Atl. Coast Pipeline, LLC v. Nelson Co.
| Decision Date | 09 March 2020 |
| Docket Number | Case No. 3:18-cv-00115 |
| Citation | 443 F.Supp.3d 670 |
| Parties | ATLANTIC COAST PIPELINE, LLC, Plaintiff, v. NELSON CO. BOARD OF SUPERVISORS, et al., Defendants. |
| Court | U.S. District Court — Western District of Virginia |
Brooks Holton Spears, John David Wilburn, Keith Joseph Minson, Richard Dean Holzheimer, McGuireWoods LLP, Tysons Corner, VA, for Plaintiff.
Jennifer Dillow Royer, Royer Law Firm, P.C., Roanoke, VA, for Defendants.
This matter is before the Court on Defendants Nelson County, Virginia and the Nelson County Board of Supervisors' motion for summary judgment, Dkt. 36, and Plaintiff Atlantic Coast Pipeline, LLC's motion for partial judgment on the pleadings, Dkt. 26, which this Court recently converted to a Rule 56 motion for partial summary judgment pursuant to Rule 12(d).1 Dkt. 42.
In October 2017, Atlantic received federal authorization to construct an interstate natural gas pipeline through Virginia and surrounding states, including twenty-seven miles through Nelson County, Virginia. In December 2018, the Nelson County Board of Zoning Appeals, pursuant to its local environmental regulations, denied Atlantic's request to traverse 4.5 miles of floodplains within Nelson County. Atlantic now seeks a declaratory judgment in this action that it is not obligated to comply with Nelson County's regulations because, at least as applied to the Atlantic Coast Pipeline, they are preempted by federal authorization of the pipeline pursuant to the Natural Gas Act.2 Nelson County moves for summary judgment on the grounds that adjacent federal statutes show that the Natural Gas Act authorization was not intended to displace its local regulatory authority over the pipeline. Dkt. 37. For the reasons stated herein, Plaintiff's motion will be granted, and Defendant's will be denied.
The Atlantic Coast Pipeline, once complete, will span 604.5 miles across West Virginia, Virginia, and North Carolina, intended as a means of transporting natural gas to eastern seaboard states. Dkt. 1, ¶ 8; Dkt. 27 at 2. Twenty-seven miles of that route will traverse Nelson County, Virginia. Dkt. 1, ¶ 8; Dkt. 27 at 2. Because this case turns on overlapping federal, state, and local laws, the Court will first provide an overview of the relevant legal landscape and its interaction with the Atlantic Coast Pipeline.
As an interstate natural gas company under the jurisdiction of the Natural Gas Act ("NGA"), 15 U.S.C. § 717 et seq. , Atlantic Coast Pipeline ("Atlantic" or "ACP") had to obtain authorization to construct and operate the project from the Federal Energy Regulatory Commission ("FERC"), the agency tasked with implementing the NGA. 15 U.S.C. § 717 et seq. This authorization comes in the form of a Certificate of Public Convenience and Necessity ("CPCN"). Id. , § 717f(e). Before issuing a CPCN, FERC must find that the project "is or will be required by the present or future public convenience and necessity." Id. Atlantic submitted its application for a CPCN in September 2015. Dkt. 1-1.
In its review of Atlantic's CPCN application, FERC conducted an environmental review of the proposed project, analyzing "the need for the proposal, ... alternatives [to said proposal], ... [and] the environmental impacts of the proposed action and alternatives." 40 C.F.R. § 1508.9(b). Prior to the Environmental Impact Statement's ("EIS") preparation, FERC staff and other parties to the EIS3 conducted seventeen open-house meetings and ten public scoping meetings,4 where more than 1,500 people attended and were invited to assist in identifying "environmental issues that should be addressed in the EIS." Id. at 1-13, 1-14. This was supplemented by additional visits by agency staff to "certain areas that could be affected by ACP" as well as an "inspect[ion] of the remainder of [the] ACP ... area via automobile and helicopter in conjunction with open houses, public scoping meetings, and other meetings." Id. at 1-14. FERC then analyzed potential impacts the pipeline might have on the environment, stating:
Construction and operation of the projects could result in numerous impacts on the environment. We evaluated the impacts of the projects, taking into consideration Atlantic's ... proposed impact avoidance, minimization, and mitigation measures on geology, soils, groundwater, surface water, wetlands, vegetation, wildlife, fisheries, special status species, land use, recreation, visual resources, socioeconomics, cultural resources, air quality, noise, and safety and reliability.
