The past seven days in the life of the Atlantic Coast Pipeline (ACP) project have been as consequential as any week since the project was first proposed four years ago. Below is a rundown of relevant events. Please note: at the end of this article is an action alert.
- Friday, May 11 – The Federal Energy Regulatory Commission (FERC) issued a Notice to Proceed for construction of the ACP in those areas of West Virginia where trees have been felled, excluding the Monongahela National Forest. This was the first authorization of ground-disturbing activity for the project.
- Tuesday, May 15 – The U.S. Court of Appeals Fourth Circuit issued an Order effectively halting construction activity on the ACP on a case brought by Defenders of Wildlife, Sierra Club and the Wilderness Committee. The Southern Environmental Law Center, representing the three organizations, contended that the U.S. Fish and Wildlife Service failed to set clear limits on take as required by the Endangered Species Act (ESA). The ESA defines “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The case had been argued before a three-judge panel of the Fourth Circuit the previous Thursday, May 10. In its Order, the Fourth Circuit stated:
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. Accordingly, we VACATE the Fish and Wildlife Service’s Incidental Take Statement.
- Wednesday, May 15 (11:58 pm) – The Southern Environmental Law Center filed with FERC a letter stating that construction activity on the ACP must be halted. The letter stated:
Because the court vacated the Incidental Take Statement, consultation is not complete, and construction cannot commence as specified by Environmental Condition 54 in the Commission’s Certificate Order for the Atlantic Coast Pipeline. 161 FERC ¶ 61,042 (Oct. 13, 2017). Therefore, the Commission must halt all on-the-ground construction activities and revoke or suspend all notices to proceed for the Atlantic Coast Pipeline until consultation has been reinitiated and completed and the defects of the Incidental Take Statement are remedied.
The vacatur of the Incidental Take Statement also halts implementation of the U.S. Forest Service’s Record of Decision and Special Use Permit for the Atlantic Coast Pipeline which are contingent upon compliance with a valid biological opinion and incidental take statement. U.S. Forest Service, Record of Decision, Atlantic Coast Pipeline at 13 (Nov. 2017). Permits issued by the U.S. Army Corps of Engineers likewise must also be supported by a valid biological opinion and incidental take statement. 16 U.S.C. § 1536(a). Therefore, the Forest Service and Corps of Engineers must halt all on the-ground pipeline activities under these permits until consultation has been reinitiated and completed and the defects of the Incidental Take Statement are remedied.
- Wednesday, May 16 (8:59 am) – Dominion Energy issued the following statement:
We remain confident in the project approvals and the Atlantic Coast Pipeline will continue to move forward with construction as scheduled. This decision only impacts activities directly covered by the Incidental Take Statement in certain defined areas along the route. We will fully comply as required while we continue to construct the project. 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.
- Wednesday, May 16 – FERC posted late in the day on its docket a letter to Dominion Energy Transmission, Inc., managing partner for the ACP project, a letter acknowledging the Fourth Circuit decision, as follows:
The Court indicated it would more fully explain its reasoning in a forthcoming opinion. As a result, Atlantic Coast Pipeline, LLC (Atlantic) has informed Commission staff that it will not proceed with construction in any areas where such activities may affect listed species covered by the FWS’ Incidental Take Statement for the project. Atlantic should, within 5 days, file documentation that specifically identifies by milepost/stationing the habitat areas that will be avoided with respect to each of the listed species and confirms the company’s commitment to avoid construction in these areas.
Numerous questions arise from the events of the past week, most prominent among them:
- When will the Fourth Circuit issue its opinion and what will it say?
- What action will FERC take after receiving early next week the requested documentation from the ACP, LLC?
- What action will the Fish & Wildlife Service in response to the Fourth Circuit decision?
When answers to these and other questions are available, persons on the ABRA Update mailing list will be notified by email. Given that this paragraph is written on Friday, a day when so many consequential developments seem to occur regarding the ACP, you may hear from us sooner rather than later.
ACTION ALERT: We contend that construction activity on the ACP is not authorized as a result of the of the Fourth Circuit’s decision in the Fish & Wildlife Service case. Persons who observe any construction activity are urged to report it via ABRA’s Compliance Surveillance Initiative program. Email relevant information to (photos are welcome) or call the CSI hotline: 877-GO2ABRA (877-462-2271). Thanks!