issued another press release stating that the department “has provided water quality certification for the U.S. Army Corps of Engineers 2017 Nationwide Permits.”

Got that? Me neither.

Needless to say, that bureaucratese is unintelligible to the normal human being, and even to spokesmen and reporters whose job it is to translate the gobbledygook. In response to inevitable media inquiries asking what the April 16 press release meant, DEQ spokesman Bill Hayden said that DEQ would require certifications for each individual pipeline segment that crossed or affected any waterway. That meant hundreds of certifications. That is what the Richmond Times-Dispatch understood, what the Roanoke Times understood, and what I understood.

But DEQ Director of Operations James Golden is now saying that Hayden had spoken before he had been briefed by “technical” staff members at DEQ. (So explains the Times-Dispatch today.) DEQ will rely upon a U.S. Army Corps of Engineers national permit. Rather than duplicate the Army Corps’ work, Golden told the T-D, the state’s individual certifications will focus on “upland areas” outside the Army Corps’ jurisdiction.

Asked why DEQ took nearly seven weeks before correcting the widely published remarks, Golden conceded that “in hindsight, DEQ should have tried to provide additional clarity.”

DEQ’s statements never added up to environmental groups, and they made an issue of the seeming discrepancy between the April 16 and April 17 press releases. After endeavoring to understand what it all meant, I headlined the resulting post, “A Brain-Frying Foray into the Regulatory Maze.” In what was surely one of the least-read articles in the history of Bacon’s Rebellion, I tried to sort through the difference between 401 certifications and Permit 12, general permits, individual permits, blanket permits and more. (I never got around to explaining 404 permits, which are relevant somehow.)

Despite the fact that I tediously double-checked information in the article before publishing, I still got stuff wrong — or so says David Sligh with the Dominion Pipeline Monitoring Coalition, a former regulator himself. But I found his correction so incomprehensible that I just appended it whole to the post, and let readers figure out what it meant.

Bottom line: I don’t think harshly of Hayden for disseminating inaccurate information. He was probably as confused as I was. (Well, not that confused. But pretty confused.) Where DEQ fell down was in not correcting the inaccuracies when they began circulating in the media. Frankly, the fact that they didn’t do so makes me wonder if DEQ officials above Hayden knew exactly what was going on.

One conclusion seems unavoidable: When the regulatory system is so full of jargon, is so complex and has so many interlocking pieces that career administrators of DEQ can’t communicate the story accurately to the public, something is wrong with the system.

Virginia Voters Back Pipeline by Nearly Two-to-One

Question: Do you support or oppose building the Atlantic Coast Pipeline?

Registered voters in Virginia favor construction of the Atlantic Coast Pipeline (ACP) by an almost two-to-one margin over those who oppose it, according to a poll released by the Consumer Energy Alliance (CEA) today. Fifty-four percent support the controversial project strongly or somewhat, while 31% oppose it.

Eighty-three percent of voters say they consider “energy issues” to be very or somewhat important in the upcoming gubernatorial election. Forty-eight percent say that are more likely to support a candidate who “favors more infrastructure projects like the Atlantic Coast Pipeline” while 27% say they would more likely prefer a candidate opposed to the pipeline.

The poll of 500 Virginia voters was commissioned by the CEA, a non-profit, non-partisan trade association for the purpose of “providing reliable, affordable energy for consumers.” The organization strongly supports the pipeline. Dominion Energy, the managing partner of the ACP, is a member. (See the questions and results of the Virginia polling here.)

Clearly, the results are favorable to the ACP, which has encountered stiff resistance from environmentalists and landowners along the pipeline route. In rolling out the poll to the media, CEA made no secret of the fact that the timing is designed to stiffen the backs of gubernatorial candidates who favor the project. Tom Perriello has made opposition to the pipeline a major issue in a tightly contested race for the Democratic Party nomination against Lieutenant Governor Ralph Northam.

In past posts I have noted biases, both pro and con, in polls that framed questions to elicit answers from respondents that their sponsors were looking for. This poll shows no obvious sign of such of bias. Here are the two key questions:

I’d like to talk now about energy issues. Have you heard or read anything about a proposed natural gas pipeline from West Virginia to public utilities in Virginia and North Carolina, or is that not something you have heard or read about?

And:

As you may know, there is a proposal to build a 600-mile Atlantic Coast Pipeline to bring natural gas from West Virginia to public utilities in Virginia and North Carolina. Do you strongly support, somewhat support, somewhat oppose or strongly oppose building the Atlantic Coast Pipeline?

