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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An Accident Waiting to Happen

Indian Creek Watershed Association (ICWA) has called on the Federal Energy Regulatory Commission (FERC) to stop work on Mountain Valley Pipeline after the June 7, 2018 explosion of the 36-inch gas Leach Xpress pipeline near Moundsville, West Virginia. Citing “the similarities of terrain—particularly the prevalence of steep slopes and landslide-prone areas along MVP’s 300-mile route through West Virginia and Virginia,” ICWA calls on FERC to:

  1. Order an immediate halt to construction of the MVP and instruct MVP to reanalyze its route and construction plans to identify locations with conditions similar to those involved in the Leach Xpress explosion and to other sites subsequently identified by TransCanada as areas of concern.
  2. Reconsider its Rehearing Order, issued June 15, 2018 on a 3-to-2 vote, that rejected, dismissed or denied all Requests for Rehearing of the MVP Certificate (FERC Accession No. 20180615- 3053).

Read the full ICWA letter to FERC below.

Related Coverage From the Roanoke Times.

 

MVP Organic Farm Protection Plan

In their Final Environmental Impact Statement, Mountain Valley Pipeline notified the Federal Energy Regulatory Commission of five organic farms that would be impacted by the proposed pipeline — four in Monroe County, WV and one in Franklin County, VA.

Please see the following document with MVP’s Organic Farm Protection Plan (OFPP), which was originally published January 2016 and provides additional guidelines and restrictions for construction on organic farms.

Among the stipulations in the OFPP are restrictions on substances such as fuel and lubricant for machinery, stipulations on the handling and storage of any topsoil removed from the site, and guidelines for increased compensation for landowners if organic certification is lost due to the construction project.

MVP Organic Farm Protection Plan

US 4th Circuit Issues Stay on MVP Stream Crossings in WV

The U.S. 4th Circuit Court of Appeals granted a motion for stay on all stream crossing construction in the Huntington District of West Virginia June 21. The order was issued as part of the challenge to the use of the Army Corps of Engineers Nationwide 12 Permit along the Mountain Valley Pipeline. The original Motion for Stay was filed May 22.

In the lawsuit, environmental organizations — specifically Sierra Club, Appalachian Voices, Chesapeake Climate Action Network, and West Virginia Rivers Coalition — are asserting that the Army Corps Nationwide 12 permit cannot be applied to the Elk, Greenbrier, Gauley, and Meadow Rivers in West Virginia because the pipeline cannot cross those streams within the WV required limit of 72 hours. The Corps conceded that fact and partially suspended the permit for just those four crossings. Attorneys with Appalachian Mountain Advocates, who are working on behalf of the environmental groups, are arguing that because the permit cannot be applied to four crossings along the route, the entire permit must be suspended until the court reviews it.

“Today’s decision shows once again that the Nationwide Permit 12 cannot be used as a one size fits all approach for dirty and dangerous pipelines that pose serious threats to our communities and clean water,” the Sierra Club’s Beyond Dirty Fuels Campaign Director Kelly Martin said in a press statement. “Construction on the Mountain Valley Pipeline must be halted immediately as the case to protect our water and communities proceeds.”

“Today’s decision by the 4th Circuit of the US Court of Appeals is very welcome,” Maury Johnson of Preserve Monroe and POWHR said. “I believe that the US Army Corp of Engineers made grievous errors in issuing their NWP 12 Certification for this disastrous project. I hope my neighbors in Virginia, namely the VA DEQ and the VA State Water Control Board, will not make the same mistake.”

“It brings a sense of relief to see this pause button hit,” WV Rivers Coalition Executive Director Angie Rosser said in a press statement. “What we’re seeing is that short-cuts and easy-outs just won’t work for this massive project. Already with MVP, we’re seeing its early construction causing problems for our waters. It’s encouraging that the court agrees a more intensive review of this permit is required before risking any further damage.”

Sierra Club et al. v. U.S. Army Corps of Engineers — May 22 Motion for Stay

Sierra Club et al. v. U.S. Army Corps of Engineers — Order Granting Motion for Stay

Related Coverage:

Appeals court issues stay of permit for Mountain Valley Pipeline in W.Va.Appeals court issues stay of permit for Mountain Valley Pipeline in W.Va.

Federal court puts Mountain Valley Pipeline water crossing permit on hold

New Challenge to MVP Questions River Crossing Permit

2 Pipeline Projects Draw More than 13,000 Public Comments