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BEFORE THE UNITED STATES

FEDERAL ENERGY REGULATORY COMMISSION

Atlantic Coast Pipeline ) CP15-554

REQUEST FOR REHEARING OF NOTICE TO PROCEED BY BOLD ALLIANCE AND
BOLD EDUCATIONAL FUND

Pursuant to Rule 713 of the Commission’s Rules of Practice and Procedure, 18 C.F.R.

§385.713, the Bold Alliance and Bold Educational Fund (collectively, Bold) seek rehearing of

the letter ruling dated February 16, 2018 by Rick McGuire, Director of the Division of Gas

Environmental Compliance granting Atlantic Coast Pipeline’s requests of February 12 and 16,

2018 to proceed with certain tree clearing activities. Allowing Atlantic Coast to proceed with

construction while requests for rehearing and a stay (including Bold’s request) and petitions for

review of the Certificate Order are pending before the Commission and federal courts deprives

Bold and other parties of their due process rights by either mooting some of its claims while

foreclosing relief as a practical matter on others. Moreover, because ACP has not yet gained

possession of many of the parcels along the pipeline, it will be unable to begin clearing trees on

those parcels and thus, the grant of the notice to proceed will lead to piecemeal tree felling which

can have significant adverse environmental impacts. For these reasons, the Commission must

grant Bold’s rehearing request, vacate the letter rulings allowing ACP to proceed with tree

clearing and prohibit any tree-removal or ground-breaking activity until all pending claims are

resolved.

BACKGROUND

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The Bold Alliance and Bold Educational Fund ​is an association of individuals,

not-for-profit environmental organizations and and landowner rights groups based in states

across the U.S. with more than 92,000 supporters. Bold seeks to protect landowners’ private

property rights from eminent domain abuse by energy infrastructure projects, and advocates for

clean energy, water and environmental protection. ​ Bold is an intervenor in this proceeding.

On October 13, 2017, the Commission issued a Certificate Order to ACP to construct and

operate the Mountain Valley Pipeline, a 604- mile pipeline that will run through West Virginia,

Virginia and North Carolina. ​Atlantic Coast Pipeline Pipeline​, Order Granting Certificate, 161

FERC ¶ 61,042 (2017). Commissioner LaFleur dissented from her two colleagues who voted in

favor to the project. LaFleur explained that she could not support the project because of its

substantially adverse environmental impacts and because a combined MVP/ACP pipeline would

reduce overall impacts by eliminating the need for much of the MVP pipeline.

On November 13, 2017, Bold along with several environmental organizations, timely

filed a joint petition for rehearing and a stay of the Commission’s certificate order. Among other

things, the groups challenged the need for the project, failure to comply with NEPA and the

constitutionality of approval of a project that would take private property for private use. The

Commission has not yet ruled on either the stay request or the rehearing petition.

There is other pending litigation as well. Several environmental groups have already

filed actions in the Fourth Circuit challenging the Certificate Order (​see Appalachian Voices et.

al. v. FERC​, (4th Cir. January 31, 2017) (​see ​Petition filed as Accession No. 20180201-008.
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while others have challenged related project permits. Bold Alliance is also awaiting a ruling on

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​See
Conservation Groups Challenge National Forest Service Permit for Atlantic Coast
Pipeline (Feb. 5, 2018), online at

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its constitutional and statutory challenge to the Commission’s pipeline program, which is

pending in federal district court for the District of Columbia. ​See Bold Alliance et. al. v. FERC

et. al.​, Docket No. 17-cv-1822 (D.D.C. 2017).

Meanwhile, ACP has not yet acquired many of the parcels along the 600 mile pipeline

and therefore, any tree clearing will take place in piecemeal fashion and will not be concluded by

the required deadlines. Because allowing construction to proceed may foreclose relief on

pending claims, Bold Alliance now seeks rehearing. Section 375.301(a) of the Commission’s

regulations authorize appeals of staff actions under 18 C.F.R. §1902, which has since been

combined with Rule 713 governing rehearing requests.

ARGUMENT

I. GRANTING A NOTICE TO PROCEED WHILE CHALLENGES TO THE
PROJECT REMAIN PENDING VIOLATES PARTIES’ DUE PROCESS RIGHTS.

Parties to the Commission proceeding have a due process right to have their challenges

to the certificate order and related permits either addressed by the Commission or adjudicated

in the appropriate judicial forum. By granting ACP’s notice to proceed, the Commission has

effectively mooted Bold’s request for a stay. Moreover, once ACP begins construction along

its preferred route, any relief - such as consideration or implementation of the single

MVP/ACP pipeline route endorsed by Commissioner LaFleur’s - is effectively foreclosed.

And even though the Commission has stated on previous occasions that if a court were to

https://augustafreepress.com/conservation-groups-file-challenge-national-forest-service-decision
-atlantic-​coast-pipeline/​; see also​ ​Environmental Groups File Legal Challenges to Pipeline,
(January 30, 2018) (describing challenges to Park Service, Fish & Wildlife Service and state
water quality permits), online at
https://www.bayjournal.com/article/environmental_groups_file_legal_challenges_to_va_pipeline

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vacate its certificate order, it could require a pipeline to decommission and remove the project,

the resulting environmental harm associated with constructing and then deconstructing a

project is irreparable and can never be fully remediated.2

The grant of the notice to proceed has also caused confusion to landowners. ACP has not

yet gained possession of many parcels and cannot commence construction on parcels that it

has not yet acquired. Yet many landowners do not realize that ACP cannot go forward, and

are under the impression that the letter order granting the notice to proceed also allows ACP

access to the property when it does not. In addition, because ACP cannot began tree-felling

on properties where it has not yet gained access, tree clearing will be piecemeal at best and

may not even be completed within the construction window for tree removal. This could result

in more extensive environmental harm if trees are removed but the property is not mitigated

until construction on the other segments begins.

Because of all of these outstanding challenges that have yet to be addressed and because

ACP has not yet acquired possession of the parcels, the Commission should rescind the letter

order of February 16, 2018 granting a notice to proceed and commence tree felling and

refrain from allowing any construction until the pending challenges have been resolved.

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​Moreover, although the Commission has stated that it has the power to require project
removal if its order is vacated by the court, the Commission’s recent actions in the challenge to
the Southeastern Connection Project (Sabal Trail) suggest otherwise. In August 2017, the court
vacated the Commission’s certificate order, finding that the EIS for the project was deficient
because it failed to consider climate change impacts associated with a downstream plant. Yet
rather than order the project stopped, the Commission has urged the court (albeit unsuccessfully)
to reverse its vacateur order. ​See D.C. Circuit Ruling Could Shut Down Pipeline​ (Feb. 1, 2018),
online at ​https://www.eenews.net/stories/106007259​. Given the Commission’s position in this
case, it seems unlikely that the Commission would actually require a pipeline taken out of
operation if a court vacates the certificate.

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CONCLUSION

WHEREFORE​, for the foregoing reasons, Bold respectfully requests that the

Commission vacate or rescind the notices to proceed issued for the project.

Respectfully submitted,

LAW OFFICES OF CAROLYN ELEFANT, PLLC

By: ___________________________
Carolyn Elefant
1440 G Street NW, 8th Floor
Washington D.C. 20037
Phone: 202-297-6100
carolyn@carolynelefant.com

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