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.

VA State Water Control Board Acts on Doubts with MVP

December 13, 2018

Richmond, VA — At their general business meeting today, the State Water Control Board passed a motion 4-3 to initiate the formal hearing process to consider revoking the 401 Certification of the Mountain Valley Pipeline. The motion was made by new Board member James Lofton in response to extensive public comment regarding the ongoing damage being done by the Mountain Valley Pipeline’s construction through Southwest Virginia.

Other Board members voting in favor of Lofton’s motion were new member Paula Jasinski, Nissa Dean, and Robert Wayland. During discussion, Tim Hayes acknowledged concerns about the issues seen thus far, but did not vote in favor of initiating the formal hearing process.

Roberta Bondurant, POWHR Coalition Co-Chair

“We are encouraged that the Board is taking the necessary steps to stop the destruction we’ve experienced in our region resulting from this project. The construction imposed on landowners and communities since the federal court granted early entry has been nothing short of devastating, and the Board is finally acting on the evidence we’ve shown them.

“The newest members of the Board were engaged with the public right out of the gate, and we applaud the Board for their persistent inquiry and for supporting the safety and welfare of the public. This decision is a leap in the direction of better protecting the water resources so vital to Southwest Virginia and the Commonwealth.”

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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]

VA Water Board Tells DEQ to Do Their Job, But Not Much Else

Despite compelling evidence of serious degradation of water quality resulting from the Mountain Valley and Atlantic Coast Pipeline projects, the Virginia State Water Control Board took no action on the Nationwide Permit 12 or Section 401 Certifications for the pipelines.

During the meeting August 21, the Board heard DEQ’s summary of 12,761 comments filed during the public comment period in May and June of this year, as well as additional comments during the meeting itself from advocates and landowners along both pipeline routes. Included in these comments were descriptions and photos of egregious violations of Virginia water quality standards due to inadequate erosion and sediment controls and the steep terrain in the region.

Several members of the Board — Roberta Kellam, Nissa Dean, and Robert Wayland — supported a motion to initiate the formal hearing process to consider amending or revoking the permits for the two pipelines. The motion lost on a 3-4 vote, with Southwest Virginia’s own representative, Lou-Ann Jessee Wallace, voting against the motion.

A subsequent motion brought by Tim Hayes was approved and ostensibly resulted in the Board telling DEQ to do their job, pushing for more strict enforcement of Erosion and Sediment Control Law and instructing the agency to communicate more information on reported problems to the Army Corps of Engineers.

Roberta Bondurant, Co-Chair of the POWHR Coalition

“While we’re disappointed with the Board’s decision today, we’re neither surprised nor deterred. We are energized, in fact, by the Board’s understanding of their options, as guided by counsel, that a public hearing is available to consider action such as revocation of the permit. We appreciate the Board’s dedication to reviewing the public’s submissions of the last several months, and encourage members to continue in their consideration of a hearing on permit revocation.

Mountain Valley Watch has documented at least 83 violations by MVP, and this doesn’t count individual submissions by landowners and others. It’s frustrating to hear that notwithstanding his recognition of those problems, Mr. Hayes, among the four who appeared well-prepared to decline the public hearing to consider revocation, said such action would be if no use, because the pipeline was partially built. That response lacked understanding that the devastation already wrought upon our lands, forests and waters makes the need to stop construction now imperative.

“As to ‘enforcement’? Enforcement actions should have taken place long ago.  In reality, DEQ doesn’t have the money to put enough compliance personnel in the field — where would they come up with funding or personnel for enforcement? Note their veteran chief of enforcement, Jefferson Reynolds recently stepped down.

“The many submissions to DEQ regarding sedimentation,  erosion and the breach of aquifers all have shown that DEQ’s E&S plans do not work in the steep mountainous terrain and pristine waters of the Virginias. It is irresponsible and destructive to allow another several months’ worth of destruction and violations, followed by some manner of enforcement, which would likely be long and repeated fines, before any potential stop work order. In the end, fines paid to the state of Virginia will do nothing to repair entire watersheds like Mount Tabor’s Slussers Chapel Cave system, and Bent Mountain’s perched aquifer, wrecked by MVPs trenching, blasting and ultimate poisoning.

