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Pipeline Prospects: Can the Atlantic Coast Pipeline be Stopped?

Mallory Noe-Payne

One of the state’s most influential corporations and 35 banks hope to make money from the proposed Atlantic Coast Pipeline.  Business and labor groups have lined up behind it, as has Virginia’s governor, but opponents say it’s not a done deal. They plan to fight the pipeline in government hearings and in court.  

Earlier this month, a group of pipeline opponents gathered outside the offices of Virginia’s Water Control Board to hold a water blessing ceremony complete with a Native American healing chant. 

It was, perhaps, a last ditch effort – a prayer to prevent what some see as a danger to the environment.  But opponents of the pipeline are not relying on prayer alone, and there are three places they might yet prevail.

The first stop – the Federal Energy Regulatory Commission or FERC, which must sign off on any interstate pipeline. If the builders need privately owned land to complete their project, FERC will also empower them to take that property even if the owner objects.

Attorney Justin Lugar cites in the Fifth Amendment in arguing that’s unconstitutional. “Private property shall not be taken except for public use and with just compensation.”

So, on behalf of landowners who could lose property to the Mountain Valley Pipeline, he’s filed suit against FERC.  He will argue the MVP isn’t a public use for people who live along the route – a claim made by pipeline promoters.

“’Listen, this gas is for public use.  This is for the public benefit.  This is an economic good.’  Well what public?  Is it the public that might work at the local liquefaction plants in Cove Point, Maryland where some of this gas might end up?  Our view is that this is needed so that MVP and its owners can ship this gas to market and make as much money as possible.”

Also hoping to prevail with FERC, the Southern Environmental Law Center* is asking for a full hearing on whether the Atlantic Coast Pipeline is needed.  That’s key to approval according to senior attorney Greg Buppert.

“If our motion is denied, that will be an issue that we raise in litigation.”

Legal experts say they could also take Dominion to court over a possible violation of anti-trust laws, since one of its biggest customers for the gas it will transport is its sister company – Dominion Energy Virginia.

Then there’s the Department of Environmental Quality’s Water Control Board. It could block construction if it feels the project would jeopardize water quality.  DEQ Director David Paylor says he won’t hesitate to turn thumbs down, even though Governor Terry McAuliffe has expressed support for the pipeline.

“If we were not able to meet the regulatory requirements to protect water quality, I would have no problem going to the governor and telling him that.  I got into this business back in the 70’s because the environment matters.”

But Paylor is doing something that puzzles attorney Buppert.  

"Erosion and sediment control gets to the very heart of the water issues related to this pipeline. If we're unhappy with the decision, we do have the opportunity to challenge that decision in federal court."

Looking at the problem of erosion and how Dominion intends to prevent it, and in a completely separate process, deciding whether to allow pipeline construction.  In an e-mail, we asked Director Paylor how the DEQ could draw conclusions about future water quality without studying the risks of erosion.  He did not respond, but the Southern Environmental Law Center intends to press the point.

“Erosion and sediment control gets to the very heart of the water issues related to this pipeline.  If we’re unhappy with the decision, we do have the opportunity to challenge that decision in federal court.”

Right behind him is David Sligh of Wild Virginia, a group that advocates for the state’s forests, rivers and streams.  Members of that group are poring over hundreds of pages of plans Dominion recently submitted to the DEQ.

“We would like to get the right analyses within state government where it’s supposed to be, but we won’t be shy about challenging them in court if need be.”

The public has 45 days from the time plans were released to review them and comment, and Virginia’s Secretary of Natural Resources, Molly Ward, says  that feedback along with the concerns of other agencies will be considered.

“You know it’s not just DEQ.  We also have the Department of Conservation and Recreation, the Virginia Outdoors Foundation, the Department of Historic Resources.  We have a wildlife management area that’s being crossed, so the Department of Game and Inland Fisheries is involved.  And all of those agencies have been told, ‘Yes, the governor supports the pipeline, but that’s only if it can be built safely and our natural resources are protected.’”

If DEQ does not decide quickly, the public will have one more place to register its support or opposition to the Atlantic Coast Pipeline – at the polls. 

In our next report, we’ll look at the political implications of Dominion’s determination to build the ACP. 

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association

*WVTF RADIO IQ receives support from the Southern Environmental Law Center.

Sandy Hausman is Radio IQ's Charlottesville Bureau Chief
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