The Accokeek, Mattawoman, Piscataway Creeks Communities Council has responded to claims by Dominion Energy Cove Point that the council should not be allowed to join a federal lawsuit that could determine whether construction of a natural gas compressor station is allowed to proceed in Bryans Road.
Attorney Sean R. Day wrote that AMP Creeks Council and nine local residents are seeking to join the lawsuit as co-defendants alongside the Charles County Government, Board of Commissioners and Board of Appeals to prevent injury to their “personal health, safety, property values, business interests and quality of life.”
“The risks they face are concrete and very particular to them as neighboring landowners,” Day argued.
When the council and the residents petitioned in May to be allowed to join the lawsuit as co-defendants, Day argued that neither the county nor the board of appeals represented the interests of the environmental advocacy organization or the residents.
However, Dominion attorneys Arthur E. Schmalz and Harry M. Johnson III countered that the council and the residents did not have a legal stake in the outcome of the case because a decision in favor of Dominion would not cause them “concrete and particularized harm.”
Originally, four residents sought to join AMP Creeks Council as co-defendants. Since then, five additional residents have joined the request.
The properties of the residents seeking to join the suit have conservation easements placed on them to ensure that no structures are built that would disrupt the view from Mount Vernon, across the Potomac River in Virginia.
Mount Vernon and Dominion are in discussions over the former’s concern that the compressor station’s exhaust stacks and steam plumes would be visible from the historic property.
Dominion has stated that it has demonstrated that the stacks will not be visible. Mount Vernon has said that it did not approve the final results of a visibility test that was intended to prove that.
Day alleges that the risks that nearby residents will face from the compressor station include “noise and light pollution, [...] polluted air, drinking and swimming in the at-risk water, and the possibility of fire and explosion that local first responders would be utterly unable to deal with.”
Dominion filed the lawsuit in federal district court in March after the county board of appeals denied its request for a special zoning exception to build the compressor station as part of its $147.3 million Eastern Market Access project, which would upgrade the 88-mile-long Cove Point Pipeline that runs through Charles and Prince George’s counties to the Cove Point terminal in Calvert County.
In the lawsuit, Dominion is arguing that a permit issued by the Federal Energy Regulatory Commission, called a certificate of public convenience and necessity, preempts the county’s zoning authority.
Dominion has said that the purpose of the compressor station is to provide additional gas to residential customers in Prince George’s County and Southern Maryland by Washington Gas Light Company and Mattawoman Energy.
Opponents have argued that the compressor station will be used to increase the flow of gas to the Cove Point natural gas export terminal in Calvert County.
Day argued that when residents of Myersville, Md., sued FERC in 2015 to challenge the issuance of a similar certificate to Dominion for a compressor station there, the court agreed that the residents had a legal stake in the case.
“There is no basis for allowing citizens standing in reviewing the issuance of a FERC permit, but denying them standing in reviewing the preemptive effect of a FERC permit,” Day wrote.
Dominion claimed that AMP Creeks Council and the nine residents are trying to join the suit so that they can delay the construction of the compressor station.
“[They] are not trying to delay the project, which accomplishes nothing; they are trying to stop it,” Day responded.
Dominion had also argued that it would be “futile” to allow the AMP Creeks Council and the residents to join the suit as co-defendants because their arguments were unlikely to prevail in court. Day responded that the decision should be based on whether they had a “legally sufficient claim or defense.”
In anticipation of AMP Creeks Council and the residents being allowed to join the lawsuit as co-defendants, Day has also prepared a point-by-point response to Dominion’s initial complaint, which was filed in March.
In the response, the prospective defendants argued that there had been no “rigorous study” by FERC as part of the granting of the certificate of necessity, and argued that the project “poses a substantial risk and danger to the public” from environmental contamination as well as the risk of fire and explosion.
Day told the Maryland Independent that there is a “soft requirement” that the response to the initial complaint be filed along with the motion to intervene in the case, but federal courts are typically lenient about the timing of the filing.
In addition, Day said, his initial motion to intervene laid out his clients’ case in more detail than the response to the complaint did.
“Given that we had time to do so, we decided to go ahead and get the answer filed just to be safe and cure any technical defect in the motion to intervene,” Day said.
Judge Peter J. Messitte of the U.S. District Court for Maryland has set a date of Monday, Sept. 24, to hear oral arguments in the case.