“We see the decision as wholly lacking ANY assurance of protection of Virginia’s water quality. We encourage the public to continue to write the State Water Control Board at PO Box 1105, Richmond, VA 23218. The board receives email at Citizenboards@deq.virginia.gov.”

Related Documents and Statements

Related Media Coverage

State Water Control Board calls for aggressive enforcement, declines to revoke pipeline permits [WDBJ7]

State water board declines to reconsider stream-crossing permits for pipeline [Roanoke Times]

Fourth Circuit Upholds Flawed DEQ 401 Process

The US Fourth Circuit Court of Appeals ruled Wednesday, August 1 against environmental groups, landowners, and community advocates in a legal challenge to Virginia’s Section 401 Certification granted to the Mountain Valley Pipeline by the Department of Environmental Quality and the State Water Control Board.

Roberta Bondurant and Russell Chisholm, Co-Chairs for the POWHR Coalition

“Despite hearing an abundance of evidence of the failures of Virginia’s Department of Environmental Quality and State Water Control Board in certifying a 401 permit for Mountain Valley Pipeline, the Fourth Circuit appellate judges determined the agencies did not act arbitrarily or capriciously when turning Virginia’s water safety over to self-regulation by the project managers.

“These regulatory schemes have allowed DEQ to prioritize corporations over communities and act as a permitting agency for the gas industry as opposed to an environmental overseer. We will continue to fight tenaciously for protection of the environment and the people who are dependent on it in the face of failing agencies. We are ever appreciative to the attorneys, activists, concerned communities, and impacted landowners as they continue to challenge flawed regulatory processes and their manipulation by the gas industry.

“Citizen monitors have been working tirelessly to report ongoing issues with erosion and sediment controls to DEQ, and the response from the agency has been underwhelming. We have little confidence that DEQ staff will hold MVP accountable for repeated problems as documented by citizen volunteers.

“Given the ample evidence presented both in the courtroom and in the field through citizen monitoring efforts, we now call on the State Water Control Board to issue a Stop Work Order immediately to prevent further damage and reconsider the permit in order to protect water resources in the Commonwealth and beyond.”

Bruce Coffey, Representative for Preserve Bent Mountain

“Citizens witnessed, in two separate hearings for MVP and ACP December 2017, the same board members ask the same questions — namely, “How can we keep control over and supervise stream and wetland crossings?” and “Is the general permit protective enough, or at all?”

“That’s a question that the State Water Control Board has asked, and has yet to answer. That’s why we’re asking for a stop work — now.

“But that question is also at the heart of the Fourth Circuit’s rationale in protecting MVP’s route through the national forest — how can we protect sensitive places in our environment with particularity?  Does a general permit “capitulate” the duty to protect? It’s disappointing to say the least to see the Fourth Circuit’s incongruity in rationale from one opinion to the other.

“Sensitive ecosystems and waters abound all along the route of MVP. The perched water table atop Bent Mountain — residents’ sole source of water — is one of those places. We hate to think that Justice won’t know what she’s lost until it’s irretrievable.”

Bonnie Law, Representative for Preserve Franklin

“VA DEQ hoodwinked the State Water Control Board into believing they and MVP would have proper controls in place to prevent erosion and sediment problems, and now it has been proven both do not, with repeated failures and destruction over and over again in Franklin County, VA since May 2018.

“The US 4th Circuit Court of Appeals bought this hoodwinking hook, line, and sinker. Unfortunately they don’t know the Matt Strickler and David Paylor VA DEQ we now know.”

Sandy Schlaudecker and Lynda Majors, Chair and Co-Chair for Preserve Montgomery County, VA

“The Fourth Circuit appellate judges have ignored scientific evidence instead believing that DEQ and MVP can control erosion and sedimentation.  These photos show that the scientists were right. This court ruling will allow the destruction to continue.”

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Before MVP Construction

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After MVP Construction Began

RELATED DOCUMENTS AND STATEMENTS

Fourth Circuit Ruling on DEQ 401 Challenge, Issued 8/1/18

Fourth Circuit Opinion on DEQ 401 Challenge, Issued 8/1/18

MEDIA COVERAGE

Appeals court upholds Virginia’s review of water quality impact of Mountain Valley Pipeline [Roanoke Times]

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