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In North Carolina, novel legal maneuver deployed against Atlantic Coast Pipeline

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PHOTO BY EcoRobeson

Donna Chavis (left) and other American Indians protest the Atlantic Coast Pipeline.

A little-known administrative rule allows state officials to cancel environmental certificates if conditions change.

With the Atlantic Coast Pipeline mired in federal lawsuits and its construction stalled indefinitely, North Carolina environmental advocates are attempting a novel legal maneuver to stop the gas project from ever coming to the Tar Heel State.

Friends of the Earth and the North Carolina Climate Solutions Coalition have filed a petition with the administration of Democratic Gov. Roy Cooper, asking officials to revoke a key water quality certificate they issued for the pipeline early last year.

The filing rests on a little-known administrative rule that allows state officials to cancel the certificate if the conditions around its approval change, or if the information justifying it turns out to be wrong. 

Petitioners say a revocation is warranted because — among other reasons — developers vastly understated the project’s environmental footprint, especially at its proposed terminus in Robeson County.

A request like this hasn’t been made recently, if ever, and no one knows quite how it will proceed. At a minimum, it will reignite debate over the pipeline’s impacts in Robeson, one of the poorest and most racially diverse counties in the country. At its most successful, the petition could kill the project altogether. 

“We have a golden opportunity here,” said Gayle Tuch, chair of the Climate Solutions Coalition’s board of directors.

Uncertain path forward

Designed to transport gas from Marcellus shale fields through West Virginia to Virginia and North Carolina, the 600-mile Atlantic Coast Pipeline once seemed inevitable. It was backed by utility heavyweights Duke Energy and Dominion Energy, who promised a $4.5 billion investment and hundreds of jobs. It was blessed by a string of politicians from governors to county commissioners, many praising fossil gas as a clean alternative to coal to environmentalists’ dismay.

But today, the pipeline looks iffy, at least in its current iteration. Lawsuits have halted construction since December, with appeals likely to drag on into next year. Duke and Dominion predict they’ll ultimately prevail in court but have acknowledged they need a “Plan B” if they lose. Costs have ballooned to $7.8 billion, and some hard-nosed investors doubt the project will ever be built.

Environmental advocates claim the pipeline isn’t necessary to meet the region’s energy demands and have sued to overturn the permission slip from the Federal Energy Regulatory Commission, or FERC. The panel’s approval underpins a complex web of other permits from federal and state agencies.

The FERC case is yet to be heard, and so far, pipeline foes’ most successful legal arguments have centered in the Virginias, where the project’s 100-foot wide construction berth would cross the Blue Ridge Parkway, the Appalachian Trail and two national forests. 

The 4th U.S. Circuit Court of Appeals in Richmond ruled repeatedly — most recently last month — that the pipeline would illegally harm endangered animals like the rusty patched bumble bee and the Indiana bat. The same court held last year that the pipeline couldn’t cross the Appalachian Trail on federal forest land without congressional approval.

The courts have tossed three permits altogether — from the U.S. Fish and Wildlife Service, the National Park Service, and the U.S. Forest Service. The U.S. Army Corps of Engineers pulled a fourth permit before it could be struck down. To secure valid approvals, many believe Duke and Dominion must reroute the project around the sensitive landscapes and animals in the Virginias.

“They’ve got to go back to the drawing board. They’ve got to do their resource surveys and the engineering and get their approval from FERC for the rerouted option,” said D.J. Gerken, an Asheville-based attorney with the Southern Environmental Law Center. “But there is a path forward.”

“The problem is not that it’s impossible to build a pipeline in the East,” he added. “The problem is that they were bullies, and arrogant, and did a shoddy job.”

‘A chance for a do-over’

The companies could decide a rerouted project isn’t worth the effort. But if they do opt for a new path, or if they win in court outright, North Carolina’s clean water certificate will be a necessity. 

Each state along the pipeline’s route must certify under section 401 of the federal Clean Water Act that the pipeline doesn’t violate state water quality standards. North Carolina was the last state to grant its certificate, outraging activists who’d viewed the Cooper administration as a final backstop against the project.

At the time, critics disputed the administration’s logic that the state had little choice but to certify the pipeline, given the letter of the law. But a court challenge never came, and now activists say the work-stoppage and relative lack of activity in North Carolina give regulators a fresh opportunity to examine the project.

