Landowners file Facial Constitutional Challenge Against FERC and MVP under the Federal Non-Delegation Doctrine

January 3, 2020

Contact: Russell Chisholm, POWHR Co-Chair, russell.powhr@gmail.com, (540) 404-2727

Related: Starting off the New Year with a ‘Bang!’: Virginia Landowners quietly file constitutional case against FERC [Press Statement from Gentry Locke]

Landowners file Facial Constitutional Challenge Against FERC and MVP under the Federal Non-Delegation Doctrine

WASHINGTON, D.C. — Virginia landowners in the path of the Mountain Valley Pipeline, which crosses Southwestern Virginia and West Virginia, have quietly filed a constitutional challenge in the federal district court in Washington, D.C., challenging the authority of the Federal Energy Regulatory Commission (FERC) to issue certificates to any and all pipeline companies, including the Mountain Valley Pipeline (MVP).

Plaintiffs have brought a facial constitutional challenge under three counts, alleging that any and all certificates already issued under the Natural Gas Act are void. Plaintiffs are seeking a declaratory judgment from the U.S. District Court in Washington, D.C., asking the Court to declare that Congress’s overly broad delegation of legislative powers to FERC was and is facially unconstitutional; that any delegation of eminent domain power to any and all private actors, including MVP, is facially unconstitutional; that FERC has no authority to issue certificates to applicants seeking to invoke the power of eminent domain to take property; and that all such certificates already issued are void ab initio.

In the past year, the US Supreme Court has evinced a new willingness to revisit the issue of unconstitutional “delegations” of Congressional authority under the federal non-delegation doctrine, derived from Articles I, II, and III of the Constitution of the United States—a doctrine which has not been applied since 1935. As reported by the Associated Press (AP) on June 21, 2019, the combined dissenting opinion of Justice Neil Gorsuch—who was joined by Chief Justice John Roberts and Justice Clarence Thomas—and the separate opinion by Justice Samuel Alito signal that America could soon see a revival of the federal non-delegation doctrine. The case decided last year was Gundy v. United States, No. 17-6086.

Russell Chisholm, Co-Chair of Protect Our Water, Heritage, Rights

“We are encouraged that landowners may have a real opportunity for judicial consideration of their claims challenging the constitutionality of delegating Congressional powers to separate entities. The process as it stands has allowed FERC and private corporations to use the extraordinary power of eminent domain to seize property by force from landowners—a process that has continued even in the face of a multitude of missing permits, several pending lawsuits, and the absence of true public need for the Mountain Valley Pipeline.”

Maury Johnson, POWHR Executive Committee Member and MVP-Affected Landowner

“Pipeline companies across the country are and have been using the power of eminent domain to force landowners to surrender land, often land that has been in families for generations or has significant cultural attachment to the families or citizens of the area. Residents are now standing up for their rights and refusing to surrender their property for the private gain of these companies for these unnecessary fracked gas, tar sands and oil pipelines. It is refreshing that the Supreme Court has acknowledged the unfairness of this practice by signaling their willingness to revisit the issue of unconstitutional ‘delegations’ under the federal non-delegation doctrine. It is with great hope that I join with my friends and neighbors across the two Virginias and the Nation in our encouragement for the Court to strike down this unconstitutional practice by FERC.”

# # #

Virginia DEQ Issues Stop Work on Two-Mile Stretch of Mountain Valley Pipeline

August 2, 2019

Montgomery County, VA — At the close of business today, the Virginia Department of Environmental Quality (DEQ) released a statement that the agency had issued a Stop Work Order for the Mountain Valley Pipeline on a two-mile stretch of the route in Montgomery County, VA. DEQ indicated that the only work allowed on the site at this time is the work required to install and maintain erosion and sediment control devices.

The agency did not clarify in the statement where exactly the issues — cited by DEQ in an August 1 inspection — occurred and what mileposts, the common location reference used by most along the route, are covered under the Stop Work Order. The instruction itself, separate from the statement and found by navigating through DEQ’s website, noted it was in effect “on spread H from STA 12482+67 to STA 12544+06 including sediment discharge to S-EF19,” which is an unnamed tributary to Indian Run that MVP is crossing near Cove Hollow Road and Yellow Finch Lane.

