A United States District Court judge ruled in favor of the Atlantic Coast Pipeline this week, dealing a blow to Nelson County in a fight over the locality’s power in the ongoing permitting process for the natural gas project.
In a 24-page ruling and an accompanying order issued Monday, Judge Norman K. Moon, of the U.S. District Court’s Western District of Virginia, said the ACP will not have to comply with Nelson County regulations governing floodplain crossings, bringing a sense of finality to an issue that has stretched on for more than a year. With the ruling, the company has cleared one hurdle to construct the pipeline in Nelson County.
The judge found the federal Natural Gas Act, “preempts” the requirements of Nelson County’s floodplain ordinance, which had been updated about a year before issues arose between the county and pipeline company.
“Because the [Nelson County] Floodplain Regulations and their application through the [Board of Zoning Appeals] to deny [ACP’s] variance request stands as a clear obstacle to the meaning and purpose of the [Natural Gas Act], it is therefore preempted as applied to the Atlantic Coast Pipeline,” Moon’s ruling reads.
Changes in the county’s ordinance, passed in September 2017, required ACP to obtain variances to cross certain areas in the county because the pipeline — which is slated to cross 600 total miles in West Virginia, Virginia and North Carolina and is both over budget and behind schedule — would qualify as a “critical facility” not normally allowed to be built in a floodplain.
Of the 27 miles in Nelson County the ACP is slated to cross, the pipeline and access roads for the project would cross 4½ miles of floodplain areas.
In December 2018, the Nelson County Board of Zoning Appeals voted 3-2 to deny ACP variance requests for floodplain crossings. ACP shortly thereafter took the unprecedented step of suing the county — naming the Nelson County Board of Supervisors as a defendant — over the issue, marking the first and only time the company has sued a locality.
“The ruling in favor of the Atlantic Coast Pipeline is another positive step for the project. We’re pleased that the conflict between local and federal law is now resolved and that we are even closer to bringing cleaner energy to the region,” Ann Nallo, an ACP spokesperson, said in a statement Wednesday.
Nelson’s zoning requirements for floodplain crossings were unique from other localities in Virginia that would be crossed by the pipeline. Of the 14 localities it plans to cross, 11 have floodplain requirements that could be taken care of administratively by a zoning administrator, rather than requiring a variance approval from a board like Nelson County.
Four of five Nelson County supervisors reached Wednesday said they believe the board will take a closer look at the ruling in the coming days. After talking with legal counsel, they will decide whether to pursue additional legal action.
“All I can really say at this point is [we] will circle the wagons and figure out what’s the appropriate course to take on this,” said Ernie Reed, Nelson County Board of Supervisors the Central District representative.
Supervisors Jesse Rutherford (East District) and Tommy Harvey (North District) gave a few additional remarks. Rutherford said he is “disappointed” by the judge’s ruling, while Harvey said he wasn’t surprised.
“I think we pretty much suspected this to start with,” Harvey said. “But it was worth a chance.”
Harvey said Nelson County has been a “forerunner” in opposing the pipeline, but said he is not sure any additional legal action would result in Nelson’s favor.
Much of Moon’s ruling focused specifically on one word in Nelson County’s floodplain ordinance.
As part of a process spanning more than a year, officials worked to update the county’s floodplain ordinance to comply with requirements of the Federal Emergency Management Agency’s National Flood Insurance Program. Among several changes passed by supervisors in 2017, “critical facilities” were defined as structures that “produce, use, store, or transport” hazardous materials.
Those critical facilities would be prohibited from being constructed in a floodplain, and a variance approved by the BZA would be required for such a structure — including a natural gas pipeline like the ACP — to be built in those areas.
When changes to the ordinance were being considered, Nelson officials based amendments on a model ordinance from FEMA, but one additional word — “transport” — was added.
Moon said in his ruling Nelson’s regulations, with the addition of the word “transport,” are not “FEMA approved.” “This expanded definition was critical to defining the Atlantic Coast Pipeline as a critical facility,” he added.
“No federal law required Nelson County to pass its Floodplain Regulations as modified. … Nothing gives these Floodplain Regulations, as modified, the force of federal law now,” Moon’s ruling reads.
Because the Federal Energy Regulatory Commission — which approved the interstate pipeline in fall 2017 with its issuance of a Certificate of Public Convenience and Necessity — allowed for individuals and localities to comment about their concerns prior to the project’s approval, Moon described Nelson County’s zoning decisions as “circumventing the process.”
The ruling states: “The notion that any one locality in the path of a FERC-approved project can halt it entirely by second-guessing FERC’s environment findings clearly conflicts” with the certificate — which says “state and local agencies, through application of state or local laws, may not prohibit or unreasonably delay the construction or operation of facilities approved by FERC.” The ruling adds Nelson’s process also conflicts with the “fundamental purpose” of the Natural Gas Act — “to assure an adequate and reliable supply of gas at reasonable prices.”
Moon’s ruling comes on the heels of another legal fight for the ACP. In February, the nation’s highest court took up an issue dealing with the pipeline’s permit to cross a small section of the Appalachian Trail near the Nelson County border with Augusta County. The New York Times on Feb. 24 reported the U.S. Supreme Court justices appear poised to back the pipeline in the case, in which the ACP challenges a U.S. appellate court’s decision to throw out the permit allowing the trail crossing.