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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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.

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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U.S. Court of Appeals Rules Against Landowners in Pipeline Early Possession Case

February 5, 2019

The Court of Appeals for the U.S. Fourth Circuit today ruled against landowners in an appeal of previous courts’ decision to grant the right of early entry to Mountain Valley Pipeline. The landowners questioned whether Mountain Valley could be granted access to property before just compensation had been determined for each landowner in the condemnation proceedings.

One argument put forth by the appellant landowners was that a similar prior case heard by the same court, East Tennessee Natural Gas Co. v. Sage, was wrongly decided. Though in the oral arguments for the case the Court questioned whether Sage was decided correctly, it determined in the opinion it was still bound by the precedent.

“And as we have explained, Sage squarely forecloses the Landowners’ argument that the district courts lacked the authority to grant immediate possession in a Natural Gas Act condemnation,” the Court’s opinion stated.

This is one of three cases brought by landowners along the MVP route regarding the issue of eminent domain. The others included a Constitutional challenge to the Natural Gas Act itself, which was appealed to the U.S. Supreme Court and was denied on request for Writ of Certiorari. The third is part of a larger case pending in the DC Circuit with the appeal of Requests for Rehearing of the FERC Certificate.

Lynda Majors, POWHR Coalition Executive Committee Member

“It is hard to envision a rationale under our constitution that supports the unjust entries, takings and abuses of land, water and privacy that we’ve witnessed along the MVP route. We continue to encourage the judiciary to view the path of takings and destruction along the MVP.  We have grown as a nation in challenging unjust precedent, such as Sage.  Sage allows a private gas company to enter, use, and destroy the property of another before paying for it. Moreover, eminent domain is a power of public takings for the public benefit, which is still at issue in other pending cases involving MVP.  Stated simply, Sage supports theft.

“We applaud the courage and persistence of landowners in their continued efforts to stop MVP and we remain committed in our support of them.”

Maury Johnson, POWHR Coalition Executive Committee Member

“It is with great sorrow, but also great determination that I vow to continue to oppose the use of eminent domain for private gain and the destruction of our farms, homes and property on not only the MVP, but the ACP, MXP and other unnecessary fracked gas pipelines.”

Contact:        

Lynda Majors, ljmajors@usa.net, (540) 320-1922

Maury Johnson, maurywjohnson@yahoo.com, (304) 646-9285

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Army Corps Suspends NWP 12 for Mountain Valley Pipeline in Pittsburg District

Late on Friday, the Army Corps of Engineers suspended the authorization of Nationwide Permit 12 for MVP in the Pittsburgh District, which impacts the northern portion of the pipeline’s route. This comes almost three weeks after the Fourth Circuit Court of Appeals vacated the authorization for the Huntington District in Southern West Virginia, and almost two weeks after the Corps took a similar action suspending the authorization in the Norfolk District of Virginia.

This is the fifth federal permit to be vacated or suspended this year. In addition to the three Army Corps permits, the US Forest Service and Bureau of Land Management authorizations were vacated and remanded by the Fourth Circuit Court of Appeals July 27, 2018.

Maury Johnson, Executive Committee Member for the POWHR Coalition

“MVP is now missing five key permits to construct their pipeline. Though FERC’s certificate is conditioned on the company holding valid state and federal permits, the Commission has not issued a stop work order, nor has it suspended or revoked its own certificate in light of these missing permits.

“As a result, destruction continues leading up to and impacting streams and wetlands. Sediment continues to flow from construction sites into streams, and Waters of the US continue to be impacted as construction continues. The only way to adhere to the intent of the Fourth Circuit ruling from October 2 is to stop ALL work on the route.”

Howdy Henritz, Indian Creek Watershed Association President:

“This is welcome news, but the FERC must now issue a Stop Work Order for all MVP construction activities along its entire route. Despite crossing restrictions already in place in southern West Virginia and Virginia, streams and wetlands are already being damaged by upland construction. MVP and its contractors are pursuing an aggressive construction pace that has exposed and trenched miles of denuded corridors on steep slopes with woefully inadequate erosion and sediment controls.

