The Vanishing Need for Fracked Gas in Virginia

Last week, Governor Ralph Northam signed the Virginia Clean Economy Act into law, making Virginia the first Southern state with a goal of going carbon-free by 2045. Thanks to the bill, Virginia’s energy future looks a lot cleaner.

The future for gas, on the other hand, is a lot less rosy. 

The VCEA floors it on clean energy, taking Virginia from nearly zero to 100 in a matter of years. It mandates that the state’s biggest utility, Dominion Energy, switch entirely to renewable energy by 2045. Appalachian Power, which serves far southwest Virginia, must go carbon-free by 2050. It requires Dominion to build 16,100 megawatts of onshore wind and solar energy, and it proclaims up to 5,200 MW of offshore wind by 2034 to be in the public interest. 

The General Assembly also passed a bill this year allowing Virginia to join the Regional Greenhouse Gas Initiative (RGGI), a regional carbon-trading program now in place from Maine to Virginia. With Virginia joining RGGI, all fossil fuel generating plants will be required to pay for the right to spew carbon pollution. 

What might all of this mean for gas? 

We got an early sign earlier this month when Dominion asked its regulator, the State Corporation Commission, to relieve it of a requirement to model new gas plants. In December 2018, the utility was planning for eight to 13 new gas combustion turbines (a plan the SCC rejected because the company inflated electricity demand).

Today “significant build-out of natural gas generation facilities is not currently viable, with the passage by the General Assembly of the Virginia Clean Economy Act of 2020,” the company wrote in its filing.

You read that right. Their previous plans are no longer viable.

If additional gas plants aren’t viable in Virginia, then what’s the purpose of the Atlantic Coast and Mountain Valley pipelines? 

Dominion’s primary argument for the ACP has been that “Virginia needs new pipeline infrastructure” for home heating, manufacturing, and electricity. “Demand for natural gas is growing,” Dominio CEO Tom Farrell continued in an October 2018 op-ed in the Richmond Times Dispatch. Likewise, MVP claims its gas is desperately needed. 

Yet even before passage of the VCEA, the need for these pipelines was in question. Only about 13 percent of Mountain Valley’s gas was spoken for, with the destination for the remaining 87 percent “unknown.” And, in a brief before the U.S. Supreme Court, Virginia Attorney General Mark Herring argued that Virginia already had no demonstrated need for the expansion of fracked-gas infrastructure, with demand only projected to decrease in the foreseeable future. 

Is Dominion on its way to walking away from the project?

One sign that Dominion might be on the way to abandoning the ACP is the fact that the company did not oppose HB167 (sponsored by Delegate Lee Ware), which is now law. This bill requires an electric utility that wants to charge customers for the cost of using a new gas pipeline to prove it can’t meet its needs otherwise, and that the new pipeline provides the lowest-cost option available to it. This bill makes cost recovery for the Atlantic Coast Pipeline–and the Mountain Valley Pipeline–much more difficult. Dominion’s acquiescence to the bill could be an indication that the company is preparing to fold up shop on this project.

With Virginia now on a path away from fossil fuels, the ACP and MVP are not needed to supply electricity to Virginians, if they ever were. Dominion and EQT should cancel their plans and move on. 

Two other projects may also be on their way out under Virginia’s new commitment to reducing greenhouse gas emissions. 

Developers are proposing two huge new gas plants only a mile away from one another in Charles City County. Neither the 1,600 MW Chickahominy Power Station nor the 1,050 C4GT plant plan to sell power to Virginia utilities; their target is the regional wholesale market. So, while the VCEA won’t force them to go green, they will have to pay to pollute under RGGI. This added cost, plus the permitting issues the plants are encountering, could persuade them to abandon their plans. 

And, if the C4GT plant goes away, so too should Virginia Natural Gas’s plans for a gas pipeline and compressor stations to supply the plant, what we’re calling the Header Injustice Project.

All in all, gas is on its way out in Virginia. We only wish the companies had seen the writing on the wall before they started seizing land, cutting down precious trees, and clogging rivers and streams with sediment.

