The Southern Environmental Law Center’s Senior Attorney Nate Benforado is leading the nonprofit’s campaign to return Virginia to the Regional Greenhouse Gas Initiative. Photo by Tristan Williams.
By Laura Vogel
The Southern Environmental Law Center has fought—and won—some mighty environmental battles in its 35 years of existence. Right now, though, it’s in the midst of one of its biggest legal challenges: Pulling Virginia away from the brink of leaving the Regional Greenhouse Gas Initiative for good, after Governor Glenn Youngkin encouraged the state Air Pollution Control Board to repeal the regulation.
RGGI (sometimes pronounced “Reggie”) is a 2009 Northern creation that was making great headway in the South. The first group of states to join the greenhouse-gas-fighting, regional intergovernmental market included Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont.
As a program, RGGI works by mandating a cap on CO2 emissions from fossil fuel-powered stations within each states’ borders by making facilities buy allowances equal to the pollution they produce. The funds collected by RGGI then go toward investments in their communities: Residents get help with home improvements like weatherization, bill assistance for lower-income households, and other clean-energy benefits.
A study by the Clean Air Task Force on public-health benefits of the program found that the transition to cleaner energy in RGGI-member states saves hundreds of lives, prevents thousands of asthma attacks, and lowers citizens’ medical expenses by billions of dollars. As well, more than $6 billion has been raised in RGGI states from sales of CO2 allowances.
But Virginia’s Air Pollution Control Board removed the commonwealth from RGGI in June 2023. That August, the SELC filed a petition on behalf of four clients challenging the action. In a November 3 ruling, the Fairfax Circuit Court dismissed three of those clients—Faith Alliance for Climate Solutions, Appalachian Voices, and Virginia Interfaith Power & Light—and transferred the case to Floyd County, where the SELC’s fourth client, the Association of Energy Conservation Professionals, is headquartered. Now, the pending state budget proposal includes a provision that would require Virginia to rejoin RGGI. At press time, Youngkin had not made a decision on the budget.
For the SELC, these are promising steps forward. Senior attorney Nate Benforado, who is the leader of the nonprofit’s initiative to get Virginia back into RGGI, says, “We are pleased with [the court’s] decision, which allows this case to move forward and will ensure the administration’s decision to leave RGGI—which we have repeatedly alleged is unlawful—will be reviewed by a court. We look forward to the next steps in this action and will work as expeditiously as possible to get Virginia back in RGGI.”
Some may wonder why the Youngkin administration is against what seems to be an overwhelmingly positive environmental program. When asked by C-VILLE for a statement, the governor’s press office replied with a quote from Secretary of Natural and Historic Resources Travis Voyles, who says, “RGGI functions as a regressive tax that does not do anything to incentivize the reduction of emissions in Virginia. Our state Air Pollution Control Board has concluded that Virginia is not required to be in RGGI and that the citizens of Virginia should not be forced to pay higher energy bills to support the previous administration’s failed programs. The Office of the Attorney General confirmed the state Air Pollution Control Board has the legal authority to take action on the regulatory proposal using the full regulatory process—and the board voted to do just that—furthering Virginians’ access to a reliable, affordable, clean, and growing supply of power. Virginians will see a lower energy bill in due time because we are withdrawing from RGGI through a regulatory process.”
Cale Jaffe, the director of the University of Virginia’s Environmental Law and Community Engagement Clinic, filed an amicus brief for Virginia Clinicians for Climate Action and the Virginia Energy Efficiency Council in support of RGGI in Virginia in the Fairfax hearings. When questioned about the Youngkin administration’s repeal of RGGI, he says, “It’s impossible for me to conjecture what their motives are.” When asked if he believes SELC and other stakeholders will reinstate RGGI, Jaffe says, “There’s a really strong argument in the law that participation in RGGI is in the Virginia code, which makes it more than just an easy-to-repeal legislation. It was codified in statute, a legislation that had passed both houses and was signed by the governor, not just a simple law that a past governor [Democrat Ralph Northam] approved and the next one can repeal.”
Cale Jaffe, director of UVA’s Environmental Law and Community Engagement Clinic, filed an amicus brief in support of RGGI. Photo by University of Virginia Law School.
The positive effects of RGGI are quantifiable. “The science and the policy are clear: We need to reduce carbon pollution, and generating power is the largest source of this pollution in our atmosphere,” Benforado explains. “RGGI gives flexibility to power-plant owners. It’s not micromanaging, it’s giving a market-based solution to reigning in greenhouse gas. In RGGI’s first two years in Virginia—we joined in 2020—carbon emissions from power plants dropped a whopping 22 percent.”
The state of Virginia gives about half the proceeds of RGGI fees to communities along coasts and rivers that face the threat of flooding. The remaining 50 percent goes to new energy-efficient, affordable housing, reducing pollution and lowering utility bills for families—most of whom are lower-income.
“Most of our effort is aimed at monopoly utility companies, like Dominion and Appalachian Power,” says Benforado, “as they produce 70 percent of carbon emissions. RGGI is focused on pollution going down, steadily reducing emissions over time. Since we’re in active legislation, I can’t really go into the defense; the Youngkin administration says it’s not working. It obviously is. This is a very successful policy tool, bringing down emissions, bringing in cleaner energy.”
When asked how RGGI is benefiting the Charlottesville area, Benforado excitedly talks about the energy-efficient redevelopment of Kindlewood (formerly Friendship Court), the downtown low-income housing complex. “One of the really cool things that RGGI money has done for our town is helped fund the complete renewal of this community-owned property,” he says. “The Piedmont Housing Alliance was able to use RGGI proceeds to make new units with super-efficient HVAC systems as well as weatherizing and updating the systems in older housing. So, instead of, say, $100 a month in utilities, a tenant may now pay as little as $10.”
