Several members of Lumbee tribe, climate coalition ask DEQ to revoke Atlantic Coast Pipeline permit; EPA proposes to clamp down on states’ authority

While the Trump administration proposed rules to strip states of some authority to reject natural gas pipelines, opponents of the Atlantic Coast Pipeline petitioned state regulators to revoke the water quality permit for the controversial project.

“We asked the department to consider the new information in the petition today,” said Donna Chavis, a member of the Lumbee Tribe in Robeson County and Friends of the Earth, during a press conference at the legislature. “The cumulative impacts are worse than previously thought. We urge DEQ to reconsider its decision. We believe they want to do what is right.”

The ACP would run more than 160 miles in eastern North Carolina from Northampton County to Robeson County, which has the largest community of American Indians east of the Mississippi River.

Construction had begun in Northampton and Cumberland counties, but stopped after several court rulings in Virginia vacated federal permits. The cost of the project, originally estimated at $5.5 billion, is now at least $7.5 billion.

After months of requesting additional information from Dominion and Duke Energy, co-owners of the ACP, he NC Department of Environmental Quality granted the water quality permit in January 2018. Known as a 401 permit, it is among the requirements for a pipeline project to proceed.

Legally, the state can revoke or amend a 401 permit if information in the original application was incorrect or the conditions under which the certification was made have changed. “Both triggers for revocation have been met,” the petition reads.

“The information doesn’t have to be incorrect at the time it was presented. It doesn’t matter if it was withheld,” said Ryke Longest, director of Duke University’s Environmental Law and Policy Clinic. “The scope of project has changed or is not as described in the proposal.”

DEQ Sarah Young spokeswoman told Policy Watch the the department received the petition “and is reviewing it.”

The petitioners, including the NC Climate Coalition, say ACP and FERC made math errors and failed to disclose ACP’s possible extension into South Carolina, also known as “segmentation.”  ACP also failed to evaluate the cumulative impacts of nine natural gas projects on the Lumbee community, according to the petition. And since DEQ issued the 401 permit, there have been  court rulings directing regulators to also consider the effects of energy projects on climate change.

Ryan Emanuel, a hydrologist and Lumbee, said the ACP and FERC both erred in their environmental justice analysis because they compared the demographics of the affected census tracts with the rest of the county average, rather than the state.

Robeson County is 41.7 percent American Indian, according to 2017 census figures. Twenty-nine percent of its residents live below the federal poverty threshold. These percentages are starkly different from North Carolina as a whole: Just 1.6 percent of the state’s residents are American Indian, and 14.7 percent live below the federal poverty threshold.

Duke Energy has emphasized that the ACP will end in Robeson County and not extend into South Carolina. If there were an extension, DEQ would be required to also assess those impacts. However, the petition points out that these denials “are highly contradictory to other written and oral statements …”

During South Carolina Public Service Commission hearings, Dominion officials testified that “we would hope that the demand will arise, and that the pipeline would be extended into South Carolina. We have no plans to do so today, but I would hope that happens.”

In September 2017, Dan Weekley, Dominion Energy’s vice president and general manager of Southern pipeline operations told the Associated Press that “even though it dead ends in Lumberton, of course, it’s 12 miles to the border. Everybody knows it’s not going to end in Lumberton. We could bring in almost a billion cubic feet a day into South Carolina just by adding horsepower upstream.”

Mac Legerton, who lives in Robeson County, said that residents were puzzled that an M&R was being built if the ACP and its gas were to end there. The petition details nine natural gas projects within an eight-mile radius of Prospect, a small town in Robeson County, that are “interrelated and the cumulative impacts of which are greater than the sum of its parts.

Tammie McGee, a Duke Energy spokeswoman, said the petitioners “confused a M&R station with a compressor station. A compressor station pushes natural gas down a pipeline. The ACP only has one compressor station planned in North Carolina, and it will be in Northampton County, to push natural gas from the Virginia border into NC.

“The function of the M&R station in Robeson would be to pull natural gas off the ACP transmission line and distribute it through Piedmont’s system of distribution lines to serve existing customers and future growth in eastern NC. All of the natural gas from the ACP in NC will be consumed in the state, to benefit North Carolinians. There is currently no plan to extend the pipeline into South Carolina, which would require a completely new FERC process.”

These nine projects (see box) place a disproportionate burden on Robeson County and the American Indian and low-income people who live there, Legerton said.  “Robeson County is not a landing pad but a launch pad,” he said.

McGee said the assertions are “not factual.”

The petitioners, she said, have “lumped together existing Duke and Piedmont infrastructure and planned ACP infrastructure and manufactured some conspiracy theory that the indigenous population in that area is specifically targeted. Nothing could be further from the truth. Some of the infrastructure they cite has been in place for years or decades, reliably serving natural gas customers, and is no different than the infrastructure in any communities with natural gas service.”

Since DEQ issued the permit more than 18 months ago, the climate crisis has grown more urgent, both globally and in North Carolina. Two catastrophic hurricanes — Florence and Michael — hit the state last fall, whose characteristics, scientists say, indicate a warming planet.

Natural gas pipelines leak methane. A greenhouse gas, methane is roughly 28 times more efficient at trapping heat in the Earth’s atmosphere compared to carbon dioxide, and current levels of methane in the atmosphere are higher than at any point in the past 2,000 years, according to NOAA.

A 2018 study from Colorado State University showed that rate of methane entering the atmosphere from pipelines is far greater, 2.3 percent — than EPA estimates of 1.4 percent. (While that difference might seem small, it is actually 60 percent.) These rates translate to an estimated 14 million tons of methane leaking from pipelines each year.

Meanwhile, the Trump administration announced it would propose rules to prevent states from reject pipeline projects except in limited circumstances. Inside Climate News reported the story on Aug. 9.

Under the proposal, states would have no more than a year to decide on water quality permits, with no pauses or restarts to request more information. The federal government could also overrule a state decision in some circumstances.

States could not reject a permit based on erosion and sedimentation concerns, according to Inside Climate News, and could only consider “the potential for discharges” from a specific source.

Erosion and sedimentation can present serious problems for wetlands, rivers, lakes and streams. When too much dirt enters waterways, it can kill aquatic life and increase the cost of  treatment for downstream utilities. Bacteria and pathogens can also attach to the sediment particles, further contaminating the waterways.

Although the rules will most likely be legally challenged, if they become final, it could hamstring North Carolina regulators in their evaluation of a separate pipeline proposal, the Mountain Valley Southgate Pipeline, which would enter the state in Rockingham County, near Eden, and route southeast more than 40 miles before ending in Haw River.

Longest told Policy Watch that the proposed rules violate the Clean Water Act and “the principles of federalism” — which distributes certain powers and autonomy to the states. “We should be investing in securing the pipelines we have to eliminate leaks, not creating more opportunities for leaks and other adverse impacts to our natural resources,” Longest said.

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