BREAKING: Duke, Dominion cancel $8 billion Atlantic Coast Pipeline

In 2016, protesters in Robeson County demonstrated against the Atlantic Coast Pipeline because it would have crossed tribal lands and disproportionately burdened communities of color. (Photo: Lisa Sorg)

This is a developing story and will be updated as information becomes available.

Duke Energy and Dominion Energy announced Sunday that they are cancelling the Atlantic Coast Pipeline, a 600-mile natural gas project that has been in the works for six years.

The utilities cited “ongoing delays and increasing cost uncertainty which threaten the economic viability of the project.”

The project would have started at a fracked gas operation in West Virginia and routed through Virginia before traversing 160 miles in eastern North Carolina, including many communities of color, tribal lands and low-income neighborhoods.

Relentless legal challenges increased the project cost 100%, from $4 billion to $8 billion.

The announcement was unexpected because the utilities had just won a key decision before the US Supreme Court. In a 7-2 ruling, the court ruled the pipeline could burrow beneath part of the Appalachian Trail.

Nonetheless, “recent developments have created an unacceptable layer of uncertainty and anticipated delays for ACP.”

Specifically, the utilities said the decision of the US District Court for the District of Montana to overturn a long-standing federal permit authority for waterbody and wetland crossings, followed by a Ninth Circuit ruling on May 28 indicating an appeal is not likely to be successful, “are new and serious challenges.”

The utilities had recently asked FERC — the Federal Energy Regulatory Commission — for an extension, to 2022, to finish the project. Originally, Duke and Dominion had projected the pipeline would be operating in 2019.

In North Carolina, communities along the route, as well as environmental advocates, organized to consistently fight the pipeline, with rallies, letter-writing campaigns and litigation.

Thomas F. Farrell, II, Dominion Energy chairman, president, and chief executive officer, and Lynn J. Good, Duke Energy chair, president, and chief executive officer, issued a joint statement, that reads in part:

“We regret that we will be unable to complete the Atlantic Coast Pipeline. For almost six years we have worked diligently and invested billions of dollars to complete the project and deliver the much-needed infrastructure to our customers and communities.

Throughout we have engaged extensively with and incorporated feedback from local communities, labor and industrial leaders, government and permitting agencies, environmental interests and social justice organizations.

We express sincere appreciation for the tireless efforts and important contributions made by all who were involved in this essential project. This announcement reflects the increasing legal uncertainty that overhangs large-scale energy and industrial infrastructure development in the United States. Until these issues are resolved, the ability to satisfy the country’s energy needs will be significantly challenged.”


Pipeline news: Dominion requests 2-year extension for ACP; feds approve MVP

In 2017, hundreds of people turned out in Rocky Mount to comment on the water quality and riparian buffer impacts of the Atlantic Coast Pipeline. (File photo: Lisa Sorg)

Construction on the 600-mile Atlantic Coast Pipeline won’t be complete until 2022, Dominion Energy told federal regulators last week in its request for a two-year extension.

Dominion and Duke Energy, co-owners of the ACP, originally projected construction would be finished in 2019. Multiple legal challenges and permitting issues have added to the delays, as well as the price tag: $8 billion, up 60% from the initial estimate of $5 billion. Most of that cost will be passed on to ratepayers.

The Federal Energy Regulatory Commission could legally grant the time extension if it determines the delays are the result of “good cause.”

Based on its previous decisions, FERC will likely approve the request.

Trees have already been cut in Northampton and Cumberland counties, part of the ACP’s 160-mile route through eastern North Carolina. Many areas along the North Carolina route are communities of color or low-income neighborhoods.

Although the US Supreme Court ruled last week that the pipeline could route beneath a portion of the Appalachian Trail in Virginia, the utilities still have to secure eight environmental permits to finish the project.

An overview of the MVP Southgate Project route (Map: MVP Southgate)

FERC also granted a Certificate of Public Convenience and Necessity for the Mountain Valley Pipeline Southgate project. This pipeline would run from Pittsylvania County, Va., enter North Carolina near Eden in Rockingham County and travel 46 miles southeast, ending in Haw River, in Alamance County.