Set just a few blocks southeast of the SELC headquarters, Kindlewood was initially a Section-8 complex. First built as a 12-acre master block after the previous African American neighborhood fabric was erased during “urban renewal,” the community has largely remained economically and physically isolated from the rest of the city, but the Piedmont Housing Alliance is working to change that. The 150-unit structure has recently undergone new-unit construction and energy-efficiency upgrades funded by RGGI capital.
Sunshine Mathon, executive director of the Piedmont Housing Alliance, is the leader of the Kindlewood renovation and new construction. “We are driven to promote deep energy efficiency and affordable housing benefiting lower-income Charlottesville residents,” he says. “For about 20 years, we have worked diligently to highlight the good stories and impact of RGGI funds.”
Sunshine Mathon, executive director of the Piedmont Housing Alliance, says RGGI proceeds have helped to build Kindlewood. Photo by Eze Amos.
“Each state has its own control over its RGGI funds—here, 50 percent goes into HIEE [Housing Innovations in Energy Efficiency], so a lot goes into weatherization for low-income houses,” Mathon continues. “One of the beautiful things about RGGI is that it pairs HIEE program funding parallel with other sources. Rental projects that would be out of our reach are made possible by RGGI money. It’s a game-changer. Before Virginia officially joined RGGI we were learning about deep energy efficiency, and now we are able to put that knowledge to use for people that need it most.”
When asked about the Youngkin administration’s repeal of RGGI, Mathon says, “It doesn’t make sense. I don’t know why he did it.”
The cool office that’s cooling the planet
Started in Charlottesville in 1988 by environmental lawyer Rick Middleton, a native of Birmingham, Alabama, the SELC has always been at the forefront of environmental law in the United States. Many organizations had given up on fighting environmental injustice in the South due to its conservative politics, but SELC flourished, and grew from a small office in downtown Charlottesville to also encompass centers in Alabama, Georgia, North Carolina, South Carolina, and Tennessee, with over 200 employees in total. The Charlottesville office remains its headquarters, with a sprawling new modern space, and a team of over 50, just south of downtown on Garrett Street.
Apex Plaza at 120 Garrett Street is the largest mass-timber building on the East Coast. Encompassing the entire fourth floor of the building, the SELC offices are LEED Gold–certified.
The building is made of structural wood harvested from fast-growth timber, and the building is actively helping the environment: Much like a healthy tree stores carbon dioxide, one square meter of cross-laminated timber can remove approximately one ton of the greenhouse gas from the atmosphere. Additionally, the building’s 875 solar panels produce approximately 364,000 kWh per year of electricity, the equivalent of 88 tons of recycling being saved from landfills.
The SELC offices at Apex Plaza are LEED Gold-certified. Photo by Hourigan Group.
The SELC headquarters was awarded Leadership in Energy and Environmental Design Gold certification in August 2022, and features progressive amenities such as bike parking, a shower and changing room, and EV charging stations. Apex Plaza was constructed on an underutilized lot in Charlottesville, just a five-minute walk from downtown’s existing amenities, helping to reduce sprawl and promote dense, multi-use neighborhoods.
During construction, emphasis was put on reducing waste and repurposing materials. To that end, more than 60 percent of the furnishings, by cost, were reused or salvaged and contractors diverted more than 70 percent of their waste from the landfill. Recycling stations for paper, cardboard, plastics, aluminum cans and metals, batteries, and e-waste are distributed throughout the space to continue minimizing what is sent to landfills.
Other more subtle design choices with a green impact include window placement to maximize natural light, and toilets, faucets, and dishwashers all chosen for their efficient use of water.
Additional features contributing to the office’s LEED status are hydration stations to avoid single-use water bottles, sensors that turn lights out when a room isn’t being used, compost collection, and power sourced from solar panels.
Activists in Buckingham have been fighting the pipeline since 2014. On Sunday, they won.
PC: Friends of Buckingham
Pipeline defeated
The Atlantic Coast Pipeline is history. In a surprise announcement on Sunday afternoon, Dominion Power called off the 600-mile natural gas pipeline that would have run from West Virginia to North Carolina. “VICTORY!” declared the website of the Southern Environmental Law Center.
The news is a major win for a wide variety of environmental advocacy groups and grassroots activists, who have been fighting the pipeline on all fronts since the project was started in 2014. The pipeline would have required a 50-yard-wide clear-cut path through protected Appalachian forest, and also disrupted a historically black community in rural Buckingham County.
Dominion won a Supreme Court case earlier this month, but that wasn’t enough to outweigh the “increasing legal uncertainty that overhangs large-scale energy and industrial infrastructure development in the United States,” says the energy giant’s press release.
Litigation from the Southern Environmental Law Center dragged the pipeline’s construction to a halt. Gas was supposed to be flowing by 2019, but less than 6 percent of the pipe ever made it in the ground.
The ACP had the backing of the Trump administration, and U.S. Secretary of Energy Dan Brouillette blamed the “obstructionist environmental lobby” for the pipeline’s demise.
“I felt like it was the best day of my life,” says Ella Rose, a Friends of Buckingham member, in a celebratory email. “I feel that all the hard work that all of us have done was finally for good. I feel like I have my life back. I can now sleep better without the worries that threatened my life for so long.”
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Quote of the week
“It is past time. As the capital city of Virginia, we have needed to turn this page for decades. And today, we will.”
—Richmond mayor Levar Stoney on the city’s removal of its Stonewall Jackson and Matthew Fontaine Maury statues
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In brief
Loan-ly at the top
On Monday, the government released a list of companies that accepted loans through the federal Paycheck Protection Program, designed to keep workers employed during COVID’s economic slowdown. A variety of Charlottesville businesses accepted loans of $2-5 million, including Red Light Management, St. Anne’s-Belfield, and Tiger Fuel.