In the statement, Director David Paylor stated he was “appalled” that MVP had clearly prioritized the project’s deadline over erosion and sediment control measures.

Russell Chisholm, POWHR Coalition Co-Chair
“I am appalled DEQ is in any way surprised that MVP crews are neglecting erosion and sediment control measures in an attempt to ram this project through as fast as possible. Our volunteer citizen monitors have been telling the DEQ and State Water Control Board since August 2018 and earlier that MVP was not upholding the requirements of the bad permit they issued in December 2017; those in positions of power chose to ignore our calls for real, meaningful enforcement through a stop work order and instead allowed MVP to work despite several missing federal permits, a pending lawsuit for violations, and at least 35 Notices of Violation in West Virginia.

“We demand the DEQ and the SWCB to take further action against MVP and its contractors by stopping work on the entire route in Virginia.”

# # #

Pipeline Explosion in Kentucky Kills One, Shows Risks of Similar Projects Under Construction

August 2, 2019

MORELAND, KY — Early on Thursday morning, a regional gas pipeline ruptured in Kentucky, resulting in an explosion that killed at least one person and hospitalized five others. Authorities reported that five to seven people are missing. Emergency managers said the rupture involved the Texas Eastern Transmission Pipeline, a 30-inch, several-thousand-mile line owned and operated by Enbridge.

This tragic event is one of numerous pipeline explosions that have occurred in the US in the past year, and highlights the potential dangers of long linear gas infrastructure projects. 

Maury Johnson, POWHR Coalition Executive Committee Member and MVP Impacted Landowner in Monroe County, WV

“I am heartbroken that one person, possibly more, has been killed in the Kentucky pipeline explosion today. This 30-inch pipeline has a history of problems, just like many natural gas pipelines that crisscross America.  As a landowner who lives less than 800 feet from the MVP — in a narrow valley in a karst region of Monroe County WV, within the Giles County Seismic Zone — it terrorizes me and so many more that this project has been allowed, and even encouraged, by so many of our regulatory agencies and political leaders. This project and other projects like it are driving people from the state. It is time to halt the MVP, before it explodes and kills someone. I REFUSE TO ALLOW MY LIFE OR THE LIFE OF MY FRIENDS AND NEIGHBORS TO BE PART OF THE COST OF DOING BUSINESS IN WV OR VA.

“A 42-inch pipeline at a pressure of 1,440 pounds per square inch has a potential impact radius of 1,100 feet or greater depending on terrain, location of the rupture and other factors. The MVP’s operating pressure has been reported to be higher than this 1440 psi. Therefore, projects like the MVP and ACP must be canceled before a tragedy like this happens in one or more of our communities.”

Russell Chisholm, POWHR Coalition Co-Chair

“When my community of Newport, VA installed blast and evacuation zone warnings along our rural roads, we were not trying to be alarmists. Residents and visitors in our mountains have a right to know where MVP contractors plan to bury this massive, dangerous, high-pressure fracked gas line. Pipelines leak and pipelines explode. FERC, MVP, and Precision Pipeline might be able to ignore that risk, but we live with it day and night. We grieve with the people of Lincoln County, Kentucky, and we’re angry that the safety and security of rural people is secondary to the gas industry’s greed and entitlement.”

Howdy Henritz, Indian Creek Watershed Association Chairman and POWHR Coalition Steering Representative for Save Monroe

“My wife and I have been living up our peaceful hollow since 1979, a mile and a half off a small county hard road. All was good until MVP showed up. For the past year it has been tons of noise and crazy construction traffic. But it gets better. We are only COLLATERAL DAMAGE because the pipeline does not cross our property. Our house is 1762 feet from the main line valve on Ellison Ridge and my wood shop is 1482 feet from the pipeline. As our departed good friend Beth Covington would say, ‘I want to be cremated but not while I’m alive.'”

 Mark Jarrell, MVP Impacted Landowner in Summers County, WV

“My heart goes out to those in Lincoln Co., KY, for the loss of life and property from the gas pipeline explosion early Thursday morning. Witnesses described a sound like an atomic bomb explosion and flames shooting about 300 feet into the air.