It is the southern extension of the main MVP, which routes through West Virginia and Virginia. The project has amassed roughly 300 environmental violations in Virginia, where state regulators there have placed a temporary stop-work order on the project.

The pipeline is owned by a consortium of energy companies and investors, including EQM Midstream and Next Era Energy.

The NC Department of Environmental Quality has sent two letters to FERC expressing their skepticism that the natural gas is needed.

The 2019 letter states that “the Department remains unconvinced that the project satisfies the criteria for the Commission to deem it in the public interest, and whether it is essential to ensure future growth and prosperity for North Carolinians.”

Environmental advocates immediately condemned FERC’s decision. “The Mountain Valley main pipeline has violated water quality standards more than 300 times in Virginia and West Virginia. Yet, this same company plans to extend into North Carolina and bring its reckless construction practices to bear on the communities of these three counties for an entirely unneeded project,” said Ridge Graham, North Carolina field coordinator for Appalachian Voices.

The FERC certificate allows the developer, Mountain Valley Pipeline, LLC, to begin using eminent domain to seize private property for construction along the proposed route, even as the pipeline’s viability remains in question

DEQ has yet to issue several permits for MVP Southgate, including a key water quality permit. Also known as a 401, this permit is required if a project could discharge contaminants into a waterway. MVP Southgate will cross major water bodies, including Stoney Creek Reservoir, a major drinking water supply for the City of Burlington; the Dan River and tributaries to the Haw River, 80 times.

DEQ rejected MVP Southgate’s 401 application a year ago because it was incomplete.

However, DEQ has less authority over the 401 process than it used to, because of environmental rollbacks by the Trump administration.

On June 1, President Trump signed an executive order to fast-track energy projects like natural gas pipelines, undoing key components of a 50-year-old environmental law.

States can no longer consider any factors except water quality in acting on a 401 permit. For example, if DEQ found that the MVP Southgate project would draw down aquifers or reservoirs serving as a drinking water supply, that’s a water quantity issue, and could not be considered.

Nor can states cite climate change as a reason to deny a 401 permit.

States now have one year to act on a 401 permit request and the “clock does not stop.” Previously, when state regulators sent back a permit application, like DEQ did last year with MVP Southgate, the timetable for acting on the project paused. Now there is no pause.

If DEQ does not act on the permit within a year, the EPA can step in and approve it. The EPA can also override a state agency’s denial of a permit if the EPA disagrees with how it reached the decision.

States can’t reopen or modify a 401 permit, even if new circumstances or relevant information becomes available.


US Supreme Court hands win to Atlantic Coast Pipeline, but other hurdles remain for project

By Sarah Vogelsong and Lisa Sorg

The U.S. Supreme Court on Monday ruled that the controversial Atlantic Coast Pipeline, a 600-mile natural gas pipeline being built by utility heavyweights Dominion Energy and Duke Energy, can cross beneath the Appalachian Trail in Virginia’s George Washington National Forest.

But the 7-2 decision, penned by Justice Clarence Thomas with Justices Sonia Sotomayor and Elena Kagan dissenting, lifts one barrier to the continuation of the
$8 billion project while leaving in place eight others that the pipeline must surmount before moving forward.

The present challenge overturns the Richmond-based 4th Circuit Court of Appeals’ December 2018 “Lorax decision” (so named because of its citation of the Dr. Seuss book claiming to “speak for the trees, for the trees have no tongues”), which among other findings declared the Forest Service did not have the authority to authorize a right-of-way for the ACP to cross a 0.1-mile segment of land 600 feet below the Appalachian Trail.

Under the U.S. Mineral Leasing Act, the Secretary of the Interior or a delegated agency — in this case the U.S. Forest Service — has the authority to grant natural gas pipelines rights-of-way through federal lands, but not through National Park System lands.

The Appalachian Trail is considered a unit of the National Park System under the National Trails System Act, a status the 4th Circuit pointed to in overturning the right-of-way authorization by the Forest Service, which has jurisdiction over the surrounding George Washington National Forest.

But, the Supreme Court decided Monday, delving into a distinction it discussed at length during the case’s February hearing in Washington, D.C., “trails” and “lands” are not the same thing.

