Delay and Defeat: Four Pipelines in Seven Days

This blog was co-written by Aaron Mintzes, Nadia Steinzor, and Ethan Buckner. 

Over the Independence Day weekend, Dominion Energy and Duke Energy announced they will abandon their proposed $8 billion Atlantic Coast Pipeline (ACP). The week before, June 30, the DC Circuit Court of Appeals ruled pipeline companies cannot seize private property while keeping the landowners out of court. And legal decisions in two other cases on July 6 delivered sharp rebukes to the Trump Administration’s energy dominance agenda by shutting down the Dakota Access Pipeline (DAPL) and canceling a key permit for the Keystone XL pipeline (KXL).

Each story illustrates what happens when corporations and agencies cut corners and deny environmental and social impacts. They also demonstrate what’s possible when communities deploy a full range of strategies and tactics available to pressure every level of government. These pivotal changes for the oil and gas industry clearly reveal that communities can win when they speak out against injustice, threats to health, water, air, and land–and sheer corporate hubris.  

Atlantic Coast Pipeline

Dominion and Duke’s decision validated what frontline residents, environmental advocates, and attorneys have said since 2014. The project was too big and too destructive and too rife with legal errors. Dominion and Duke were years behind schedule and billions over budget.

A powerful coalition of landowners and Black and indigenous communities educated themselves and organized, appealed permits, and filed lawsuits. They collaborated across county and state lines and brought to bear the power of collective protest. They rooted their concerns in environmental, legal, and economic research, and even showed up at the US Supreme Court

Even by today’s pipeline standards, the ACP proposal was a behemoth. Designed to carry gas from West Virginia, through Virginia, to North Carolina, ACP was slated to travel 600 miles with pipes up to 42 inches in diameter. Cutting across National Forests, the Appalachian Trail, countless farms, steep mountaintops, and hundreds of streams and wetlands, ACP would have destroyed land and wildlife habitat, polluted air and water, violated sacred indigenous sites, and disproportionately harmed the health of Black communities.

Dominion and Duke complained that bureaucratic red tape hampered their project. Put another way, their project did not comply with the law. For instance, ACP chose to site a compressor station in Union Hill, a predominantly Black community in Buckingham County, VA. ACP purchased the plot neighboring two churches where Black parishioners had worshipped and buried their dead for generations. Yet, the Commonwealth of Virginia never considered the environmental justice impact and permitted the compressor. For this reason, in January, the 4th Circuit Court of Appeals stepped in and vacated ACP’s permit

ACP’s plans faced many similar problems at other points along the road to permitting, including with a Special Use Permit, Endangered Species Act (ESA) analyses, and four Clean Water Act authorizations from the Army Corps of Engineers (Corps) in Pennsylvania, West Virginia, Virginia, and North Carolina.

Atlantic Sunrise Pipeline

On June 30, the DC Circuit corrected a longstanding landowner rights injustice that pipeline companies routinely used to seize private property against the owner’s consent. 

This is how it used to happen.

The Atlantic Sunrise Pipeline (ASP), operated by Anadarko, asked the Federal Energy Regulatory Commission (FERC) to issue a Certificate of Public Convenience and Necessity (CPCN). For a CPCN, the operator has to show that the gas moved by the pipeline has customers somewhere, typically overseas. 

The law (Natural Gas Act) also allows the holder of a CPCN to begin eminent domain proceedings, that is, taking private land.  

Landowners may ask FERC to reconsider, but FERC’s practice is to “toll”- or pause-any landowner request. By issuing “tolling orders,” FERC keeps landowners out of court, often for many months. Meanwhile, a pipeline company can proceed with seizing land and building its pipeline. 

In April 2020, the House of Representatives subcommittee on Civil Rights and Civil Liberties investigated FERC’s tolling orders.  Over the last dozen years, FERC has tolled all 39 landowner rehearing requests for natural gas pipelines. Also during that period, FERC approved construction, before deciding the rehearing’s merits, for nearly two-thirds (64%) of the 114 natural gas pipelines.  

In focus were the cases of two Lancaster County, PA landowners in ASP’s path. They carefully followed FERC’s byzantine process only to have their rehearing tolled.  While their multiple, timely, requests of FERC sat dormant, the agency approved the pipeline’s construction and operation permits.  By the time the DC Circuit heard oral arguments in this case, the ASP had operated for two months.

The DC Circuit finally ended this injustice by holding that tolling orders cannot keep landowners out of court. Three concurring judges “entertained the possibility” of ordering FERC to hear the landowners before authorizing construction- even suggesting courts should freeze eminent domain proceedings until then. In response to this decision, FERC abruptly changed its tolling policy. Now, homeowners will get their hearing before the bulldozers arrive.

Dakota Access Pipeline

On his fourth day in office, President Trump signed an Executive Order directing the Corps to cut corners on environmental protections and limit community consent for the Dakota Access Pipeline (DAPL).  On July 6, a federal district court judge shut it down and ordered the operator, Energy Transfer Partners, to empty the pipe of oil. An Appeals Court yesterday paused a portion of that decision while they decide the merits. 

Indigenous communities fighting segments of DAPL running underneath Lake Oahe in the Missouri River watershed, include the Standing Rock Sioux, Cheyenne River Sioux, Yankton Sioux, and Oglala Sioux. A key concern has been the potential for a spill, which would disproportionately harm them and impact their hunting and fishing treaty rights. 

Here again, the Administration’s zeal for energy and mineral dominance ran flatly against the rule of law, this time the National Environmental Policy Act (NEPA). NEPA requires agencies to take a hard look at environmental impacts. Despite repeated warnings from the District judge to consider these impacts, the US Army Corps (Corps) granted DAPL an easement for the pipeline anyway.  

Despite the favorable district court decision, the DAPL fight continues. The Corps still must weigh the environmental impacts; yet now they must listen to the voices of those most affected.

Keystone XL Pipeline

Also on July 6, the US Supreme Court let stand major portions of a Montana judge’s decision to cancel one of the key permits for the Keystone XL pipeline (KXL). Like DAPL, KXL received a special Presidential Executive Order on Day 4 of the Trump Administration.

Since long pipelines like KXL often cross many waterways, construction can require a number of permits. To streamline this process, the US Army Corps created Nationwide permits (NWP) to cover certain kinds of “standard” activities, like pipeline dredging. The Corps reviews their NWPs every five years, most recently in 2017.

The Corps’ periodic NWP review must comply with NEPA and the Endangered Species Act (ESA). Like NEPA, the ESA requires the Government to look before it leaps. Under the ESA, agencies ask whether their action “may affect” ESA listed species or habitat.  If the answer is yes, they must consult with the Interior Department’s Fish and Wildlife Service (FWS, or the National Marine Fisheries Service). In 2017, the Corps skipped this crucial step.  

Here, the Court decided the Corps violated the ESA by not consulting with FWS and ignoring resounding evidence the NWP may affect two endangered species (the pallid sturgeon and the American burying beetle). Until they consult, the Corps KXL NWP permit remains on hold. 

For these pipelines and others like them, the lesson is that governments and operators should treat the rule of law and voices from communities with respect. The regulatory and legal hurdles pipelines face are primarily of their own design. And the Trump Administration’s energy dominance agenda, intended to speed these projects, has in some cases backfired. This hubris results largely from a combination of callousness and incompetence, from building first and asking questions later.