“With a much larger and potentially more destructive Mountain Valley Pipeline now installed about 500 feet from my house, my possible death by incineration now seems a real possibility rather than far-fetched and implausible. All of us who have had our land taken against our will and have to live in this shadow of death are incredulous that our own government allows a private for-profit corporation the right to take our land through eminent domain, pay us what they see fit, and thrust us into this danger zone, all the while endangering one of the most pristine water sources in the world.”

Dwayne Milam, MVP Impacted Landowner in Summers County, WV

“It’s sad to hear another pipeline exploded, resulting in the loss of life and families being evacuated from their homes. A short time ago, thousands of families in WV and VA didn’t have to worry about 300 miles of explosive gas in a 42-inch pipe with 1400psi in their backyard. Virtually every week somewhere in the US there is an explosion, and odds are one day this will happen with the MVP. Now everyone along the route has to trust their lives to pipe made in India by the lowest bidder, installed as quickly as possible in some of the roughest terrain in the nation. Let’s all hope that the inspectors do a better job here than in the rest of the nation.”

# # #

Landowners optimistic about shifting legal landscape as SCOTUS conservative majority signals willingness to revive dormant federal non-delegation doctrine after 84 years

June 27, 2019

WASHINGTON, DC — Landowners in Virginia and West Virginia are optimistic as recent opinions from the United States Supreme Court (SCOTUS) signal a willingness to revive the federal non-delegation doctrine after an 84-year slumber — a positive development for Landowners who spent two years trying to revive the dormant doctrine as they fought the Federal Energy Regulatory Commission (FERC) and Mountain Valley Pipeline (MVP) in federal court for their right to private property.

Landowners — whose constitutional challenge was filed in the Western District of Virginia (WDVA) in July 2017 — challenged the Natural Gas Act (NGA) as unconstitutional under the very same non-delegation doctrine recently addressed by the Justices of the nation’s high Court. Landowners’ underlying substantive challenge argued that Congress delegated away too much “unchecked” eminent domain power to FERC and MVP, a private corporation.

The substance of Landowners’ constitutional challenge was never heard, however, because the District Court dismissed the case for lack of subject matter jurisdiction — a decision later affirmed by the Fourth Circuit. Although Landowners attempted to reverse the jurisdictional decision at the Supreme Court, their Petition for Certiorari was not granted and Landowners’ substantive arguments — including their central non-delegation challenge — were therefore never argued.

“There was never a decision on the merits in the Berkley case,” said Attorney Mia Yugo, one of the lawyers that represented Landowners in Berkley, et al. v. FERC, et al. “The District Court dismissed the case for lack of jurisdiction (a decision we respectfully appealed), meaning the Landowners’ substantive arguments on the overly broad delegation of eminent domain power to FERC were never heard on the merits.”

Now, in two recent opinions by Justice Gorsuch and Justice Alito, the conservative majority has telegraphed to the lower courts a newfound willingness to revive the dormant doctrine, which has not been applied since 1935. As reported by the Associated Press (AP) on June 21, 2019, the combined dissenting opinion of Justice Neil Gorsuch (who was joined by Chief Justice John Roberts and Justice Clarence Thomas) and the separate opinion by Justice Samuel Alito signal a real possibility that America could finally see a revival of the non-delegation doctrine by the five conservative Justices.

Whilst the five Justices have not yet revived the doctrine, the recent opinions suggest that change might be coming in the future.

Landowners are pleased to see this recent development in the legal landscape and feel vindicated in their position on the underlying merits of their own constitutional case.

# # #

AP News Link regarding the decision

Note: The case decided last week was Gundy v. United States, No. 17-6086. The Question Presented was whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional non-delegation doctrine. Petitioner, Herman Gundy, was represented by the Federal Defenders of New York, Inc., and Stanford Law School Supreme Court Litigation Clinic.

Virginia Regulatory Board Blames Residents for Agency Failings

June 27, 2019

RICHMOND, VA — In the State Water Control Board General Meeting today, Water Permitting Director Melanie Davenport presented an update on enforcement and construction on the Mountain Valley Pipeline. In her report, Davenport repeatedly highlighted citizen reports and the time and manner in which they were reported to the agency.

