The Atlantic Coast Pipeline, LLC told the Federal Energy Regulatory Commission (FERC) on May 22 that it should be able to proceed with the pipeline project notwithstanding a May 15 Order from the Fourth Circuit Court of Appeals vacating the biological opinion for the project under provision Endangered Species Act. In its Order, the Court said the take limits for endangered species set by the U.S. Fish and Wildlife Service “are so indeterminate that they undermine the Incidental Take Statement’s enforcement and monitoring function under the Endangered Species Act.” At this writing, the Fourth Circuit has not yet published an opinion setting forth its reasons for the May 15 Order, nor has FERC passed judgment on the ACP proposal for how it would proceed with construction.
Also, on May 22, the Southern Environmental Law Center and Appalachian Mountain Advocates filed with FERC, on behalf of its respective client groups (most of whom are ABRA members), a letter setting forth the reasons why the agency should not allow construction of the ACP to proceed. Noting that the Fourth Circuit has yet to issue an opinion explaining the parameters of its May 15 decision, the letter states:
“FERC also should not assume that it knows what remedy the court will order, nor FWS’s response to it. For instance, FERC cannot know if FWS will have to consider additional habitat areas not assessed in the original biological opinion and incidental take statement in order to comply with the court’s opinion. FERC puts itself at considerable risk by assuming it or Atlantic can predict what the court will order and how that will play out on the ground.
“Allowing pipeline construction to proceed outside areas Atlantic identified as used by endangered species could dangerously lock FERC and Atlantic into a pipeline route that FWS’s analysis may require it to change. That is part of the reason the ESA prohibits “any irreversible or irretrievable commitment of resources” during consultation – to ensure the action agency does not wed itself to a proposal that it ultimately cannot complete. FERC should not assume that it is going to be allowed to take species or impact habitat until FWS shows it can issue a valid biological opinion and incidental take statement for this project. As it stands today, this project could not be completed as planned.”