Category Archives: Atlantic Coast Pipeline

The Atlantic Coast Pipeline, and the Fallout

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By now everyone knows that the Atlantic Coast Pipeline is dead.

Not everyone knows that there are still issues around the pipeline, ranging from those at the corporate level that none of us will ever likely find out about, to cleanup and remediation of land where excavation was done.

Looming larger than every other issue is the question of who owns the land now that the ACP is gone? It seems like an easy question to answer at first glance. Since the company is gone and won’t be using the land, the landowner should get it back.

It’s not that simple from a legal perspective, though.

You see, all of the paperwork that the Atlantic Coast Pipeline had landowners sign was permanent. The paperwork wasn’t titled “Deed for Real Estate”, but it might as well have been. All the rights that people gave to the pipeline were given forever. The ACP still owns the rights to the land it bought.

When the Atlantic Coast Pipeline quit trying to build a pipeline it didn’t just evaporate away into the ether. The company is still around. Even if something happened to the company, such as bankruptcy or even legal dissolution, it can and will sell the land it owns to another company. Those agreements are valuable and permanent.

Is there anything that a landowner can do?

Well, the Atlantic Coast Pipeline seems to be doing the right thing in respect to landowners and making it so that that land reverts back to them. The company is reaching out to landowners to get them to sign paperwork that gives the ACP time to do remediation work on their land and in exchange they are saying that the property rights will be given back to the landowner. That won’t happen for a number of years yet, but at least it looks like there’s a chance.

I sincerely hope it happens.

It’s not outside the realm of possibility that the Atlantic Coast Pipeline could be revived, though. Some company could come along and buy the paperwork from ACP and start the construction and permitting process back up under a different name. It would be a long, hard project, bit it could happen.

So don’t get your hopes up until the deed is done.

I’m going to toot my own horn now. All of the people who came to me for help with the Atlantic Coast Pipeline were able to negotiate for a clause that said that when the pipeline was no longer in use, the pipeline right of way would revert back to the surface owner who could then remove the pipe if they wanted to. They also got specific language saying that the right of way could only be used for pipeline purposes. No converting it over to some other use, such as a power line right of way.

My clients don’t have to worry about whether they can use their property, or who is going to own it in the future. They know that once the right of way is no longer part of the pipeline, it’s theirs, outright.

The moral to this story is to go find a lawyer who knows the issues you’re facing. When you need an oil and gas attorney, a personal injury attorney just won’t do.

Atlantic Coast Pipeline Putting West Virginians in Danger?

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We’ve been supporters of building pipelines. There’s a ton of gas here in West Virginia, the gas is needed in other places, and pipelines are the safest way to transport natural gas. Sure, building power plants here and transporting electricity would be safer, but few people with the connections necessary to do that seem to be doing that. Pipeline companies have been the option. So we’ve supported that.

Of course, we’ve been negotiating great pipeline deals for the people of West Virginia. We’ve gotten much better prices and some really good terms that protect our clients from long-term use and abuse by the companies. We did so believing that the companies would do their best to install the pipelines in a safe way.

Turns out, that was not a safe assumption. Last week I got a call from a local source telling me that the Atlantic Coast Pipeline had been backfilling the trench with rocks. It’s a person that I have no reason to distrust, but it was news that was hard to believe because of the blatant disregard for safety that it displays. I’ve done some construction in my time and backfilling any pipeline trench with rocks is a no-no. Ask any plumber, landscaper, or developer if you don’t believe it.

Now today there’s news that the PHMSA (Pipeline and Hazardous Materials Safety Administration) has cited the ACP for placing the pipeline in a rock-laden ditch, for abutting the pipeline with rock-laden trench walls, and for building a trench that was too narrow for easy access for inspection and work.

The problem with rocks in backfill (or too close to the pipe as part of the trench wall) is that the rocks will scratch the outer protective lining of the pipe creating a location where corrosion will begin much sooner than anticipated. Corrosion is the main culprit in pipeline failures, except for construction guys digging into the pipeline.

This kind of construction is awful. It puts people in danger. When ACP or MVP start construction on your property we highly recommend that you get time-lapse photography of the entire process and watch it. If it looks like they’ve dropped rocks in the trench send the footage to PHMSA and FERC. Post it to YouTube. Make sure that it’s documented so that you can force them to properly install the pipeline.