EIS at ES-3 (Executive Summary). This environmental review resulted in an 866-page EIS, produced pursuant to regulations promulgated under the National Environmental Policy Act. 40 C.F.R. §§ 1500–08; 18 C.F.R. § 380; 42 U.S.C. § 4332(2)(C). The EIS "describe[d] the affected environment as it currently exists, addresse[d] the environmental consequences of ACP and SHP, and compare[d] the projects' potential impacts to those of various alternatives." EIS at 1.2 ("Purpose and Scope of This EIS"). One of the EIS's four principal purposes was to "identify and assess potential impacts on the natural and human environment that would result from constructing and operating ACP." Id.
The EIS devoted considerable analysis to potential environmental impact on floodplains in the pipeline's path. This floodplain analysis was part of a larger sixty-six page review of all potential environmental impacts on water bodies, listing the 1,536 waterbody crossings within ACP's "workspace" studied over the course of several years through field surveys, aerial photography, and GIS-based information databases. EIS at 4-100. Within this analysis of water resources, FERC studied 5.2 miles identified by FEMA as minimal flood hazard areas and 41.3 miles of ACP's route identified by FEMA as "Special Flood Hazard Areas," including 3.5 miles designated as a Special Flood Hazard Area in ACP's route through Nelson County. EIS at 4-105. With respect to floodplains in particular, the EIS concluded: "Based on Atlantic's ... construction and restoration measures, and the minor project-related modifications within floodplains, we conclude that constructing and operating ACP ... would not result in a significant impact on floodplains or result in a measurable increase on future flood events." EIS at 4-118. FERC also analyzed potential impacts on floodplains in its discussion of potential geological impacts, further concluding that "[c]onstruction of ACP ... through 100-year floodplains would not result in the loss of floodplain storage as the pipelines are installed below the ground surface and would not displace flood waters." EIS at 4-31. And that "[c]onstruction of the aboveground facilities could result in a reduction of flood storage capacity within the floodplain, but we conclude it is minor based on the overall storage capacity of the affected floodplains." Id.
The EIS at several points also clearly contemplated some degree of compliance with local regulation by Atlantic. For example, although the EIS states that "[b]ased on the avoidance and minimization measures developed by Atlantic ... and our recommendations, we conclude that surface water and wetland impacts would be effectively minimized or mitigated," it continues on to state that "[c]onstruction and operation-related impacts on wetlands would be further minimized or mitigated by compliance with the conditions imposed by the USACE and state water regulatory agencies." EIS at ES-10. With respect to floodplains in particular, the EIS states that EIS at 4-118.
However, both the EIS and resulting CPCN also included the following language:
FERC encourages cooperation between applicants and state and local authorities; however, state and local agencies, through the application of state and local laws, may not prohibit or unreasonably delay the construction or operation of facilities approved by FERC. Any state or local permits issued with respect to jurisdictional facilities must be consistent with the conditions of any authorization issued by FERC.
EIS at 1-24 (citing Schneidewind v. ANR Pipeline Co. , 485 U.S. 293, 310, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988) ; Dominion Transmission, Inc. v. Summers , 723 F.3d 238, 245 (D.C. Cir. 2013) ); Dkt. 1-1, ¶ 324. In October 2017, relying on its EIS, FERC issued Atlantic its CPCN, making various findings as to the pipeline's economic, environmental, and human impacts. Id. In granting this CPCN, FERC concluded that the pipeline "is or will be required by the present or future public convenience and necessity." 15 U.S.C. § 717f(e).
In addition to authorization from FERC, Atlantic was also required to receive authorization from the U.S. Army Corps of Engineers ("USACE") to construct the pipeline, as the project would involve the "discharge of dredged or fill material" into the "waters of the United States" and thus fall under USACE's jurisdiction under section 404 of the Clean Water Act ("CWA"). 33 U.S.C. § 1344 ; United States v. Riverside Bayview Homes, Inc. , 474 U.S. 121, 123, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) ; see also Appalachian Voices v. State Water Control Bd. , 912 F.3d 746, 750 (4th Cir. 2019) (). To this end, USACE has issued several "Nationwide Permits" broadly authorizing entities conducting certain activities provided they meet several General Conditions imposed by USACE, as well as Specific Conditions it may impose on a case-by-case...
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