California’s 2035 ban on new gas-powered cars set to apply to Virginia

By
August 29, 2022
In Environment, News

(Photo: NC Department of Transportation)

Many states, including NC’s neighbor to the north, have linked their laws to California’s clean car standards

California’s decision to ban the sale of new gas-powered cars beginning in 2035 will also halt the sale of such vehicles in Virginia due to a 2021 law linking the commonwealth to the western state’s vehicle emissions standards, state attorneys have concluded.

In a Thursday email obtained by the Virginia Mercury, Assistant Attorney General Michael Jagels concluded that Virginia is “bound” by the California decision because the state chose to be “statutorily and regulatorily aligned with California.”

Decoupling from California’s path would require “an amendment or repeal of the mandating legislation,” Jagels wrote.

A senior Republican confirmed separately that attorneys with the state’s legislative branch had reached the same conclusion.

The ban, which if approved by the U.S. Environmental Protection Agency wouldn’t take effect for 13 years, would not impact used car sales or prohibit anyone from driving older-model vehicles with internal combustion engines.

While Republicans are likely to seize on the issue as a potent talking point in the upcoming elections, the linkage of Virginia’s vehicle emissions policy with California’s is little surprise to either the state’s environmental groups or its auto dealers.

In 2021, Virginia Democrats pushed through legislation to adopt vehicle emissions standards and electric car sales targets set by the California Air Resources Board (CARB) as part of the party’s broad climate change agenda. The law, which has been hotly opposed by state Republicans who tried but failed to repeal it in 2022, was supported by the influential Virginia Automobile Dealers Association.

Because of federal law establishing a two-year transition period, the California standards won’t be effective in Virginia until early 2024, but once in force will bring Virginia in line with 14 other states and Washington, D.C. that have decided to follow the Golden State’s path. Read more

Federal appeals court deals another setback to proposed Mountain Valley Pipeline

By
January 27, 2022
In Environment, News

A worker laying portions of the Mountain Valley Pipeline in Roanoke County, Virginia in 2018. (Ned Oliver/Virginia Mercury)

A federal appeals court has again rejected permits issued by the U.S. Forest Service and the Bureau of Land Management allowing Mountain Valley Pipeline to cross three and a half miles and four streams in the Jefferson National Forest in Virginia and West Virginia.

In its ruling issued Tuesday, the Richmond-based Fourth Circuit Court of Appeals concluded that the federal agencies “inadequately considered the actual sedimentation and erosion impacts” of the pipeline, “prematurely authorized” the use of a stream-crossing method and “failed to comply” with a Forest Service rule governing forest management.

Mountain Valley Pipeline spokesperson Natalie Cox in an email said the developers “are thoroughly reviewing” the decision “and will be expeditiously evaluating the project’s next steps and timing considerations.”

Delays related to permitting and legal challenges have repeatedly pushed back the pipeline’s completion date and increased its budget. While the project’s backers initially projected it would be completed in 2018 at a cost of $3.7 billion, Mountain Valley most recently announced it expected to finish the 300-mile pipeline by summer 2022, with an overall price tag of $6.2 billion.

[Editor’s note: As Policy Watch has previously reported, a planned pipeline extension known as MVP Southgate would run from Chatham, Va., and enter North Carolina near Eden, in Rockingham County. From there, it would route nearly 50 miles southeast, cutting through Alamance County and ending in Graham. It too faces significant legal hurdles.]

This is the second time the Fourth Circuit has rejected permits from the Forest Service and BLM for the national forest crossing. In July 2018, the court vacated the approvals largely over concerns with how the agencies had reviewed sedimentation impacts.

Subsequently the agencies prepared supplemental environmental reviews and in January issued a second round of approvals for Mountain Valley Pipeline. A coalition of environmental groups including the Sierra Club, Wild Virginia and Appalachian Voices, many of whom were involved in the first round of litigation, immediately sued again.

The Fourth Circuit on Tuesday accepted many of the petitioners’ arguments that the Forest Service and Bureau of Land Management had failed to meet federal environmental requirements and “inadequately” considered the project’s erosion and sediment impacts.

