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While North Carolina activists fight the Atlantic Coast Pipeline with protest songs and camera-grabbing marches, they’re also waging a quieter legal battle via the government agencies who must approve the project, including the Federal Energy Regulatory Commission (FERC).
Rallied by tribal and faith leaders, pipeline foes gathered Saturday in tiny Whitakers, North Carolina to launch a multi-day protest, with plans to hike all 180 miles of the project’s proposed route in the state, from the Virginia border to its terminus in Pembroke.
Activists hope the march will demonstrate and inspire new resistance to the pipeline, which they say will pollute the environment and disproportionately harm the poor, minority and indigenous communities of eastern North Carolina.
“There is a narrative that there is no North Carolina opposition to this pipeline, that everyone’s coming in from out of state,” Connie Leeper of NCWARN, a Durham-based nonprofit that advocates clean energy, told the crowd of about 90. “We’re here to show that’s just not true.”
‘Appallingly incomplete’ assessment
As the marchers raise general concerns about the pipeline, they are also focused on a specific factor in FERC’s approval process: the environmental assessment the agency issued December 30. Advocates and activists say this draft Environmental Impact Statement (EIS) lacks critical information and runs afoul of the law.
Citing thousands of pages of information pipeline developers submitted to FERC in four separate batches in January, after the draft EIS was already issued, NCWARN, Blue Ridge Environmental Defense League, and 11 other groups also backing the march have filed a legal motion asking for the statement to be either updated or replaced.
The late-filed documents by Dominion Transmission, the company building the pipeline, include a generic plan to mitigate damage to aquatic wildlife, a draft construction plan, migratory bird plans, and a restoration plans for wetlands.
Absent this information and more, groups say the initial assessment doesn’t provide an accurate picture of the pipeline’s environmental impacts.
“The draft EIS has got to be one of the most appallingly incomplete documents I have ever seen,” said Therese Vick with the Blue Ridge Environmental Defense League.
Advocates also say the company hasn’t completed all of its required surveys for the imperiled and rare animals, such as the Neuse River waterdog and the Carolina madtom, that live in the North Carolina creeks and streams in the pipeline’s path.
Scientists say creatures may be harmed by the pipeline’s construction, which could permanently alter water flow, damage vegetation on the shoreline, and fill water bodies with excess dirt.
“If these species are not able to survive, that’s poorer water quality for those of us that are using it for drinking, recreation, fishing,” said Pamlico-Tar Riverkeeper Heather Deck. “We clearly can’t get a sense of how this pipeline’s going to affect those [species] with the current draft EIS.”
“How can you determine impacts to specific streams or watersheds when you haven’t completed the survey of the species most at risk?” said Upper Neuse Riverkeeper Matthew Starr. The draft EIS is akin to “an incomplete book report. You read the first three chapters of the book and turned in your report without completing the other six.”
A call for a new environmental impact statement
Last week FERC held the last of 10 scheduled public meetings on the draft EIS, and will take written comments until April 6. Next the agency will issue its final EIS, which won’t be subject to formal public input.
That’s in part why advocates argue the agency owes the public a new draft EIS – before the final is issued – one which more accurately reflects the project’s environmental harms.
“The [draft] EIS was issued prematurely, with important information missing. Federal law is clear,” Vick said. “The draft environmental impact statement must be rescinded or supplemented…” Until then, say the groups in their legal motion, the comment period should be “held in abeyance.”
Deck, the riverkeeper, says she’s never seen such a deficient EIS not get supplemented or reissued for public comment. “In my 14 years of looking at EIS’s, I don’t think I’ve come across this situation,” she said.
But FERC has its own track record to reference. “I’ve been here since 1492,” joked long-time agency spokeswoman Tamara Young-Allen. “I can’t think of a supplemental EIS. That’s not how it works.”
Young-Allen says the additional documents supplied by Dominion after the draft EIS was issued are accessible on its website. “The information is there, you can comment on it,” she said. (Lawyers for NCWARN, et. al, found the files here, here, here and here.)
Duke Energy, which is partnering with Dominion on the pipeline, echoed Young-Allen’s defense. “Ongoing data requests from the Federal Energy Regulatory Commission are a normal part of the process, and the project will continue to provide updates over the coming months,” said company spokeswoman Tammie McGee.
But advocates counter the public can’t be expected to track down, much less evaluate, reams of additional raw information. “That’s the reason we have these environmental assessments,” said Deck.
Despite her history with FERC, Young-Allen stressed that she couldn’t speak for the commissioners, who must respond to the call for a new or supplemental draft EIS. But it’s not clear when that might happen. The three-to-five-member panel, appointed by the president and confirmed by the U.S. Senate, lacks a quorum.
“It could be that someone is nominated and can get through confirmation between now and June, [but] that is lightning fast in my experience,” Young-Allen said. Until the panel gains a third member, “all motions to the commission are in a holding pattern.”
Meanwhile, FERC staff are proceeding on the schedule they established last August, planning to produce a final EIS around June 30 and decide on the project in September. That means commissioners, once they have quorum, could consider approving the final EIS at the same time it considers issuing a new draft EIS.
Young-Allen conceded such timing could potentially make the North Carolina groups’ motion for a new draft EIS moot. But, she said, “we appreciate all the comments whether they are filed now or after April 6. As many comments as possible will be addressed in the final impact statement.”
Even if it doesn’t issue a new draft EIS, FERC’s schedule does have one advantage for those opposed to the pipeline: so far it appears unchanged by a January 24 executive order from President Donald Trump.
But the president included few details about how, and FERC does not seem to be working any more quickly than it was before the order was issued. An official at the Wilson, North Carolina comment session said FERC’s approval schedule “didn’t represent an expedited process.”
Asked about the executive order, Young-Allen said, “we’re not commenting on that.” Then she added, “but our process, the way that we’ve laid it out, we’re sticking to that schedule.”
‘Pipelines can be stopped’
While they await a decision from FERC, organizers of the march say they will be encouraging participants to submit public comments before the April deadline. They’re also targeting North Carolina Gov. Roy Cooper, whose environmental agency must approve water and air permits for the project.
Above all, volunteer organizer Greg Yost says the goal of the walk is to help North Carolinians understand the project isn’t a foregone conclusion.
“The big thing is to get local communities and affected landowners talking to each other and understanding that this pipeline is not a done deal,” he said. “Pipelines can be stopped. They have been stopped. That’s the word we’re trying to get out.”