Renaming re-do
An advisory committee recommended last week that recently merged Murray High and Community Charter schools be renamed Rose Hill Community School, but this suggestion immediately raised eyebrows: Rose Hill was the name of a plantation that later became a neighborhood. The committee will reconvene to discuss options for a new moniker.
City hangs back
Charlottesville is one of a handful of localities that have pushed back against Governor Ralph Northam’s order to move to Phase 3 of reopening. While some of the state has moved forward,City Manager Tarron Richardson has decided to keep the city government’s facilities operating in accordance with Phase 2 requirements and restrictions. As stated on its website, this decision was made in order to “ensure the health and safety of staff and the public.”
Soldier shut in
Since at least the beginning of July, the gates of UVA’s Confederate cemetery, where a statue of a Confederate soldier stands, have been barricaded, reports the Cavalier Daily. A university spokesman says the school locked the cemetery because protesters elsewhere in the state have been injured by falling statues. Or maybe, as UVA professor Jalane Schmidt suggested on Twitter, “they’re tryna keep the dead from escaping.”
The Clean Water Act helped depollute the James River.
Keeping our waterways swimmable, fishable, and drinkable seems like an uncontroversial goal—but the Trump administration apparently disagrees. Since assuming control, the administration has made a series of efforts to weaken long-standing protections for America’s waterways. Local environmental groups have grave concerns about the potential effects of these suggested laws in Virginia and across the country.
The Clean Water Act prevents people, farms, and factories from dumping waste into water and using chemicals that could lead to harmful runoff. The most recent piece of Trump legislation, announced in late January, would redefine which types of waterways are protected by the act.
“These rules will reduce the scope of Clean Water Act protection in an unprecedented way, in terms of putting hundreds of thousands of acres of wetlands in Virginia at risk,” says Jamie Brunkow, senior advocacy manager at the James River Association.
“There are industrial and other interests that stand to profit by a narrower scope of Clean Water Act protections,” says Southern Environmental Law Center attorney Jonathan Gendzier. “That includes big industrial agriculture, homebuilders, and other polluting industries.”
Trump’s rules “reflect a simplistic notion that we should only be regulating navigable waters,” says Chris Miller, president of the Piedmont Environmental Council.
Confining the Clean Water Act’s jurisdiction to “navigable waters” means leaving out smaller tributaries that feed in to larger waterways. Vernal pools, intermittent streams, prairie potholes, and other seasonal but critical water features could lose protection. Since all of these waterways are interconnected, pollution anywhere means pollution everywhere. “All the little ravines that have rocks in them and no water until it rains, if you’re allowed to dump whatever you want in there, the second it rains all that is going to come into your streams,” says Bryan Hofmann, deputy director of Friends of the Rappahannock.
The Clean Water Act was initially passed by the Nixon administration, with bipartisan support, in 1972. It’s widely considered an environmental success story, and has directly resulted in improvement of water quality in places like the James River, says Brunkow.
“It’s hard to imagine, but we didn’t have any rules in place that prevented you from directly putting sewage into waterways,” Brunkow says. “The James in Richmond was largely considered an open sewer prior to the Clean Water Act.”
This rollback is bad news for people and animals alike. Brook trout, endangered Shenandoah salamanders, oysters, otters, blue crabs, bald eagles and even dolphins all rely on the Rappahannock system, says Hofmann, and any pollution wreaks havoc on those fragile systems. Meanwhile, “In Charlottesville, most of the public drinking supply comes from surface water, which runs off the land,” Miller says.
Repealing the federal rules means more responsibility falls to states. Virginia has decent protections in place, compared to neighboring states like West Virginia or Pennsylvania, says Hofmann, but the rollback means fewer staff and a decreased budget.
The rule change “puts an additional strain on our state agencies,” Brunkow says. “It’s really a devastating blow to have lost that national standard.”
The Southern Environmental Law Center has been fighting against Trump water deregulation since the administration took office, says Gendzier. They plan to challenge this new rule as well, and anticipate a months-long legal battle.
“Having a big power plant go through and discharge whatever they want into the water, farms having their cattle sitting there all day long and defecating into the stream—” Hofmann says, “The Clean Water Act prevents those huge bad things from happening.”
If the pipeline is approved, Richard Averitt will be hit on two fronts—his residential property and a commercial lot he bought with the dream to build a $35 million five-star boutique resort. Photo by Sanjay Suchak
Take a short drive through Nelson County and you’d need all your fingers and toes to count the number of deep blue signs with lambasting white block letters that tout the words “NO PIPELINE.”
The Atlantic Coast Pipeline, proposed in September 2014 to run through bucolic Nelson on its way from West Virginia to North Carolina, has amassed intense opposition by environmentalists, property rights enthusiasts and landowners who cringe at the idea of the 42-inch-wide fracked gas pipeline slicing through their backyards.
Though the Federal Energy Regulatory Commission, which will eventually approve or deny the $6 billion project, has echoed major owners Dominion Energy and Duke Energy in saying the 600-mile pipeline will have a limited impact, it is undisputed that the ACP will change the lay of the land along its route—disputably forever.
Construction is anticipated to begin at the end of the year, with the pipeline in service by the end of 2019.
Since 2005, Richard Averitt has lived with his family—including his wife, two children, parents, sister, sister-in-law and their respective families—on four parcels that span 135 acres in Nelson. Sitting on a red bench on the porch of his Nellysford home, he motions to the heavily wooded area behind his abode.
“If [the pipeline] does blow up, our house is in the incineration zone, which means everything you see would be turned to splinters or dust. It would kill all of us if we were here. It would obliterate this house,” says Averitt. “But even if it doesn’t ever blow up, is it going to leak and taint our well water and will we be drinking it without knowing? Is it going to pollute our land? Will I walk out of my front door every day for the rest of my life and look at the way they clear-cut all the trees and irreparably damaged the place that we built as our family homestead? I think I would be too angry and too bitter. I think I’m going to have to reimagine my life if we lose. It’s brutal.”