Is this What Winning Feels Like? MVP & ACP Legal Update

Here’s where the permits for EQT’s Mountain Valley Pipeline (MVP) stand:
The Army Corps’s permit allowing Mountain Valley Pipeline (MVP) to blast through more than 1,000 streams? Back to the drawing board.
The Forest Service’s permit for MVP to slice across the Jefferson National Forest? Rejected.
What was the Federal Energy Regulatory Commission (FERC) forced to do as a result? Stop construction activity along all portions of the MVP for nearly four weeks.
What’s next? On behalf of CCAN and other groups, Appalachian Mountain Advocates (Appalmad) filed a challenge to FERC’s approval of the entire pipeline with the D.C. Circuit. Oral argument will take place in 2019.
And here’s where we stand with Dominion’s Atlantic Coast Pipeline (ACP):
Dominion’s permit from the National Park Service to cross the iconic Blue Ridge Parkway? Tossed. And the agency’s new, mostly unchanged permit is being challenged.
The Fish and Wildlife Service permit protecting endangered species from the ACP? Insufficient. That agency’s re-issued permit is also being challenged.
Dominion’s permit to cut across the Monongahela and George Washington national forests? Stayed. A decision is forthcoming.
The Army Corps’s permit allowing ACP to blast through streams in West Virginia? Stayed. Argument will take place later this year.
What was FERC forced to do? Stop all work on the ACP for over a month.
What’s next? On behalf of CCAN and other groups, the Southern Environmental Law Center and Appalmad filed a challenge to FERC’s approval of the entire pipeline with the Fourth Circuit. Oral argument will take place in 2019.

In my eight years at CCAN fighting for clean energy and against dirty energy projects, I’ve never seen us make more dents in the armor of a dirty-energy project than we are with these two pipelines. In the wake of a sobering report on climate change, our work to protect our communities and planet is more important than ever. This critical work includes fighting projects such as the Mountain Valley and Atlantic Coast pipelines, which would lock us into reliance on polluting fossil fuels for decades to come.
I’ve been inspired by the years — YEARS — that opponents have spent fighting these pipelines on the ground. While they’ve received (most of) their permits, not one permit was granted without controversy or a fight. The Virginia Department of Environmental Quality was forced to create an entirely new process by which they reviewed the pipelines. Thanks to your outcry, Virginia gave ACP and MVP more scrutiny than neighboring Maryland gave a pipeline there. The State Water Control Board came this close to rejecting water permits for the pipelines, voting 4-3 to approve the permits after an unprecedented level of scrutiny. Even FERC itself was divided. When the Commission issued its approval of the projects, it did so at 7pm on a Friday with one of the three commissioners dissenting.
Now we’re attacking each of those shoddy permits in court. For years we’ve been warning that the companies behind the pipelines have been pushing regulators to approve key permits without considering the full scope of their destruction. In decision after decision, courts are validating that concern. One court in particular — the U.S. Court of Appeals for the Fourth Circuit — is doing what the federal government should have done all along: protecting the public and the environment from these harmful and unneeded pipelines.
The newest news is that late last week the Army Corps of Engineers suspended a permit that the fracked-gas Mountain Valley Pipeline must have in order to build through waterways in Virginia. This action follows Tuesday’s federal court ruling throwing out MVP’s stream crossing permit for southern West Virginia. That now-vacated permit would have allowed MVP to blast a trench through the beloved Gauley, Greenbrier, and Elk rivers. Our attorneys at Appalachian Mountain Advocates (Appalmad) argued our case so convincingly that the court only needed two business days to decide to toss the permit. We followed up this win with a letter to FERC asking it to halt all work on the pipeline, as FERC’s order approving the project requires that all permits be in place for construction to take place anywhere along its 303-mile route.
