Two American Indian tribes in North Carolina are among the groups seeking to join a court challenge to federal regulators' decision to approve the Atlantic Coast Pipeline, a $5 billion project proposed by utility giants Dominion and Duke Energy. The 600-mile pipeline would carry fracked gas from West Virginia through Virginia to eastern North Carolina, which is home to many Native Americans.
On Feb. 23, the state-recognized Haliwa-Saponi and Lumbee tribes along with 17 public-interest groups led by climate watchdog NC WARN formally asked to join an appeal of the Federal Energy Regulatory Commission's (FERC) approval of the pipeline issued last fall. The appeal was originally filed in January with the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, by the Southern Environmental Law Center and Appalachian Mountain Advocates on behalf of 11 conservation nonprofits.
The tribes' move came one day after the Lumbee Tribal Council held an emergency meeting where it unanimously passed a resolution calling on FERC to formally consult with it about the pipeline's impacts.
"North Carolina tribes have been left out of the Environmental Impact Study," said Jan Lowery, chair of the Lumbee Tribe's Health Committee. "The study did not include the concerns of tribes, and the goal is to get a structured consultation."
The Lumbees' resolution noted the tribe's concerns about how the pipeline could affect unmarked ancestral burial grounds, sacred places, and the environment. It also pointed out that the National Congress of American Indians — the oldest and largest national organization of American Indian and Alaskan Native tribal governments — passed a resolution calling on all regulatory agencies to engage in meaningful consultation with the Indian tribal nations that would be affected by the proposed pipeline's construction and operation.
The Atlantic Coast Pipeline would pass through the territories of four tribes in North Carolina. In addition to the Lumbee and Haliwa-Saponi, Coharie and Meherrin communities would also be affected. In a letter that appeared last year in Science magazine, N.C. State University professor Ryan Emanuel documented the flaws in FERC's environmental justice analysis that obscured the disproportionate impact the project would have on Native Americans:
The nearly 30,000 Native Americans who live within [1 mile] of the proposed pipeline make up 13.2% of the impacted population in North Carolina, where only 1.2% of the people is Native American. Yet, the [draft environmental impact statement] reported that fewer than half of the areas along the proposed route had minority populations higher than county-level baseline proportions. The discrepancy stems from the DEIS's failure to account for large differences in population size in the studied areas; large minority populations in some places were masked by much smaller nonminority populations elsewhere. The analysis also failed to account for large differences in baseline demographics among counties, where minority populations range from less than 1% to nearly 70%. These large differences prevented meaningful comparisons among areas in different counties. Together, these flaws rendered FERC's analysis incapable of detecting large Native American populations along the route, leading to false conclusions about the project's impacts.
'We want to be heard'
Similar concerns that FERC's environmental assessment ignored Native Americans were raised in recent years over the Dakota Access Pipeline, a project of Texas-based Energy Transfer Partners that carries crude shale oil from North Dakota to Illinois, and sparked mass protests near the Standing Rock Indian Reservation. While the Obama administration halted construction in order to prepare a more comprehensive environmental assessment, the Trump administration reversed that decision. The pipeline began operating commercially last June.
Atlantic Coast Pipeline opponents are shifting their focus back to the federal government following North Carolina's January decision to grant a water quality permit to the project. That decision is mired in controversy because a $58 million mitigation fund financed by the pipeline's developers was announced the same day the permit was granted. Republicans state lawmakers and some pipeline opponents have accused Gov. Roy Cooper (D) — who recently hired as his legislative director a former lobbyist for Dominion and the American Petroleum Institute — of engaging in quid-pro-quo politics with the fund's creation.
Many of the groups seeking to join the lawsuit at the 4th Circuit Court of Appeals are part of an alliance that filed a rehearing request with FERC following the agency's October approval of the project. The request said FERC made a mockery of the legal process by allowing Dominion and Duke to supplement their application numerous times after the comment period ended, leaving the public with no avenue to respond to the companies' claims.
In addition, the groups' request charged FERC with cutting corners on assessing the need for the pipeline, its cumulative health impacts, and environmental justice implications. The pipeline will also have a disproportionate effect on African-American communities in eastern North Carolina, as was documented in a 2017 report by the NAACP and Clean Air Task Force.
Furthermore, the request pointed to FERC's failure to consider the pipeline's climate effects. Pipelines are a major source of methane, a potent greenhouse gas pollutant. The agency's neglect to consider the climate when evaluating pipeline proposals is in the spotlight following a federal court's ruling last year that has put construction of the Sabal Trail Pipeline in Florida — another project involving Duke Energy — in question.
But rather than grant or deny the request for a rehearing within the allotted 30 days, FERC issued what's known as a "tolling order," which allows it to delay the decision indefinitely while construction is allowed to proceed.
"FERC has this habit of just delaying stuff," said John Runkle, an attorney for NC WARN who filed the rehearing request as well as the motion to intervene in the federal lawsuit. "We want to make sure we will be heard."