So why keep fighting, when, historically speaking, those protesting pipelines have had little chance of prevailing?
“I don’t have a plan B,” says Averitt. “I expected to live out my life right here.”
If the pipeline is approved, Richard Averitt will be hit on two fronts—his residential property and a commercial lot he bought with the dream to build a $35 million five-star boutique resort. Photo by Sanjay Suchak
The Atlantic Coast Pipeline, if approved, won’t actually touch his residential property. The proposed route runs through his sister’s neighboring parcel and continues to travel into the wilderness about 250 yards from where he sits on his porch.
In order to build it, the pipeline’s construction crew—Spring Ridge Constructors, LLC—will bulldoze a 125-foot-wide path along its entire course before digging a trench to lay the pipe. Because of the steep mountainous terrain behind Averitt’s home, which includes a 15-foot-wide ridge that drops off at 35 degrees on both sides, the crew will need to cut away at the hill and level the area until they have a flat enough work space. In total, they will remove mountain and ridgetops for 38 miles of the pipeline’s proposed route.
But Dominion has always maintained that after it removes the soil and constructs the pipeline, it’ll put the dirt back.
“What does ‘putting it back mean?’” Averitt asks. “They say, ‘We’re required to put it back.’ How? If you just pile all that dirt back on, first off, it doesn’t look like what it used to look like. And secondly, even if you did, the first time it rains, what’s going to happen? It’s just going to wash down.” He adds, “The process of installing the pipeline is so ungodly destructive to someone’s land.”
And once Dominion does purchase an easement from a landowner, the power giant will have permanent ownership and access to it, meaning it can access the easement whenever it pleases.
For that reason—and many others—Averitt says landowners along the route should have a say in whether FERC gives the greenlight to the project. But when Dominion sent a letter to his sister, Dawn Averitt, in February 2015, the company said it wanted to perform a precondemnation survey of her land, and if she didn’t give her approval, they would take her to court.
Throughout the entire process, Dominion has said it will only use eminent domain as a last resort.
“I would argue, with absolute conviction, that they used eminent domain since the very first communication,” Averitt says. “They stepped up and said we want to come to your land for a precondemnation survey to decide if we will condemn your land—or take your land. They basically cocked the gun with the very first communication. …So anything Dominion says about this idea that they worked with landowners is garbage.”
Averitt also received a letter the same week as his sister. This one, though, was regarding 100 acres of commercial property he bought four years ago.
Much to his dismay, Dominion said it wanted to run its pipeline through that, too.
What the frack?
When two sides are as passionate about the Atlantic Coast Pipeline as those who love it and those who loathe it, a lot gets lost in translation. Here’s how Dominion spokesperson Aaron Ruby and Southern Environmental Law Center attorney Greg Buppert answer the same five questions.
Is there a need for the Atlantic Coast Pipeline?
Aaron Ruby (above left): Public utilities in Virginia and North Carolina are depending on the Atlantic Coast Pipeline to generate cleaner electricity, provide home heating for a growing population and power new industries like manufacturing. Our region’s existing pipelines are fully tapped. They cannot support a growing economy or the transition to cleaner energy. Pipelines in Hampton Roads, for example, were stretched so thin in recent winters that public utilities had to shut off service to more than 100 industrial facilities just to keep homes warm and hospitals running.
Greg Buppert (above right): No. The Atlantic Coast Pipeline will deliver natural gas to power plants. However, consistent with national trends, more energy-efficient buildings and appliances in Virginia mean the economy can grow without building new power plants. If Virginia doesn’t need new power plants, then we don’t need a new pipeline.
What other options exist?
AR: Because our region’s existing pipelines are fully tapped, public utilities in Virginia and North Carolina decided in 2014 that they needed new pipeline infrastructure to meet the growing needs of their customers. After exploring numerous options from multiple pipeline developers, they chose the Atlantic Coast Pipeline as the most cost-effective option for their customers.
GB: Studies confirm that existing pipelines have space to move gas to Virginia and North Carolina. But Dominion won’t reap the same profits if it uses existing pipelines instead of building its own. FERC—the federal agency charged with reviewing natural gas pipeline projects—has not meaningfully evaluated whether existing pipelines are a less costly, less destructive alternative to the Atlantic Coast Pipeline.
Will the Atlantic Coast Pipeline be safe?
AR: Public safety is our top priority, and we’re taking every precaution to make sure the pipeline operates safely. Before the pipeline goes into service, we will inspect every weld with X-ray equipment and pressure test the entire pipeline with water to make sure it’s totally secure. Once in service, we will monitor the pipeline 24 hours a day, seven days a week from our gas control center, where operators can remotely shut off individual sections and take immediate action if they find any abnormal conditions. The pipeline will be regularly monitored by aerial and foot patrols, and the interior will be periodically inspected with robotic devices that will allow us to find and fix any damage before it’s a risk to public safety. These overlapping layers of protection are the reason underground natural gas pipelines are the safest form of energy transportation in the U.S.
GB: Landowners all along the route are rightly concerned about pipeline safety. When a high-pressure transmission pipe ruptures, it can produce an intense, large fireball beyond a local fire department’s ability to control. Dominion’s decision to go through the steep, landslide prone mountains of western Virginia only exacerbates these concerns.
Do the majority of people support or oppose the Atlantic Coast Pipeline?
AR: There are many diverse views about the pipeline, but it’s clear the majority of Virginians support the project and want to see it built. Most Virginians want cleaner electricity, lower energy costs and a growing economy, and they understand that it takes new infrastructure to make that possible. That’s why more than 25 local governments along the route have supported the project, and why public opinion polls consistently show 2-to-1 support among all Virginians.