The issue before the court was this: When West Virginia certified the Army Corps’ nationwide permit back in 2017, it placed a condition that stream crossings have to be completed within 72 hours. States have the authority to include additional conditions when they certify the Army Corps’s blanket permit, which they do every five years. Essentially, West Virginia said that it had reasonable assurance that state water quality standards would be met if the project met the conditions of the Army Corps’ nationwide permit and the project took 72 hours or less to cross waterbodies. We argued — and the court agreed — that MVP hadn’t even tried to comply with West Virginia’s 72-hour time limit when planning to cross four major rivers, and that this failure meant that the entire permit, not just as it applied to those four crossings, was therefore defective.
West Virginia officials are now trying to rewrite their own rules. After the Fourth Circuit indicated that it had major concerns with the permit over the summer, West Virginia Governor Jim Justice wasted no time in issuing a statement promising to “expedit[e] the construction of this pipeline.” Might Governor Justice’s devotion to the MVP have something to do with the fact that a top adviser, Bray Cary, serves on the board of EQT? EQT, of course, is a main backer of the MVP and Mr. Cary holds millions of dollars in EQT stock.
Appalmad responded with a letter explaining the many reasons why the state can’t rewrite its rules at this stage. And, during oral argument two weeks ago, the judges appeared highly skeptical of West Virginia’s shenanigans. Along with our friends at Appalmad and West Virginia Rivers, we are closely monitoring any developments.  
What does this defeat mean for the MVP? Another year of delay, most likely. Instead of a blanket, one-size-fits-all permit that the Corps had tried to use, it now has to issue an individual permit that’s tailored to the specific area. This process could take up to a year and will include opportunities for public comment. Stay tuned for more from us on how to participate in that process.
The court’s decision to throw out the Army Corps’s water permit for MVP is just one of a number of defeats that pipeline has faced. In July, the Fourth Circuit vacated decisions by the Bureau of Land Management and the Forest Service authorizing the construction of the MVP across the Jefferson National Forest.
In response, Commission staff halted construction activity along all portions of the MVP. When FERC staff lifted that stay for most of the MVP, two commissioners issued a scathing press release raising “significant concerns” with the staff’s action.
To reiterate: The Army Corps’s permit for MVP to blast through more than 1,000 streams? Back to the drawing board. The Forest Service’s permit for MVP to slice across the Jefferson National Forest? Rejected.
All the while, the MVP project is getting further delayed and more expensive. MVP has told investors that its anticipated completion date of late this year is no longer viable. And, in a revised estimate, pipeline developers now expect to spend $4.6 billion on the project, a jump of about 25% over the anticipated $3.7 billion.
Meanwhile, Dominion’s Atlantic Coast Pipeline is also reeling from multiple setbacks. Dominion’s permit from the National Park Service to cross the iconic Blue Ridge Parkway? Tossed. The Fish and Wildlife Service’s permit protecting endangered species from the ACP? Insufficient. Dominion’s permit to cut across the Monongahela and George Washington national forests? Stayed. The court’s order to stay construction through the national forests was the third time in four months that the Fourth Circuit has vacated or stayed federal authorization for the ACP.
These invalid permits caused FERC to issue a stop work order for the ACP. While FERC lifted the stay as soon as the agencies issued new, rushed permits, our friends at the Southern Environmental Law Center are challenging both of those re-issued permits.
And the Fourth Circuit’s work on the ACP isn’t over yet. Judges recently heard arguments to Virginia’s approval of the project under the Clean Water Act. The court also heard oral argument in the challenge to Dominion’s permit to cross national forest land — the same permit it stayed days earlier — and is expected to rule on it in the coming months.
Our biggest cases yet will be heading to federal courts later this year. We are challenging FERC’s permit, which underpins both projects. This challenge will give courts an opportunity to scrutinize the need for these projects.
Together, we’ve been chipping away at these pipelines through protests and activism and camptivism and tree-sits and community monitoring efforts and lawsuits. Now, two of the largest interstate fracked-gas pipeline projects in the Eastern US are in jeopardy. This wouldn’t have happened without you. Thank you for all you do!