Atlantic Coast Pipeline: Cutting Trees and Legal Action

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The Atlantic Coast Pipeline will begin cutting trees on property where it has already obtained permission from the property owner.  We still have a couple of clients who have not granted them permission, but I live in plain sight of the right of way, so I’ll personally be keeping an eye on how things develop.

One of our holdout clients has received a final offer letter from the ACP, warning that the next step will be to get their attorneys involved.

Not everyone with property affected by the pipeline will be receiving final offer letters.  The pipeline is being developed in stages, and the offer letters will go out over the course of months as the stages progress.

If you’re one of the people receiving offer letters from the Atlantic Coast Pipeline, it’s not too late to work out a favorable agreement.  Most holdouts at this point are holdouts because they just don’t want the pipeline coming across them.  Unfortunately, there’s nothing that can be done about that now, thanks to the Supreme Court’s interpretation of the eminent domain clause of the U.S. Constitution.  The best you can hope for is getting more money, better terms, and better tax treatment.  If you still want some advice about negotiating these things, give us a call.

FERC Still Not Happy with Rover Pipeline

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The Rover Pipeline would like to start horizontal directional drilling again, but the FERC isn’t allowing it.

In a letter to Rover, FERC listed several things it’s expecting Rover to do, including figure out where the diesel fuel came from in what was supposed to be only bentonite drilling mud and let its supervisors and workers talk with FERC about the incidents.

While we at Nuttall Legal sure hope that this will educate the Atlantic Coast Pipeline and the Mountain Valley Pipeline on how to go about things, we don’t expect it.  These companies only want to get pipe in the ground as fast as possible.  If cutting a few “unimportant” corners will get pipe in the ground faster, the corners will get cut.

When construction on the pipelines begins, don’t expect it to all go smoothly.

 

Ohio EPA Not Happy with Rover Pipeline

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The Rover Pipeline has been under construction in Ohio for about two months at this point.  It’s not making a lot of friends.

The Ohio EPA has fined Rover $431,000 for 18 separate violations.

That’s a big number, but for a project that’s going to cost an estimated $4,200,000,000, it’s kind of small.

What’s really interesting is that the head of the EPA is frustrated with Rover’s attitude.  In the Columbus Dispatch article linked above, he says, “All told, our frustration is really high. We don’t think they’re taking Ohio seriously.  Normally when we have … a series of events like this, companies respond with a whole lot of contrition and whole lot of commitment. We haven’t seen that. It’s pretty shocking.”

If Rover doesn’t get its act together, they may find themselves facing a stop work order from the State of Ohio.  They were able railroad landowners using federal law, but they are up against an entirely different animal when they tick off the head of a State agency that has the power to stop them in their tracks.

This also doesn’t inspire confidence that the end product is going to be well built.  Management problems trickle down to workers, and quality suffers.  It’s the natural way of all organizations.

UPDATE:  May 11, 2017 — The FERC has halted drilling by the Rover Pipeline at eight locations in Ohio.  Drilling already in progress is going to continue, as stopping the drilling increases the risk of collapse and spills.  The Tuscarawas River location will have independent third-party oversight.  Rover also has to double the number of environmental inspectors per construction spread.

UPDATE: May 16, 2017 — It turns out that the fine was not a fine, but a penalty that it will have to pay and that can be negotiated.  A spokesman for the Ohio EPA seems to have made that comment that’s quoted above, not the head of the Ohio EPA, and everything about the situation is pretty fluid.  It’s more than a little disappointing when facts get distorted by the news outlets.  Who do you trust?

Rover Pipeline Drilling Mud Leak Update

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A directional drilling rig working on the Rover Pipeline leaked a bunch of drilling fluid while it was drilling under the Tuscarawas River a little while ago.  This article from WMFD.com, a local news outlet, is a follow up story highlighting the efforts to clean the mess up and some doubts by the landowner as to whether the clean up is going well.

The Rover representative quoted in the article downplayed the seriousness of the spill, of course.  The Ohio EPA will still be levying fines and monitoring the clean up, so I guess it’s serious enough for that.

We previously noted that Rover is off to a pretty bad start and that all of it’s mistakes are going to shake confidence in the pipeline industry.  We haven’t seen anything to change that opinion yet.

Pipeline Opposition: Rover Pipeline Spills 2 Million Gallons of Drilling Fluid in Wetlands

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The Rover Pipeline is a big project that starts in the northern part of West Virginia, crosses Ohio, and heads up to Canada.  Construction began about a month ago.  They’ve been very busy cutting trees and clearing the right of way since then.  They’ve also been busy getting in trouble.

