ACP to file Supreme Court appeal

Published 11:28 am Tuesday, February 26, 2019

Dominion Energy, in a release Tuesday morning, announced it will file an appeal to the Supreme Court of the United States following a decision made by the U.S. Court of Appeals for the Fourth Circuit Monday.

The U.S. Court of Appeals for the Fourth Circuit denied the Atlantic Coast Pipeline’s (ACP) request for an en banc rehearing.

An en banc hearing is defined as when a case is heard before all the judges of a court.

“Upon consideration of the petition for en banc rehearing filed by Atlantic Coast Pipeline and the petition for panel and en banc rehearing filed by the federal respondents, and no judge having requested a poll of the court on the petitions for en banc rehearing, the court denies the petition for en banc rehearing and the petition for panel and en banc rehearing,” the full order from the U.S. Court of Appeals for the Fourth Circuit on Monday cited.

The request for en banc rehearing came from a prior decision from the court in December to vacate the United States Forest Service’ (FS) decision to grant the ACP permits for the pipeline to travel through areas of national forest land, and cited that the FS violated several laws in granting the permits.

The court opined that the FS’ decision to issue a Special Use Permit (SUP) to the pipeline violated the National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA), and that the FS lacked statutory authority pursuant to the Mineral Leasing Act (MLA) to grant a pipeline right of way across the Appalachian National Scenic Trail (ANST).

The panel from the Monday decision consisted of judges Stephanie D. Thacker, Roger L. Gregory and James A. Wynn Jr.

“The U.S. Court of Appeals for the Fourth Circuit denied the Atlantic Coast Pipeline’s (ACP) request for an en banc rehearing related to the Court’s invalidation of the project’s U.S. Forest Service Appalachian Trail crossing authorization,” a statement from Dominion Energy cited. “ACP’s en banc petition was supported by the Department of Justice on behalf of the U.S. Forest Service, as well as several prominent industry, labor, and business groups.”

Dominion Energy is a 48-percent owner of the ACP, according to the release.

“Dominion Energy expects an appeal to be filed to the Supreme Court of the United States in the next 90 days,” the release cited. “The company is also pursuing legislative and administrative options as previously discussed on Dominion Energy’s Feb. 1, 2019, earnings call. We are confident that the U.S. Departments of Interior and Agriculture has the authority to resolve the Appalachian Trail crossing issue administratively in a manner that satisfies the Court’s stated objection and in a timeframe consistent with a restart of at least partial construction during the third quarter. We will continue to work to resolve the outstanding biological opinion issue as well as any impediments to the project’s crossing of the Appalachian Trail, and believe, as a result, that at least partial construction will recommence in the third quarter of 2019.”

“The project cost and timing guidance provided on the company’s Feb. 1 earnings call fully contemplated the possibility of an unsuccessful en banc request,” the release cited. “Therefore, yesterday’s Fourth Circuit decision does not alter our operating (Earnings Per Share) EPS guidance as provided to the investment community on that call. Dominion Energy remains confident in the full completion of the Atlantic Coast Pipeline along the entire 600-mile route.”

Sharon Ponton with the Blue Ridge Environmental Defense League (BREDL) cited that the decision by the U.S. Court of Appeals for the Fourth Circuit was a victory for those opposed to the ACP development.

Ponton said she could not speak for ACP directly, but said the en banc hearing, if accepted, could have created the potential for the decision made in December to possibly be reversed.

“They certainly have a right to ask for that rehearing to occur,” Ponton said, “and obviously they must have thought they would get a different response.”