What the Water Control Board hearings really tell us

On Thursday, December 7, the Virginia Water Control Board voted to certify that there was “reasonable assurance” that the Mountain Valley Pipeline would not harm Virginia’s water quality, subject to about a dozen conditions. Two board members — Roberta Kellam and Nissa Dean — dissented, while five voted in favor.
The entire process extremely problematic. The Board was missing at least three critical pieces of information: (1) complete karst studies; (2) a permit from the Army Corps of Engineers, which looks at impacts to streams, wetlands, other waters of the United States; and (3) site-specific erosion and sediment control and stormwater management plans.
Throughout the hearing, Board members themselves expressed concern that they were being asked to “put the cart before the horse.”
In reviewing the Mountain Valley Pipeline (and the Atlantic Coast Pipeline), the DEQ developed a new permitting process. Last week’s hectic decision made it clear that both the DEQ and the Water Control Board did not completely understand the new process and its implications. This new pipeline permitting process for the first time considered “upland activities,” that is, what happens to water quality when you clear steep mountains of all vegetation, and deferred to the U.S. Army Corps’ review of stream crossings.
At the State Water Control Board meeting, some board members, led by Robert Wayland, expressed skepticism that the Army Corps’ review would be sufficient to protect water quality — no matter if the Army Corps issues the same blanket one-size-fits-all permit it issues for most pipeline projects or actually does an individual review. The board attached an amendment to the permit that attempted to preserve its right to review stream crossings after the Army Corps issues its permit. The idea would be that the DEQ would present to the Water Control Board about whether the Army Corps permit was good enough, and, if not, the state could do its own review. It’s not clear, however, whether this attempt by the board to preserve its right to review stream crossings will stick. MVP now has a 401 certification that it can take to FERC. If FERC allows MVP to proceed, the state of Virginia would have to ask FERC for a rehearing, FERC could issue a tolling order, and the process could drag on while MVP starts to build. More broadly, this was the Board’s chance to look at the cumulative impacts to water quality from upland activities plus stream crossings, and it failed to look at the big picture.
The Board added a couple of additional conditions that aren’t too clear, related to expanding the width for a stream crossing and about successor-in-interest liability.
Governor McAuliffe and his administration have had their thumb on the scale for these projects from the very beginning, and that was evident at the hearing.
Why was McAuliffe’s DEQ asking the Board to make its decision without so muchcritical information? At one point, a Board member asked to see an Executive Summary of a not-yet-complete karst study. Maybe the Board members read that over their lunch break?
A lawyer from the Attorney General’s office also advised the Water Control Board to act quickly. During deliberations, the permit was projected onto the wall and changes were made using track changes. The vote itself was confusing. It was not clear who voted for and against the amended permit until the public insisted, and the chairman acquiesced, to a roll call vote. The entire process was rushed, hectic, and confusing.
Yesterday’s outcome is beyond disappointing, though not entirely unexpected given McAuliffe’s full-throated support for these pipelines. We’ll have to see what happens at tomorrow’s hearing on the Atlantic Coast Pipeline… but we now have a better sense of what to expect.

Digging Deeper: How FERC Fails the Public on the Atlantic Coast Pipeline

On July 21, Federal regulators issued a deeply-flawed final environmental review for the Atlantic Coast Pipeline (ACP). We know that the pipeline would threaten hundreds of bodies of water, putting the drinking water for thousands of communities at risk. We also know that the Atlantic Coast Pipeline would fuel climate disaster while blocking the transition we urgently need to clean energy and efficiency solutions. It is not surprising that this review from the Federal Energy Regulatory Commission (FERC) is completely inadequate, given what we have seen in the past.
But it’s worth breaking down just how FERC gets it wrong on climate change — and what else it completely ignores.

Climate Change

The Final Environmental Impact Statement (FEIS) continues to ignore the lifecycle greenhouse gas emissions of the Atlantic Coast Pipeline. It entirely fails to consider emissions from fracking that this massive pipeline would trigger, and seriously discounts the emissions from burning the natural gas.
FERC concludes that the ACP would emit approximately 30 million tons per year of CO2 equivalent. This number is less than half of the emissions the ACP would actually trigger. A proper analysis by our friends at Oil Change International found that the ACP would cause 68 million metric tons of greenhouse gas pollution per year, which is the equivalent of 20 U.S. coal plants or over 14 million vehicles on the road.
FERC insists, as it has in past analyses, that “the upstream production and downstream combustion of gas is not causally connected [to the ACP] because the production and end-use would occur with or without the projects.”
This claim would be laughable if the consequences of climate change weren’t so severe.
FERC is ignoring its own role in approving all interstate gas pipelines, which are essential for the expanding gas production in the Appalachian basin. Even if you accept FERC’s premise that fracking for gas would occur without the ACP, which we don’t, you can’t ignore the fact that new pipelines generally trigger new fracking. And it’s FERC that approves all new interstate pipelines. A study by Oil Change International found that the Appalachian basin is the region with the greatest potential for growth in dangerous fracking, and developers are eager for pipelines to make high levels of fracking economical. There are currently 19 pipelines proposed in this region being considered by FERC. These pipelines would be a global warming bomb.
For the first time, FERC included a discussion of the Clean Power Plan in its review — but it provided no context or analysis for how the pipeline would impact a state’s goal under the plan. The purpose of the National Environmental Policy Act is to meaningfully inform the public about the consequences of a major federal action before it takes places. Referencing the Clean Power Plan for the first time with no context does not provide meaningful information the public needs to evaluate the ACP and falls short of NEPA.   
The draft analysis included a discussion of why the Council on Environmental Quality’s climate guidance, issued under the Obama Administration, didn’t apply to the ACP. FERC removed that discussion in this final draft. Instead it inserted a footnote discussing Trump’s executive order directing federal agencies to not consider indirect climate impacts in their environmental reviews, such as the increased fracking that would come with the ACP.
These pipelines are meant to last 50 years or more, according to NPR. They are presented as climate-friendly alternatives to coal, but they serve only to lock us into a new form of dangerous fossil fuel instead. Methane, the primary component of natural gas, is 86 times more potent than carbon dioxide over a 20-year period. The ACP would lock us into decades of reliance on fossil fuels when we know we need to move to clean sources of energy, like wind and solar.