The polling sample seems reasonably representative of the Virginia population: 74% white, 16% black, 36% Democrat, 27% Republican, 23% conservative, 16% liberal. The margin of error due to sample size is +/-4.4%. The polls results do not provide a geographic breakdown.

While supporting the ACP, voters gave even stronger endorsement of “renewable energy projects, such as solar and wind power” — with 69% strongly in favor, and 20% somewhat in factor. Weaker majorities favored expanding offshore oil and gas drilling in U.S. waters, and generating electricity using coal-fired plants.

Dominion has been criticized for its influence in state politics during this campaign season. Another questions asked: “As you may know, Dominion is one of the companies that has proposed the Atlantic Coast Pipeline.” Seventy-eight percent said that Dominion’s involvement would have no influence on their support, either way. Ten percent responded they would be more likely to back the pipeline; 8% said they would be more likely to oppose it.

Remarkably, despite intensive media coverage of the pipeline controversy, 47% of respondents replied that they had not heard of the ACP.

The Failed Mountain “Decapitation” Narrative

Schematic filed with West Virginia regulators of a two-mile stretch of the proposed Atlantic Coast Pipeline near the Virginia state line.

Schematic filed with West Virginia regulators of a two-mile stretch of the proposed Atlantic Coast Pipeline near the Virginia state line. (Click for larger image.)

Environmentalists say the Atlantic Coast Pipeline will “decapitate” pristine mountaintops in western Virginia. They have no evidence to back the claim.

Last week foes of the Atlantic Coast Pipeline (ACP) leveled their most rhetorically heated charges against the 600-mile pipeline project yet. Construction teams would have to excavate some 247,000 dump-truck loads of rock and soil as they blasted a path across steep mountains and ridge lines. Describing the “decapitation” of pristine mountains, opponents likened the process to highly destructive mountaintop removal by the coal industry.

There was just one problem. The environmentalists’ calculations were based on the assumption that the ACP would flatten a 125-foot-wide construction corridor through the mountains. That assumption was inaccurate, Aaron Ruby, a spokesman for Dominion Transmission, managing partner of the pipeline project, responded at the time. On ridge lines, the company would carve out just enough space to excavate the trench, which will be “significantly narrower” than 125 feet. Without the 125-foot assumption, the rest of the “decapitation” analysis falls apart.

Ruby’s comment seemingly constituted a devastating rebuke. But pipeline foes are sticking to their guns. Building on the “decapitation” theme, the Chesapeake Climate Action Network (CCAN) is planning a rally today in front of Governor Terry McAuliffe’s office to demand that the governor use his regulatory power to “halt Dominion’s proposed mountaintop removal plans.”

A CCAN briefing paper asserts that “the choice to build along ridgelines is part of Dominion’s preferred and deliberate design. Working on these ridgelines will require creating a wide and flat surface to allow Dominion’s earth-moving vehicles and deep-trenching machines to operate and maneuver. The federal government’s report on the environmental impacts of the pipeline declares that ‘narrow ridgetops’ [will] require widening and flattening in order to provide workspace in the temporary right-of-way.”

What proof does CCAN have to back up such claims? None at all.


ANALYSIS


In a follow-up email distributed to members of the media late last week, Rick Webb with the Dominion Pipeline Monitoring Coalition (DPMC), a CCAN ally, attached a document that included the schematic above, which Dominion had submitted in a West Virginia regulatory filing. The schematic shows an elevation profile and a top-down view of the pipeline route on a two-mile section of the proposed pipeline near the Virginia border. A report by RESPEC, a geoscience engineering consulting firm hired by Appalachian Mountain Advocates, another anti-pipeline ally, estimated that construction would remove 130,000 cubic yards of material in that one segment alone.

That report, “Atlantic Coast Pipeline and Supply Header Project Volumetric Analysis,” made several assumptions. Among them, the firm created “typical cross-sections” to facilitate the computation of the volume of excavated material. One of the four cross-sections — “Ridgeline – Steep” category (shown below) — was applied to topography located on a ridgeline with an overall slope of greater than 20%.

Source: “Atlantic Coast Pipeline and Supply Header Project
Volumetric Analysis.” (Click for larger image.)

The graphic clearly shows the assumption that the top of the ridge-line will be removed in its entirety.

But the assumption is invalid. As ACP spokesman Ruby elaborated in an email: “We will not need to grade the entire 125-foot-wide construction right of way on every ridgeline. We may need to clear the entire ROW so we have room for our equipment, but we will only grade enough space so we can safely excavate the trench and install the pipe.”