“This is a chance for a do-over,” said Robeson County resident Donna Chavis, senior campaigner with Friends of the Earth and a member of the Lumbee Tribe. Of Cooper’s environmental officials, she said, “we believe that they want to do what is right for the citizens of North Carolina.”

The petition isn’t a lawsuit but a direct appeal to state regulators based on a 1976 rule — most recently reauthorized in June — which governs 401 certifications. Any such certification, the rule says, “shall be subject to revocation or modification upon a determination that information contained in the application or presented in support thereof is incorrect or if conditions under which the certification was made have changed.”

Advocates assert that both revocation triggers have been met. New circumstances have arisen, they say, such as Cooper’s executive order on climate. And some information in the permit application has been proven incorrect, such as a federal assessment that the pipeline won’t disproportionately harm people of color and indigenous communities. 

“These are, quite literally, the textbook study regions for environmental justice,” wrote Ryan Emanuel, a professor at North Carolina State University and a member of the Lumbee Tribe, in a journal article for Science.

Most of all, petitioners claim, pipeline developers grossly underrepresented and underestimated the damage the pipeline could inflict on Robeson County. 

Home to the Lumbee Tribe, the largest community of Native Americans east of the Mississippi, Robeson is one of the most racially diverse rural counties in the U.S. It’s among several along the pipeline route that has more people of color and Native Americans than the state as a whole.

Nearly all of the county’s streams and wetlands, part of some 300 in the state crossed by the pipeline, drain into the Lumber River, a slow-moving blackwater stream that’s been the center of Lumbee culture for millennia. 

Robeson is also one of the nation’s poorest counties, with public health threats, rising poverty rates and an affordable housing crisis all exacerbated by two recent hurricanes. And the county is already home to two existing gas projects: a smaller pipeline and a compressor station.

Duke and Dominion didn’t account for the environmental impact of these two existing facilities combined with a new compressor station and new connecting pipeline. Plus, petitioners say, the companies didn’t calculate damage from five other projects it claims are related to the project, including a liquified natural gas storage facility and a possible extension into South Carolina.

“In total, there are nine natural gas projects that are presently in existence, under construction, or formally planned, which are directly connected to the Atlantic Coast Pipeline in Robeson County,” the petitioners write. “Together, they form a complex of interrelated natural gas infrastructure, the cumulative impacts of which are greater than the sum of their parts.” 

These factors and others provide more than sufficient rationale for the Department of Environmental Quality to revoke the water quality certificate, said Ryke Longest, a clinical law professor at Duke University who worked with students and community groups on the filing.

“The certification has been finalized, but the conditions under which it was issued have changed so fundamentally that it calls for a reexamination of that decision,” he said. “The record’s not closed on this yet.”

‘A complicated set of legal issues’

A spokesperson for the Department of Environmental Quality said little about the petition, acknowledging only that it had been received and was under review. But some evidence suggests its chances are slim.

The state has revoked only one other major 401 water quality certificate in recent memory, from the aluminum company Alcoa, for its hydroelectric projects on the Yadkin River (though not in response to a petition.) Regulators denied a follow-up application from Alcoa, but a state judge ultimately ruled that rejection illegal. 

In Virginia, a suit against that state’s 401 certificate was one of the few to fail in the Richmond-based federal appeals court in January of this year. In March, the State Water Control Board declined to revoke the certification for a different gas project — the proposed Mountain Valley Pipeline — saying they lacked the authority to do so.

Robin Smith, a Chapel Hill attorney and a former assistant secretary of the Department of Environmental Quality, didn’t cast judgment on the petition’s merits. But she stressed that North Carolina’s water quality certificate was inextricably linked with FERC’s approval.

“The 401 certification isn’t actually a state permit. It’s something that’s required under federal law,” she said. According to guidance from the U.S. Environmental Protection Agency, Smith said, “there are very, very few, if any, circumstances in which a state can revoke a 401 certification once a federal permit has been issued.”

She added that some of the points raised in the petition, such as the need for the project, may be more relevant to a challenge to FERC’s underlying certificate than to the state’s water quality approval. “It’s a complicated set of legal issues,” she said, “and that’s going to have to be resolved by somebody.”

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