GB: Opposition to the Atlantic Coast Pipeline continues to grow as citizens grasp the corporate self-dealing driving this project. The McAuliffe administration embraced the project in 2014 without having all the information needed to understand its environmental damage and its cost to utility customers. It’s now up to the governor and DEQ to ensure that Virginians are protected from this unnecessary project.
What will be its biggest effect?
AR: First and foremost, this pipeline is going to provide cleaner electricity and affordable home heating to millions of Virginians. Because of our company’s transition from coal to cleaner-burning natural gas and the billions of dollars we’re investing in new solar projects, our customers could see their carbon footprint shrink by 25 percent over the next eight years. We are making historic progress in reducing our environmental footprint, and it’s projects like the Atlantic Coast Pipeline that make it possible.
GB: Renewable energy is poised to transform how we get and distribute energy in Virginia. The cost of solar technologies drops each year, unlike coal and gas, and we are a few years away from affordable battery storage systems. The Atlantic Coast Pipeline is a $6 billion investment in gas that will undermine Virginia’s transition to clean renewable energy, possibly for decades.
In fall 2013, Averitt, along with his father and wife, bought the large plot of land across from Bold Rock Hard Cider in Nelson County for a passion project. On the land that runs from Spruce Creek, down to Horizons Village and back, they hoped to build a five-star boutique resort similar to Big Sur’s Post Ranch Inn or Meadowood in Napa Valley. The $35 million project was to be called Spruce Creek Resort and Market.
Internationally renowned for its ability to combine built and natural landscapes, Charlottesville-headquared architecture firm Nelson Byrd Woltz was in on the plan, too.
“We hired them because that was such a perfect fit for what we wanted to do,” Averitt says. “We wanted to build a place that felt like it had always been there. To do that in real estate development is hard. You can’t go in and bulldoze and start from scratch.”
The team configured a design plan and began doing economic estimates and recruiting investors. When the pipeline notice showed up in the mail, Averitt says he didn’t think Dominion would actually choose that route, and he decided to proceed with his resort plans. They applied for and received special-use permits from Nelson County, and the next step, he says, was to spend between $1 million and $2 million on true engineering, such as stormwater runoff and landscaping plans.
“All the engineers and investors and other people we were going to work with said we can’t put a couple million dollars into something that could be eviscerated by the pipeline,” Averitt says. “So we’ve been on hold ever since—and fighting like hell.”
Dominion, however, has said the Atlantic Coast Pipeline won’t affect Averitt’s plans to build a secluded boutique resort in the wilderness. And FERC agrees.
“They said they believe the two things can coexist,” Averitt says. “That we can build our dream project on this land after they clear-cut five and a half acres, level the ground with thousands of trees gone and reshape the land. That it’s still then compatible with a boutique five-star resort is, of course, absurd.”
The Averitts are currently working with appraisers and eminent domain counsel for the worst-case scenario of loss of property value.
“But value is not what we want to fight about,” Averitt says. “We believe this is an absolute unconstitutional taking and abuse of eminent domain.”
To take the value of somebody’s land from a private company—in his case Rockfish Valley Investments LLC—and give it to another private shareholder-owned corporation—Dominion—is not what eminent domain was designed for, according to Averitt. It was designed for the government to transfer land value or assets in a case where the public needs it for public use.
“Eminent domain is an extreme power, and with it comes extreme responsibility to ensure that land is never taken from a landowner unless the public needs the land and there is no other practical means to meet the need,” he says, and adds that this has recently been abused by claims that the public “benefits” of the pipeline, like lower energy bills or creating jobs or new tax revenue, are good enough reasons.
The line should be drawn any time the power of the state is used to take from any individual or business and give the value of the taking to another individual or business, he says.
“So any time you transfer that asset to anything other than a city, county, state or federal government entity, in my opinion, it’s a violation of the constitution,” Averitt says. “And we’re going to sue over that.”
In a blue and tan plaid button-down shirt and jeans, Averitt jumps in his gold Toyota 4Runner with a yellow “don’t tread on my property rights” bumper sticker on the back, with the same coiled black snake featured on the historic Gadsden flag. With one hand on the wheel, as the vehicle bounces its way down rocky roads to his commercial property, Averitt uses his other hand to trace the pipeline’s route with his index finger across brightly illustrated site plans.
If approved, the ACP will traverse Spruce Creek, the waterbody Averitt would like to name the resort after, and steamroll through plans he’s made for interconnected tree houses and a luxury spa.
Averitt says his project would create more than three times the permanent jobs of the entire 600-mile pipeline. Although Dominion projects that the ACP will create 17,000 jobs, Averitt says that number is inflated, with some of those jobs being for pipeline contractors from Texas, Oklahoma and West Virginia.
“They’re going to come in, they’re going to build along a whole bunch of areas for about 18 months if Dominion’s right, and then they’re going to go away and there’s no more than 40 permanent jobs on the entire 600-mile route,” he says. Spruce Creek Resort and Market would have about 125 permanent jobs plus additional seasonal opportunities for employment.
Dominion, however, projects more than 2,000 permanent operational jobs. In 2014, public utilities in Virginia and North Carolina decided a new pipeline was needed to meet customer demands. They chose Dominion and Duke Energy’s proposed ACP as the most cost-effective option, which will replace coal plants with cleaner burning natural gas and provide electricity and heating to “millions” of homes, says Dominion spokesperson Aaron Ruby, who has been defending it ever since.
Almost immediately, opposition emerged from people who say the natural gas industry is declining due to cleaner methods. Some studies show that the state’s 2,200 miles of existing pipelines have the capacity to move more gas to Virginia and North Carolina, according to Southern Environmental Law Center attorney Greg Buppert.
And while pipeline opponents argue that their rights of way could be used to house the ACP, thus nixing the need for a new route, Ruby says it doesn’t quite work that way.