Ridgetop Removal

The FEIS does not require Dominion to make any changes to minimize ridgetop removal, period.
Experts studied the draft EIS to find that the construction of this pipeline would result in 38 miles of mountain ridgetop removal.  For perspective, the height equivalent of a five-story building would be erased in places from fully forested and ancient mountains, much of it near the treasured Appalachian Trail.
Despite the outcry and unimaginable impacts from removing miles of ridgetops, not much changed in FERC’s final review. FERC still expects construction of the pipeline to require 125 feet of clearing width in mountainous regions. The agency directly states that “clearing and grading . . . would level the right-of-way surface.”
Furthermore, Dominion has yet to reveal how it intends to dispose of at least 247,000 dump-truck-loads of excess rock and soil—known as “overburden”—that would accumulate from the construction along just these 38 miles of ridgetops. The FEIS, for the first time,  tells us definitively that “excess rock and spoil would be hauled off to an approved disposal location or used a beneficial reuse.” Yet Dominion and FERC still have provided no plan for dealing with this overburden and ensuring that it doesn’t poison our waterways.

Renewable Energy 

The bottom-line is this: In its determination of “need,” FERC fully fails to even consider renewable energy as an alternative to this project.
If Dominion wants to bring more energy to Virginians, it should be focusing on clean energy, like expanding its pilot offshore wind program and opening the door to widespread community solar. The last thing Virginia needs is more natural gas infrastructure.
As Southern Environmental Law Center Senior Attorney Greg Buppert stated, “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.”
For our climate and our future, we must stop this pipeline.

Click HERE to see actions you can take right now.

Photo at the top from Flickr user cool revolution with a Creative Commons license. 

Courtroom update on Cove Point: the fight continues

I’m writing with an update for southern Marylanders and all of you who joined our fight — and continue to fight — to stop Dominion’s disastrous fracked-gas export facility at Cove Point.
As you may remember, in April the D.C. Circuit Court of Appeals heard arguments in our lawsuit challenging federal approval of Dominion’s gas export facility, which Earthjustice filed on behalf of CCAN, the Patuxent Riverkeeper, and the Sierra Club.
We argued that the Federal Energy Regulatory Commission broke the law in several ways: 1) by failing to consider the direct impacts of the project on the safety of local residents and on the Chesapeake Bay; and 2) by failing to consider the “upstream” and “downstream” air, water, and climate impacts that would be triggered by fracking, piping, compressing, liquefying, and burning the exported gas.
Unfortunately, the court recently gave FERC a free pass. The three judges decided FERC did enough to consider the public safety threat on one hand. On the other hand, they decided that the buck stops with the Department of Energy, not FERC, to consider the full climate and environmental harm of exporting fracked gas, a decision that our lawyers say makes no sense under federal environmental law.
With this ruling, the court failed to protect the citizens of Calvert County, and — at best — further delayed much-needed protections for our climate and for communities from Dimock, Pennsylvania to Myersville, Maryland and everywhere in between that could see new air and water pollution from gas extracted and piped to Cove Point.
But our fight will continue.
First, the judges left the door open to challenge the Department of Energy. The judges did not rule on our core argument that the climate impact of exporting nearly a billion cubic feet of gas every day for 20 years must be weighed by the federal government. They punted the claim to DOE, and we are moving forward. The Sierra Club recently filed a lawsuit challenging DOE. CCAN is actively exploring ways to help with this legal effort, and to finally hold the federal government accountable for fully assessing the climate harm of gas export facilities.
Meanwhile, right now, you can join our friends at We Are Cove Point in urging Governor Larry Hogan to order an independent safety study for the Cove Point export facility. No government agency has yet conducted a so-called “Quantitative Risk Assessment” of the dangers of a chemical spill or explosion from Dominion’s refinery and export terminal, which sits in a densely populated residential neighborhood. Sign the petition now to join We Are Cove Point in asking, “Where’s our safety study?”
We’re determined to keep fighting Dominion’s polluting and dangerous facility, and to support southern Marylanders who continue the on-the-ground campaign. We’ll keep you updated on ways you can continue to help, as we work to spread clean solar and wind power to every Maryland community and to stop fracked-gas infrastructure in its tracks.