The Board heard complaints from commenters regarding inadequate erosion and sediment control plans, citing specific incidents and requesting that the Board suspend the approved ESC plans for Mountain Valley Pipeline pending reconsideration.

Board members repeatedly asked commenters if they had reported the observed issues to DEQ inspectors.

As part of their meeting, the Board members also entered a two hour closed session to discuss the Attorney General’s lawsuit alleging over 300 violations of Virginia Water Control Law, as well as a formal FERC complaint filed by Wild Virginia, Indian Creek Watershed Association, Preserve Craig, Inc., Neal Laferriere, and Betty Werner regarding issues with the certification and enforcement processes.

Roberta Bondurant, POWHR Coalition Co-Chair

“We reject the Board’s apparent assumption that the failures of DEQ inspectors fall on the shoulders of everyday people in the path of MVP. Through ongoing reports to the Board and DEQ, sites that have shown problems for months — up to a year in some cases — have been repeatedly documented to regulators and written off as adequate by the agency.

“Inspections required by law of DEQ are not the task of impacted communities — often including the working poor and the elderly. If the DEQ and contracted inspectors are in the field 4-5 days per week, then they should be seeing and reporting the same problems volunteers are observing — whether or not the volunteers report at all.”

Russell Chisholm, POWHR Coalition Co-Chair and MVW Monitor

“Citizen reports — even six weeks after the fact — are an indictment of one of two things: either DEQ is not inspecting, or problems are being overlooked.

“We join the requests of commenters for the Board to intervene in the formal FERC complaint initiated by Wild Virginia and others. We additionally ask the Board to suspend the erosion and sediment control plans approved for Mountain Valley Pipeline in light of repeated problems and unaddressed variance requests.”

# # #

Master List of MVP Variance Requests Through FERC

This post contains a running spreadsheet of all variances requested by MVP through the FERC docket, most recently updated December 18, 2019.

Formally Requested Variances

MVP has made numerous variance requests through formal filings in the FERC docket. The first page of the spreadsheet contains the following information on each request of this sort:

  • Title of the variance request
  • Date request was submitted (and revised, if applicable)
  • Associated request documents
  • Summary of the request
  • Date approved by FERC
  • Associated approval document

Some fields in the spreadsheet may need to be expanded to be viewed. Requests highlighted in green on this sheet have not yet been approved by FERC or are missing approval documentation.

In-the-Field Variances

Additionally, MVP has been obtaining in-field variances, approved by FERC’s Environmental Compliance Monitors and Managers. Those approvals are included in the Environmental Compliance Monitoring Reports, which each cover weekly reports from the Monitors and are often posted to the FERC docket several weeks after the monitoring period concludes. Another page of the spreadsheet has been added to reflect these approvals made in the field, and contains the following information:

  • Environmental Compliance Monitoring Report period, with link to associated approval document
  • Variance request number
  • Categorization of the variance, either
    • Level 1: Reviewed and approved or denied by the Compliance Monitors. These requests must be within the approved workspace or of like use and are for site-specific, minor, performance-based changes to Project specifications or mitigation measures that provide equal or better protection to environmental resources.
    • Level 2: Reviewed and approved or denied by the Compliance Manager. These requests involve Project changes that would affect an area outside of the previously approved work area, but within the corridor previously surveyed for cultural resources, sensitive species, sensitive resources, etc.
  • Construction spread (some with nearest associated milepost)
  • Date the request was received by compliance monitors
  • Description of the request as listed in the report
  • Date the request was approved by compliance monitors
  • Date ECM report was filed on FERC docket

Date ranges highlighted in green are those with no associated ECM Reports found on the FERC docket as of the most recent update. ECM Reports highlighted in blue have no associated variance requests.

>> View the full spreadsheet here <<

A report based on this spreadsheet and contextual information was prepared and submitted to the offices of Virginia Senators Mark Warner and Tim Kaine on November 12, 2019.

