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.”

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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.”

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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.”

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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.

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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.”

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West Virginia DEP Proposes $265,972 Fine Against MVP, Releases Consent Order for Public Comment

To Comment on the Consent Order:

Mail written comments to WVDEP’s Public Information Office at 601 57th
St., S.E., Charleston, WV., 25304. OR e-mail your comments to
DEP.Comments@wv.gov. (Reference Mountain Valley Pipeline, Consent Order
#8951)


May 14, 2019

CHARLESTON, WV — Today, the West Virginia DEP publicly released their draft Consent Order for the Mountain Valley Pipeline, in which they propose a fine of $265,972 for 26 Notices of Violation issued between April 3 and November 30, 2018. The release of a draft initiates a public comment period that will be open until June 20, 2019. Attached to the draft order were 160 pages of photos showing inspections of violations by DEP staff. Cited violations include failure to implement perimeter controls, failure to prevent sediment-laden water from leaving the site without going through an appropriate device, and causing conditions not allowable in waters of the State.

The draft Consent Order was submitted to MVP for review April 19, 2019 and was signed by Robert Cooper, Senior Vice President, Engineering and Construction for MVP, LLC, and returned to DEP May 6, 2019.

Maury Johnson, POWHR Executive Committee Member and WV Impacted Landowner

“Today’s Consent Order, assessing fines in excess of over $265,000 for damages to WV streams, springs and wetlands though November of 2018 from the Mountain Valley Pipeline is welcome, but it is a pittance to the true cost of the damages citizens have documented in Summers and Monroe Counties alone.  $265 million dollars might be a little closer to the real damages that have occurred across the state on this one unnecessary fracked gas pipeline.

“We commend the environmental inspectors who are trying to do their jobs, given the impossible task before them with not enough resources or staff to do the job. I hope that WV DEP uses this money to hire more environmental inspectors to monitor these pipelines and other projects that imperil the water we all depend upon to sustain life.

“In the meantime, we believe the most prudent course of action for DEP would be to issue a Stop Work Order while the violations mentioned in the Consent Order are cleaned up and the public comment period conducted.”

Ashby Berkley, WV Impacted Landowner

“Again the will and protection of the people of West Virginia is sold out to the out-of-state Gas, Coal, and Mineral Companies. The violation settlement of $265,000 assessed to MVP would not pay for chemotherapy for one child with cancer caused by water polluted by fracking, or for one home destroyed by explosion of a massive gas line.  Why do we pay for environmental protection if it is not enforced for the protection of the people? This is no different from the massive sell out of natural resources and minerals that started in the 1800s. Why are we the poorest state and they are the richest companies?”

Contact:

Maury Johnson, POWHR Executive Committee Member, maurywjohnson@yahoo.com, (304) 832-6085

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