Report from the DC Circuit: Federal Court Hears Case Against Cove Point Export Facility

From left to right: Mariana Lo, Earthjustice; Fred Tutman, Patuxent Riverkeeper; Moneen Nasmith, Earthjustice; Cindy Peil, CCHC; Leslie Garcia, CCHC; Deborah Goldberg, Earthjustice; Anne Havemann, CCAN; Jon Kenney, CCAN
Outside the courthouse after oral argument. From left to right: Mariana Lo, Earthjustice; Fred Tutman, Patuxent Riverkeeper; Moneen Nasmith, Earthjustice; Cindy Peil, CCHC; Leslie Garcia, CCHC; Deborah Goldberg, Earthjustice; Anne Havemann, CCAN; Jon Kenney, CCAN

Using every tool available, CCAN and many others have been fighting the massive Cove Point liquefied natural gas (LNG) export terminal for over three years. The facility, located on the Chesapeake Bay in southern Maryland, would be the first LNG export terminal on the East Coast, linking the fracking fields of Pennsylvania, West Virginia, and Ohio to Asian markets. The fight on the ground continues, but our legal fight against the facility reached a significant milestone yesterday. That’s when Earthjustice Managing Attorney Deborah Goldberg faced off with the Federal Energy Regulatory Commission (FERC) and its friends before the DC Circuit Court of Appeals.
Several CCAN staffers and I joined Leslie Garcia and Cindy Peil with Calvert Citizens for a Healthy Community in the gallery to watch the argument.
You may remember that Earthjustice filed the lawsuit, EarthReports v. FERC (No. 15-1127), in May 2015 on behalf of CCAN, Patuxent Riverkeeper, and the Sierra Club. We had to wait to file suit in federal court until FERC officially denied our request for a rehearing. It took the agency seven months to deny our request, even as it approved order after order allowing Dominion to begin construction.
Deborah had eight short minutes to present her argument. Her goal was to show the court that FERC shirked its duty under the National Environmental Policy Act (NEPA) by failing to fully assess the direct and indirect environmental impacts of exporting nearly a billion cubic feet of gas every day for 20 years. Essentially, she argued, FERC’s finding of “no significant impacts” was based on not looking very hard. (You can hear the entire oral argument here.)
She first argued that FERC failed its duty under NEPA when it found that the export facility would not promote any regional gas development. That this massive facility would induce gas development not only makes logical sense, but it’s also backed up by facts. She reminded the court that a Pennsylvania-based energy company plans to drill new wells and ship the gas to Cove Point for export to Japan. She stressed to the court that this new gas production would require the use of millions of gallons of water, thousands of truck trips, and would greatly impact the lives of people living near the not-yet-drilled wells.
She also argued that FERC fell far short of its statutory obligations by refusing to take the lifecycle climate emissions of the project into account. Even the direct emissions of two million tons of greenhouse gases per year, she argued, should have triggered a finding of significance. When you take the lifecycle of natural gas into account, the emissions increase to 26 million tons per year—about the same emissions as Maryland’s entire fleet of coal-fired power plants.
In a strange twist, the energy giant BP was on our side of the aisle yesterday. Before Dominion proposed to expand and convert the terminal, Cove Point was a mostly dormant import facility. Energy companies, including BP and Statoil, had contracts to import natural gas to the terminal. Dominion granted Statoil the opportunity to relinquish its import capacity, but did not grant BP the same opportunity. BP was challenging FERC’s approval of this arrangement.
The attorney for BP walked the judges through the Natural Gas Act and explained why BP should have gotten the same opportunity as Statoil to get out of its contract. The issue was complex, though narrow, and seemed to capture the attention of all the judges on the panel.
Once the petitioners–EarthReports and BP–had finished arguing, it was the respondents’ turn to respond. FERC was joined by Dominion and the American Petroleum Institute, both of which had intervened on FERC’s behalf.
FERC’s attorney was most prepared to discuss the environmental issues but the judges focused the majority of their attention on BP’s claim. While that focus meant that FERC did not have much opportunity to respond to our environmental claims, it also seemed to distract the judges from the larger and more impactful issues at stake. Allowing BP to terminate its contract early has far less of an impact than forcing FERC to fully account for the human and environmental costs of the unprecedented natural gas expansion it’s facilitating.
When FERC’s attorney was able to respond to our environmental claims, she argued that any indirect effects were too speculative for FERC to consider.
Dominion argued that FERC conducted a sufficiently thorough review of the relevant information. Judge Rogers pushed back. Sure, she said, an agency could write 215 pages, but if it left out the main analysis it wasn’t worth much. Summing up our argument, the judge said that these natural gas infrastructure projects have impacts beyond the facility itself that aren’t being considered. “It’s not as if we’re planting flowers here.”
The lawyer from API had nothing new to add.
Deborah had saved two minutes for rebuttal and did an excellent job. Every party was in agreement, she said, on the key question: What effects will this project cause? She argued that Dominion’s liquefaction plant is the “crucial link” inducing demand for more gas drilling. FERC had produced an environmental assessment that turned “a blind eye” to the evidence before it.
She pushed back against FERC’s claim that we were asking the agency to speculate. Federal agencies, from the Environmental Protection Agency to the Council on Environmental Quality, are pushing FERC to consider indirect effects, other agencies are actually doing it, and FERC itself, in subsequent reviews, has even done it. She concluded by asking the DC Circuit to send the order back to FERC for it to conduct a full Environmental Impact Statement.
Every brief we submitted in this case has emphasized FERC’s failure to adequately address the safety threats to nearby residents in Lusby, Maryland. The liquefaction plant in Lusby would be built in closer proximity to residences than any other facility previously approved by FERC. Additionally, our briefs stressed how foreign tanker ships could threaten the critically endangered North Atlantic Right Whale.
This case is one of several where environment groups are challenging FERC approval of natural gas export infrastructure. In November, the DC Circuit heard challenges by Sierra Club and Galveston Baykeeper to FERC’s approval of LNG export facilities at Sabine Pass, Louisiana and Freeport, Texas. Sierra Club has also challenged FERC’s approval of the Corpus Christi, Texas, LNG export facility. That case is fully briefed, but has not yet been set for oral argument.
The court has no deadline to decide our challenge. It’s possible that it’s waiting to hear all the cases against the export facilities before deciding.