“The Forest Service and the BLM erroneously failed to account for real-world data suggesting increased sedimentation along the pipeline route,” the court concluded.

In particular, the judges noted that the agencies’ environmental analyses had not included water quality data from U.S. Geological Survey monitoring stations 15 miles from the Jefferson National Forest that showed sedimentation downstream of the pipeline far exceeded predictions for the Roanoke River put forward in Mountain Valley Pipeline’s hydrologic analyses.

The court also agreed with the environmental groups that the agencies’ decision to allow the pipeline to use conventional boring to cross four streams within Jefferson National Forest was “premature” because an assessment of the method’s environmental impacts by the Federal Energy Regulatory Commission hasn’t yet been released.

The Fourth Circuit rejected several of the petitioners’ arguments, including that the agencies didn’t thoroughly evaluate alternative routes for the pipeline that wouldn’t impact national forests. The court concluded for a second time “that the agencies did, in fact, consider alternative routes but concluded that the environmental impacts would simply be shifted to other lands and the increased length of the pipeline’s route would affect more acreage, incorporate additional privately owned parcels, and increase the number of residences in close proximity to the pipeline.”

As they celebrated the decision Tuesday, environmental groups urged Mountain Valley to cancel the project.

“The Fourth Circuit has agreed with us for the second time that federal agencies failed to show that the pipeline can comply with the law,” said Peter Anderson, Virginia policy director for environmental and consumer protection group Appalachian Voices. “It is long past time for the MVP’s investors to abandon this harmful project.”

Sarah Vogelsong is a reporter for the Virginia Mercury , which first published this report.

EPA recommends that Army Corps of Engineers not grant Mountain Valley Pipeline stream crossing permit

By
July 9, 2021
In Environment, News

An erosion control device at a temporary equipment crossing for Mountain Valley Pipeline in May 2021. (Federal Energy Regulatory Commission construction report)

The U.S. Environmental Protection Agency has recommended that the Army Corps of Engineers not grant Mountain Valley Pipeline a critical permit to cross several hundred streams in Virginia and West Virginia.

“EPA has identified a number of substantial concerns with the project as currently proposed, including whether all feasible avoidance and minimization measures have been undertaken, deficient characterization of the aquatic resources to be impacted, insufficient assessment of secondary and cumulative impacts and potential for significant degradation, and the proposed mitigation,” EPA Wetlands Branch Chief Jeffrey Lapp wrote in a May 27 letter.

The letter was released in response to a Freedom of Information Act request by environmental law firm Appalachian Mountain Advocates.

Roy Seneca, a regional spokesperson for the agency, said in an email Thursday that “EPA’s recommendation in the letter still stands.”

Among areas of concern highlighted by the EPA are the Upper Roanoke watershed, which will experience 200 of the project’s proposed 719 stream impacts, and the Middle New watershed, which will see nearly 100 impacts. Numerous Southwest Virginia counties and cities, including Montgomery, Floyd and Roanoke, fall within these watersheds.

“While many of the discharges of fill associated with the proposed construction activity may be considered temporary, the impacts from those discharges may have lasting effects, particularly due to the sensitivity of the aquatic resources and the repetitive nature of impacts to some of the tributaries,” EPA wrote.

Natalie Cox, a spokesperson for Mountain Valley Pipeline, said in an email that the company has “continued to work closely with all federal and state agencies to address MVP’s permit applications.”

“These efforts remain ongoing, and we are committed to meeting or exceeding all applicable compliance requirements related to environmental protection,” she wrote.

Mountain Valley has struggled throughout its development to obtain and keep required environmental permits, causing its price tag to balloon to nearly $6.2 billion and its projected completion date to be repeatedly pushed back.

This May the company said it expected to complete the project by summer 2022, due to extensions sought by Virginia and West Virginia regulators to review the stream-crossing permits. On June 28, the Army Corps of Engineers gave Virginia regulators until Dec. 31 to review the project’s state water quality certification.

In North Carolina, the fate of the Mountain Valley Pipeline will likely determine whether the MVP Southgate project is built. MVP Southgate starts at the end of the main line in Virginia, enters North Carolina in Rockingham County, then travels roughly 50 miles southeast, traversing Alamance County and ending in Haw River.

