Atlantic Coast Pipeline faces another court battle; Robeson commissioners under scrutiny for premature approval of permit

Prospect, North Carolina, population 690, is quilted by farms, churches, modest homes and an elementary school on less than 3 square miles in northwest Robeson County. The Goins family, which like most residents of Prospect is Lumbee, has lived in this community for at least four generations, and as part of their heritage, has long honored the land and the sky for its gifts to the people.

But Prospect is along the route of the Atlantic Coast Pipeline, a 600-mile natural gas project starting in West Virginia, of which 160 miles will run through eastern North Carolina. In Prospect, which is near the end of the route, the project includes a metering and regulation station — which essentially controls and measures the gas being transported at high pressures through the pipeline — and a 350-foot communications tower whose lights and height will mar the skyline. Both will be built in the heart of the community and across the road from Dwayne Goins.

Now ACP, LLC — a company co-owned primarily by Dominion Energy and Duke Energy — faces yet another court battle over the project. A petition filed by Goins brothers, Robie and Dwayne, with Robeson County Superior Court alleges that the county commissioners violated the law and their constitutional rights when the board voted to allow the M&R station and a  tower to be built in Prospect to support the Atlantic Coast Pipeline.

During a quasi-judicial hearing in August 2017, the eight-member commission voted unanimously to grant a Conditional Use Permit to ACP, LLC to construct the facility on land previously zoned as agricultural. But the rules governing quasi-judicial hearings, which much like a trial include sworn testimony and evidence, are strict and clearly laid out in state statute. And in deciding on special permits, the governing board, in this case the Robeson County Commission, can’t have a “fixed opinion” on the issue before hearing all of the evidence. To do otherwise would be akin to a judge or jury issuing a verdict before a trial even began. But as court documents show, the commissioners strongly supported the ACP long before they were confronted with the decision to issue a special permit for the station and tower.

Robeson County Commissioners passed a resolution in support of the ACP in 2014, when the project was still on paper and long before the first tree had been felled. That resolution later appeared on Duke Energy letterhead, according to court documents. The commissioners again showed their unanimous support in official comments to the Federal Energy Regulatory Commission, filed in February 2016. In those comments, the commissioners extol the purported benefits of the ACP: energy savings, jobs and other economic benefits.

“The commissioners had conversations over the years,” the Goins’ attorney, Sean Cecil, told Policy Watch, which violates another part of state statute: They allegedly didn’t disclose any “ex parte” conversations — those held outside the public hearings — with the utilities.

The commissioners’ 2016 comments “do not appear to have been the subject of public discourse,” court documents read, “leaving the curious to speculate regarding their factual basis. It can only be assumed that there must have been some contact” between ACP and the commissioners “or else the finds and conclusions were adopted out of thin air.”

Just weeks before the final vote on the permit, Commissioner David Edge was quoted in the Robesonian newspaper that it would be “eventually passed” — illustrating to the Goins brothers that the decision was a foregone conclusion.

Attorneys for the commissioners — Nick Herman of Chapel Hill and county attorney Gary Locklear — did not return emails requesting comment. However, in court documents, they argue that the board’s support of the ACP is unrelated to their approval of the permit — even though their ruling allow the very infrastructure that would make the pipeline possible.

The metering and regulation facility would be constructed near an existing natural gas compressor station, which often sounds like “a 747 taking off,” according to transcripts from the commissioners’ hearings. The fire department is often called to area to respond to reports of the odor of gas, and Prospect residents, including a firefighter, testified they are concerned about additional leaks, noise and pollution that could accompany the new facility.

Attorneys for the commissioners also argued that Robie Goins knew of the statement to the newspaper and of the 2014 resolution, but didn’t object at the quasi-judicial proceedings where the permit was approved. Nor did he ask for the any commissioners to recuse themselves. Herman and Locklear argue, in essence, that Goins missed his chance.

The commissioners also failed to file their “findings of fact” they used to support their decision on the permit within a “reasonable amount of time,” the Goins brothers allege. In fact, those documents weren’t filed for a year — in August 2018. Attorneys for the commissioners say it was an oversight, only discovered in July 2018 by the interim county attorney Gary Locklear. (The county attorney serving at the time of the quasi-judicial hearing, Patrick Pait, was killed in a car wreck in June of this year.)

A year, the commissioners’ attorneys say, is reasonable.

The Goins brothers are asking a judge to review the entire record of the hearing. Cecil said the judge can affirm the issuance of the permit, deny it or send it back to the board for a second round of consideration. If that happens, expect the Goins brothers to ask the commissioners to recuse themselves — in which case, it’s unclear who would be left to decide.