POWHR’s 11/12/2019 Variance Report to Senators Warner and Kaine

Environmental hydrologist Dr. Jacob Hileman conducted some analysis on the variance requests submitted, and incorporated his findings in an op-ed published in the Virginia Mercury.

Dr. Hileman’s 7/15/2019 piece in the Virginia Mercury

Formal Variances Per Spread

  • Spread A: 39
  • Spread B: 17
  • Spread C: 10
  • Spread D: 15
  • Spread E: 5
  • Spread F: 7
  • Spread G: 5
  • Spread H: 6
  • Spread I: 9
  • Compressor Station/Interconnect Sites: 5
  • Route-wide Variances: 14
  • Jefferson National Forest Variances: 2

Variances of Note

MVP-1

Date Requested: March 27, 2018

Date Approved: March 27, 2018

The Request: This variance is to clarify the General Blasting Plan. The following is a list of the changes MVP made to their General Blasting Plan, originally drafted and approved April 2016. Quoted changes within context are underlined:

  • Blasting Specifications: Blasting for pipeline facilities grade or trench excavation, compressor station and interconnect site development will be considered only after all other reasonable means of excavation have been evaluated and determined to be unlikely to achieve the required results.
  • Blasting Requirements, General Provisions: The Contractor shall be responsible for supplying explosives and blasting materials that are perchlorate-free in order to eliminate the potential for perchlorate contamination of ground water, except that detonators containing non-combined amounts of perchlorate, such as Dyno Nobel NONEL EZ Det or equivalent, are an industry standard and shall be permitted. Further, while the use of bulk ammonium nitrate is prohibited, the use of emulsion type explosives, including those having ammonium nitrate as a constituent, such as Dyna 1062 Bulk Emulsion or equivalent, shall be permitted, as these types of explosives are considered industry standard for area blasting related to large scale earthwork construction.
  • MVP Project Contacts and Related Permitting Prior to Blasting (Table 7.1.1): MVP added contact information for the West Virginia Fire Marshall, which requires a permit and notification before blasting occurs
  • Storage Use at Sites: MVP added a provision that Contractors “shall maintain a daily and/or blast inventory record of all explosive materials transported, used, and returned to off-site storage, when no storage is located on the blast site.”
  • Pre-Blast Operations: Dyno Nobel 1062 Bulk Emulsion (or equivalent) was added to the list of explosive and initiation system types that can be used. The substance is described as “an emulsion/gel product commonly used for area blasting such as road alignments or large pads. It contains the following major components: ammonium nitrate (30 to 80% w/w, calcium nitrate, sodium nitrate, and No. 2 diesel fuel (1 to 8% w/w).”

Other Notes: Those subscribing to the FERC eSubscription system for the MVP docket received notification of MVP’s request at 9:51am, then received notice of FERC’s approval of the request at 1:01pm the same day; this could be the fastest turnaround within the FERC’s MVP docket to date.

Variances to Tree Felling Restrictions in the Jefferson National Forest

Date Requested: April 23, 2018 and June 8, 2018

Date Approved: April 23, 2018 and June 11, 2018

The Request: MVP requested on two occasions that the deadline for tree clearing on U.S. Forest Service property be extended beyond the original deadline of March 31. The company indicated that the request was granted by other relevant agencies, and would be in compliance with the FEIS for the following reasons:

  • The affected area is very small;
  • Unforeseen circumstances necessitate an extension;
  • All other federal agencies, including the Bureau of Land Management and the U.S. Forest Service, approved the request;
  • No impacts to migratory birds are expected;
  • The variance would be consistent with the Biological Opinion on bats;

MVP said the work on the remaining 0.31 acres of forest land could not be completed “due to the actions of obstructionists,” referring to the various aerial blockades erected by forest protectors that prevented work. MVP requested that the variance be approved “as soon as possible,” and FERC approved the first request the same day, extending the deadline for tree cutting in the Jefferson National Forest to May 31, 2018. FERC approved the second request three days after it was made, extending the deadline further to July 31, 2018.