Back in Nelson County, Averitt stops the 4Runner and crunches his way to the creek. He stands between two trees marked with orange ties that signal the route for the pipeline. His face is hard.
“We’re going to fight. We’re in this all the way to the end, and we’ll go to the Supreme Court if we can find standing and can’t win before that,” he says. “They won’t cut a tree down on our property before they take us away in handcuffs, because at some point, you have to say, as a citizen, ‘I won’t stand for this.’ This is our Boston Tea Party.”
Neighborhood watch
Just a few miles away in the Fortune’s Point neighborhood at the top of Wintergreen, David and Nancy Schwiesow are fighting their own battle.
“It’s beautiful here—peaceful, quiet,” says David as he sits on the ledge of his living room fireplace. Floor-to-ceiling glass windows reveal expansive mountain views that look as though they were peeled off a canvas. “Quality of life is pretty close to perfect here.”
But there’s a chance it won’t be for long, he says, if Dominion runs the Atlantic Coast Pipeline through four of the six parcels in Fortune’s Point.
The company plans to clear a 300-foot-wide-by-300-foot-long space directly across from Wintergreen’s only entrance. There, they will drill about 5,000 feet through the mountain, which will go under the Blue Ridge Parkway and into Augusta County, according to the Schwiesows.
In Fortune’s Point, the ACP’s proposed route slices through the center of the first and second parcels, narrowly misses the Schwiesow’s cul-de-sac and curves back through two of their neighbors’ properties—one of them being Friends of Wintergreen Chairman Jonathan Ansell.
FOW is a citizen group that doesn’t oppose the ACP, but has proposed four routes members say will be much less destructive.
David, a FOW founder, drives along the pipeline’s route, pointing out that parcels one and two will practically be destroyed, and their owners have said they will no longer be able to build on them. He pauses to admire three neighborhood deer before driving to the entrance of Ansell’s home—one of the 10 “most valuable properties in Nelson,” David says.
Ansell’s home is for sale, but no one’s biting, David says.
“People aren’t buying houses that are going near the pipeline,” says Nancy, who has worked in real estate for 35 years. “If I had a client that was considering house A and house B, with everything else being equal, they’re not going to buy a house that’s near the pipeline.”
Adds David, “If we hadn’t built here, we wouldn’t build here.”
“Not in our wildest dreams,” says his wife.
Nancy and David Schwiesow live in Wintergreen’s Fortune’s Point neighborhood, where four of six parcels could be sliced by the ACP. It could also cross the resort’s single entrance, leaving them trapped if the pipeline blows. Photo by Sanjay Suchak
One of the main concerns for the Schwiesows is safety. Because the pipeline, if approved, will pass directly across the sole entrance and exit to the resort. During peak times, there are 10,000 people on the mountain, which would create a potentially catastrophic safety risk if an explosion or gas leak occurs, they say. Emergency medical providers wouldn’t be able to reach them.
The blast zone—or the potential impact radius—for the 42-inch pipeline is 1,100 feet on either side.
“Imagine 1,100 feet up the mountain,” David says. “A solid wall of fire. …You can’t stop it. We’ll be trapped up here. It would literally be the single biggest catastrophe in Virginia’s history.”
A 20-inch gas transmission line exploded in Sissonville, West Virginia, in December 2012, shooting flames almost 100 feet into the air, destroying four residences, damaging five others and obliterating an 800-foot section of Interstate 77.
“The fire melted the interstate and it looked like lava, just boiling,” said Kanawha County Commission President Kent Carper to MetroNews on the accident’s one-year anniversary.
“We have never had anything like that on any of our pipelines,” says Ruby, whose company has built more than 15,000 miles of natural gas transmission pipelines in the country. “A catastrophic failure of that nature is extremely rare.”
From 1994-2013 in the U.S., the Pipeline and Hazardous Materials Safety Administration’s pipeline data records show 855 serious incidents with gas distribution and transmission, which resulted in 319 fatalities, 1,254 injuries and more than a $1 billion in property damage.
Risks and benefits
It’s been 48 years since 124 people were killed in Nelson County during Hurricane Camille. The most impacted area at the time was Davis Creek, on the southern end of Roberts Mountain. Now the ridge is full of debris flow from the natural disaster and other subsequent landslides. Dominion would like to run its pipeline through there, too.
Ernie Reed, the president of environmental group Wild Virginia and an active member of Friends of Nelson, lives near the foot of Roberts Mountain and has been vocal through the years-long fight against the ACP.
The mountain, near the 166th mile of the proposed route, is one of the tallest peaks in the area, a place where environmental groups have studied the potential effects of the pipeline. It’s an extremely narrow ridge, and he says between 20 and 60 feet of mountaintop will need to be decapitated to make a surface flat enough for the pipeline.
“You can imagine the number of steep slopes and waterbody crossings and the potential for massive erosion,” Reed says, adding that the site is already sensitive from the havoc wreaked by Camille.
He compares this to a recent example of Hurricane Harvey’s effect on Houston, Texas. There, the water runs straight to the roads.
“Well, if you have a 10-foot ditch that’s been filled in with a pipeline and it crosses the steepest areas across the Allegheny Mountains, the Allegheny Plateau, the Blue Ridge Mountains, Reeds Gap, the Blue Ridge Parkway and then back down through here all the way to the James River, all that water will just scour out that entire pipeline route,” Reed says. “And what’s in the middle of that pipeline route is a natural gas pipeline, so you look at what damage happened in Nelson County from Hurricane Camille and add something that’s flammable and toxic on top of that, and this is a recipe for disaster at least the size of what’s going on in Houston, probably even worse.”
Birds chirp and bugs buzz as Reed sits on the porch of his remote log cabin in Nelson County. He says his 120-acre slice of wilderness was compromised by one of the pipeline’s previously proposed paths, but because more than 300 route adjustments have been made, his land is no longer directly affected. He is, however, still in the blast zone.