“Citizen monitors in West Virginia and Virginia have sent more than 500 reports of violations to state environmental regulatory agencies—the WVDEP and VADEQ—but environmental enforcement has been a hollow promise. Even while the Army Corps has not allowed MVP to construct in the waterways in our region, relentless and reckless construction is spewing sediment-laden water into our streams and wetlands. FERC needs to call a halt now.”

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About the POWHR Coalition:

Protect Our Water, Heritage, Rights (POWHR) is an interstate coalition representing individuals and groups from counties in Virginia and West Virginia dedicated to protecting the water, local ecology, heritage, land rights, human rights of individuals, communities and regions from harms caused by the expansion of fossil fuel infrastructure. For more information, visit: powhr.org

About Indian Creek Watershed Association:

Indian Creek Watershed Association is a non-profit community-based organization in West Virginia whose mission is to preserve and protect Monroe County’s abundant, pure water. For more information, contact: IndianCreekWater@gmail.com

 

Related Documents

Army Corps Letter Suspending Authorization of NWP12 for MVP in Pittsburgh District

POWHR Coalition Demand for FERC to Stop Work, Filed 10/21/2018

Press Statement from Sierra Club

Army Corps Suspends Stream Crossing Permit in VA

At close of business October 5, the Army Corps of Engineers published a notice that the Nationwide 12 Permit Verification for the Mountain Valley Pipeline was being suspended.

The verification was previously issued January 23, 2018 and allowed MVP to construct a pipeline across “383 separate stream crossings and 142 separate wetlands.” However, the Fourth Circuit Court of Appeals issued an order October 2 in Sierra Club v. Army Corps of Engineers (Case No. 18-1173) vacating the Nationwide 12 Permit verification for the Huntington District of West Virginia.

“Because of that order, it is uncertain whether NWP 12 will ultimately be available to authorize work for MVP in West Virginia,” the Corps’ letter said. “Therefore, the Norfolk District finds it appropriate to suspend your authorization and await clarity on this issue.”

“Effective immediately you must stop all activities being done in reliance upon the authorization under the NWP,” the letter said.

MVP has ten days to request a meeting with the Norfolk District office of the Army Corps to discuss the issue.

In the order issued October 2, the court agreed with plaintiff attorneys that “if any part of a project requires an individual permit, then the NWP does not apply and all portions of the project must be evaluated as part of the individual permit process.” Shortly after the order was filed, plaintiff attorneys at Appalachian Mountain Advocates filed a letter with FERC asserting that the Commission must issue a Stop Work Order for the full route of the pipeline, as a condition of the permit that requires the company to obtain all state and federal permits is no longer satisfied. FERC has not yet issued a Stop Work Order as a result of the Army Corps verification being vacated and suspended.

Roberta Bondurant, POWHR Coalition Co-Chair 

“We are encouraged the Corps saw the wisdom in deferring to the Fourth Circuit in the Court’s vacation of the Section 404 permit on MVP. This decision does not go far enough, though. The POWHR Coalition today filed a request with FERC to stop all work, noting MVP’s reckless and assaultive rush to build through and near streams before the shell LLC — whose stock is plummeting — could be stopped.

“The Forest Service, Bureau of Land Management, and Army Corps Section 404 permits are now vacated, and the Natural Streams Preservation Act permit for the proposed Greenbrier River crossing is stayed in circuit court in Summers County. MVP is unquestionably noncompliant with FERC certificate — FERC should revoke the certificate, and all work should stop.”

Related Documents

Fourth Circuit Court of Appeals Ruling on Army Corps Case, Issued 10/2/18

>Appalachian Mountain Advocates Letter to FERC, Filed 10/3/18

>Army Corps Letter Suspending Authorization in the Norfolk District, Issued 10/5/18

Relevant Media Coverage

Stream-crossing permit suspended for Mountain Valley Pipeline in Virginia [Roanoke Times]

Army Corps suspends stream-crossing permit in Virginia [Charleston Gazette-Mail]

Mountain Valley Pipeline permit for water crossings suspended in Virginia [WDBJ 7]

Mountain Valley Pipeline loses key permit, all work must stop [WSLS 10]