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William H. (Bill) Funk is a freelance environmental journalist whose work for the Bay Journal centers on wildlife, forestry, rivers, farming and other land use issues in the Allegheny and Blue Ridge Mountains and the Shenandoah Valley. .(JavaScript must be enabled to view this email address).

A few rays of hope - and another major setback for VA pipeline opponents

  • October 26, 2017

The multi-billion-dollar Atlantic Coast Pipeline, a natural gas conduit that has been proposed to cross environmentally sensitive areas in Virginia, continues to move through the regulatory process, though several new developments offer environmentalists and private landowners cause for cautious optimism.

On Oct. 13, the Federal Energy Regulatory Commission gave formal approval to Dominion Energy’s request to build the pipeline, which will involve the legally sanctioned seizure of private property from unwilling landowners.

But in a break from the commission’s usual unanimity in approving pipelines, one of the three federal commissioners dissented.

“Deciding whether a project is in the public interest requires a careful balancing of the need for the project and its environmental impacts,” said Commissioner Cheryl A. LaFleur in her opposition to the approval.

She noted that both the Atlantic Coast Pipeline and the simultaneously proposed Mountain Valley Pipeline, which is to be operated by EQT Midstream Partners, would impact similar regions, have the same negative impacts, and occur at the same time. “Both (pipelines) cross hundreds of miles of karst terrain, thousands of water bodies, and many agricultural, residential and commercial areas,” LaFleur noted. Furthermore, she said, “the projects traverse many important cultural, historic and natural resources.”

Stating that she believed it appropriate to balance the collective environmental impacts of these projects on the Appalachian region against the economic need for the pipelines, LaFleur concluded that she was “not persuaded that both of these projects as proposed are in the public interest.”

Virginia’s neighboring states also have withdrawn or are rethinking support for one or the other project. On Sept. 7, West Virginia’s Department of Environmental Protection, in a brusque two-sentence statement, formally renounced water quality certification given six months earlier for the Mountain Valley Pipeline. That project would cross 631 state streams and 424 wetlands in West Virginia alone.

Environmental groups had sued the state in federal court, claiming that the agency’s approval had been in violation of both state and federal laws. In response, the West Virginia DEP summarily abandoned its earlier decision, saying that it needed to “re-evaluate the complete application.”

A week later, the North Carolina Department of Environmental Quality issued a detailed letter demanding additional information about potential harm to state waters from the Atlantic Coast Pipeline developers. The department insisted that for it to process the application for water-quality certification, it needed “site-specific detail…to ensure that downstream water quality is protected.” The state specified that it needed a “restoration plan for all stream crossings,” as well as an analysis of cumulative impacts of the pipeline’s 180-mile route through North Carolina.

On October 23, Dominion submitted revised sediment and erosion control plans. North Carolina’s Sedimentation Control Act requires state regulators to make a decision to either deny or approve within 15 days when these plans are submitted for a second time, so the new deadline for agency review is Nov. 7.

But Dominion, based in Richmond, has encountered no friction so far in its request for Virginia state approvals. 

On Oct. 16, the Virginia Outdoors Foundation, a state agency charged with granting and appraising the donation of conservation easements throughout the state, announced that it would permit both pipelines to be constructed through private lands that had been permanently preserved from development under easement — even those belonging to landowners who oppose such takings. The decision grants pipeline developers the ability to build through 11 easements in five counties.

“Were it my choice, I would stand in front of the pipeline and stop it,” said Stefanie Ridder, the VOF board chair, “but that’s not going to work.”

She said that in her view, the pipelines would have harmful environmental effects, “particularly on the water, and it breaks my heart that that’s happening.” 

She added that the VOF “tried to stop it in every way that we could,” but concluded it had no legal grounds to resist laws regarding eminent domain, including those in favor of private companies. Permits issued by the federal energy commission generally trump state laws protecting property under conservation easement. This stems in part from the Natural Gas Act which, as amended in 1947, allows industries to legally acquire private land through a FERC-issued “certificate of public convenience and necessity.”

To challenge a pipeline developer’s right of eminent domain could even result in court decisions that would strip easement holders of all but the most minimal compensation for the loss of their property, Ridder said.

Dominion has pledged $4 million to VOF as part of the agreement.

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About William H. Funk
William H. (Bill) Funk is a freelance environmental journalist whose work for the Bay Journal centers on wildlife, forestry, rivers, farming and other land use issues in the Allegheny and Blue Ridge Mountains and the Shenandoah Valley. .(JavaScript must be enabled to view this email address).
Read more articles by William H. Funk

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