But the man who has done conservation work for 30 years says his fight is about more than that.
“My interest is in protecting the national forests and, of course, those belong to everybody,” Reed says. “They provide resource values and amenities you just can’t get anywhere else.”
Because the ACP is proposed in a national forest, its approval will require 14 amendments of existing plan standards that impact soil, wetlands, old growth, the Appalachian Trail and endangered species. The pipeline would destroy 214 acres of national forests and eliminate almost 5,000 acres of interior forest habitat, according to Wild Virginia. It would also cross about two and a half miles of porous and unstable karst areas on U.S. Forest Service land.
Reed says bisecting one of the most contiguous areas of the George Washington National Forest with a 125-foot clear-cut required for the pipeline is something that can’t be mitigated. The forest will never be able to repair itself.
“The idea that the national forest could be destroyed is a death by 1,000 cuts,” he says. “You take one massive cut right through the middle of it and the forest will never be the same, and will never recover to any extent in our lifetime and maybe ever.”
FERC has also said that the ACP could negatively impact seven endangered species along the route: the Indiana bat, northern long-eared bat, Roanoke logperch, Madison Cave isopod, clubshell mussel, running buffalo clover and small whorled pogonia.
Adds Reed, “It’s unfathomable that federal agencies and state agencies would consider these types of impacts insignificant.”
Plenty of people have voiced support for the project, including Virginia Governor Terry McAuliffe, but environmentalist Reed, in his Wild Virginia T-shirt, says anyone who looks at it objectively can see that “it’s the wrong thing at the wrong place at the wrong time, and no good can come from it.”
“The number of people that support the pipeline are totally limited to the people who benefit either financially or ideologically from it,” Reed says. “I have not met anybody in three years that, when they understand the circumstances, doesn’t question it.”
But lifelong Nelson resident and former chairman of the Nelson County Chamber of Commerce Carlton Ballowe, who lives in Faber on one of the ACP’s previously proposed routes, doesn’t fit that bill.
He supports the pipeline because it’ll bring revenue to the county, spur statewide economic development and make the country less dependent on foreign sources of energy, he says.
“When it was going across my property, I considered it a win for everybody but me,” Ballowe says. “I wouldn’t be so selfish as to deny the greater good in my own self interest.”
And while local pipeline opponents may be the vocal majority, Ballowe says some ACP champions in the community are afraid to express their opinions.
“I know one [business owner] that was supportive of the pipeline and some [opponents] found out that he was and they worked very hard to try to negatively impact his business just because of his support for the pipeline,” Ballowe says.
Dominion’s Ruby says a number of people along the route support the project, but aren’t comfortable speaking to the media after being subjected to hostility.
“There is a concerted effort by pipeline opponents to harass and intimidate people in the community who speak out in favor of the pipeline,” he says. “Supporters have had anti-pipeline signs posted on their property. They’ve been accosted at the grocery store and at their places of business.”
One group of pipeline opponents, however, wants to focus on the positive.
“A lot of folks don’t want to get drawn into protesting, or get wound up about things or be frustrated with Dominion,” says Cville Rising co-founder Lee White, whose environmental group formed at the end of last year. “Our focus is to try to have more of a positive, forward-looking perspective.”
In an anti-pipeline mission called Walking the Line, about 30 protesters hiked 150 miles of the ACP’s proposed route through Virginia. Courtesy Lee White
For 16 days and 150 miles, a core group of about five people organized by White hiked the ACP’s proposed route from Highland County through Bath, Augusta and Nelson counties, eventually ending at the site of what could be the pipeline’s highly controversial compressor station in Buckingham County. For this outing, called Walking the Line, hikers joined and dropped off along the way, with about 30 pipeline opponents marching together at one point.
“The vision was that of a celebratory, peaceful walk of resistance, to share the stories of the communities and the beauty of the landscape that would be impacted,” White says, and adds that one of the most powerful moments was trudging up the Deerfield Valley, located between Bath and Augusta counties, for three days, walking 10 miles a day.
“When you walk up those mountains, you can’t even comprehend how they could physically build these pipelines,” White says. The proposed ACP will swing across Deerfield Valley for 30 miles. “That was one of the most impactful parts because you get a good sense of how the valley will be decimated. There will be nothing there.”
The group had a theme song along the way, an old bluegrass tune called “Sow It on the Mountain”:
“Sow it on the mountain / reap it in the valley / because you’re gonna reap just what you sow.
If you’ve been a gambler / you’d better quit your gambling / ’cause you’re gonna reap just what you sow.
If you’ve been a tattler / you’d better quit your tattling / ’cause you’re gonna reap just what you sow.
If you’ve been a liar / you better quit your lying / ’cause you’re gonna reap just what you sow.”
Greg Buppert, along with other attorneys at the Southern Environmental Law
Center, questions the public necessity for the Atlantic Coast Pipeline. Amy Jackson
A local legal group will file a last-minute opinion that there isn’t enough market demand for a $6 billion pipeline. The Federal Energy Regulatory Commission, which will eventually approve or deny plans for the Atlantic Coast Pipeline, is accepting comments for its draft environmental impact statement until April 6.
“I think the bottom line here is that Dominion is rushing forward with a project that has real questions about its public necessity,” says Southern Environmental Law Center attorney Greg Buppert. “FERC is also not looking at the issue.”
Dominion Energy and Duke Energy are the major companies backing the pipeline.
“Once this pipeline is in the ground, ratepayers will be stuck with it,” says Buppert. “Landowners will have lost their property to Dominion, and, at that point, it’s going to be too late to say this project wasn’t really needed. The problem is no one is looking; no regulators are asking this question right now.”
Attorneys with the SELC used electricity forecasting models for the next 10 years from PJM Interconnection, the group that controls the electricity grid throughout the state, to assess the current and future need for more electricity.
