2020 has not been a great year for environmentalists, as the Trump administration sought to roll back scores of rules that protect clean air and water and endangered species, and disengaged from international efforts to address climate change.
But amid all this bad news, one nonprofit law firm, working with grassroots and national environmental nonprofits, scored a major victory — the cancellation of a massive natural gas pipeline project. The 600-mile pipeline would have carried natural gas from West Virginia to Virginia and North Carolina.
When the Atlantic Coast Pipeline (ACP) was proposed in 2014, Duke Energy and Dominion Energy, the pipeline’s major backers, looked poised for a win. The project had the support of then-Gov.Terry McAuliffe, a Democrat, and was later embraced by the Trump administration. Both energy companies are major donors to federal and state candidates in both political parties through their respective Political Action Committees.
On June 20, the energy giants were handed a major victory when the U.S. Supreme Court ruled in their favor. Nevertheless, only days later, the pipeline’s sponsors walked away from the project.
What changed? In its statement, the utilities blamed “legal uncertainty” for abandoning the massive project, whose costs had jumped from $5 billion to $8 billion. That “uncertainty” can be laid at the feet of the Southern Environmental Law Center (SELC).
Supported by foundation grants and individual donations, the 34-year-old legal and policy nonprofit does not charge clients for its services. With more than 80 lawyers and nine offices in Virginia, North Carolina, South Carolina, Georgia, Alabama, Tennessee and Washington, D.C., SELC calls itself the largest environmental advocacy organization in the South.
Nevertheless, with an annual operating budget of under $35 million, the law firm’s financial resources are tiny compared to the financial power of Dominion and Duke. Other environmental nonprofits — and their attorneys — could benefit from learning how SELC succeeded in this fight. Here are some of its techniques:
Go after the process, not the proponents: SELC challenged state and federal agencies, not the companies directly. The firm didn’t begin litigation until late 2017, when permits were granted, said SELC senior attorney Greg Buppert. ”We took the view that this project needed to comply with the law, and so we brought cases against permits that we thought had legal defects.”
Keep the controversy before the public: SELC’s clients, including many small local and regional groups, never let up, submitting thousands of comments to regulators, writing op-eds for local news outlets and packing meetings of local zoning boards. “This project was opposed from day one, and that opposition never backed down. And never really went away. It just got stronger as the years went on,” Buppert said.
Take advantage of your opponent’s weaknesses: The ACP’s sponsors believed that their political clout could overcome the controversial route they had chosen for the pipeline, “going through steep mountains, across protected federal land, through endangered species habitats,” and even crossing the Appalachian Trail on national forest land, Buppert said. That presumption “left the door open” for SELC to challenge the pipeline in court. “They used that political influence to put the pressure on the agencies to keep the route where it was, get permits out fast, and if necessary, cut corners.” The flawed route made many challenges possible, drawing in more opponents. For example, when SELC attacked a biological opinion downplaying the project’s threat to endangered species, its clients were Defenders of Wildlife, the Sierra Club and the Virginia Wildlife Federation. Likewise, the controversial route and the hurried permitting process helped SELC win six out of seven of its cases before the U.S. Court of Appeals for the Fourth Circuit in Richmond.
Make the issue bigger than a regional controversy: Duke and Dominion proposed construction of a large compressor station on 64 acres of land about a mile away from Union Hill, a small, predominantly African American community founded by freed slaves after the Civil War, where many of their descendants continue to live. The compressor’s massive turbines, powered by natural gas, would run nonstop to push 1.5 billion cubic feet of natural gas along the pipeline every day, causing at least some air pollution and potential leaks of toxic gases. While ACP’s sponsors insisted the compressors would use state-of-the-art technology to mitigate any health concerns, placing it so close to this historic settlement gave the pipeline an environmental justice dimension, and SELC a powerful way to challenge state regulators’ decision to allow the compressor to operate near this historic community. Environmental justice drew national civil rights leaders and former Vice President Al Gore to the pipeline protest.
Look for an economic argument: For years, SELC had tracked Dominion’s projections about future energy use, finding a consistent disconnect between the utility’s predictions and actual energy use. Their findings, buttressed by an expert on energy projections the firm retained, made the case that Dominion had been exaggerating the region’s growing demand for energy for more than a decade, Buppert said. In 2018, Virginia’s State Corporation Commission took the unprecedented step of rejecting the company’s long-term forecast of energy needs, calling into question whether the pipeline was actually needed. SELC called the pipeline a boon for shareholders, who would get a guaranteed return on their investment, but a burden for customers in both states, who would have to pay for the costly project in higher utility rates.
The defeat of the pipeline is a “landmark moment,” Buppert said. “Now, a 70- or 80-year commitment to gas is off the table. The deck is cleared and these states can move forward as quickly as possible to embrace a renewable, clean-energy future.”
But activists and SELC won’t be resting on their laurels. Duke and Dominion now “have to reorient themselves toward cleaner energy,” Buppert concluded. “Our job, and the job that falls to our clients and the public is to make sure these utilities stay on track to deliver a cleaner, better future for everybody.”
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