In the majority’s view, the crossing of the George Washington National Forest by the Appalachian Trail functions as an easement, allowing the National Park Service to traverse the land overseen by the U.S. Forest Service but not transferring ownership of that land to the Park Service.

“Read in light of basic property law principles, the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands that the Trail crosses,” the majority opinion found. “It gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail, but the land itself remained under the jurisdiction of the Forest Service.”

Consequently, the court concluded, the provision of the Mineral Leasing Act limiting the granting of pipeline rights-of-way to federal lands that aren’t part of the National Park System, doesn’t apply to the Atlantic Coast Pipeline case and the Forest Service was within its rights to grant the project a permit.

“Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land,” the majority wrote.

Justices Sotomayor and Kagan disagreed, contending that federal “laws, a half century of agency understanding, and common sense confirm that the Trail is land, land on which generations of people have walked.”

“Indeed, for 50 years the ‘Federal Government has referred to the Trail’ as a ‘unit’ of the National Park System. A ‘unit’ of the Park System is by definition either ‘land’ or ‘water’ in the Park System,” the Sotomayor-authored dissent continued. “Federal law does not distinguish ‘land’ from the Trail any more than it distinguishes ‘land’ from the many monuments, historic buildings, parkways and recreational areas that are also units of the Park System.”

Pipeline construction was halted while the federal courts weighed their decisions. However, tree cutting had already occurred along part of the North Carolina route, including Northampton County. (File photo: Lisa Sorg)

The Atlantic Coast Pipeline, which along with the U.S. Forest Service has been fighting the challenge to its right-of-way from environmental groups headed by the Cowpasture River Preservation Association, called the win “an affirmation for the Atlantic Coast Pipeline and communities across our region that are depending on it for jobs, economic growth and clean energy.”

“In its decision today, the Supreme Court upheld the longstanding precedent allowing infrastructure crossings of the Appalachian Trail,” said spokesperson Ann Nallo in a statement. “For decades, more than 50 other pipelines have safely crossed the Trail without disturbing its public use. The Atlantic Coast Pipeline will be no different.”

D. J. Gerken of the Southern Environmental Law Center, which represented project opponents, acknowledged in an SELC statement that the decision “was not what we hoped for” but cautioned that the Supreme Court’s decision only resolves one of many problems troubling the ACP.

“This is disappointing,” said Therese Vick, research director for the Blue Ridge Environmental Defense League of the court’s ruling. “But many obstacles remain in the path of this unneeded, unwanted and unjust pipeline.”

Among the outstanding issues are the Forest Service’s special use permit that was overturned by the 4th Circuit and not addressed by the Supreme Court, as well as permits from the U.S. Fish and Wildlife Service, National Park Service, the Virginia Department of Environmental Quality and the Army Corps of Engineers.

Despite these hurdles and doubts from financial firm Morgan Stanley that the ACP will not go forward due to legal problems, Dominion has staunchly insisted the project will be built and that its current costs and schedule will remain on track as long as the company has a productive tree-felling season between November and March.

“We remain confident in the successful completion of the project,” said Dominion president, CEO and chairman Tom Farrell on a May 5 investors’ call. “Customers need this infrastructure now more than ever.”

Opponents continue to dispute the need for the pipeline. In North Carolina, Gov. Roy Cooper’s Executive Order 80 sets a goal of reducing statewide greenhouse gases by 40% below 2005 levels by 2025 and reducing energy usage in state buildings by at least 40% over the same time period.

Valerie Williams of Concerned Stewards of Halifax County: “We adamantly oppose this pipeline. Without water we cease to exist.” (2017 file Photo: Lisa Sorg)

The Virginia General Assembly passed of the Virginia Clean Economy Act during the 2020 session, which commits the state to a 100% renewable path by 2050.

Most of the gas would be used to generate power at the utilities’ respective power plants. According to the Final Environmental Impact Statement released in 2017. in North Carolina, just 9 percent of the natural gas would directly serve residential customers, who could have to pay a connection fee of at least $1,000, a cost largely out of reach for low-income households. Another 9 percent would serve industrial customers, who would also have to pay a hefty connection fee.