The Ohio EPA has already issued the Rover Pipeline a Notice of Violation for spilling 2 million gallons of drilling fluid in one location, and 50,000 gallons in another.

The Rover Pipeline already has a checkered reputation as far as construction work goes.  It demolished a historic house that was being considered for the National Register of Historic Places.  It also got an injunction against landowners who were trying to stop Rover from coming onto their property, but forgot to include most of the landowners with whom the Rover Pipeline had not been able to get easement agreements from.

Basically, it feels like this project which has been in the planning stages for years is not well planned.

It does not inspire confidence that the final product will be high quality (or in other words safe).

It also does not inspire confidence that the other major pipeline projects, the Atlantic Coast Pipeline, the Mountain Valley Pipeline, and the Mountaineer Xpress, will be any better.

Is There A Need for the Atlantic Coast Pipeline?

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One argument that opponents of the Atlantic Coast Pipeline are making is that there simply isn’t a need for it.

This is an important argument to make, because one of the main factors that the FERC looks at when deciding whether to approve a pipeline is whether there is a need for the gas.

An article by Samantha Baars on c-ville.com looks into the question a little better than most I’ve seen.

She interviewed Greg Buppert, a lawyer for the Southern Environmental Law Center (SELC) and looked at data from the Dominion Energy and Duke Energy, the main companies backing the pipeline, and from PJM Interconnection, a group that controls the electricity grid in Virginia.

The data from Dominion/Duke and from PJM are significantly different.

Dominion/Duke say that Virginia will need 24,016 megawatts of electricity in 2017.  PJM says Virginia will only need 20,501 megawatts.

Dominion/Duke says that PJM doesn’t take into account some factors that it should.

PJM, however, is responsible for running the grid.  If PJM doesn’t get the numbers right, it would be left scrambling to find other sources of power on short notice.  PJM doesn’t just have money as a motivating factor.  I lean towards trusting PJM more than Dominion/Duke on this one.

It’s possible that there isn’t enough demand for electricity in Virginia to warrant building the pipeline.  If that’s so, then there’s a real case to be made that the FERC should not approve the Atlantic Coast Pipeline.

Atlantic Coast Pipeline: A Small Scandal

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As it turns out, there may be some conflicts of interest for some of the people that have been working for FERC on the Atlantic Coast Pipeline.

The FERC contracts out some of the work it does reviewing the pipeline application.  Merjent was hired by the FERC to review the ACP’s Environmental Impact Statement.

The EIS was put together by a company called Natural Resources Group.

There are eight Merjent employees who previously worked for Natural Resources Group.

All eight of those Merjent employees approved the work Natural Resources Group did on the ACP.

Looks like a pretty clear conflict of interest there.

That conflict of interest was supposed to have been disclosed when Merjent got the contract from the FERC.  It wasn’t.

Interestingly, Natural Resources Group is listed on Merjent’s web site as one of Merjent’s clients.

That looks pretty bad.

Eminent Domain for the Mountain Valley Pipeline and the Atlantic Coast Pipeline

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If you’ve wondered what will happen if you refuse to work with one of the big pipeline companies, here’s the preview.

The Rover Pipeline is just like the Mountain Valley Pipeline, the Atlantic Coast Pipeline, and the Mountaineer Xpress pipeline in that they all have eminent domain rights.

Once they get eminent domain rights, your fight is pretty much over.

The judge hearing the Rover Pipeline cases ruled that the Rover Pipeline gets immediate possession of the route that it wants.

Yep.  You read that right.  Immediate possession.  Do not pass Go, do not collect $200.

At this point, the pipeline company is using all the might and power of the federal government to take private property and give it to a private company.  It’s no longer a friendly conversation about where the pipeline should go and how much money it’s worth.

Speaking of which, the judge hasn’t ruled on how much money the landowners will get.  We’ll be watching closely for that news.

More importantly, we’ll be watching to see what kind of changes the judge allows to the company’s standard easement agreement.

Reading the linked article is frustrating.  The landowners are frustrated because the Rover Pipeline didn’t work with them — didn’t address the unique needs of the owners and their properties.  That’s justifiable.  The way these pipeline companies have been operating has been ridiculous.

I understand the importance of moving natural gas from here to there.  I think it’s more important to actually work out agreements with landowners.