There is nothing in the Dominion schematic to contradict Ruby.

In an interview with Bacon’s Rebellion, Webb acknowledged that pipeline foes were making assumptions for the purposes of their analysis, and he shifted the burden of proof to Dominion to prove their analysis wrong.

“We’re taking the information we have and saying, ‘It can be this bad,'” said Webb. “If Dominion says this is an exaggeration, show us the details to prove otherwise. Informed decisions can’t be made,” he added, until more information is made available.

Dominion has yet to file detailed construction plans for the route, Webb said. “The only detailed plans in Virginia we’ve seen is a one-tenth of a mile section in Highland County using high-tensile steel mesh nailed into the ground with six-foot nails. We want to see what they’re planning to do with the rest of the pipeline. Dominion has presented a concept. … We want to see solutions now.”

It’s one thing for pipeline foes to demand Dominion to make more information available to the public. It’s a very different thing to claim that the company intends to engage in mountaintop decapitation with devastating environmental consequences. Dominion insists that it won’t, and pipeline opponents have offered no tangible evidence to indicate otherwise. Perhaps proof will turn up in future filings to support their view. But it hasn’t yet, and pipeline foes undermine their credibility by trumpeting claims with no basis in demonstrated fact.

Pipeline Approaches Approval, but Foes Still Full of Fight

Ridge removal zones along the ACP route are shown in red based on Dominion Pipeline Monitoring Coalition calculations.

From the perspective of its managing partner, Dominion Transmission, the Atlantic Coast Pipeline is looking more and more like a done deal. Dominion has completed more than 65% of the high-performance steel pipe needed to build the roughly 600-mile pipeline, and it has procured almost 85% of the land, materials and services it needs, pipeline executives disclosed today.

Pipeline officials also say they are nearing the end of a two-year regulatory process. In December, the Federal Energy Regulatory Commission (FERC) issued a favorable draft Environmental Impact Statement. The final EIS is expected by June 30th.

“We have every reason to believe the favorable draft EIS and — ultimately — the final EIS will provide a strong foundation for final approval of the project later this summer or in the early fall,” stated Diane Leopold, CEO of Dominion Energy, the pipeline’s managing partner, in a press conference this morning.

But foes of the pipeline have raised an issue they hope will derail ACP’s plans. The pipeline will cross 38 miles of mountains in Virginia and West Virginia that would require 10 feet or more of their ridge tops to be removed — up to 60 feet in places, they claim. Comparing the pipeline construction to the coal industry’s practice of mountaintop removal, Mike Tidwell, director of the Chesapeake Climate Action Network, said in a dueling press conference today that the pipeline would cause “irrevocable harm” to the region’s environment.

Creating flat space on steep mountaintops to provide room for trench digging and construction activity would require removal of an estimated 247,000 dump-truck loads of excess rock and soil, asserted Dan Shaffer, spatial analyst with the Dominion Pipeline Monitoring Coalition. Finding somewhere to place the massive volume of this “overburden” even temporarily without causing runoff into rivers and streams will be a huge challenge, he said, And, even though ACP would be required to restore ridge lines to their “approximate original contour,” breaking up the rock causes the volume to swell, creating a large amount of spoil that must be permanently disposed somewhere.

Pipeline foes raised these concerns about “mountaintop removal” with FERC in comments submitted during the draft impact statement. The draft document “failed to address this important issue,” noted Ben Luckett, an attorney with the Appalachian Mountain Advocates. He contends that the pipeline requires a new draft EIS and a new public comment period.

Even if FERC declines to re-open the draft process, anti-pipeline forces plan to raise the issue in state “401 certification” water-quality reviews. In Virginia the Department of Environmental Quality (DEQ) has promised to allow extensive public input. Given the potential for massive runoff, erosion and sedimentation, said Luckett, “states cannot reasonably make a determination that the pipeline won’t lead to violations of clean water standards.”

Dominion spokesman Aaron Ruby strenuously objected to the comparison of pipeline construction with coal-mining mountaintop removal, which “conjures up images of mountains that have been completely flattened. … We’re not removing the tops of mountains. That is total misinformation.”

Building pipelines in rugged mountain terrain “is not new to us,” said Leslie Hartz, vice president-pipeline construction for Dominion Energy. Only “small clearings” will be required for construction purposes on ridge lines. Contractors will restore the terrain with native material to its original contours, as required by FERC. There may be a “small amount” of spoil left over, but ACP has identified ways to employ it usefully for other purposes.