And some of the energy, according to the FEIS, would leave the region altogether and be traded on the commodities market. Regardless of where the natural gas ends up, customers would pay for the multi- billion-dollar pipeline through rate hikes on their utility bills.

“This is utterly unjustified,” said Hope Taylor, executive director of Clean Water for North Carolina at a public meeting in 2017. “There is no economic reason to tolerate the risk.”

A case brought by a number of environmental groups, including many of those involved in the Cowpasture case, that has asked the Federal Energy Regulatory Commission to reexamine the need for the ACP is currently pending in the D.C. Circuit Court of Appeals after being put on hold due to the Supreme Court consideration.

“We never needed this pipeline to supply power,” Gerken said. According to briefs filed with the D.C. Circuit in July 2019 by the Southern Environmental Law Center, projections from the PJM power grid and the U.S. Energy Information Administration show that demand for natural gas is expected to remain either flat or decline in the region for the foreseeable future.

The pipeline would route 160 miles through several environmental justice communities in eastern North Carolina, including Northampton County, which is predominantly Black, and Robeson County, home to the Lumbee Indians, a state-recognized tribe and the largest east of the Mississippi River.
The NC Secretaries’ Environmental Justice and Equity Advisory Board is expected to issue a position statement on the pipeline by June 30.
Sarah Vogelsong is a reporter with the Virginia Mercury, which like Policy Watch, is a part of the States Newsroom network. She can be reached at [email protected]. Lisa Sorg is an environmental reporter with Policy Watch.

Dominion backs off plan to build natural gas pipeline along part of American Tobacco Trail

This was the proposed route of a Dominion natural gas pipeline along the American Tobacco Trail. On left, the green dot represents Herndon Park near Scott King Road in Durham. The pipeline would have routed through part of Chatham and Wake counties to Morrisville Parkway in Cary.

Dominion Energy no longer plans to build a controversial natural gas pipeline along six miles of the American Tobacco Trail, Policy Watch has confirmed.

Half the 13-mile underground pipeline would have run in an easement owned by the NC Department of Transportation, and along the ATT from Scott King Road, near Herndon Park in Durham, and through Chatham and Wake counties to Morrisville Parkway in Cary.

NCDOT Assistant Director of Communications Jamie Kritzer confirmed that department “learned yesterday that Dominion Energy has rescinded the request to utilize NCDOT right of way along the American Tobacco Trail for a pipeline.”

A Dominion spokeswoman confirmed the deal was off and that a new proposal would be forthcoming in the next few weeks.

As Policy Watch reported last week, no one from the utility nor NCDOT had notified Durham officials of the plan, even though the pipeline would have been routed through a southern portion of the county.

Additional documents obtained from the Town of Cary under the Public Records Act show Durham had been excluded from meetings with the utility and other government officials even two years ago.

Dominion previously said it had considered 20 alternatives to the ATT route, which it favored because the land was “pre-disturbed.”

The utility would have cleared at least 30 feet of trees and land on one side of the trail for construction. There would have been a 10-foot buffer between the trail and the pipeline, which would have been buried at a depth of 4 to 6 feet.

On May 7, the Board of Transportation agreed during a public meeting to the deal in which Dominion would pay $3 million to NCDOT for access to the right-of-way. Though the item was included in the board agenda, it wasn’t obvious. The one-paragraph mention occurred on page 17 of “Item R, Right of Way Resolutions and Ordinances.”

Dominion previously said the new pipeline is needed to provide natural gas service to existing and future customers due to the rapid development in the Triangle. It would also allow the utility to “downgrade or reduce pressure” of the 73 miles of existing high pressure transmission pipelines in Orange, Chatham, Lee and Wake counties.

“Reducing the pressure in these pipelines will reduce the internal stress levels of the pipes and significantly improve the overall safety,” according to the presentation. The project has been in the works for more than two years. At that time, PSNC was the utility planning to build the pipeline; Dominion later purchased the company.

It’s still unclear why Durham was excluded from regional conversations that occurred in 2018.