Curbing Virginia’s Reliance on Natural Gas

Virginia is facing an unprecedented expansion of fracked-gas infrastructure.
Just this morning, Mountain Valley applied for federal approval to build a $3.2 billion, 301-mile fracked-gas pipeline from northwestern West Virginia to southern Virginia. The Mountain Valley Pipeline is just one of four interstate gas pipeline projects currently proposed for the central Blue Ridge and Appalachian Mountain region of Virginia and West Virginia—along with Dominion’s 564-mile Atlantic Coast Pipeline, Williams’ Appalachian Connector Pipeline, and the Columbia Pipeline Group’s WB Xpress Project.
Dominion this summer applied to build a $1.3-billion natural gas-fueled power plant in the southern Virginia county of Greensville. Dominion’s press release announcing its proposed 1600-megawatt gas plant also touted its 400 megawatts of planned solar generation—a mere quarter of the power that would be produced by its natural gas plant. This release serves to illustrate Dominion’s very clear preference for fossil fuels over renewables.
This rush to natural gas brings considerable consumer, health and climate risks. A growing number of studies show that natural gas is just as bad as coal for the climate. Greenhouse gas pollution is emitted as every step of the natural gas lifecycle, from fracking to piping to eventual burning of the gas. In addition to the climate concerns, each step presents a unique threat to human health, natural resources, and communities.
Virginia’s doubling down on natural gas also puts electricity consumers at risk, according to a new report from the Union of Concerned Scientists. Instead of moving toward cleaner, renewable energy, Virginia is ramping up its investment in natural gas. From 2008 to 2014, Virginia’s in-state electricity generation fueled by natural gas increased by 14.3 percent. Ninety-eight percent of new plants contemplated for the commonwealth will be powered by natural gas. In fact, Virginia is projected to install 12,500 megawatts of new natural gas capacity by 2017.
UCS warns that natural gas prices are volatile, leaving consumers open to price spikes. As the country moves to limit carbon emissions, overreliance on fossil fuels will cause utilities to saddle their customers with higher electricity rates to account for the cost of carbon. Plus, gas plants and pipelines are enormously expensive. As the country moves away from fossil fuels, customers could be on the hook for billions of dollars’ worth of underused, idled, or even abandoned plants and pipelines.
CCAN’s legal team is pushing back against Virginia’s rush to natural gas at every step. Today, CCAN filed a motion to intervene in the permit process for the Atlantic Coast Pipeline. By intervening, we will become a formal party to the proceeding and reserve the right to challenge the approval in federal court. On behalf of CCAN and 15 other Virginia and West Virginia groups, our attorneys at Appalachian Mountain Advocates also filed with FERC a detailed protest opposing the pipeline and asking for an evidentiary hearing. We also plan to intervene in the Mountain Valley Pipeline proceeding as that process moves forward. Represented by the Southern Environmental Law Center, we’re also formal participants in the State Corporation Commission’s review of Dominion’s proposed Greensville gas plant. Throughout these legal fights, we will argue that renewable energy – not more fossil fuels – is the right choice for Virginia.