MVP-003

Date Requested: June 7, 2018

Date Approved: July 24, 2018

The Request: Route-wide request to further define the hours when construction activities will generally occur project-wide by using the FAA definition of “night” based on civil twilight times. As such, MVP proposes that activities generally take place 7am to 7pm, with exceptions made for construction of aboveground facilities, where work will be conducted from start times listed in Attachment A — as early 5:28am in June — until 10pm. The request notes additional exceptions for activities “including 24-hour drilling for HDD or bores, 24-hour work at compressor stations (as approved by FERC), extended work to comply with stream crossing time requirements, extended work due to upcoming inclement weather, extended work to resolve a safety issue, hydrostatic testing, tie-ins, and other similar circumstances.”

MVP-004

Date Requested: September 19, 2018

Date Approved: September 24, 2018

The Request: Route-wide request to further the distance between wildlife escape ramps in the trench for all areas outside the Jefferson National Forest. MVP indicates in the request that the 50-foot distance between wildlife ramps indicated in the FEIS for the Jefferson National Forest was not intended to apply for the entire route, and asks the distance between ramps be extended to no greater than 1/2-mile in West Virginia and 1/10-mile in Virginia.

MVP-006

Date Requested: September 21, 2018

Date Approved: September 25, 2018

The Request: Request to update two project plans: the Vertical Scour and Lateral Channel Erosion Analyses and the Traffic and Transportation Management Plan. Changes to the plans are highlighted in yellow within the request.

Specifically, MVP indicates that the Vertical Scour and Lateral Channel Erosion Analyses were only “a theoretical desktop analysis and did not take site specific constructibility issues (elevations, terrain, and workspace) into account.” As a result, crews determined that the mitigation measures indicated in the plan could not be implemented as described. MVP also revised the central point of command noted in the Traffic and Transportation Management Plan.

MVP-007

Date Requested: September 25, 2018

Date Approved: September 27, 2018

The Request: Request for extended work hours at 44 stream crossings in West Virginia in order to comply with condition set forth in the State’s approval of the Nationwide 12 permit requiring stream crossings be completed in 72 hours or less.

Other Notes: This variance was requested and approved before the US Fourth Circuit Court of Appeals ruled that neither the Army Corps of Engineers nor the State of West Virginia could waive the 72-hour requirement — Special Condition C — and thus vacated the authorization of MVP under the Corps’ Nationwide 12 Permit in the Huntington District. The Corps subsequently suspended the same authorizations in the Norfolk and Pittsburgh Districts, preventing MVP from crossing any streams or wetlands on the route. The permit has not yet been fully reinstated.

MVP-008

Date Requested: October 2, 2018

Date Approved: October 17, 2018

The Request: Request to update Attachment IP-13b (sheet detail from erosion control plan for West Virginia that includes seed mixes) that was submitted as part of the Implementation Plan. MVP notes that, in the process of restoring some areas in West Virginia, some seed mixes noted in the plan are unavailable or “have prohibitive lead times.” As a result, MVP developed a mix of native and non-native (but non-invasive) seed mixes including switchgrass and annual ryegrass.

B-31 & MVP-014

Date Requested: May 16, 2019 & June 11, 2019

Date Approved: May 17, 2019 & June 14, 2019

The Request: B-31 was a request to change the method for crossing six streams and one wetland in Lewis County, WV from an open dry cut method to a conventional bore. MVP-014 was a request to change the method for crossing twelve streams and one wetland in several counties along the route from an open dry cut method to either a conventional bore or a direct pipe method. MVP asserts that these changes can be made without the need for a water crossing permit from the US Army Corps of Engineers, which was vacated by the US Fourth Circuit Court of Appeals since October 2018 and prevented MVP from constructing across regulated streams and wetlands. 

Other Notes: FERC approved all the crossing method changes requested except for S-I28 (Meadow River) and S-L26 (UNT to Meadow River) in Greenbrier County, WV from an open dry cut to a direct pipe method, indicating that the requests for those two crossings “is not approved at this time.” Request MVP-014 was approved June 14 along with Request A-43, but was not labeled as such in the FERC docket.

Update: MVP filed a supplement to their request MVP-014 July 24, in which the company detailed the direct pipe method proposed on the two as-yet-unapproved crossings. Included in this supplement were construction plans for the new method dated September 25, 2018. FERC approved the remainder of the requested crossings July 26.