According to documents from the Town of Cary obtained under the Public Records Act, that year NCDOT claimed it contacted the ATT’s “leaseholders” — Chatham, Wake and Durham counties — Durham officials said they were never notified and didn’t know about the project until late last month.

Read more


NCDOT, Dominion excluded top Durham officials from discussions on proposed pipeline along American Tobacco Trail

The large green dot on the left panel shows the beginning of the proposed natural gas pipeline, along the American Tobacco Trail near Herndon Park on Scott King Road in Durham — roughly Mile Marker 10.25. The pipeline route, marked in red dots, would then continue another six miles to Morrisville Parkway in Cary, shown in green on the right panel — Mile Marker 16.

The NC Department of Transportation failed to inform top Durham officials of a controversial natural gas pipeline that would parallel part of the American Tobacco Trail, one of the city’s — and the region’s — most popular recreational areas.

Emails obtained by Policy Watch under the Public Records Act show that city officials were caught off guard by the news. They learned of the proposal nearly two weeks after the Board of Transportation conveyed a section of its right-of-way along the ATT to Dominion Energy.

The News & Observer first reported the board’s decision this week.

Dave Connelly, chairman of Durham’s Open Space and Trails Commission, alerted more than a half dozen county and city officials via email on May 19.

“This is the first I have heard about this. You?” wrote Durham Deputy City Manager Bo Ferguson that evening to City Manager Tom Bonfield.

“Complete news to me,” Bonfield replied a few minutes later.

DOT did not answer questions from Policy Watch about why it didn’t inform the local governments about the plan and who decided to pursue an agreement with Dominion.

Instead, a DOT spokesperson sent a statement:

“Dominion Energy’s request to execute an easement agreement to utilize the NC Rail corridor along the American Tobacco Trail for a natural gas pipeline is being re-evaluated by executive leadership at this time.”

“A review of the history of this proposal, as well as an assessment of all community engagement, will be conducted before NCDOT takes any action to move forward with the proposal as offered, require adjustments or changes, or to deny the request.”

After years of negotiations and permitting processes, the first three miles of the American Tobacco Trail opened in June 2000. It starts in downtown Durham and follows an old railroad corridor owned by NCDOT.

The ATT has been extended several times and now runs 22 miles south through Chatham and Wake counties. It attracts tens of thousands of bicyclists, runners and hikers each year. The ATT is also part of the 3,000-mile East Coast Greenway system.

On May 7, the Board of Transportation agreed during a public meeting to a $3 million deal between Dominion and NCDOT  for the utility to build a 12-inch diameter pipeline beneath an easement along a portion of the right-of-way.

Though the item was included in the board agenda, it wasn’t obvious. The one-paragraph mention occurred on page 17 of “Item R, Right of Way Resolutions and Ordinances.”

Although the entire 13-mile route hasn’t been finalized, the proposed six-mile portion along the ATT would from start at Scott King Road, near Herndon Park in Durham, and run south through Chatham and Wake counties to Morrisville Parkway in Cary.

The item is now expected to be discussed at the June 10 meeting of the Durham-Chapel Hill-Carrboro Metropolitan Planning Organization.

Dominion Energy spokeswoman Persida Montanez said in an email that the utility has been planning the project since late 2017. Details were included in a presentation prepared for PSNC, before the company was bought by Dominion nearly 18 months ago, in January 2019. Maps and illustrations in the presentation show one side of the trail would keep its existing 10-foot buffer, and beyond that a 30-foot wide clearing for the pipeline.

<a href=”https://assets.documentcloud.org/documents/6921971/ATT-PSNC-GasPipeline.pdf”>ATT PSNC GasPipeline (PDF)</a>

<a href=”https://assets.documentcloud.org/documents/6921971/ATT-PSNC-GasPipeline.txt”>ATT PSNC GasPipeline (Text)</a>

In its presentation, PSNC said it would replant native trees and shrubs that had been cleared, as well as repair trail damage caused by construction.

The utility stated that it investigated more than 20 other routes but they were unavailable. The original route was within the NCDOT right-of-way along Highway 751, but that route required several crossings of Jordan Lake and other US Army Corps of Engineers’ land. The majority of that property, PSNC said, “is not ‘pre-disturbed.'” Montanez said the utility is “studying different route options.”