In describing the construction process, Hartz said the project would be broken into 17 “spreads,” or construction units, each of which will be built simultaneously in linear fashion. Mountainous terrain would have shorter lengths, perhaps 15 to 20 miles. Some blasting would be required to remove rock, she said. Material left over after the mountain contours are restored will be used to re-establish habitats and create protective barriers to restrict access to right of way.

Pipeline foes question whether ACP fully comprehends the challenges it faces. The Friends of Nelson, contracted with Blackburn Consulting Services LLC to walk the route along Roberts Mountain. The soil there is thin, and construction will require extensive blasting to remove enough bedrock to dig pipeline trenches eight feet deep. Some slopes along the route are precipitous, as much as 65°. (Forty degrees qualifies for a black diamond ski slope.) Creating 125-foot wide rights of way would require removing enormous amounts of rock.

States an issue brief released by the pipeline opponents:

Numerous engineers who have looked at this issue have asked the obvious question: What does Dominion plan to do with the tremendous amount of overburden? Dump it into surrounding valleys as companies do with mountaintop removal for coal? Truck it off the mountains with massive dump trucks? And take the massive amounts of rock and soil to what location?

While ACP has vowed to restore the mountains to their approximate original contour in line with FERC requirements, foes say there is a qualifier. ACP will restore the mountain ridges to the extent practicable “taking into consideration cost, existing technology, and logistics in light of the overall purpose of the ACP.”

Ruby retorted that ACP understands the challenges far better than the pipeline foes. For starters, he said, there is no need to flatten a 125-foot-wide area on the ridge line, he said. The company will carve out just enough space to excavate the trench, which will be “significantly narrower” than 125 feet.

Further, he said, the company has “one of the most protective programs ever used by the industry, specifically designed to provide enhanced protection of soil erosion. We have site-specific plans for every steep slope we encounter, based on the unique conditions and characteristics of each slope.” These plans take into account the soil type and depth, the grade of the slope, the depth of the bedrock, the width of the ridge line and the types of vegetative cover.

ACP also disputed the Dominion Pipeline Monitoring Coalition estimate of construction impact.

In explaining how he calculated miles of ridge-line impacted and thickness of overburden to be removed, Shaffer said that he was forced to rely upon publicly available information. He used the centerline depicted on Dominion Project Facility Maps submitted to FERC (here & here), generated a 125-foot Right of Way from that and overlaid them with topographical and elevation data. He estimated the thickness of the mountain that would be removed by creating transects across the Right of Way at periodic intervals and sampled the elevation value along each transect. The methods, he conceded, were “fairly simple.” While acknowledging some room for error, Shaffer said there was no escaping the conclusion that the impact would be significant.

The assumption that ACP will cut away a full 125 feet is wrong, Ruby said. Without the assumption, the rest of the analysis falls apart.

A Brain-Frying Foray into the Regulatory Maze


OK, folks, it is time to plunge into the arcana of environmental regulation. The subject matter might prove of interest if you’ve been tracking the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) controversies, especially if you’re deeply immersed enough to be familiar with the dust-up over seemingly contradictory press releases issued by the Virginia Department of Environmental Quality (DEQ) on April 6 and April 7, and the Freedom of Information Act request that ensued. If these matters have escaped your notice, however, be forewarned. We cannot guarantee that your eyeballs won’t glaze over, turn to stone, and drop out of your skull sockets.

On April 6, the DEQ issued a press release which was widely reported in the Virginia media — to wit, that the department had “notified ACP and MVP that in addition to utilizing the U.S. Army Corps of Engineers nationwide permit 12 for wetland and stream crossings, DEQ will be requiring individual 401 water quality certifications for each project.”

That sentence is incomprehensible unless you know what “nationwide permit 12” means, what “401 water quality certification” means, and what the difference is between a “nationwide” permit and an “individual” permit.

At issue are hundreds of wetland and stream crossings along the proposed routes of the two pipelines. Environmentalists are concerned that rugged slopes and karst geology of the mountains in Virginia and West Virginia will make it impossible to dig pipeline trenches without creating erosion and releasing sediment into rivers, streams and wetlands. The pipeline companies say they are equipped to handle the challenging conditions.