The NC Department of Environmental Quality has twice denied the MVP Southgate’s water quality permit application, citing in part, the uncertainty of the main line. DEQ has told MVP Southgate that if construction begins without the main line, the environmental impacts to rivers, streams and forests would be for naught. This scenario has a precedent: Duke Energy and Dominion Energy canceled the Atlantic Coast Pipeline after contractors had already begun clearcutting forests, excavating and laying pipe. Now the ACP must restore those areas, although in the case of the forests, it will be decades before those areas are made whole.

“It’s not just us that sees the deficiencies,” said David Sligh, conservation director for environmental group Wild Virginia, which has been one of Mountain Valley’s most outspoken challengers. “EPA sees the serious deficiencies. And we expect (the Virginia Department of Environmental Quality) to insist that they get all the right information, and if they don’t get all the right information, they can’t issue a water quality certification, not legally.”

Sarah Vogelsong is the environment and energy reporter for the Virginia Mercury, which first published this report. Lisa Sorg contributed North Carolina information.

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

By
June 16, 2020
In Environment

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.

U.S. Supreme Court agrees to hear Atlantic Coast Pipeline case

By
October 4, 2019
In Environment, News

The U.S. Supreme Court announced this morning that it will review a decision by a federal court of appeals that threw up a major barrier to construction of a 600-mile natural gas pipeline being developed by Dominion Energy.

The order by the court consolidates two cases brought by environmental groups against the Atlantic Coast Pipeline and the U.S. Forest Service. No date has been set for oral hearings. (Click here to explore Policy Watch reporter Lisa Sorg’s extensive coverage of the Atlantic Coast Pipeline.)

The cases had been appealed to the nation’s highest court after the U.S. 4th Circuit Court of Appeals revoked a permit previously granted by the U.S. Forest Service to the Atlantic Coast Pipeline allowing it to cross the Appalachian Trail.

In a lengthy December 2018 ruling that quoted Dr. Seuss, the 4th Circuit declared that “the Forest Service abdicated its responsibility to preserve national forest resources.”

That finding, said the court, “is particularly informed by the Forest Service’s serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.”

The Atlantic Coast Pipeline, the development of which is being led by Dominion Energy in partnership with Duke Energy, Piedmont Natural Gas and Southern Company Gas, disputed the appeals court’s conclusion in asking the Supreme Court to review the 4th Circuit decision.

The 4th Circuit, ACP claimed, “ignores key provisions in several statutes, contradicts the longstanding views of every agency involved, and converts a special rule about National Park Service lands into an impregnable barrier dividing energy sources west of the (Appalachian) Trail from consumers east of the Trail.”

Furthermore, the pipeline company complained that the ruling “will stymie this and other needed efforts to serve the Eastern seaboard’s growing energy needs.”

The Southern Environmental Law Center, which has argued the environmentalists’ case in court, has disputed the contention that the Atlantic Coast Pipeline is necessary to meet energy demands.

The Virginia and North Carolina portions of the Atlantic Coast Pipeline route. Image via the Federal Energy Regulatory Commission.

“One issue regulators and the public and decision makers shouldn’t take their eye off is we still don’t have a clear answer on whether the Atlantic Coast Pipeline is a public necessity,” said SELC attorney Greg Buppert.

A statement by Dominion Energy as reported by WBOY (a West Virginia TV station) called the Supreme Court’s decision to take up the case “a very encouraging sign.” (Dominion officials have said in the past that the company has a policy against speaking with the Virginia Mercury.)

“More than 50 other pipelines cross underneath the Appalachian Trail without disturbing its public use. The public interest requires a clear process for the issuance and renewal of permits for such pipelines, and other essential infrastructure. The Atlantic Coast Pipeline should be no different,” the statement read.

Buppert, however, disputed that the court’s decision to review the 4th Circuit ruling was a victory for the pipeline.

“The fact that the court is taking this case up doesn’t mean Dominion wins,” he said. “This issue is not resolved, and it won’t be resolved until the Supreme Court decides this question.”

Sarah Vogelsong is a reporter at the Virginia Mercury, where this story originally appeared.