Atlantic Coast Pipeline Segments Ruled Illegal in Federal Court Case

Federal appeals court invalidates Atlantic Coast Pipeline’s ‘incidental take’ review

From an Article by Robert Zullo, Richmond Times-Dispatch, May 15, 2018

A federal appeals court Tuesday invalidated a key U.S. Fish and Wildlife Service review of the 600-mile Dominion Energy-led Atlantic Coast Pipeline, a decision environmental lawyers who argued the case say should halt construction of the contentious natural gas project.

But Dominion vowed to continue to press forward on the project, asserting Tuesday night that the ruling only covers portions of the pipeline’s proposed route.

A three-judge panel at the U.S. Court of Appeals for the Fourth Circuit sided with pipeline opponents, who argued that the federal review known as an incidental take statement — meant to set limits on killing threatened or endangered species during construction and operation — was so vague as to be unenforceable.

“We conclude, for reasons to be more fully explained in a forthcoming opinion, that the limits set by the agency are so indeterminate that they undermine the incidental take statement’s enforcement and monitoring function under the Endangered Species Act,” the judges wrote in an order Tuesday. “Accordingly, we vacate the Fish and Wildlife Service’s incidental take statement.”

The Southern Environmental Law Center argued the case on behalf of the Sierra Club, the Defenders of Wildlife and the Virginia Wilderness Committee.

“This puts a stop to any work that could threaten rare and endangered species, and that’s much of the pipeline route,” said D.J. Gerken, an attorney with the center who argued the case before Chief Judge Roger Gregory and judges Stephanie Thacker and James Wynn.

The Fourth Circuit is also considering challenges of regulatory approvals of the Mountain Valley Pipeline in southwest Virginia. Two of the judges in Tuesday’s case — Gregory and Thacker — served on panels that heard oral arguments in two such cases last week.

One case asks the appellate court to reverse a State Water Control Board decision to grant a water quality certification to Mountain Valley. The other challenges a right-of-way issued by the U.S. Forest Service for the pipeline to pass through the Jefferson National Forest.

Dominion spokeswoman Jen Kostyniuk said construction will continue on the pipeline as scheduled while the utility reviews the court’s decision. “We will fully comply as required while we continue to construct the project,” Kostyniuk said in a written statement. “Although we disagree with the outcome of the court’s decision, and are evaluating our options, we are committed to working with the agency to address the concerns raised by the court’s order.”

Gavin Shire, a spokesman for the Fish and Wildlife Service, said the agency is “looking at the court’s decision and reviewing next steps.” The agency could request a review by a panel of all Fourth Circuit judges or by the U.S. Supreme Court. Gerken said the service’s review allowed for a “small percent” of some endangered and threatened species to be killed during construction but failed to define what that meant.

“A small percent would never get triggered because nobody knows what it is,” he said. “This is an unnecessary and destructive project. And sending them back to the drawing board is a necessary step to asking those fundamental questions about whether we need it.”

Along the 600-mile route, most of the construction will require clearing a 125-foot right of way, with blasting, trenching and leveling of ridgetops. That works out to 11,775 acres of land, including 6,136 acres of forest.

The project will harm eight threatened or endangered species and “take,” or kill, six protected animal species, including a fish known as the Roanoke logperch, which as of 2007 had just eight surviving populations, all in Virginia and North Carolina.

Also on the list: the Indiana and Northern long-eared bats, both facing severe population declines. Other species include the Madison Cave isopod, a subterranean freshwater crustacean; the rusty patched bumblebee; and the clubshell mussel.

Killing protected species violates the federal Endangered Species Act unless a developer has a valid incidental take statement issued by the Fish and Wildlife Service. The act requires that statement to set “clear, enforceable limits,” the opponents argued, which the service has done in the past for other projects in the same area.

“It declined to set enforceable limits here,” according to court filings. “Instead, FWS erroneously limited take to an undefined ‘small percent’ of an unknown whole — a standard so vague that it effectively grants the pipeline an unlimited license to take protected species, in violation of the Endangered Species Act.”

The Atlantic Coast Pipeline and the Mountain Valley Pipeline have become major flashpoints as a result of the use of eminent domain to wrest easements from uncooperative property owners, the hazards construction poses to mountain springs and streams, the hydraulic fracturing technique that produces the gas, and the issue of fossil-fuel driven climate change.

Critics also question whether there is an actual demand for the gas, since most of the customers contracted for the Atlantic Coast Pipeline gas are subsidiaries of the companies that are investing in the project. In a dissent, a Federal Energy Regulatory Commission commissioner concluded that neither pipeline was in the public interest.

Opponents have attempted to derail the projects at myriad points in the approval process, from the review by FERC and other federal agencies, to state water quality certifications and local permits. Until now, the Atlantic Coast Pipeline has marched steadily toward full construction, with tree-felling and some more substantive work having already begun.

However, the project hit another snag in March, when FERC rejected a request by Dominion and its partners to extend tree-cutting windows intended to protect bats and birds.

And the State Water Control Board has opened up a comment period through May 30 on whether a U.S. Army Corps of Engineers permit is adequate to protect hundreds of Virginia waterways from effects of construction and increased sediment loads.