From CCAN’s General Counsel: Update on Cove Point Legal Fight

While groups on the ground in Calvert County continue to stand up to Dominion’s massive liquefied natural gas (LNG) export terminal along the Chesapeake Bay, the fight is simultaneously moving forward in federal court.
On behalf of CCAN, Patuxent Riverkeeper, and Sierra Club, and their members who will be harmed by Dominion’s project, Earthjustice asked the United States Court of Appeals for the District of Columbia Circuit on May 7th, 2015 to review the Federal Energy Regulatory Commission’s (FERC) decision to approve Dominion’s LNG export project without a valid environmental review. Our lawsuit centers on FERC’s unlawfully narrow environmental review of Dominion’s massive project to convert its virtually idle LNG import facility into a hub for LNG exports. That review—criticized in over 150,000 citizen comments—omitted credible analysis of the project’s lifecycle global warming pollution, along with all the pollution associated with driving demand for upstream fracking and fracked gas infrastructure; its impact on water quality in the Chesapeake Bay and risk to the critically endangered North Atlantic Right Whale; and potentially catastrophic explosion and fire threat to hundreds of nearby residents.
Our legal fight to stop the $3.8 billion export facility began within FERC itself. CCAN members joined thousands of others in submitting comments to FERC on Dominion’s application and the agency’s environmental review of the project. After conducting the minimum review allowed under the National Environmental Policy Act (NEPA), FERC approved the proposal on September 29th, 2014. Concerned that the agency had not fully considered the many ways that Dominion’s LNG export project will impact the environment and threaten community health and safety, CCAN and its partners, with the help of Earthjustice, asked FERC to review its decision. FERC sat on our request for months—a process known as “tolling”—even as it approved order after order allowing Dominion to begin construction. After seven months, FERC finally denied our request. Once we completed FERC’s internal review process (or “exhausted our administrative remedies,” in legal jargon), we were finally able to challenge the agency’s decision in federal court.
Tragically, FERC’s foot-dragging allowed Dominion’s bulldozers to start construction before residents were able to appeal to the federal court. Citing the fact that Dominion’s construction activities have already begun to irrevocably damage the landscape and quality of life in Calvert County, Maryland, CCAN, Patuxent Riverkeeper, and Sierra Club asked the D.C. Circuit in June to halt all construction while our case was pending. Injunctions are difficult to obtain, and the court ultimately denied our request, but that decision has no bearing on the merits of our case.
Environmental groups are not the only ones who are challenging FERC’s decisions regarding Cove Point. Before Dominion proposed to expand and convert the terminal, Cove Point was a mostly dormant import facility. Energy companies, including BP, Statoil, and Shell had contracts to import natural gas to the terminal. Dominion granted Statoil the opportunity to relinquish its import capacity, but did not grant BP or any other importer the same opportunity. Signaling that the import market is uncertain, BP has asked the DC Circuit to review this denial, and BP’s case has been consolidated with ours.
We do not yet have a briefing schedule for the consolidated cases, but hope it will allow for argument in the court’s spring term. FERC has failed its important duty under NEPA to analyze and disclose the environmental consequences of allowing Dominion to build and run a facility that can export up to nearly 1 billion cubic feet of natural gas per day. FERC must stop cutting corners when it comes to our fragile climate and environment. Our lawsuit is a step towards pushing FERC in the right direction.

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