“The data from PJM is striking because that’s not our analysis, it’s analysis from the grid manager who has a vested interest in making sure the grid is working and understanding what the demand for electricity is going to be,” Buppert says. “It estimates projections that are a lot less than Dominion’s.”
For instance, SELC attorney Will Cleveland compares Dominion and PJM’s projections for 2027. While the former has the summer peak demand estimated at 24,016 megawatts, the latter is estimating it at 20,501 megawatts—a difference of 3,515 megawatts.
“To put that into perspective, the massive natural gas power plant that Dominion is currently building [in Greensville County] is about 1,600 megawatts in size,” he says, so the gap between the two forecasts is a little more than two additional power plants. “So, if PJM’s load forecasts are more accurate, which we think they are, that’s two new power plants Virginia doesn’t need.”
The plant in Greensville will cost state ratepayers about $1.5 billion.
Dan Genest, a spokesperson with Dominion Virginia Power, which will be a customer of the ACP, says there are several reasons for the discrepancy between his company’s forecasts and PJM’s.
“In its forecasting model, PJM fails to take into account several factors that drive up demand that are unique to Virginia,” he says, including data centers, major electric appliance saturation—or exactly how many refrigerators, stoves, water heaters and other appliances are in Virginia homes and how much energy they use—and a large presence of federal, state and local government facilities such as military bases and offices.
Genest also points to PJM’s treatment of solar energy facilities, which have a negative impact and reduce its overall load forecast. Though those at Dominion say renewable energy is important, it is often undependable, and they can’t factor it into their projections, Genest says.
“So at nighttime or when it is cloudy, the customer still expects his lights will work even though his solar system is not [working],” Genest says. “Let’s say a customer uses 1,000 kilowatts of electricity per month and he generates about 100 kilowatts per month from rooftop solar. We still need to have enough electricity to cover that customer’s full needs when his solar is not operating.”
In February 2015, ICF International, an independent consulting service based in Fairfax, released a study showing the economic impacts of the Atlantic Coast Pipeline, which projected a 165 percent increase in demand for natural gas between 2010 and 2035—in part because utilities are closing a number of coal-burning plants to make way for cleaner-burning natural gas.
Regional pipelines are already operating at full capacity, Dominion says, and though some expansions are planned, they are already fully subscribed in terms of customers.
But pipeline opponents still maintain there’s a better way to meet Virginia’s energy needs.
“For better or for worse, Dominion is doubling down on gas for the next 80 years,” says Buppert. With renewable energy systems gaining momentum and their prices continuing to drop, he says, “This is the wrong time to make a massive investment in gas.”
Wastewater will be discharged from the Bremo Power Plant in Fluvanna County. Photo by Robert Llewellyn
Charlottesville’s Southern Environmental Law Center, representing the James River Association, reached a settlement with Dominion on the utility’s plans to dump coal ash wastewater from the Bremo Power Station in Fluvanna. A local riverkeeper says new standards will protect human and aquatic life.
The deal between the groups, which will be enforceable by law, requires Dominion to go beyond the Department of Environmental Quality’s expectations, enhance the treatment of the pond water and to monitor the river’s fish. The SELC, in turn, will not appeal the wastewater permit issued to the Bremo Power Station.
“We had to act,” says Pat Calvert, a James River Association riverkeeper who is trained to monitor river water for pollution. The DEQ had already issued Dominion a permit to dump the wastewater and a crew is currently setting up the required systems at the power plant. “It was coming down to the wire for us.”
While Dominion’s permit allows a high concentration of metals in coal ash—arsenic, chromium, lead and cadmium—to be dumped, Calvert says the SELC was able to create a plan that wouldn’t require changing the permit, but would obligate the power company to follow guidelines set in an engineering plan and install better technology.
According to the Clean Water Act, companies treating water must use the best available technology.
“It’s DEQ’s responsibility to ensure protective permits and that didn’t happen,” Calvert says, adding that the Potomac Riverkeeper Network, which is also represented by the SELC, is still working to reach a similar settlement with Dominion for the power plant at Possum Point.
“DEQ’s weak permits compel us to fight for strong, enforceable limits that require Dominion to treat its coal ash waste with the best available technology,” SELC senior attorney Greg Buppert said in a statement. “We cannot only rely on Dominion to police itself at Possum Point. That means seeking a court order for the Potomac River to require the removal of enough arsenic and toxic metals to protect the river ecology and public health.”
The written statement says Dominion’s own records show that coal ash pits at Possum Point have leaked toxins into the groundwater and public waterways for over 30 years.
But at the James, Calvert says locals can rest easy knowing that “people who fish, swim and play in the water are going to be protected.”
“We are pleased that this agreement with the James River Association allows us to move ahead with this important environmental project,” said Pam Faggert, chief environmental officer for Dominion in a joint statement between both groups that was released after the settlement. “The James River Association has helped us create a plan that reflects the commitment of both of our organizations to maintain the quality of the James River.”
Wastewater will be discharged from the Bremo Power Plant in Fluvanna County. Photo by Robert Llewellyn
The State Water Control Board officially approved Dominion’s permit to dump wastewater into two Virginia rivers January 14.
The wastewater will come from coal ash pits at the Bremo Power Station on the James River and the Possum Point plant on the Potomac River. The board took two separate votes, tallying 5-1 for each permit.
In a previous C-VILLE report about the Bremo Power Station in Fluvanna County, Dominion spokesperson Dan Genest said as soon as the permit was issued, the company would start building two treatment facilities on the property. All wastewater will be treated before it’s discharged, he said.
The Department of Environmental Quality had previously issued the permit, but allowed public comment until December 14.
“We are disappointed that the board voted to approve a lax permit that fails to protect the health of the James River,” says Brad McLane, a senior attorney at the Southern Environmental Law Center in Charlottesville. “We are seriously considering an appeal of the permit.”