As part of the Federal Energy Regulatory Commission-led regulatory review of interstate pipeline projects, the U.S. Army Corps of Engineers must grant a “401 certification,” which states that a project meets the requirements of Section 401 of the Clean Water Act. The DEQ, the agency in charge of state water-quality regulation, has the option of accepting the Corps of Engineers 401 certification or getting more deeply involved. In this instance, given the magnitude of the pipeline projects, DEQ decided that it, too, had to grant 401 certification, meaning that the projects must abide by Virginia water-protection regulations. (See the Update below.)

By mentioning “Permit 12” in its press release, DEQ was alluding to a particular category of projects that include “energy generation facilities, living shorelines, aids to navigation, dredging, utility line activities, aquatic habitat restoration, and removal of low-head dams.” The ACP and MVP are both covered under the rubric of utility line activities.

The big news in the press release was DEQ’s shift from “general” permits to “individual” permits. To obtain a general permit, a pipeline company must demonstrate that it meets a basic checklist of requirements. “All you have to do is turn in your checklist,” explains DEQ spokesman Bill Hayden. By contrast, the “individual” permit required by DEQ entails going beyond the checklist. Among other requirements, DEQ will hold public hearings for each project and provide extended periods for public input.

Groups opposed to the pipelines hailed this news as a positive development. The reaction of the pipeline companies was along the lines of, meh, this wasn’t what we were looking for, but we can live with it.

The next day, DEQ issued another press release. This one stated that DEQ “has provided water quality certification for the U.S. Army Corps of Engineers 2017 Nationwide Permits.” More specifically:

DEQ found that there is a reasonable assurance that the activities permitted under the Corps’ Nationwide Permit program, including the Norfolk District Corps’ Regional Conditions, will be conducted in a manner that will not violate applicable water quality standards, provided permittees comply with all applicable Section 401 conditions.

The coincidence in timing between the two press releases created the impression that they were connected. People in the environmental community wondered if the communique represented a rollback, or partial rollback, of what DEQ had stated the previous day. At the very least, wrote Rick Webb, project coordinator for the Dominion Pipeline Monitoring Coalition, DEQ had “muddied the waters.”

“We do not agree that the Corps’ NWP  12 (nationwide 12 permit) is appropriate for either the ACP or MVP and have made that argument to the [Corps of Engineers,” says David Sligh, regulatory system investigator with the DPMC.

In order to gain insight into the basis for DEQ action, DPMC filed a Freedom of Information Act request. DEQ responded that it would require a seven-day extension beyond the normal five days it had to respond. The anti-pipeline people replied that DEQ should be able to respond more quickly and did not accept its reasons justifying the delay. On April 12, DPMC delivered a petition for injunctive relief, demanding the DEQ meet the legal requirement of five-day delivery. In an widely distributed email, Webb took issue with DEQ’s inability to deliver the documents on the grounds of “the complex nature” of the request, and accused the department of “changing its story.”

DEQ staff explained that the records could not be obtained immediately because the staff who held them were out of the office. DEQ and DPMC eventually reached an agreement for the records to be furnished by April 25.

The irony is that the second press release, though addressing the same regulatory process, DEQ contends, was unconnected to the previous day’s announcement. The department had completed a routine, five-year review to see if Nationwide 12 permits were consistent with Virginia water-quality regulations. The review concluded that they were, and DEQ issued the press release to say so. The timing — one day after the first press release — was coincidental, Hayden tells Bacon’s Rebellion. The complexity of the regulatory process contributed to the confusion over the announcement’s meaning.

Bacon’s bottom line: Conclusion #1: The regulatory process is insanely complicated. Conclusion #2: DEQ and environmental groups need to develop a better way to communicate with one another than issuing press releases and filing FOIA requests.

Update: David Sligh says my description of how the regulatory process works is wrong. Here’s how he describes it:

“As part of the Federal Energy Regulatory Commission-led regulatory review of interstate pipeline projects, the U.S. Army Corps of Engineers must grant a Clean Water Act section 404 permit for work done directly adjacent to streams and wetlands. The Corps has a Nationwide Permit that can cover such work related to a broad group of utility line waterbody crossings but the Corps also may conduct reviews and issue individual 404 permits where it deems that option preferable or where a project cannot meet the standards allowing coverage under the NWP. To proceed with a project under either the nationwide or individual 404 permit, the State of Virginia must issue a Clean Water Act section “401 certification,” which states that a project meets the requirements of water quality standards designed to protect state waters. Again, the state may cover a particular project under a blanket 401 certification, that says the whole class of activities covered under the NWP will meet water quality standards, or Virginia may conduct individual 401 reviews, which the state has now announced they will do for each of the major pipelines (the MVP and ACP).”