These options include locations that would not involve an easement adjacent to the American Tobacco Trail, Montanez said. Dominion will collect data during the survey process “to help identify the optimal route,” she added. “The data includes but is not limited to, assessing construction feasibility, minimizing environmental and landowner impacts and using existing corridors where possible.”

“Our  goal is to select a route that minimizes impacts to the community,” Montanez said.

Policy Watch requested additional information on the 20 alternative routes, but Montanez did not provide it.

There is a financial incentive for DOT to accept the $3 million. The department estimated its budget will be short by $300 million for the fiscal year ending in June, because of effects from the COVID-19 pandemic. DOT’s budget hinges on gas taxes, car sales and registration fees; fewer people are driving during stay-at-home orders, which has cut into revenue.

The new pipeline is needed to provide natural gas service to existing and future customers due to the rapid development in the Triangle, according to the utility’s presentation. It would also allow the utility to “downgrade or reduce pressure” of the 73 miles of existing high pressure transmission pipelines in Orange, Chatham, Lee and Wake counties. “Reducing the pressure in these pipelines will reduce the internal stress levels of the pipes and significantly improve the overall safety,” according to the presentation.

Montanez did not directly answer a question from Policy Watch regarding any current safety issues with the existing pipeline. She reiterated points from the presentation that a new segment would “prolong their lifespan, enhancing reliability and safety in accordance with state and federal regulations.”

Otherwise, the utility would have to implement “significant pipeline integrity measures” that would be required to meet federal safety regulations, according to the presentation. To do this on existing pipelines would require replacing thousands of existing pipelines and fittings, “many of which are located along or under existing roadways such as US 15-501” and in towns throughout the Triangle.

The utility would also have to install above-ground facilities to regularly inspect the lines, “thereby impacting private property owned and the general public every seven years at a minimum,” according to the presentation.

Rumors about the project started in mid-May, after the board approved the agreement with Dominion. Dale McKeel, Durham’s bicycle and pedestrian coordinator, heard that it had been on board’s agenda. McKeel contacted Chris Snow, director of Wake County’s Parks, Recreation & Open Space, on May 14, asking if he had information. “We’ve been inquiring about this off and on, and I was not aware this was up for consideration with NCDOT,” Snow wrote to McKeel.

McKeel is also on the staff of the Durham-Chapel Hill-Carrboro Metropolitan Planning Organization, which oversees transportation strategies in those cities. Oddly, the MPO held its regularly scheduled meeting on May 13, at which five NCDOT officials provided progress reports on its projects, according to the agenda. None of those progress reports mentions the pipeline project.

Valerie Jordan represents DOT Division 5, which includes Durham and Raleigh, on the DOT board. She could not be reached for comment.

Most of the Durham portion of the ATT lies within the county’s jurisdiction. Durham City-County Planning Director Patrick Young said no one in that joint office was notified by DOT. The route would cross Panther Creek, which feeds Cary Park Lake, and Northeast Creek, which flows into Jordan Lake. Since Northeast Creek is a “navigable water,” as defined by federal law, the project could require several permits. That creek is already designated as impaired by state and federal officials because of high levels of fecal coliform bacteria; sampling also has showed elevated concentrations of copper, cadmium and nickel.

Although the public thus far has been excluded from discussions about the project, the permitting process should provide those opportunities. The US Army Corps of Engineers would need to issue a permit, according to an email from Paul Kuhn, Cary’s facilities design and construction manager to Durham and Wake officials, “and that will require some sort of public input.”

The NC Department of Environmental Quality would have to issue permits as well, such as those for erosion and sedimentation control, stormwater and water quality, if the pipeline crosses creeks.

Emails among Cary, Durham and Wake County officials state that the easement agreement between Dominion and NCDOT has not yet been signed. To execute the agreement, Dominion will have to submit a set of plans, which also require the permits. “NCDOT doesn’t want to speak for Dominion, but are helping to facilitate the processes,” Kuhn wrote.

Montanez said the utility will decide on a final route within the next two months.